PROPOSED U.S. TREASURY RULES October 7,2013 Sheree T. Keeler, Intergovernmental Affairs Director
Provide an overview of the proposed RESTORE Act Treasury rule (rule). Highlight important issues or concerns based on the way the proposed Rule is written. Allow for comments and questions. Outline immediate next steps.
On Friday, September 6, 2013, the rule 31 CFR Part 34, was Published in the Federal Register for a 60 day comment period. Specific comments were requested on: (re: P reamble) U.S. Treasury’s application process. U.S. Treasury’s proposed approach for evaluating funding requirements, particularly those elements requiring special expertise and judgment. Comments are due no later than Tuesday, November 5, 2013, via federal government portal or mail. (re: P reamble) All comments are public information and will be published on the federal government portal. No date established or available for when the “FINAL” rule will be issued.
Provides guidance required by the RESTORE Act on accessing and managing funds. Establishes a “grantee-grantor” relationship. Implementation Prescribes the requirements to be met to access funds. Provides terms and definitions. Requirements Compliance and accountability measures to be met and maintained for receiving, spending and managing funds. Compliance U.S. Treasury has sole authority to disburse, manage and oversee the funds allocated and disbursed to entities named in the RESTORE Act. Authority U.S. Treasury and U.S. Office of Inspector are authorized to audit and coordinate audits of entities receiving funds. Auditing
80% to the Gulf Coast Restoration Trust Fund Clean Water Act Penalties Paid into Trust Fund POT 1 DIRECT COMPONENT (Wakulla County Pot 1) 35% equally divided among the Gulf States. In Florida, the 35% is split between the 23 Gulf Counties: - 75% to the 8 disproportionately affected counties Wakulla west to Escambia County by formula - 25% to other 15 non- disproportionately affected counties from Jefferson south to Monroe County. POT 2 COUNCIL- SELECTED RESTORATION COMPONENT 30% + Interest managed by the Gulf Coast Ecosystem Restoration Council POT 3 SPILL IMPACT COMPONENT (FL Gulf Consortium) 30% divided among the five Gulf Coast States according to a formula. POT 4 GULF COAT ECOSYSTEM RESTORATION SCIENCE PROGRAM 2.5% + Interest provided to NOAA for a monitoring, observations, science technology program. 20% to Oil Spill Liability Trust Fund POT 5 CENTERS OF EXCELLENCE RESEARCH GRANT PROGRAMS 2.5% + interest allocated to the Gulf Coast States for Centers of Excellence
Establishes a grantor-grantee relationship between the U.S. Treasury and entities named in the RESTORE Act, i.e., Wakulla County- Pot 1. (re: s. 34.304 Grant Award Process) This means that Wakulla County will be a “grantee” required to follow all federal grant and other applicable laws and policies and treat projects awarded to non-Wakulla County BoCC organizations as “sub-awards.” (preamble : affected population and 34.803 (c)) Under “Affected Population” the Rule says that “state entities can apply direct to the U.s. Treasury or the Federal Council for grant funds”: (re: Preamble, Affected Population) Appears that this specific section allows state agencies to bypass the County for Pot 1 funds (i.e., Wakulla County) and the Florida Gulf Consortium for Pot 3 funds. The Rule does not address this specific allowance under any other section, i.e., Direct Components. This allowance appears to be in conflict with the RESTORE Act.
Definitions important to Wakulla County – Pot 1 (re: 34 A: General Provisions ) Administrative Cost – means indirect cost incurred for general management functions, general ledger accounting, budgeting, human resources, general procurement services and general legal services that are allocable to activities authorized under the Act. The Rule appears to not allow funding or reimbursement of planning and administration activities prior to an executed grant agreement (Agreement). The Rule seems to envision that no funds will be awarded prior to the County plan submittal and approval by U.S. Treasury and the execution of an Agreement. Best Available Science – means science that maximizes the quality, objectivity, and integrity of information, including statistical information; uses peer-reviewed and publicly available data; and clearly documents and communicates risks and uncertainties in the scientific basis for such projects. Cannot use anecdotal data or empirical research.
Definitions important to Wakulla County Direct Component – Wakulla County – Pot 1 Requires Wakulla to submit a multi-year plan and enter into an Agreement with the U.S. Treasury to access funds. Environmental Review and Compliance Procedures – entities must follow the procedures under applicable Federal and State environmental laws. All projects must be properly permitted by the appropriate federal or state agency before it can commence. Rule is silent on expedited permitting and waivers for RESTORE Act projects. Rule does not provide the specific laws to be followed.
Cost incurred, direct or in-direct, must conform with applicable federal laws, OMB circulars and guidance. (s.34.200(a)(1)) Grant Agreement MAY provide for pre-award costs of environmental review and compliance in the manner prescribed in applicable OMB circulars and guidance. (s.34.200(a)(3)) The Rule appears to not allow for funding or reimbursement of planning and administration activities prior to an executed grant agreement. The Rule seems to envision that no funds will be awarded prior to the County plan submittal, approval of U.S. Treasury and execution of an Agreement. Grant funds CAN be used to satisfy the non-FEDERAL cost-share of a project or program that is an eligible activity and authorized by Federal law. (s.34.200(b)) Rule is silent on use of funds being used as match for State grants. Eligible activities allowed by the Gulf RESTORE Act program. (s.34.201) For Wakulla, this means the criteria in the RESTORE ACT, section 1603 (3) (B) (i) – which are:
1. Restoration and protection of the natural resources, ecosystems, fisheries, marine and wildlife habitats, beaches, and coastal wetlands of the Gulf Coast Region. 2. Mitigation of damage to fish, wildlife and natural resources. 3. Implementation of a federally approved marine, coastal, or comprehensive conservation management plan, including fisheries monitoring. 4. Workforce development and job creation. 5. Improvements to or on State parks located in coastal areas affected by the Deepwater Horizon oil spill. 6. Infrastructure projects benefitting the economy or ecological resources, including port infrastructure. 7. Coastal flood protection and related infrastructure. 8. Planning assistance. 9. Administrative costs of complying with this section ( cannot be greater than 3 percent, see definition in Rule ). 10. Promotion of tourism and seafood in the Gulf Coast Region: Promotion of tourism in the Gulf Coast region, including recreational fishing. Promotion of the consumption of seafood harvested from the Gulf Coast Region.
Direct Component – Wakulla County: Multi-year plan is required describing the projects, programs, activities to fund/implement : (s. 34.303) The Plan, must be made available for public comment for a minimum of 30-days before submitting to the U.S. Treasury. (Preamble: Direct Components) Rule is silent on date for Plan submittal to the U.S. Treasury or how long the U.S. Treasury has to approve the Plan. Rule does not address Plan updates or revisions. Applications for projects will need to embrace all Multi-year Plan requirements.
Direct Component – Wakulla County – Pot 1: U.S. Treasury “ may ” prescribe a standard format for the multi-year plan. (s. 34.303 (a)) Not knowing if the U.S. Treasury will prescribe a standard format makes it difficult to develop the Multi-year Plan, requires clear direction from U.s. Treasury
Plan, must describe each planned “program, project and activity” (s. 34.303 (a)) Narrative description showing need, purpose objectives. Identify the eligible activity – RESTORE Act Criteria Budget - detailed Milestones Projected completion dates Criteria to be used to evaluate success of each activity in helping to restore and protect the Gulf Coast region impacted by the spill. Identify if other funding for the program project or activity has been requested under other sections of the RESTORE Act. Applications for projects will need to embrace all Plan requirements.
The Plan Must Also (D.34.003) Provide supporting information that proposed activities: Meet the statutory requirements for the activities. Implementation Plan was made available for public review and comment for at least 30 days. Each program, project and activity is adopted after consideration of all meaningful input from individuals, business, Tribal nations and non-profit organizations. Provide supporting information that each program, project and activity that is designed to protect or restore natural resources is based on the best available science. Demonstrate compliance with applicable environmental laws. ( Preamble: Direct Components) Applications for projects will need to embrace all Plan requirements.
Grant Agreement If the US Treasury determines that the Plan meets all of the “requirements”, they will offer a Grant Agreement, with a beginning and ending date. (s. 34.304) Sub-grantee will be required to enter into a sub-grant Agreement that includes all of the requirements of the Agreement between Wakulla County and the U.S. Treasury. Sub-grant Agreement can only be “offered” once the Plan and the specific project, activity or program is approved by the U.S. Treasury.
Grant Agreement Any unspent funds at the end of the grant period or conclusion of the project, must be returned to the U.S. Treasury. (s. 34.305 (a)) Rule does not address rolling funds over to another project or Plan amendments. This will also apply to sub-grantees. Wakulla County will need to perform fiscal monitoring of sub-grantees. Timely reporting is a must! (34.306) Wakulla County will be responsible for submitting timely reports of all approved and funded projects, activities and programs. Wakulla County will be responsible for ensuring that sub-grantees submit reports to Wakulla County timely or take corrective actions. Rule does not describe all reporting requirements, it appears that the Grant Agreement will provide more specificity.
Grant Agreement The Grant Agreement will have mandatory certifications that must be certified ( by the BoCC ) and signed by the Chairman. Certifications with the Agreement to attest that projects, activities, program meet the RESTORE Act, the Rule and all other federal and state law and policy requirements; and, that funds will be managed according to such requirements. Certifications at the conclusion of the grant period, or other period specified by the Agreement, will also be required, i.e., grant funds spent only for purposes identified in the Agreement, documentation to demonstrate accuracy of statements, etc. Sub-grantees will also be required to complete Certifications.
Grant Agreement Rule allows preference to State vendors for project activities awarded under the Grant. (34.305) Does not appear to allow local preference.
Wakulla, as a Direct Component, must comply with all Federal Grant and other applicable laws and policies. U.S. Treasury may withhold funds or request repayment of funds if it is determined that RESTORE Act funds were used for an unauthorized purpose or if a condition of the use of funds is violated. Entities awarded a project are considered a “sub award” and are required to enter into an Agreement containing all requirements of the Agreement between the U.S. Treasury and the BoCC. There is NO requirement that Direct Components (i.e., Wakulla) sub-grant any of the funds or solicit for projects to be funded. Wakulla County will be responsible for sub-grantees performance, compliance, and accountability of funds. Wakulla County will have to monitor sub-grantees to evaluate compliance, performance and fiscal management and take corrective actions if not in compliance. U.S. Treasury may withhold funds or request repayment of funds if it is determined that that a sub-grantee used RESTORE Act funds for an unauthorized purpose or if a condition of the use of funds is violated.
Approve plans and the expenditure of RESTORE Act funds. U.S. Treasury or the U.S. Inspector General MAY withhold funds or request repayment of funds if it is determined that RESTORE Act funds were used for an unauthorized purpose or if a condition of the use of funds is violated. Wakulla County will be responsible for any sub-grantees failure to perform, comply with terms of the Agreement or for any unauthorized purpose or condition of the use of the funds.
Wednesday, October 10 th : RESTORE Act Advisory Committee Meeting Scheduled to hear citizens, discuss Rules and propose Comments for BoCC consideration. Monday, October 21 st : Staff will present proposed official response to U.S. Treasury on proposed Rule for BoCC for approval. Tuesday, November 5 th or before: Staff will transmit BoCC official response to Rule via the federal government portal. WAIT for U.S. Treasury to issue final Rule. WAIT for BP Trial to be over. WAIT to find out how much $$ we will receive.
Questions or Contact: Sheree T. Keeler Intergovernmental Affairs Director e-mail: firstname.lastname@example.org@mywakulla.com Office phone: 850-926-0919 X 705