Regulations for the Gulf Coast Restoration Trust Fund, 28563-28566 [2018-13227]
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Federal Register / Vol. 83, No. 119 / Wednesday, June 20, 2018 / Proposed Rules
General information and press
inquiries: Mr. Frank Meilinger, OSHA
Office of Communications; telephone:
(202) 693–1999; email:
Meilinger.Francis2@dol.gov.
Technical inquiries: Mr. Vernon
Preston, Directorate of Construction;
telephone: (202) 693–2020; fax: (202)
693–1689; email: preston.vernon@
dol.gov.
Copies of this Federal Register notice
and news releases: Electronic copies of
these documents are available at
OSHA’s web page at https://
www.osha.gov.
Signed at Washington, DC, on June 15,
2018.
Loren Sweatt,
Deputy Assistant Secretary of Labor for
Occupational Safety and Health.
[FR Doc. 2018–13280 Filed 6–15–18; 4:15 pm]
BILLING CODE 4510–26–P
DEPARTMENT OF THE TREASURY
31 CFR Part 34
RIN 1505–AC55
Regulations for the Gulf Coast
Restoration Trust Fund
I. Extension of the Comment Period
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SUPPLEMENTARY INFORMATION:
AGENCY:
On May 21, 2018, OSHA published a
NPRM titled ‘‘Cranes and Derricks in
Construction: Operator Qualification’’
(83 FR 23534). In the NPRM, OSHA
proposed to amend 29 CFR part 1926,
subpart CC, to revise sections that
address crane operator training,
certification/licensing, and competency.
The purpose of these amendments are
to: require comprehensive training of
operators; remove certification by
capacity from certification
requirements; clarify and permanently
extend the employer duty to evaluate
potential operators for their ability to
safely operate equipment covered by
subpart CC; and require documentation
of that evaluation.
The public comment period for this
NPRM was to conclude on June 20,
2018, 30 days after publication of the
NPRM. However, OSHA received
requests from stakeholders for an
extension of the public comment period
(OSHA–2007–0066–0683 and –0693).
These requests state that, given the
complexity and significance of this
NPRM, more time for submitting
comments was necessary to gather
information from members of the
organizations and develop meaningful
comments.
OSHA agrees to an extension and
believes that a 15 day extension of the
public comment period is a sufficient
amount of time to address these
concerns in light of the short period of
time remaining before the deadline for
crane operator certification. Therefore,
the public comment period will now
conclude July 5, 2018. Comments can be
submitted by following the procedures
listed under ADDRESSES section of this
notice.
List of Subjects in 29 CFR Part 1926
Certification, Construction industry,
Cranes, Derricks, Occupational safety
and health, Qualification, Safety,
Training.
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Office of the Fiscal Assistant
Secretary, Treasury.
ACTION: Notice of proposed rulemaking.
The Department of the
Treasury (Treasury) proposes to amend
its rules to revise the method by which
the statutory three percent limitation on
administrative costs (referred to
throughout this notice of proposed
rulemaking (NPRM) as the ‘‘three
percent administrative cost cap’’) is
applied under the Direct Component,
Comprehensive Plan Component, and
Spill Impact Component under the
Resources and Ecosystem Sustainability,
Tourist Opportunities, and Revived
Economies of the Gulf Coast States Act
of 2012 (RESTORE Act or Act). This
proposed amendment will help ensure
that the Gulf Coast states and localities
have the necessary funding to efficiently
and effectively oversee and manage
projects and programs for ecological and
economic restoration of the Gulf Coast
Region while ensuring compliance with
the statutory three percent
administrative cost cap. It does not
change the definition of ‘‘administrative
costs’’ or the indirect cost
reimbursement calculation on an
individual federal grant using the
negotiated indirect cost rate agreement
(NICRA) or de minimis rate.
DATES: Written comments on this NPRM
must be received on or before: July 20,
2018.
ADDRESSES: Treasury invites comments
on the topic addressed in this NPRM.
Comments may be submitted by any of
the following methods:
Electronic Submission of Comments:
Interested persons may submit
comments electronically through the
Federal eRulemaking Portal at https://
www.regulations.gov. Electronic
submission of comments allows the
commenter maximum time to prepare
and submit a comment, ensures timely
receipt, and enables Treasury to make
them available to the public. Comments
SUMMARY:
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submitted electronically through the
https://www.regulations.gov website can
be viewed by other commenters and
interested members of the public.
Mail: Send to Department of the
Treasury, Attention: Laurie McGilvray,
Office of Gulf Coast Restoration, Office
of the Fiscal Assistant Secretary, Room
2112; 1500 Pennsylvania Avenue NW,
Washington, DC 20220.
In general, Treasury will post all
comments to https://www.regulations.gov
without change, including any business
or personal information provided, such
as names, addresses, email addresses, or
telephone numbers. All comments
received, including attachments and
other supporting materials, will be part
of the public record and subject to
public disclosure. You should submit
only information that you wish to make
publicly available.
FOR FURTHER INFORMATION CONTACT: The
Office of Gulf Coast Restoration at
restoreact@treasury.gov, or Laurie
McGilvray at 202–622–7340.
SUPPLEMENTARY INFORMATION:
I. Background
The RESTORE Act (33 U.S.C. 1321(t)
and note) makes funds available for the
ecological and economic restoration of
the Gulf Coast Region, and certain
programs with respect to the Gulf of
Mexico, through a trust fund in the
Treasury of the United States known as
the Gulf Coast Restoration Trust Fund
(trust fund). The trust fund holds 80
percent of the administrative and civil
penalties paid under the Federal Water
Pollution Control Act after July 6, 2012
in connection with the Deepwater
Horizon Oil Spill.
Treasury administers two of the five
components established by the Act, the
Direct Component and Centers of
Excellence Research Grants Program.
The Act also established an
independent Federal entity, the Gulf
Coast Ecosystem Restoration Council
(Council), to administer two
components of the Act, the
Comprehensive Plan Component and
the Spill Impact Component. The
National Oceanic and Atmospheric
Administration (NOAA) administers
one component, the NOAA RESTORE
Act Science Program. This NPRM only
affects grants under the Direct
Component, Comprehensive Plan
Component, and Spill Impact
Component of the Act, which are
collectively referred to throughout the
NPRM as the three ‘‘components.’’
On December 14, 2015, Treasury
promulgated a final rule on the
RESTORE Act, 80 FR 77239, which
became effective on February 12, 2016.
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The final rule contains two relevant
limitations on the amount of grant funds
that may be used for administrative
costs.
First, the final rule subjects the grants
to government-wide cost principles.
Treasury’s final rule defines
‘‘administrative costs’’ as ‘‘indirect costs
for administration’’ and provides that
such ‘‘[c]osts must comply with
administrative requirements and cost
principles in applicable federal laws
and policies on grants.’’ 31 CFR 34.2,
34.200(a)(1). Treasury’s final rule
excludes ‘‘indirect costs that are
identified specifically with, or readily
assignable to, facilities’’ from its
definition of ‘‘administrative costs.’’
Indirect cost principles are contained
in the Office of Management and
Budget’s ‘‘Uniform Administrative
Requirements, Cost Principles, and
Audit Requirements for Federal
Awards’’ in 2 CFR part 200, which
Treasury has adopted. 2 CFR 1000.10.
Indirect costs are defined in 2 CFR
200.56 and are allowable subject to
Subpart E of 2 CFR part 200 and
Appendix VII.
Under Subpart E, a grant recipient’s
negotiated indirect cost rate agreement
(NICRA) with its cognizant agency
determines the allowable indirect cost
rate for the recipient’s grants, taking into
account the unique circumstances and
cost structure of the recipient. The
NICRA, or a de minimis rate if elected,
must be used across all of the recipient’s
federal grants.1 2 CFR 200.414(c)(1). In
accordance with the 2 CFR part 200
Uniform Guidance, Appendix VII—State
and Local Government and Indian Tribe
Indirect Cost Proposals, these allowable
indirect costs are computed on each
individual Federal award.
The second limitation for RESTORE
awards on the amount of grant funds
that can be used for administrative costs
under the three components is a three
percent administrative cost cap. The Act
provides that ‘‘[o]f the amounts received
by a Gulf Coast State . . ., not more
than 3 percent may be used for
administrative costs . . . .’’ 33 U.S.C.
1321(t)(1)(B)(iii)(I). The Act does not
specify the method by which this three
percent administrative cost cap is to be
applied. Treasury’s final rule, however,
provides that the three percent
administrative cost cap is to be applied
on a grant-by-grant basis: ‘‘The three
percent limit is applied to the total
1 Subpart E provides that when a recipient has
never had a NICRA and receives $35 million or less
in direct federal funding, a de minimis rate of 10
percent of modified total direct costs (MTDC) may
be used to calculate its allowable indirect costs in
lieu of establishing a NICRA. 2 CFR 200.414(f), 2
CFR part 200, Appendix VII(D)(1)(b).
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amount of funds received by a recipient
under each grant.’’ 31 CFR 34.204(a). In
other words, under the current
regulation, the administrative costs
associated with each particular grant
may not exceed three percent of the
total amount of that grant.
Thus, under the current regulation,
allowable administrative costs for a
particular grant, (i.e., the indirect costs
for administration) are limited to three
percent of total funds received under
that particular grant even in cases where
a recipient’s NICRA (or its de minimis
rate) allows more.
For example, if a recipient with a
NICRA with a direct labor base were to
contract out the labor on a project, the
indirect costs under its NICRA may be
much lower than three percent of the
total amount of the grant. In contrast, if
the bulk of the labor is performed inhouse, the indirect costs will typically
be much greater than three percent of
the total amount of the grant.
To address this issue, Treasury
proposes to provide a recipient the
option to apply the three percent
administrative cost cap, within each
component, on either a grant-by-grant
basis or on an aggregate basis. More
specifically, this proposed revision
provides that the three percent
administrative cost cap may be applied
by component to a Gulf Coast State,
coastal political subdivision, or coastal
zone parish’s trust fund allocation, i.e.,
an aggregate of (1) all grants received by
it under one component, and (2) the
amount in the trust fund for the same
component that is allocated to, but not
yet received by it. As used in this
NPRM, the phrase ‘‘allocated to, but not
yet received under that component by a
Gulf Coast State, coastal political
subdivision, or coastal zone parish’’
refers only to funds presently in the
trust fund and not to future deposits
into the trust fund,2 and includes the
following amounts with respect to each
component: (1) With respect to the
Direct Component, amounts made
available in equal shares for the Gulf
Coast States in accordance with 31 CFR
34.302; (2) with respect to the
Comprehensive Plan Component, the
estimated aggregate cost of all projects
included in all approved Funded
Priorities Lists; and (3) with respect to
2 BP Exploration & Production Inc. began making
annual civil penalty payments in April 2017, and
is expected to continue to make annual payments
through mid-2031 pursuant to a consent decree
entered on April 4, 2016 under the Federal Water
Pollution Control Act (Clean Water Act), of which
80 percent of the total will be deposited into the
trust fund and invested. The annual payments into
the trust fund through 2031 are expected to total
$4.4 billion. In 2032, BP will make a final payment
in the form of penalty interest.
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the Spill Impact Component, amounts
allocated to the Gulf Coast States in
accordance with 31 CFR 34.502 and 40
CFR 1800.500.
The Treasury regulations allocate
precise sums to specific entities based
on criteria in the Act, which allows the
flexibility to administer the
administrative cost cap on an aggregate
basis. Permitting recipients to allocate
administrative costs by component from
their ‘‘pool’’ in the trust fund toward the
indirect costs in their grants will enable
them to recover the maximum amount
of indirect costs allowed under the Act
and to more efficiently and effectively
oversee and manage projects and
programs. Under this methodology, if a
recipient’s allowable indirect costs for
administration for one grant are less
than three percent of the total amount
of that grant, the difference would be
available to cover allowable indirect
costs for administration exceeding three
percent on other grants.
The two methods for applying the
three percent administrative cost cap are
illustrated by the examples below.
Example 1—Grant-by-Grant Method
A recipient receives a Direct
Component planning assistance grant
totaling $216,494. The grant consists of
$210,000 for direct costs and, under the
three percent cap, $6,494 for indirect
costs.
Example 2—Aggregate Method
As in the first example, a recipient
with a NICRA receives a Direct
Component planning assistance grant
which includes $210,000 for direct
costs. Under the aggregate method, its
grant may also include $56,000 for
indirect costs under its NICRA, for a
grant totaling $266,000. The recipient
has a total administrative cost pool of
$2,600,000, based on three percent of its
gross trust fund allocation for the Direct
Component. The recipient has received
indirect costs for administration totaling
$112,000 for two prior grants, leaving a
net amount of $2,488,000 available in its
administrative cost pool. Therefore, the
recipient may use $56,000 for indirect
costs in this grant award because the
funds are available in the pool.
At least annually, Treasury will post
publicly the amounts available in the
administrative cost ‘‘pool’’ by
component, simultaneously with its
updates to the trust fund allocations. At
no time, however, may the total amount
of administrative costs of a Gulf Coast
State, coastal political subdivision, or
coastal zone parish exceed three percent
of the aggregate of (1) all grants received
by it under one of the three components,
and (2) the amount in the trust fund for
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the same component that is allocated to,
but not yet received by such Gulf Coast
State, coastal political subdivision, or
coastal zone parish. Also, at no time
would a recipient be able to recover
more in indirect costs under an
individual award than it would receive
under its NICRA or its de minimis rate.
Treasury invites public comments on
all aspects of this proposed amendment
for 30 days, and anticipates publishing
a final rule on this revision soon after
the 30 day public comment period. In
particular, Treasury solicits comments
from eligible entities on the following:
(1) Is the aggregate method an attractive
option and if so, describe the benefits;
(2) How would you manage and track
administrative indirect costs under each
method; (3) Is there an additional
burden associated with managing the
administrative indirect cost cap using
the aggregate method?
II. This Notice of Proposed Rulemaking
For the reasons described above,
Treasury proposes amending the
method by which the statutory three
percent administrative cost cap is
applied under 31 CFR 34.204(a).
Conceptually, the proposed revision
allows each recipient to establish a
‘‘pool’’ of funds for administrative costs
under each component if it so chooses.
Within each component, a recipient
may budget these funds among its
grants, consistent with the definition of
administrative costs at 31 CFR 34.2 and
Subpart E. Treasury believes that this
NPRM will help ensure that recipients
have the necessary funding to efficiently
and effectively oversee and manage
projects and programs while ensuring
compliance with the statutory three
percent administrative cost cap and a
recipient’s NICRA or de minimis rate
under Subpart E.
To clarify that recipients are no longer
required to apply the three percent
administrative cost cap on a grant-bygrant basis, Treasury proposes deleting
‘‘in a grant’’ from the first sentence of
§ 34.204(a). Treasury proposes replacing
the second sentence in existing
§ 34.204(a), which currently requires the
three percent administrative cost cap to
be applied on a grant-by-grant basis,
with language permitting the three
percent administrative cost cap to be
applied on either a grant-by-grant basis
or on an aggregated basis within each
component. For the latter method, this
NPRM states that amounts used for
administrative costs may not at any time
exceed three percent of the aggregate of:
(1) The amounts received under a
component by a recipient, beginning
with the first grant through the most
recent grant, and (2) the amounts in the
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trust fund that are allocated to, but not
yet received under such component, by
a Gulf Coast State, coastal political
subdivision, or coastal zone parish
under § 34.103, consistent with the
definition of administrative costs in
§ 34.2. This proposed revision helps
ensure that the recipient will not exceed
the statutory three percent
administrative cost cap before the
termination of the trust fund. Please
note the NPRM does not amend the
definition of administrative costs in
§ 34.2.
Treasury also proposes adding
‘‘recipient and’’ before ‘‘subrecipient’’ in
the last sentence of § 34.204(a) to clarify
that Federal grant law and policies
apply to recipient costs as well as to
subrecipient costs.
Treasury will conduct a retrospective
analysis of this proposed revision no
later than seven years after the date it
becomes effective. This review will
consider whether the revision ensures
that the Gulf Coast states, coastal
political subdivisions, and coastal zone
parishes have the necessary funding to
efficiently and effectively oversee and
manage projects and programs for
ecological and economic restoration of
the Gulf Coast Region while ensuring
compliance with the statutory three
percent administrative cost cap, and
whether it helps them to administer
RESTORE grant projects effectively and
efficiently.
substantial number of small entities,
and no regulatory flexibility analysis is
required.
III. Procedural Requirements
PART 34—RESOURCES AND
ECOSYSTEMS SUSTAINABILITY,
TOURIST OPPORTUNITIES, AND
REVIVED ECONOMIES OF THE GULF
COAST STATES
A. Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) generally requires
agencies to prepare a regulatory
flexibility analysis of any rule subject to
notice and comment rulemaking
requirements under the Administrative
Procedures Act or any other statute,
unless the agency certifies that the rule
will not have a significant economic
impact on a substantial number of small
entities.
Six of the 20 Louisiana parishes and
six of the 23 Florida counties eligible to
receive grants under the RESTORE Act
have fewer than 50,000 residents. (2010
U.S. Census) and thus qualify as small
governmental jurisdictions under the
Regulatory Flexibility Act. (5 U.S.C.
601(5)). Treasury anticipates that this
proposed revision will have no
significant economic impact on these
small entities because all recipients
have the option to continue applying
the three percent administrative cost
cap on a grant-by-grant basis.
Accordingly, Treasury certifies that the
amendment to this regulation will not
have a significant impact upon a
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B. Regulatory Planning and Review
(Executive Orders 12866 and 13563)
The amendment to the regulation is a
significant regulatory action as defined
in Executive Order 12866, as
supplemented by Executive Order
13563.
C. Catalog of Federal Domestic
Assistance
The affected program for Treasury is
listed in the Catalog of Federal Domestic
Assistance Program under 21.015,
Resources and Ecosystems
Sustainability, Tourist Opportunities,
and Revived Economies of the Gulf
Coast States. The affected programs for
the Council are listed under 87.051, and
87.052, for its Comprehensive Plan and
Spill Impact Components, respectively.
List of Subjects in 31 CFR Part 34
Coastal zone, Fisheries, Grant
programs, Grants administration,
Intergovernmental relations, Marine
resources, Natural resources, Oil
pollution, Research, Science and
technology, Trusts, Wildlife.
For the reasons set forth herein, the
Department of the Treasury proposes to
amend 31 CFR part 34 to read as
follows:
1. The authority citation continues to
read as follows:
■
Authority: 31 U.S.C. 301; 31 U.S.C. 321;
33 U.S.C. 1251 et seq.
2. Amend § 34.204 by revising
paragraph (a) to read as follows:
■
§ 34.204 Limitations on administrative
costs and administrative expenses.
(a)(1) Of the amounts received by a
Gulf Coast State, coastal political
subdivision, or coastal zone parish from
Treasury under the Direct Component,
or from the Council under the
Comprehensive Plan Component or
Spill Impact Component, not more than
three percent may be used for
administrative costs. The three percent
limit on administrative costs may be
applied to the total amount of funds
received by a recipient under each of
the three Components either on a grantby-grant basis or on an aggregate basis.
For the latter method, amounts used for
administrative costs under each of the
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three Components may not at any time
exceed three percent of the aggregate of:
(i) The amounts received under a
Component by a recipient, beginning
with the first grant through the most
recent grant; and
(ii) The amounts in the Trust Fund
that are allocated to, but not yet
received under such Component by a
Gulf Coast State, coastal political
subdivision, or coastal zone parish
under § 34.103, consistent with the
definition of administrative costs in
§ 34.2. The three percent limit does not
apply to the administrative costs of
subrecipients. All recipient and
subrecipient costs are subject to the cost
principles in Federal laws and policies
on grants.
(2) Treasury will conduct a
retrospective analysis of this provision
no later than seven years after the date
it becomes effective. This review will
consider whether the revision ensures
that the Gulf Coast states, coastal
political subdivisions, and coastal zone
parishes have the necessary funding to
efficiently and effectively oversee and
manage projects and programs for
ecological and economic restoration of
the Gulf Coast Region while ensuring
compliance with the statutory three
percent administrative cost cap, and
whether it helps them to administer
RESTORE grant projects effectively and
efficiently.
*
*
*
*
*
David A. Lebryk,
Fiscal Assistant Secretary.
[FR Doc. 2018–13227 Filed 6–19–18; 8:45 am]
BILLING CODE 4810–25–P
DEPARTMENT OF EDUCATION
34 CFR Chapter III
[Docket ID ED–2018–OSERS–0024]
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Proposed Requirement—State
Technical Assistance Projects To
Improve Services and Results for
Children Who Are Deaf-Blind and
National Technical Assistance and
Dissemination Center for Children Who
Are Deaf-Blind (TA&D–DB)
Catalog of Federal Domestic
Assistance (CFDA) Number: 84.326T.
AGENCY: Office of Special Education and
Rehabilitative Services, Department of
Education.
ACTION: Proposed requirement.
The Assistant Secretary for
Special Education and Rehabilitative
Services proposes a requirement under
the Technical Assistance and
SUMMARY:
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Dissemination to Improve Services and
Results for Children with Disabilities
(TA&D) program. The Assistant
Secretary may use this requirement for
a competition in fiscal year (FY) 2018
and later years.
DATES: We must receive your comments
on or before July 11, 2018.
ADDRESSES: Submit your comments
through the Federal eRulemaking Portal
or via postal mail, commercial delivery,
or hand delivery. We will not accept
comments submitted by fax or by email
or those submitted after the comment
period. To ensure that we do not receive
duplicate copies, please submit your
comments only once. In addition, please
include the Docket ID at the top of your
comments.
• Federal eRulemaking Portal: Go to
www.regulations.gov to submit your
comments electronically. Information
on using Regulations.gov, including
instructions for accessing agency
documents, submitting comments, and
viewing the docket, is available on the
site under ‘‘How to Use
Regulations.gov.’’
• Postal Mail, Commercial Delivery,
or Hand Delivery: If you mail or deliver
your comments about this proposed
requirement, address them to Jo Ann
McCann, U.S. Department of Education,
400 Maryland Avenue SW, Room 5162,
Potomac Center Plaza, Washington, DC
20202–5076.
Privacy Note: The Department’s
policy is to make all comments received
from members of the public available for
public viewing in their entirety on the
Federal eRulemaking Portal at
www.regulations.gov. Therefore,
commenters should be careful to
include in their comments only
information that they wish to make
publicly available.
FOR FURTHER INFORMATION CONTACT: Jo
Ann McCann, U.S. Department of
Education, 400 Maryland Avenue SW,
Room 5162, Potomac Center Plaza,
Washington, DC 20202–5076.
Telephone: (202) 245–7434. Email:
Jo.Ann.McCann@ed.gov. Tina Diamond,
400 Maryland Avenue SW, Room 5136,
Potomac Center Plaza, Washington, DC
20202–5076. Telephone: (202) 245–
6674. Email: Tina.Diamond@ed.gov.
If you use a telecommunications
device for the deaf (TDD) or a text
telephone (TTY), call the Federal Relay
Service (FRS), toll free, at 1–800–877–
8339.
SUPPLEMENTARY INFORMATION:
Invitation to Comment: We invite you
to submit comments regarding this
document. We urge you to identify
clearly the specific issue that each
comment addresses to ensure your
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comments are accurately represented in
the development of the final
requirements.
We invite you to assist us in
complying with the specific
requirements of Executive Orders
12866, 13563, and 13771 and their
overall requirement of reducing
regulatory burden that might result from
this proposed requirement. Please let us
know of any further ways we could
reduce potential costs or increase
potential benefits while preserving the
effective and efficient administration of
the program.
During and after the comment period,
you may inspect all public comments
about this proposed requirement by
accessing Regulations.gov. You may also
inspect the comments in person in
Room 5145, 550 12th Street SW,
Washington, DC, between 8:30 a.m. and
4:00 p.m., Eastern Time, Monday
through Friday of each week except
Federal holidays. Please contact the
persons listed under FOR FURTHER
INFORMATION CONTACT.
Assistance to Individuals with
Disabilities in Reviewing the
Rulemaking Record: On request, we will
provide an appropriate accommodation
or auxiliary aid to an individual with a
disability who needs assistance to
review the comments or other
documents in the public rulemaking
record for this proposed requirement. If
you want to schedule an appointment
for this type of accommodation or
auxiliary aid, please contact the persons
listed under FOR FURTHER INFORMATION
CONTACT.
Purpose of Program: The purpose of
the Technical Assistance and
Dissemination to Improve Services and
Results for Children with Disabilities
program is to promote academic
achievement and to improve results for
children with disabilities by providing
technical assistance (TA), supporting
model demonstration projects,
disseminating useful information, and
implementing activities that are
supported by scientifically based
research.
Program Authority: 20 U.S.C. 1461, 1463,
1481, and 1482.
Proposed Requirement
Background
The Individuals with Disabilities
Education Act (IDEA) requires that the
Secretary reserve $12,832,000 of IDEA
Part D funds each year to address the
needs of children with deaf-blindness
(see section 682(d)(1)(A) of IDEA, 20
U.S.C. 1482(d)). The Office of Special
Education Programs (OSEP) supports
children who are deaf-blind and their
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Agencies
[Federal Register Volume 83, Number 119 (Wednesday, June 20, 2018)]
[Proposed Rules]
[Pages 28563-28566]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-13227]
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DEPARTMENT OF THE TREASURY
31 CFR Part 34
RIN 1505-AC55
Regulations for the Gulf Coast Restoration Trust Fund
AGENCY: Office of the Fiscal Assistant Secretary, Treasury.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of the Treasury (Treasury) proposes to amend
its rules to revise the method by which the statutory three percent
limitation on administrative costs (referred to throughout this notice
of proposed rulemaking (NPRM) as the ``three percent administrative
cost cap'') is applied under the Direct Component, Comprehensive Plan
Component, and Spill Impact Component under the Resources and Ecosystem
Sustainability, Tourist Opportunities, and Revived Economies of the
Gulf Coast States Act of 2012 (RESTORE Act or Act). This proposed
amendment will help ensure that the Gulf Coast states and localities
have the necessary funding to efficiently and effectively oversee and
manage projects and programs for ecological and economic restoration of
the Gulf Coast Region while ensuring compliance with the statutory
three percent administrative cost cap. It does not change the
definition of ``administrative costs'' or the indirect cost
reimbursement calculation on an individual federal grant using the
negotiated indirect cost rate agreement (NICRA) or de minimis rate.
DATES: Written comments on this NPRM must be received on or before:
July 20, 2018.
ADDRESSES: Treasury invites comments on the topic addressed in this
NPRM. Comments may be submitted by any of the following methods:
Electronic Submission of Comments: Interested persons may submit
comments electronically through the Federal eRulemaking Portal at
https://www.regulations.gov. Electronic submission of comments allows
the commenter maximum time to prepare and submit a comment, ensures
timely receipt, and enables Treasury to make them available to the
public. Comments submitted electronically through the https://www.regulations.gov website can be viewed by other commenters and
interested members of the public.
Mail: Send to Department of the Treasury, Attention: Laurie
McGilvray, Office of Gulf Coast Restoration, Office of the Fiscal
Assistant Secretary, Room 2112; 1500 Pennsylvania Avenue NW,
Washington, DC 20220.
In general, Treasury will post all comments to https://www.regulations.gov without change, including any business or personal
information provided, such as names, addresses, email addresses, or
telephone numbers. All comments received, including attachments and
other supporting materials, will be part of the public record and
subject to public disclosure. You should submit only information that
you wish to make publicly available.
FOR FURTHER INFORMATION CONTACT: The Office of Gulf Coast Restoration
at [email protected], or Laurie McGilvray at 202-622-7340.
SUPPLEMENTARY INFORMATION:
I. Background
The RESTORE Act (33 U.S.C. 1321(t) and note) makes funds available
for the ecological and economic restoration of the Gulf Coast Region,
and certain programs with respect to the Gulf of Mexico, through a
trust fund in the Treasury of the United States known as the Gulf Coast
Restoration Trust Fund (trust fund). The trust fund holds 80 percent of
the administrative and civil penalties paid under the Federal Water
Pollution Control Act after July 6, 2012 in connection with the
Deepwater Horizon Oil Spill.
Treasury administers two of the five components established by the
Act, the Direct Component and Centers of Excellence Research Grants
Program. The Act also established an independent Federal entity, the
Gulf Coast Ecosystem Restoration Council (Council), to administer two
components of the Act, the Comprehensive Plan Component and the Spill
Impact Component. The National Oceanic and Atmospheric Administration
(NOAA) administers one component, the NOAA RESTORE Act Science Program.
This NPRM only affects grants under the Direct Component, Comprehensive
Plan Component, and Spill Impact Component of the Act, which are
collectively referred to throughout the NPRM as the three
``components.''
On December 14, 2015, Treasury promulgated a final rule on the
RESTORE Act, 80 FR 77239, which became effective on February 12, 2016.
[[Page 28564]]
The final rule contains two relevant limitations on the amount of grant
funds that may be used for administrative costs.
First, the final rule subjects the grants to government-wide cost
principles. Treasury's final rule defines ``administrative costs'' as
``indirect costs for administration'' and provides that such ``[c]osts
must comply with administrative requirements and cost principles in
applicable federal laws and policies on grants.'' 31 CFR 34.2,
34.200(a)(1). Treasury's final rule excludes ``indirect costs that are
identified specifically with, or readily assignable to, facilities''
from its definition of ``administrative costs.''
Indirect cost principles are contained in the Office of Management
and Budget's ``Uniform Administrative Requirements, Cost Principles,
and Audit Requirements for Federal Awards'' in 2 CFR part 200, which
Treasury has adopted. 2 CFR 1000.10. Indirect costs are defined in 2
CFR 200.56 and are allowable subject to Subpart E of 2 CFR part 200 and
Appendix VII.
Under Subpart E, a grant recipient's negotiated indirect cost rate
agreement (NICRA) with its cognizant agency determines the allowable
indirect cost rate for the recipient's grants, taking into account the
unique circumstances and cost structure of the recipient. The NICRA, or
a de minimis rate if elected, must be used across all of the
recipient's federal grants.\1\ 2 CFR 200.414(c)(1). In accordance with
the 2 CFR part 200 Uniform Guidance, Appendix VII--State and Local
Government and Indian Tribe Indirect Cost Proposals, these allowable
indirect costs are computed on each individual Federal award.
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\1\ Subpart E provides that when a recipient has never had a
NICRA and receives $35 million or less in direct federal funding, a
de minimis rate of 10 percent of modified total direct costs (MTDC)
may be used to calculate its allowable indirect costs in lieu of
establishing a NICRA. 2 CFR 200.414(f), 2 CFR part 200, Appendix
VII(D)(1)(b).
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The second limitation for RESTORE awards on the amount of grant
funds that can be used for administrative costs under the three
components is a three percent administrative cost cap. The Act provides
that ``[o]f the amounts received by a Gulf Coast State . . ., not more
than 3 percent may be used for administrative costs . . . .'' 33 U.S.C.
1321(t)(1)(B)(iii)(I). The Act does not specify the method by which
this three percent administrative cost cap is to be applied. Treasury's
final rule, however, provides that the three percent administrative
cost cap is to be applied on a grant-by-grant basis: ``The three
percent limit is applied to the total amount of funds received by a
recipient under each grant.'' 31 CFR 34.204(a). In other words, under
the current regulation, the administrative costs associated with each
particular grant may not exceed three percent of the total amount of
that grant.
Thus, under the current regulation, allowable administrative costs
for a particular grant, (i.e., the indirect costs for administration)
are limited to three percent of total funds received under that
particular grant even in cases where a recipient's NICRA (or its de
minimis rate) allows more.
For example, if a recipient with a NICRA with a direct labor base
were to contract out the labor on a project, the indirect costs under
its NICRA may be much lower than three percent of the total amount of
the grant. In contrast, if the bulk of the labor is performed in-house,
the indirect costs will typically be much greater than three percent of
the total amount of the grant.
To address this issue, Treasury proposes to provide a recipient the
option to apply the three percent administrative cost cap, within each
component, on either a grant-by-grant basis or on an aggregate basis.
More specifically, this proposed revision provides that the three
percent administrative cost cap may be applied by component to a Gulf
Coast State, coastal political subdivision, or coastal zone parish's
trust fund allocation, i.e., an aggregate of (1) all grants received by
it under one component, and (2) the amount in the trust fund for the
same component that is allocated to, but not yet received by it. As
used in this NPRM, the phrase ``allocated to, but not yet received
under that component by a Gulf Coast State, coastal political
subdivision, or coastal zone parish'' refers only to funds presently in
the trust fund and not to future deposits into the trust fund,\2\ and
includes the following amounts with respect to each component: (1) With
respect to the Direct Component, amounts made available in equal shares
for the Gulf Coast States in accordance with 31 CFR 34.302; (2) with
respect to the Comprehensive Plan Component, the estimated aggregate
cost of all projects included in all approved Funded Priorities Lists;
and (3) with respect to the Spill Impact Component, amounts allocated
to the Gulf Coast States in accordance with 31 CFR 34.502 and 40 CFR
1800.500.
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\2\ BP Exploration & Production Inc. began making annual civil
penalty payments in April 2017, and is expected to continue to make
annual payments through mid-2031 pursuant to a consent decree
entered on April 4, 2016 under the Federal Water Pollution Control
Act (Clean Water Act), of which 80 percent of the total will be
deposited into the trust fund and invested. The annual payments into
the trust fund through 2031 are expected to total $4.4 billion. In
2032, BP will make a final payment in the form of penalty interest.
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The Treasury regulations allocate precise sums to specific entities
based on criteria in the Act, which allows the flexibility to
administer the administrative cost cap on an aggregate basis.
Permitting recipients to allocate administrative costs by component
from their ``pool'' in the trust fund toward the indirect costs in
their grants will enable them to recover the maximum amount of indirect
costs allowed under the Act and to more efficiently and effectively
oversee and manage projects and programs. Under this methodology, if a
recipient's allowable indirect costs for administration for one grant
are less than three percent of the total amount of that grant, the
difference would be available to cover allowable indirect costs for
administration exceeding three percent on other grants.
The two methods for applying the three percent administrative cost
cap are illustrated by the examples below.
Example 1--Grant-by-Grant Method
A recipient receives a Direct Component planning assistance grant
totaling $216,494. The grant consists of $210,000 for direct costs and,
under the three percent cap, $6,494 for indirect costs.
Example 2--Aggregate Method
As in the first example, a recipient with a NICRA receives a Direct
Component planning assistance grant which includes $210,000 for direct
costs. Under the aggregate method, its grant may also include $56,000
for indirect costs under its NICRA, for a grant totaling $266,000. The
recipient has a total administrative cost pool of $2,600,000, based on
three percent of its gross trust fund allocation for the Direct
Component. The recipient has received indirect costs for administration
totaling $112,000 for two prior grants, leaving a net amount of
$2,488,000 available in its administrative cost pool. Therefore, the
recipient may use $56,000 for indirect costs in this grant award
because the funds are available in the pool.
At least annually, Treasury will post publicly the amounts
available in the administrative cost ``pool'' by component,
simultaneously with its updates to the trust fund allocations. At no
time, however, may the total amount of administrative costs of a Gulf
Coast State, coastal political subdivision, or coastal zone parish
exceed three percent of the aggregate of (1) all grants received by it
under one of the three components, and (2) the amount in the trust fund
for
[[Page 28565]]
the same component that is allocated to, but not yet received by such
Gulf Coast State, coastal political subdivision, or coastal zone
parish. Also, at no time would a recipient be able to recover more in
indirect costs under an individual award than it would receive under
its NICRA or its de minimis rate.
Treasury invites public comments on all aspects of this proposed
amendment for 30 days, and anticipates publishing a final rule on this
revision soon after the 30 day public comment period. In particular,
Treasury solicits comments from eligible entities on the following: (1)
Is the aggregate method an attractive option and if so, describe the
benefits; (2) How would you manage and track administrative indirect
costs under each method; (3) Is there an additional burden associated
with managing the administrative indirect cost cap using the aggregate
method?
II. This Notice of Proposed Rulemaking
For the reasons described above, Treasury proposes amending the
method by which the statutory three percent administrative cost cap is
applied under 31 CFR 34.204(a). Conceptually, the proposed revision
allows each recipient to establish a ``pool'' of funds for
administrative costs under each component if it so chooses. Within each
component, a recipient may budget these funds among its grants,
consistent with the definition of administrative costs at 31 CFR 34.2
and Subpart E. Treasury believes that this NPRM will help ensure that
recipients have the necessary funding to efficiently and effectively
oversee and manage projects and programs while ensuring compliance with
the statutory three percent administrative cost cap and a recipient's
NICRA or de minimis rate under Subpart E.
To clarify that recipients are no longer required to apply the
three percent administrative cost cap on a grant-by-grant basis,
Treasury proposes deleting ``in a grant'' from the first sentence of
Sec. 34.204(a). Treasury proposes replacing the second sentence in
existing Sec. 34.204(a), which currently requires the three percent
administrative cost cap to be applied on a grant-by-grant basis, with
language permitting the three percent administrative cost cap to be
applied on either a grant-by-grant basis or on an aggregated basis
within each component. For the latter method, this NPRM states that
amounts used for administrative costs may not at any time exceed three
percent of the aggregate of: (1) The amounts received under a component
by a recipient, beginning with the first grant through the most recent
grant, and (2) the amounts in the trust fund that are allocated to, but
not yet received under such component, by a Gulf Coast State, coastal
political subdivision, or coastal zone parish under Sec. 34.103,
consistent with the definition of administrative costs in Sec. 34.2.
This proposed revision helps ensure that the recipient will not exceed
the statutory three percent administrative cost cap before the
termination of the trust fund. Please note the NPRM does not amend the
definition of administrative costs in Sec. 34.2.
Treasury also proposes adding ``recipient and'' before
``subrecipient'' in the last sentence of Sec. 34.204(a) to clarify
that Federal grant law and policies apply to recipient costs as well as
to subrecipient costs.
Treasury will conduct a retrospective analysis of this proposed
revision no later than seven years after the date it becomes effective.
This review will consider whether the revision ensures that the Gulf
Coast states, coastal political subdivisions, and coastal zone parishes
have the necessary funding to efficiently and effectively oversee and
manage projects and programs for ecological and economic restoration of
the Gulf Coast Region while ensuring compliance with the statutory
three percent administrative cost cap, and whether it helps them to
administer RESTORE grant projects effectively and efficiently.
III. Procedural Requirements
A. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) generally
requires agencies to prepare a regulatory flexibility analysis of any
rule subject to notice and comment rulemaking requirements under the
Administrative Procedures Act or any other statute, unless the agency
certifies that the rule will not have a significant economic impact on
a substantial number of small entities.
Six of the 20 Louisiana parishes and six of the 23 Florida counties
eligible to receive grants under the RESTORE Act have fewer than 50,000
residents. (2010 U.S. Census) and thus qualify as small governmental
jurisdictions under the Regulatory Flexibility Act. (5 U.S.C. 601(5)).
Treasury anticipates that this proposed revision will have no
significant economic impact on these small entities because all
recipients have the option to continue applying the three percent
administrative cost cap on a grant-by-grant basis. Accordingly,
Treasury certifies that the amendment to this regulation will not have
a significant impact upon a substantial number of small entities, and
no regulatory flexibility analysis is required.
B. Regulatory Planning and Review (Executive Orders 12866 and 13563)
The amendment to the regulation is a significant regulatory action
as defined in Executive Order 12866, as supplemented by Executive Order
13563.
C. Catalog of Federal Domestic Assistance
The affected program for Treasury is listed in the Catalog of
Federal Domestic Assistance Program under 21.015, Resources and
Ecosystems Sustainability, Tourist Opportunities, and Revived Economies
of the Gulf Coast States. The affected programs for the Council are
listed under 87.051, and 87.052, for its Comprehensive Plan and Spill
Impact Components, respectively.
List of Subjects in 31 CFR Part 34
Coastal zone, Fisheries, Grant programs, Grants administration,
Intergovernmental relations, Marine resources, Natural resources, Oil
pollution, Research, Science and technology, Trusts, Wildlife.
For the reasons set forth herein, the Department of the Treasury
proposes to amend 31 CFR part 34 to read as follows:
PART 34--RESOURCES AND ECOSYSTEMS SUSTAINABILITY, TOURIST
OPPORTUNITIES, AND REVIVED ECONOMIES OF THE GULF COAST STATES
0
1. The authority citation continues to read as follows:
Authority: 31 U.S.C. 301; 31 U.S.C. 321; 33 U.S.C. 1251 et seq.
0
2. Amend Sec. 34.204 by revising paragraph (a) to read as follows:
Sec. 34.204 Limitations on administrative costs and administrative
expenses.
(a)(1) Of the amounts received by a Gulf Coast State, coastal
political subdivision, or coastal zone parish from Treasury under the
Direct Component, or from the Council under the Comprehensive Plan
Component or Spill Impact Component, not more than three percent may be
used for administrative costs. The three percent limit on
administrative costs may be applied to the total amount of funds
received by a recipient under each of the three Components either on a
grant-by-grant basis or on an aggregate basis. For the latter method,
amounts used for administrative costs under each of the
[[Page 28566]]
three Components may not at any time exceed three percent of the
aggregate of:
(i) The amounts received under a Component by a recipient,
beginning with the first grant through the most recent grant; and
(ii) The amounts in the Trust Fund that are allocated to, but not
yet received under such Component by a Gulf Coast State, coastal
political subdivision, or coastal zone parish under Sec. 34.103,
consistent with the definition of administrative costs in Sec. 34.2.
The three percent limit does not apply to the administrative costs of
subrecipients. All recipient and subrecipient costs are subject to the
cost principles in Federal laws and policies on grants.
(2) Treasury will conduct a retrospective analysis of this
provision no later than seven years after the date it becomes
effective. This review will consider whether the revision ensures that
the Gulf Coast states, coastal political subdivisions, and coastal zone
parishes have the necessary funding to efficiently and effectively
oversee and manage projects and programs for ecological and economic
restoration of the Gulf Coast Region while ensuring compliance with the
statutory three percent administrative cost cap, and whether it helps
them to administer RESTORE grant projects effectively and efficiently.
* * * * *
David A. Lebryk,
Fiscal Assistant Secretary.
[FR Doc. 2018-13227 Filed 6-19-18; 8:45 am]
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