Rule2023-25067
Coronavirus State and Local Fiscal Recovery Funds
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 20, 2023
Effective
November 20, 2023
Issuing agencies
Treasury Department
Abstract
The Secretary of the Treasury is issuing an interim final rule to amend the definition of "obligation" set forth in the Department's regulations with respect to the Coronavirus State Fiscal Recovery Fund and the Coronavirus Local Fiscal Recovery Fund established under the American Rescue Plan Act of 2021.
Full Text
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<title>Federal Register, Volume 88 Issue 222 (Monday, November 20, 2023)</title>
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[Federal Register Volume 88, Number 222 (Monday, November 20, 2023)]
[Rules and Regulations]
[Pages 80584-80589]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-25067]
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DEPARTMENT OF THE TREASURY
31 CFR Part 35
RIN 1505-AC83
Coronavirus State and Local Fiscal Recovery Funds
AGENCY: Department of the Treasury.
ACTION: Interim final rule.
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SUMMARY: The Secretary of the Treasury is issuing an interim final rule
to amend the definition of ``obligation'' set forth in the Department's
regulations with respect to the Coronavirus State Fiscal Recovery Fund
and the Coronavirus Local Fiscal Recovery Fund established under the
American Rescue Plan Act of 2021.
DATES:
Effective date: The provisions in this interim final rule are
effective November 20, 2023.
Comment date: Comments must be received on or before December 20,
2023.
ADDRESSES: Please submit comments electronically through the Federal
[[Page 80585]]
eRulemaking Portal at <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Comments may be
mailed to the Office of Recovery Programs, Department of the Treasury,
1500 Pennsylvania Avenue NW, Washington, DC 20220. Because postal mail
may be subject to processing delays, it is recommended that comments be
submitted electronically. All comments should be captioned with
``Coronavirus State and Local Fiscal Recovery Funds Obligation Interim
Final Rule Comments.'' Please include your name, organization
affiliation, address, email address, and telephone number in your
comment. Where appropriate, a comment should include a short executive
summary. In general, comments received will be posted at <a href="http://www.regulations.gov">http://www.regulations.gov</a> without change, including any business or personal
information provided. Comments received, including attachments and
other supporting materials, will be part of the public record and
subject to public disclosure. Do not enclose any information in your
comment or supporting materials that you consider confidential or
inappropriate for public disclosure.
FOR FURTHER INFORMATION CONTACT: Jessica Milano, Chief Recovery
Officer, Office of Recovery Programs, Department of the Treasury, (844)
529-9527.
SUPPLEMENTARY INFORMATION:
I. Background
On March 11, 2021, the American Rescue Plan Act of 2021 (ARPA) was
signed into law.\1\ The ARPA amended Title VI of the Social Security
Act to add sections 602 and 603, which established the State and Local
Fiscal Recovery Funds (SLFRF).\2\ The SLFRF program provides support to
State, local, territorial, and Tribal governments (together,
recipients) to mitigate the fiscal effects of the COVID-19 public
health emergency.\3\ As enacted in 2021, recipients are authorized to
use SLFRF award funds to respond to the COVID-19 public health
emergency or its negative economic impacts; to provide premium pay to
essential workers; to provide government services to the extent of a
reduction in a recipient's revenue due to the COVID-19 public health
emergency; or to make necessary investments in water, sewer, or
broadband infrastructure.\4\ On November 15, 2021, the Infrastructure
Investment and Jobs Act amended the SLFRF program to authorize
recipients to use funds to satisfy any non-federal match requirement of
an authorized Bureau of Reclamation project.\5\ On December 29, 2022,
the Consolidated Appropriations Act, 2023 (2023 CAA), further amended
the SLFRF program to authorize recipients to use funds to provide
emergency relief from natural disasters or their negative economic
impacts; to use funds for projects eligible under certain Department of
Transportation programs (Surface Transportation projects); and to use
funds for projects that are eligible under Title I of the Housing and
Community Development Act of 1974 (Title I projects).\6\ The 2023 CAA
also codified the $10 million ``standard allowance'' under the revenue
loss eligible use category.\7\
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\1\ Public Law 117-2 (Mar. 11, 2021).
\2\ See section 9901 of the ARPA, codified at 42 U.S.C. 802 and
803.
\3\ See id. Sec. 802(a)(1), 803(a).
\4\ See id. Sec. 802(c)(1), 803(c)(1).
\5\ Section 40909, Public Law 117-58, 135 Stat. 429 (Nov. 15,
2021).
\6\ See section 102 of Division LL of Public Law 117-328, 136
Stat. 4459 (Dec. 29, 2022).
\7\ See id.
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In May 2021, Treasury published an interim final rule (2021 IFR)
that implemented the SLFRF program as established by the ARPA.\8\ In
January 2022, Treasury published a final rule (2022 final rule), which
responded to comments received on the 2021 IFR, made several
clarifications to the 2021 IFR, and took effect on April 1, 2022.\9\ In
September 2023, Treasury published an additional interim final rule
(2023 IFR) to implement the changes made to the SLFRF program by the
2023 CAA.\10\ The 2023 IFR generally did not change the eligible uses
discussed in the 2022 final rule.
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\8\ 86 FR 26786 (May 17, 2021).
\9\ 87 FR 4338 (Jan. 27, 2022).
\10\ 88 FR 64986 (Sept. 20, 2023).
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Sections 602 and 603 of the Social Security Act provide that SLFRF
funds may only be used to cover costs incurred by December 31,
2024.\11\ The term ``cost incurred'' does not have a precise meaning in
this context. One approach to implementing this requirement might have
been to have set December 31, 2024, as the end of the period of
performance for SLFRF awards. However, Congress expressly provided for
water, sewer, and broadband projects as eligible uses of the SLFRF. If
Treasury had set the end of period of performance as December 31, 2024,
such that recipients would have had to not only obligate funds but
complete expenditures by that date, it would have been very difficult
for recipients to engage in significant water, sewer, and broadband
projects. Instead, Treasury implemented the statutory requirement by
providing that a cost is considered incurred by December 31, 2024, if a
recipient has incurred an obligation with respect to the cost by
December 31, 2024.\12\ Treasury defined ``obligation'' as ``an order
placed for property and services and entering into contracts,
subawards, and similar transactions that require payment,'' \13\ which
is based on the definition of ``financial obligations'' in the Uniform
Administrative Requirements, Cost Principles, and Audit Requirements
for Federal Awards (Uniform Guidance).\14\ Treasury then set the period
of performance as ending on December 31, 2026, which serves as the
deadline for expenditures. Treasury's approach was confirmed by
Congress in the amendments made to the SLFRF program in the CAA 2023.
In providing authority for recipients to use SLFRF funds for the new
eligible use categories, Congress expressly provided for the same
framework of separate obligation and expenditure deadlines as is
provided for in Treasury's SLFRF award terms and conditions and rule.
Specifically, the CAA 2023 amendments provided that funds may be
obligated for Surface Transportation projects and Title I projects
until December 31, 2024, and must be expended by September 30, 2026.
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\11\ 42 U.S.C. 802(c)(1), 803(c)(1). A recipient must return any
funds not obligated by December 31, 2024. 31 CFR 35.5(c).
\12\ 31 CFR 35.5(b). Typically, financial obligations incurred
under a federal award must be liquidated no later than 120 calendar
days after the end date of the period of performance specified in
the terms and conditions of the award. This expenditure period
exists to allow recipients time to receive goods ordered and make
final payments. See 2 CFR 200.344.
\13\ 31 CFR 35.3.
\14\ 2 CFR 200.1 (defining ``financial obligation,'' when
referencing a recipient's or subrecipient's use of funds under a
Federal award, as orders placed for property and services, contracts
and subawards made, and similar transactions that require payment).
This definition aligns with a plain language understanding of
``incur'' as meaning to become liable or subject to something. See,
e.g., Webster's Third Int'l Dictionary (1961) (``to become liable or
subject to: bring down upon oneself''); Black's Law Dictionary, 11th
ed. 2019 (``to suffer or bring on oneself (a liability or
expense)''); American Heritage Dictionary (5th ed. 2022) (``to
become liable or subject to as a result of one's actions; bring upon
oneself'').
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II. Revision to the Definition of Obligation in 31 CFR 35.3 and Related
Guidance Updates
Treasury is amending the definition of ``obligation'' to provide
additional flexibility to recipients, providing clarification regarding
the application of the obligation deadline to subrecipients, and
providing guidance regarding the amendment and replacement of contracts
and subawards. Additional guidance from Treasury regarding
[[Page 80586]]
closeout and specific deadlines by which recipients must return funds
not obligated or expended will be forthcoming.
Amendment to the Definition of ``Obligation''
Recipients have identified for Treasury that they anticipate
difficulty using SLFRF funds to satisfy administrative and other legal
requirements applicable to the SLFRF program after the obligation
deadline has passed. The expenses associated with these requirements
include payroll and benefits of personnel responsible for compliance
and reporting and expenses of maintaining records. Recipients will not
have incurred an obligation to make many of these types of expenditures
prior to the obligation deadline. For example, Treasury understands
that recipient personnel costs are typically obligated with respect to
one pay period at a time because recipient personnel generally are not
subject to long-term employment contracts. As such, expenses of
personnel needed to comply with administrative and other legal
requirements between the obligation deadline and the end of the period
of performance could not be paid for using SLFRF funds (or at least,
not after the end of the last pay period that begins prior to the
obligation deadline). To the extent that recipients have been covering
such expenses and other related administrative expenses under their
current negotiated indirect costs rate agreement established with their
federal cognizant agency or using the de minimis rate of 10 percent of
modified total direct costs pursuant to 2 CFR 200.414(f), they may
continue to do so, and this interim final rule will also provide
recipients with an additional way to cover such costs when they are
charged directly.
In this interim final rule, Treasury is amending the definition of
``obligation'' previously adopted at 31 CFR 35.3 in response to
recipients' concerns. Under the revised definition, an ``obligation''
continues to include an order placed for property and services and
entry into contracts, subawards, and similar transactions that require
payment. However, under the revised definition, a recipient is also
considered to have incurred an obligation by December 31, 2024, with
respect to a requirement under federal law or regulation or a provision
of the SLFRF award terms and conditions to which the recipient becomes
subject as a result of receiving or expending SLFRF funds. A recipient
may use the SLFRF funds to cover the cost of meeting such a
requirement. Such expenditures include the following:
<bullet> Reporting and compliance requirements: Funds expended to
comply with SLFRF reporting and compliance requirements, including in
connection with the preparation and submission of recipients' required
reports, review of subaward reports or subrecipient monitoring
generally, maintenance of data and reporting tools, and review and
processing of invoices.
<bullet> Single Audit costs: Funds expended for the conduct of
audits required by the Single Audit Act, including on audit costs, on
preparation for such audits, and on audit resolution, including funds
spent by pass-through entities to carry out their responsibilities
related to audit resolution of subawards.
<bullet> Record retention and internal control requirements:
Expenditures to comply with records retention requirements and other
expenditures necessary to ensure program integrity through the closeout
of the award.
<bullet> Property standards: Expenditures on insurance, inventory
and other recordkeeping requirements, and maintenance of equipment and
other expenditures made to comply with the property standards of the
Uniform Guidance (2 CFR 200.310-200.316).
<bullet> Environmental compliance requirements: Expenditures to
comply with environmental requirements, including to obtain
environmental permit renewals.
<bullet> Civil rights and nondiscrimination requirements:
Expenditures related to comply with civil rights and nondiscrimination
requirements, including the investigation of complaints arising from
SLFRF-funded projects.
In each case, these would include costs, calculated in compliance
with the rules for compensation charged to federal awards set out at 2
CFR 200.430, of recipient personnel whose time is required to comply
with these requirements.
To take advantage of this additional flexibility, recipients must
(1) determine the amount of SLFRF funds the recipient estimates it will
use to cover such expenditures, (2) document a reasonable justification
for this estimate, (3) report that amount to Treasury by April 30,
2024, with an explanation of how the amount was determined, and (4)
report at award closeout the final amount expended for these costs.
Recipients may not include within this estimate any expenditure that
will be made after December 31, 2026, other than administrative
expenditures necessary to close out the SLFRF award in accordance with
the Uniform Guidance. Other than such closeout expenditures, recipients
must expend all SLFRF funds by the end of the period of performance
regardless of whether they continue to have expenses of the type
outlined above after that date. A recipient's estimate of the amount
that it expects to expend must be reasonable, based on the
considerations listed at 2 CFR 200.404. If a recipient's estimate
exceeds what is ultimately expended, the recipient must return the
excess funds to Treasury. Treasury will update the SLFRF Compliance and
Reporting Guidance to reflect the additional reporting requirements.
In response to suggestions from recipients, Treasury considered
whether ``costs incurred'' could be defined by reference to a standard
other than ``obligation.'' However, for the reasons discussed above,
the revised definition of ``obligation'' provides the best and most
reasonable interpretation of the statutory requirement for recipients
to incur costs by December 31, 2024. For example, some recipients
recommended that Treasury revise the rule to define ``costs incurred''
by reference to recipient appropriation, budget, or allocation
processes. This approach would not provide a standard that could be
applied consistently across recipients. Further, as noted above,
Congress, in the amendments made by the 2023 CAA with respect to the
SLFRF program, has confirmed the definition of ``costs incurred'' by
reference to the obligation of funds. The 2023 CAA was more specific
than the ARPA, providing that SLFRF funds ``shall remain available for
obligation'' for Surface Transportation projects and Title I projects
until December 31, 2024, and that funds obligated for such uses must be
expended by September 30, 2026.
Treasury is also amending the provision of the rule requiring
repayment of amounts not obligated and expended by the applicable
deadlines to align with the amendment to the definition of
``obligation.'' Pursuant to the amended definition, recipients must
still return to Treasury any SLFRF funds not obligated by December 31,
2024, pursuant to entry into a contract or subaward, but need not at
that time pay back the amounts they previously reported to Treasury as
estimates of the amounts that they will use during the remainder of the
period of performance to comply with legal requirements; recipients
will be required to repay after December 31, 2026, any part of the
estimated amount that is not expended.
[[Page 80587]]
Application of Obligation Deadline to Subrecipients
Recipients have asked whether the December 31, 2024, obligation
deadline applies to subrecipients. Treasury is clarifying that
subrecipients are not subject to this deadline. As stated in the SLFRF
rule and as referenced above, Treasury defined obligation to include
entry into a subaward. A cost is considered to have been incurred once
a recipient enters into a subaward that obligates the recipient to
cover that cost. Once a recipient has obligated funds, the requirement
in the statute and Treasury's rule to obligate funds by December 31,
2024, has been satisfied, such that subrecipients need not themselves
also obligate funds received under a subaward by December 31, 2024.
(Contractors also do not need to obligate funds received under a
contract by December 31, 2024.) It remains the case that all SLFRF
award funds must be expended by the recipient and any subrecipients by
2026, given the termination of the period of performance on December
31, 2026. In the case of funds used for Title I projects and Surface
Transportation projects, all funds must be expended by September 30,
2026. Further, as the provisions of the Uniform Guidance are generally
applicable to the SLFRF program, recipients must comply with the
Uniform Guidance provisions regarding the timing of payment to
subrecipients as provided in 2 CFR 200.305.
Amendment and Replacement of Contracts and Subawards
Recipients have asked to what extent they may, after December 31,
2024, amend or replace contracts and subawards entered into prior to
that date. In general, recipients may not re-obligate funds or obligate
additional funds after the obligation deadline because to do so would
violate the statutory deadline by which costs must be incurred. For
example, if a contractor requests an unexpected change order due to a
cost increase that requires a contract amendment after December 31,
2024, the recipient would not be permitted to obligate additional SLFRF
funds to the project because the December 31, 2024, obligation deadline
would have passed and the recipient would be required to return to
Treasury any funds that had not been obligated by that date.\15\
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\15\ See 31 CFR 35.5(c).
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Treasury is clarifying that after December 31, 2024, recipients are
permitted to replace a contract or subaward entered into prior to
December 31, 2024, if:
(1) the recipient terminates the contract or subaward because of
the contractor or subawardee's default, because the contractor or
subawardee goes out of business, or because the recipient otherwise
determines that the contractor or subawardee will not be able to
perform under the contract or carry out the subaward; or
(2) the recipient and contractor or subrecipient mutually agree to
terminate the contract or subaward for convenience; \16\ or
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\16\ Note that the Uniform Guidance provides that ``all
contracts in excess of $10,000 must address termination for cause
and for convenience by the non-Federal entity.'' See Appendix II.(B)
to 2 CFR part 200.
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(3) the recipient terminates the contract or subaward for
convenience if the contract or subaward was not properly awarded (such
as if the contractor was not eligible to receive the contract), there
is clear evidence that the contract or subaward was improper, the
recipient documents its determination that the contract or subaward was
not properly awarded, and the original contract or subaward was entered
into by the recipient in good faith.
A contract will be considered made in good faith for purposes of
clause (3) above if the parties followed standard procurement or
subaward practices, as applicable, and the contract or subaward was not
entered into for the purpose of evading the obligation deadline. A
recipient that re-obligates funds to a new contractor or subrecipient
after the obligation deadline will be considered to have used its funds
to cover an obligation incurred prior to the obligation deadline if any
of the three situations above is present and if the original contract
or subaward being replaced was entered into by December 31, 2024.
If a recipient enters into a replacement contract or subaward, the
recipient still must expend all funds by the expenditure deadline.
Treasury will update the SLFRF Compliance and Reporting Guidance to
provide a means for recipients to report any contract or subaward
replacements after the December 31, 2024, obligation deadline.
Recipients should maintain documentation to justify their
determinations, which should include an analysis of the factors
discussed above. Treasury may ask recipients to provide this
information in their periodic reports.
III. Public Comments and Effective Date
Treasury is seeking comment from recipients regarding this interim
final rule, and in particular, responses to the following question:
What are the advantages and disadvantages of the change made by this
interim final rule to the definition of ``obligation''?
This interim final rule is being issued without advance notice and
public comment to allow for immediate implementation of the amendment
to the definition of ``obligation'' at 31 CFR 35.3. Immediate
implementation of this amendment will enable recipients to complete
their internal budgeting processes in time to meet the statutory
deadline to incur costs by December 31, 2024. As discussed below, the
requirements of advance notice and public comment do not apply ``to the
extent that there is involved . . . a matter relating to agency . . .
grants.'' This interim final rule revises the standard pursuant to
which recipients satisfy the statutory requirement to incur costs for
eligible uses of SLFRF funds by December 31, 2024. In addition and as
discussed below, the Administrative Procedure Act provides an exception
to ordinary notice-and-comment procedures ``when the agency for good
cause finds (and incorporates the finding and a brief statement of
reasons therefor in the rules issued) that notice and public procedure
thereon are impracticable, unnecessary, or contrary to the public
interest.'' This good cause justification also supports waiver of the
60-day delayed effective date for major rules under the Congressional
Review Act at 5 U.S.C. 808(2). Although this interim final rule is
effective immediately, comments are solicited from interested members
of the public and from recipient governments on all aspects of this
interim final rule. These comments must be received on or before
December 20, 2023.
IV. Regulatory Analyses
Executive Order 12866
This interim final rule is not a ``significant regulatory action''
under section 3(f) of Executive Order 12866, as amended.
Executive Order 13132
Executive Order 13132 (entitled Federalism) prohibits an agency
from publishing any rule that has federalism implications if the rule
either imposes substantial, direct compliance costs on state, local,
and Tribal governments, and is not required by statute, or preempts
state law, unless the agency meets the consultation and funding
requirements of section 6 of the Executive Order. This interim final
rule does not have federalism implications within the meaning of the
Executive Order and
[[Page 80588]]
does not impose substantial, direct compliance costs on state, local,
territorial, and Tribal governments or preempt state law within the
meaning of the Executive Order. The compliance costs are imposed on
state, local, territorial, and Tribal governments by sections 602 and
603 of the Social Security Act. Pursuant to the requirements set forth
in section 8(a) of Executive Order 13132, Treasury certifies that it
has complied with the requirements of Executive Order 13132.
Administrative Procedure Act
The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq.,
generally requires public notice and an opportunity for comment before
a rule becomes effective. However, the APA provides that the
requirements of 5 U.S.C. 553 do not apply ``to the extent that there is
involved . . . a matter relating to agency . . . grants.'' This interim
final rule implements statutory conditions on recipients' eligible uses
of their SLFRF award funds. The rule is thus ``both clearly and
directly related to a federal grant program.'' National Wildlife
Federation v. Snow, 561 F.2d 227, 232 (D.C. Cir. 1976). The rule sets
forth the ``process necessary to maintain state . . . eligibility for
federal funds,'' id., as well as other ``integral part[s] of the grant
program,'' Center for Auto Safety v. Tiemann, 414 F. Supp. 215, 222
(D.D.C. 1976). As a result, the requirements of 5 U.S.C. 553 do not
apply.
The APA also provides an exception to ordinary notice-and-comment
procedures ``when the agency for good cause finds (and incorporates the
finding and a brief statement of reasons therefor in the rules issued)
that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.'' 5 U.S.C.
553(b)(3)(B); see also 5 U.S.C. 553(d)(3) (creating an exception to the
requirement of a 30-day delay before the effective date of a rule ``for
good cause found and published with the rule''). Assuming 5 U.S.C. 553
applied, Treasury would still have good cause under sections
553(b)(3)(B) and 553(d)(3) for not undertaking section 553's
requirements. As discussed above, Congress authorizes recipients to use
SLFRF funds for costs incurred for eligible purposes by December 31,
2024. Given the rapidly approaching deadline, there is an urgent need
for recipients to undertake the planning necessary for sound fiscal
policymaking, which requires clarity on how SLFRF funds will augment
and interact with existing budgetary resources. Treasury understands
that many recipients require immediate rules on which they can rely,
especially in light of the approaching obligation deadline. This
statutory urgency and practical necessity are good cause to forego the
ordinary requirements of notice-and-comment rulemaking.
Congressional Review Act
This rule is not a major rule for purposes of the Congressional
Review Act (5 U.S.C. 801 et seq.).
Paperwork Reduction Act
The information collections associated with the SLFRF program have
been reviewed and approved by OMB pursuant to the Paperwork Reduction
Act (44 U.S.C. Chapter 35) (PRA) and assigned control number 1505-0271.
Under the PRA, an agency may not conduct or sponsor, and a respondent
is not required to respond to, an information collection unless it
displays a valid OMB control number. This interim final rule is not
altering the previously approved information collections for the SLFRF
program. The table below includes the estimates of hourly burden under
this program that have been approved in previously approved information
collections.
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Cost to
Number Number Total Total burden respondents
Reporting respondents responses per responses Hours per response in hours ($48.80 per
respondent hour *)
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Recipient Payment Form................ 5,050 1 5,050 .25 (15 minutes)................ 1,262.5 $61,610
Acceptance of Award Terms............. 5,050 1 5,050 .25 (15 minutes)................ 1,262.5 61,610
Title VI Assurances................... 5,050 1 5,050 .50 (30 minutes)................ 2,525 123,220
Tribal Employment Information Form.... 584 1 584 .75 (45 minutes)................ 438 21,374
Request for Extension Form............ 96 1 96 1............................... 96 4,685
Annual Recovery Plan Performance 430 1 430 100............................. 43,000 2,098,400
Report.
NEU Distribution Template............. 55 2 110 10.............................. 1,100 53,680
Non-UGLG Distribution Template........ 55 2 110 5............................... 550 26,840
Transfer Forms........................ 1,500 1 1,500 1............................... 1,500 73,200
NEU Agreements and Supporting 26,000 1 26,000 .5.............................. 13,000 634,400
Documentation.
Project and Expenditure Report 2,000 4 8,000 6............................... 48,000 2,342,400
(quarterly).
Project and Expenditure Report 29,000 1 29,000 6............................... 174,000 8,491,200
(annual).
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Total............................. 64,770 .............. 78,880 ................................ 284,209 13,869,339
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* Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, Accountants and Auditors, on the internet at <a href="https://www.bls.gov/ooh/business-and-financial/accountants-and-auditors.htm">https://www.bls.gov/ooh/business-and-financial/accountants-and-auditors.htm</a> (visited March 28, 2020). Base wage of $33.89/hour increased by 44 percent to account for
fully loaded employer cost of employee compensation (benefits, etc.) for a fully loaded wage rate of $48.80.
Regulatory Flexibility Analysis
The Regulatory Flexibility Act (RFA) generally requires that when
an agency issues a proposed rule, or a final rule pursuant to section
553(b) of the APA or another law, the agency must prepare a regulatory
flexibility analysis that meets the requirements of the RFA and publish
such analysis in the Federal Register. 5 U.S.C. 603, 604.
Rules that are exempt from notice and comment under the APA or any
other law are also exempt from the RFA requirements, including the
requirement to conduct a regulatory flexibility analysis, when among
other things the agency for good cause finds that notice and public
procedure are impracticable, unnecessary, or contrary to the public
interest. Because this rule is exempt from the notice and comment
requirements of the APA, Treasury is not required to conduct a
regulatory flexibility analysis.
List of Subjects in 31 CFR Part 35
Community development, Disaster assistance, Executive compensation,
Public health emergency, State and Local Governments, Transportation,
Tribal Governments.
For the reasons stated in the preamble, the United States
Department of the Treasury amends 31 CFR part 35 as set forth below:
[[Page 80589]]
PART 35--PANDEMIC RELIEF PROGRAMS
Subpart A--Coronavirus State and Local Fiscal Recovery Funds
0
1. The authority citation for part 35, subpart A continues to read as
follows:
Authority: 42 U.S.C. 802(f); 42 U.S.C. 803(f); section 102(c) of
Division LL of the Consolidated Appropriations Act, 2023 (Pub. L.
117-328).
0
2. Amend Sec. 35.3 by adding a new sentence at the end of the
definition of ``Obligation'' to read as follows:
Sec. 35.3 Definitions.
* * * * *
Obligation * * * An obligation also means a requirement under
federal law or regulation or provision of the award terms and
conditions to which a recipient becomes subject as a result of
receiving or expending funds.
* * * * *
0
3. Revise Sec. 35.5(c) to read as follows:
Sec. 35.5 Use of funds.
* * * * *
(c) Return of funds. A recipient must return any funds that have
not been obligated by December 31, 2024, pursuant to orders placed for
property and services or entry into contracts, subawards, and similar
transactions that require payment other than funds in the amount
reported to Treasury by April 30, 2024, as the estimate of funds that
the recipient will expend to comply with a requirement under federal
law or regulation or provision of the award terms and conditions to
which a recipient becomes subject as a result of receiving or expending
funds. A recipient must return funds obligated for a use identified in
Sec. 35.6(b) through (g) by December 31, 2024, but not expended by
December 31, 2026. A recipient must return funds obligated for a use
identified in Sec. 35.6(h) by December 31, 2024, but not expended by
September 30, 2026. A recipient must return funds in the amount
reported to Treasury by April 30, 2024, as referenced above, but not
expended by December 31, 2026, other than administrative expenses
necessary to close out the award.
Jessica A. Milano,
Chief Recovery Officer, Office of Recovery Programs.
[FR Doc. 2023-25067 Filed 11-17-23; 8:45 am]
BILLING CODE 4810-AK-P
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</html>Indexed from Federal Register on November 20, 2023.
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