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HomeMy WebLinkAbout08222023 CC AgendaIn compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the office of the City Clerk (951) 694-6444. Notification 48 hours prior to a meeting will enable the City to make reasonable arrangements to ensure accessibility to that meeting [28 CFR 35.102.35.104 ADA Title 11]. AGENDA TEMECULA CITY COUNCIL REGULAR MEETING COUNCIL CHAMBERS 41000 MAIN STREET TEMECULA, CALIFORNIA AUGUST 22, 2023 - 6:00 PM CLOSED SESSION - 5:00 PM CONFERENCE WITH REAL PROPERTY NEGOTIATORS. The City Council will meet in closed session pursuant to Government Code Section 54956.8 regarding the acquisition of certain property interests from the real property located at 39622 Leifer Road in the City of Temecula (APN 957-090-023). Specifically, the City seeks to acquire an approximate 31,168 square foot temporary construction easement with a term of 12 months, covenant authorizing the construction of certain permanent improvements in portions of that 31,168 square foot area. This acquisition is in connection with the proposed extension of Nicolas Road from its current termination at Calle Girasol easterly to Butterfield Stage Road, Project Number LD20-1114 ("Project"). The negotiating parties are the City of Temecula and the property owners Isaac G. Navejar and Isabel L. Navejar, as Co -Trustees of the Navejar Living Trust, U/A dated July 18, 2019. Negotiators for the City are Patrick Thomas and Ron Moreno. Under negotiations are price and terms of the acquisition of these property interests. CONFERENCE WITH LEGAL COUNSEL - PENDING LITIGATION. The City Council will meet in closed session with the City Attorney and Special Counsel pursuant to Government Code Section 54956.9(d)(1) with respect to two matters of pending litigation: 1) City of Temecula v Sohan Singh, et al. (Riverside Superior Court Case No. CVSW2303952); and 2) Solana Winchester, LLC, v. City of Temecula (Riverside Superior Court Case No. CVRI2304109). CALL TO ORDER: Mayor Zak Schwank PRELUDE MUSIC: Temecula Valley Youth Symphony INVOCATION: Pastor Steve Redden of Crosspoint Church Temecula FLAG SALUTE: Mayor Zak Schwank ROLL CALL: Alexander, Brown, Kalfus, Schwank, Stewart PRESENTATIONS Award of Recognition to Former Council Member Maryann Edwards Page 1 City Council Agenda August 22, 2023 BOARD / COMMISSION REPORTS Community Services Commission and Race, Equity, Diversity and Inclusion Commission PUBLIC SAFETY REPORT County of Riverside, Riverside County Sheriffs Department PUBLIC COMMENTS - NON -AGENDA ITEMS A total of 30 minutes is provided for members of the public to address the City Council on matters not listed on the agenda. Each speaker is limited to 3 minutes. Public comments may be made in person at the meeting by submitting a speaker card to the City Clerk. Speaker cards will be called in the order received. Still images may be displayed on the projector. All other audio and visual use is prohibited. Public comments may also be submitted by email for inclusion into the record. Email comments must be received prior to the time the item is called for public comments and submitted to CouncilComments@temeculaca.gov. All public participation is governed by Council Policy regarding Public Participation at Meetings adopted by Resolution No. 2021-54. CITY COUNCIL REPORTS Reports by the members of the City Council on matters not on the agenda will be made at this time. A total, not to exceed, ten minutes will be devoted to these reports. CONSENT CALENDAR All matters listed under Consent Calendar are considered to be routine and all will be enacted by one roll call vote. There will be no discussion of these items unless members of the City Council request specific items be removed from the Consent Calendar for separate action. A total of 30 minutes is provided for members of the public to address the City Council on matters on the Consent Calendar. Each speaker is limited to 3 minutes. Public comments may be made in person at the meeting by submitting a speaker card to the City Clerk. Speaker cards will be called in the order received. Still images maybe displayed on the projector. All other audio and visual use is prohibited. Public comments may also be submitted by email for inclusion into the record. Email comments must be received prior to the time the item is called for public comments and submitted to CouncilComments@temeculaca.gov. All public participation is governed by Council Policy regarding Public Participation at Meetings adopted by Resolution No. 2021-54. 1. Waive Reading of Title and Text of All Ordinances and Resolutions Included in the Agenda Recommendation: That the City Council waive the reading of the title and text of all ordinances and resolutions included in the agenda. Attachments: Agenda Report 2. Approve Action Minutes of August 8, 2023 Recommendation Attachments That the City Council approve the action minutes of August 8, 2023. Action Minutes Page 2 City Council Agenda August 22, 2023 3. Approve List of Demands 4. 5. Recommendation Attachments That the City Council adopt a resolution entitled: RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA ALLOWING CERTAIN CLAIMS AND DEMANDS AS SET FORTH IN EXHIBIT A Agenda Report Resolution List of Demands Approve City Treasurer's Report as of May 31, 2023 Recommendation: That the City Council approve and file the City Treasurer's Report as of May 31, 2023. Attachments: Agenda Report May Treasurer's Report Amend the Capital Improvement Program Budget for Fiscal Years 2024-28 for Various Projects Recommendation: That the City Council: 1. Adopt a resolution entitled: RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA TO AMEND THE CAPITAL IMPROVEMENT PROGRAM BUDGET FOR FISCAL YEARS 2024-28 FOR VARIOUS PROJECTS 2. Approve an appropriation of $1,500,000 from Transportation Uniform Mitigation Fee, from Western Riverside Council of Governments in Fiscal Year 2023-24 for the I-15 / French Valley Parkway Improvements - Phase III project; and 3. Approve an appropriation and corresponding fund transfer of $200,000 from Measure S for Fiscal Year 2023-24 to the I-15 / French Valley Parkway Improvements - Phase III project; and 4. Approve an appropriation of $1,000,000 grant funding from California Page 3 City Council Agenda August 22, 2023 State Assembly Bill 102 as amended in Senate on June 24, 2023 for Fiscal Year 2023-24 for the Ynez Road Improvements - Phase I project; and 5. Approve a fund Transfer of $1,000,000 of Development Impact Fee - Street Improvements from Ynez Road Improvements, Phase I to Fiscal Year 2025-26 of the Rancho California Road Median Improvements project; and 6. Approve a fund transfer of $594,524 from Fiscal Year 2023-24 of the Sidewalks - Citywide project to Fiscal Year 2023-24 of a separately established project, Sidewalks - Pauba Road; and 7. Approve an appropriation of $362,600 grant funding from California Senate Bill 821 for Fiscal Year 2023-24 for the Sidewalks - Pauba Road; and 8. Approve an appropriation of $200,000 grant funding from American Rescue Plan Act, signed into law March 11, 2021, through the County of Riverside for Fiscal Year 2023-24 to the Dog Park Renovation project; and 9. Approve an appropriation and corresponding fund transfer of $100,000 from Measure S for Fiscal Year 2023-24 to the Dog Park Renovation project. Attachments: Agenda Report Resolution Amended CIP Budget Sheets CIP Budget Amendment Summary 6. Approve Form of Rancho California Water District Recycled Water Agreements and Authorize the City Manager to Execute Said Agreements on Behalf of the City Recommendation: That the City Council adopt a resolution entitled: RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA APPROVING THE FORM OF RECYCLED WATER AGREEMENTS AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENTS ON BEHALF OF THE CITY Attachments: Agenda Report Resolution Agreement - City Version Agreement - Private Version Page 4 City Council Agenda August 22, 2023 7. Approve First Amendment to the Agreement for On Call Services with Keyser Marston and Associates, Inc. 8. 9. Recommendation: AttaehmPntc That the City Council approve the first amendment to the agreement with Keyser Marston Associates, Inc., in the amount of $110,000, for a total agreement of $275,000, for on call services. Agenda Report Amendment Adopt Resolution to Approve the Administering Agency - State Agreement - Master Agreement No. 08-5459521 with the State of California, Department of Transportation Recommendation: That the City Council adopt a resolution entitled: RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA TO APPROVE THE ADMINISTERING AGENCY - STATE AGREEMENT - MASTER AGREEMENT NO. 08-5459521 AND AUTHORIZE THE CITY MANAGER TO EXECUTE THE AGREEMENT AND ALL PERTINENT PROGRAM SUPPLEMENT AGREEMENTS FOR STATE FUNDED PROJECTS Attachments: Agenda Report Resolution Master Agreement No. 08-5459521 Programpplement Agreement No. OOOOOA212 Program�Sgpplement Agreement No. OOOOOA213 Approve Increase to the Professional Services Contingency Authorization for the Margarita Recreation Center Project, PW 17-21 Recommendation: That the City Council: 1. Approve an increase to the contingency for professional services for the Margarita Recreation Center Project, PW 17-21 by $43,000; and 2. Increase the City Manager's authorized contingency by $43,000. Attachments: Agenda Report Project Description 10. Approve the Funding Agreement with the County of Riverside for the Michael "Mike" Naggar Park Dog Park Renovation Project, PW21-14 and Authorize the City Manager to Execute the Agreement Page 5 City Council Agenda August 22, 2023 11. 12. Recommendation: That the City Council: 1. Approve the "Funding Agreement for City of Temecula Michael "Mike" Naggar Community Park Expansion Project" (Agreement) with the County of Riverside; and 2. Authorize the City Manager to execute the Agreement. Attachments: Agenda Report Funding_ Agreement Project Description Approve Specifications and Authorize Solicitation of Construction Bids for Citywide Slurry Seal Program - Fiscal Year 2022-23, PW23-16 Recommendation: That the City Council: 1. Approve the specifications and authorize the Department of Public Works to solicit construction bids for the Citywide Slurry Seal Program - Fiscal Year 2022-23, PW23-16; and 2. Make a finding that this project is exempt from CEQA per Article 19, Categorical Exemption, Section 15301, Existing Facilities, of the CEQA Guidelines. Attachments: Agenda Report Slurry Seal Street Name List Project Location Maps Accept Improvements and File the Notice of Completion for the Traffic Signal - Park and Ride Access Improvements, PW18-11 Recommendation: Attachments: That the City Council: 1. Accept the construction of the Traffic Signal - Park and Ride Access Improvements, PW18-11, as complete; and 2. Direct the City Clerk to file and record the Notice of Completion. Agenda Report Notice of Completion Project Description Project Map 13. Receive and File Temporary Street Closures for 2023 Autumnfest Events Recommendation: That the City Council receive and file the temporary closure of certain streets for the following 2023 Autumnfest events: Page 6 City Council Agenda August 22, 2023 GOLDEN ERA RUNWAY SHOW NATIONAL EMERGENCY PREPAREDNESS FAIR ARTFEST HEALTH & COMMUNITY RESOURCE FAIR CYCLE FOR HOPE GREEK FESTIVAL HALLOWEEN CARNIVAL VETERAN'S DAY PECHANGA PU'ESKA MOUNTAIN DAY Attachments: Agenda Report Exhibit A Exhibit B RECESS CITY COUNCIL MEETING TO SCHEDULED MEETINGS OF THE TEMECULA COMMUNITY SERVICES DISTRICT, THE SUCCESSOR AGENCY TO THE TEMECULA REDEVELOPMENT AGENCY, THE TEMECULA HOUSING AUTHORITY, AND/OR THE TEMECULA PUBLIC FINANCING AUTHORITY Page 7 City Council Agenda August 22, 2023 TEMECULA COMMUNITY SERVICES DISTRICT MEETING CALL TO ORDER: President James Stewart ROLL CALL: Alexander, Brown, Kalfus, Schwank, Stewart CSD PUBLIC COMMENTS - NON -AGENDA ITEMS A total of 30 minutes is provided for members of the public to address the Board of Directors on matters not listed on the agenda. Each speaker is limited to 3 minutes. Public comments may be made in person at the meeting by submitting a speaker card to the City Clerk. Speaker cards will be called in the order received. Still images may be displayed on the projector. All other audio and visual use is prohibited. Public comments may also be submitted by email for inclusion into the record. Email comments must be received prior to the time the item is called for public comments and submitted to CouncilComments@temeculaca.gov. All public participation is governed by Council Policy regarding Public Participation at Meetings adopted by Resolution No. 2021-54. CSD CONSENT CALENDAR All matters listed under Consent Calendar are considered to be routine and all will be enacted by one roll call vote. There will be no discussion of these items unless members of the Community Services District request specific items be removed from the Consent Calendar for separate action. A total of 30 minutes is provided for members of the public to address the Board of Directors on items that appear on the Consent Calendar. Each speaker is limited to 3 minutes. Public comments may be made in person at the meeting by submitting a speaker card to the City Clerk. Speaker cards will be called in the order received. Still images may be displayed on the projector. All other audio and visual use is prohibited. Public comments may also be submitted by email for inclusion into the record. Email comments must be received prior to the time the item is called for public comments and submitted to CouncilComments@temeculaca.gov. All public participation is governed by Council Policy regarding Public Participation at Meetings adopted by Resolution No. 2021-54. 14. Approve Action Minutes of August 8, 2023 Recommendation: That the Board of Directors approve the action minutes of August 8, 2023. Attachments: Action Minutes 15. Approve Agreement with Titan Rental Group, Inc. for Event and Program Rental Items Recommendation: That the Board of Directors approve the agreement with Titan Rental Group, Inc. for event and program rental items. Attachments: Agenda Report Agreement 16. Approve Annexation of Tract Map Numbers 37341 and 37341-17, Within Sommers Bend, to Service Level B (Residential Street Lights) Rates and Charges Located on East Side of Butterfield Stage Road and North of Long Valley Wash) Page 8 City Council Agenda August 22, 2023 Recommendation: That the Board of Directors adopt the following resolutions entitled: RESOLUTION NO. CSD A RESOLUTION OF THE BOARD OF DIRECTORS OF THE TEMECULA COMMUNITY SERVICES DISTRICT OF THE CITY OF TEMECULA, DECLARING INTENTION TO ANNEX PROPERTY (TRACT MAP 37341 AND 37341-17) TO SERVICE LEVEL B - RESIDENTIAL STREET LIGHTS AND TO LEVY ASSESSMENTS ON SUCH PROPERTY FOR FISCAL YEAR 2024-25, APPROVING THE ENGINEER'S REPORT, AND SETTING THE DATE, TIME AND PLACE OF A PUBLIC HEARING ON THE PROPOSED ANNEXATION AND ASSESSMENTS RESOLUTION NO. CSD A RESOLUTION OF THE BOARD OF DIRECTORS OF THE TEMECULA COMMUNITY SERVICES DISTRICT OF THE CITY OF TEMECULA, INITIATING PROCEEDINGS TO ANNEX PROPERTY (TRACT MAP 37341 AND 37341-17) TO SERVICE LEVEL B FOR FISCAL YEAR 2024-25 Attachments: Agenda Report Vicinity Maps - Tract Maps 37341 and 37341-17 Resolution of Intention Resolution of Initiatiating Proceedings Preliminary Annexation Engineer's Report CSD DIRECTOR OF COMMUNITY SERVICES REPORT CSD GENERAL MANAGER REPORT CSD BOARD OF DIRECTOR REPORTS CSD ADJOURNMENT The next regular meeting of the Temecula Community Services District will be held on Tuesday, September 12, 2023, at 4:30 p.m., for a Closed Session, with regular session commencing at 6:00 p.m., at the Council Chambers located at 41000 Main Street, Temecula, California. Page 9 City Council Agenda August 22, 2023 SUCCESSOR AGENCY TO THE TEMECULA REDEVELOPMENT AGENCY - NO MEETING TEMECULA HOUSING AUTHORITY - NO MEETING TEMECULA PUBLIC FINANCING AUTHORITY - NO MEETING RECONVENE TEMECULA CITY COUNCIL PUBLIC HEARING Any person may submit written comments to the City Council before a public hearing or may appear and be heard in support of or in opposition to the approval of a project at the time of the hearing. If you challenge a project in court, you may be limited to raising only those issues you or someone else raised at the public hearing or in written correspondence delivered to the City Clerk at or prior to the public hearing. For public hearings each speaker is limited to 5 minutes. Public comments may be made in person at the meeting by submitting a speaker card to the City Clerk or by submitting an email to be included into the record. Email comments must be submitted to CouncilComments@temeculaca.gov. Email comments on all matters, including those not on the agenda, must be received prior to the time the item is called for public comments. At public hearings involving land use matters, the property owner and/or applicant has the burden of proof and, therefore, shall be allowed 15 minutes for an initial presentation, and an additional 10 minutes for rebuttal by its development team following other comments on the matter. An appellant, other than the property owner and/or applicant, and the spokesperson for an organized group of residents residing within the noticed area of the property, which is the subject of the public hearing, shall be allowed 15 minutes to present the appellant's position to the Council. The Mayor may allow more time if required to provide due process for the property owner, applicant or appellant. All other members of the public may speak during the public hearing for a maximum period of 5 minutes each. Deferral of one speaker's time to another is not permitted. In the event of a large number of speakers, the Mayor may reduce the maximum time limit for members of the public to speak. All public participation is governed by the Council Policy regarding Public Participation at Meetings adopted by Resolution No. 2021-54. 17. Introduce Ordinance Amending Titles 5, 8, and 17 of the Temecula Municipal Code, and Adopt a Resolution Setting the Fee for a Tobacco Shop Permit and Find that this Ordinance is Exempt from the California Environmental Quality Act (CEQA) Pursuant to CEQA Guidelines Section 15061 (b)(3) Recommendation That the City Council: 1. Introduce and read by title only an ordinance entitled: ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TEMECULA AMENDING TITLES 5, 8, AND 17 OF THE TEMECULA MUNICIPAL CODE TO (1) AMEND MASSAGE ESTABLISHMENT REGULATIONS, (2) ADD DEFINITIONS FOR TOBACCO SHOP, Page 10 City Council Agenda August 22, 2023 TOBACCO SHOP PERMIT AND UPDATE DEFINITIONS OF TOBACCO PRODUCT AND TOBACCO PARAPHERNALIA, (3) IMPLEMENT A TOBACCO SHOP PERMIT PROGRAM TO INCLUDE STRUCTURAL AND OPERATIONAL REQUIREMENTS, (4) UPDATE TOBACCO RETAILERS LICENSE PROCESSES, (5) AMEND REGULATIONS ON SMOKING IN HOTEL ROOMS, (6) REMOVE TOBACCO SHOP AS A CONDITIONALLY PERMITTED USE IN TABLE 17.08.030, (7) IMPLEMENT TOBACCO SHOP PERMIT REQUIREMENTS IN PLANNED DEVELOPMENT OVERLAY ZONING DESIGNATIONS 1 AND 4, AND (8) MAKE A FINDING THAT THIS ORDINANCE IS EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) PURSUANT TO CEQA GUIDELINES SECTION 15061 (B)(3) 2. Adopt Resolution entitled: RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA ESTABLISHING A TOBACCO SHOP PERMIT FEE Attachments: Agenda Report Ordinance Resolution Planning Commission Resolution No. 2023-14 Notice of Public Hearing Notice of Exemption DEPARTMENTAL REPORTS (RECEIVE AND FILE) 18. Community Development Department Monthly Report Attachments: Agenda Report Planning Activity Report 19. Fire Department Monthly Report Attachments: Agenda Report Monthly Report - July 20. Police Department Monthly Report Attachments: Agenda Report 21. Public Works Department Monthly Report Page 11 City Council Agenda August 22, 2023 Attachments: Agenda Report Project Status Report ITEMS FOR FUTURE CITY COUNCIL AGENDAS Any Council Member, including the Mayor, may request an item be placed on a future agenda. Any such request will be discussed under this section. In making the request, a Council Member may briefly describe the topic of the proposed agenda item and any timing associated with the placement of the item on the agenda. This description shall not exceed 3 minutes. No substantive discussion on the subject of the motion may occur. Items may only be placed on the agenda by Council Members pursuant to policy or by the City Manager based on administrative or operational needs of the City. Public comments on the placement of these agenda items shall be limited to a maximum of 30 minutes. Individual comments shall not exceed 3 minutes. All public participation is governed by the Council Policy regarding Public Participation at Meetings and Agenda Placements by Council Members adopted by Resolution No. 2021-54. CITY MANAGER REPORT CITY ATTORNEY REPORT ADJOURNMENT The next regular meeting of the City Council will be held on Tuesday, September 12, 2023, at 4:30 p.m., for a Closed Session, with regular session commencing at 6:00 p.m., at the Council Chambers located at 41000 Main Street, Temecula, California. 101311lei Do111110,1Doa".11014 The full agenda packet (including staff reports, public closed session information, and any supplemental material available after the original posting of the agenda), distributed to a majority of the City Council regarding any item on the agenda, will be available for public viewing in the main reception area of the Temecula Civic Center during normal business hours at least 72 hours prior to the meeting. The material will also be available on the City's website at TemeculaCa.gov. and available for review at the respective meeting. If you have questions regarding any item on the agenda, please contact the City Clerk's Department at (951) 694-6444. Page 12 Item No. 1 CITY OF TEMECULA AGENDA REPORT TO: City Manager/City Council FROM: Randi Johl, Director of Legislative Affairs/City Clerk DATE: August 22, 2023 SUBJECT: Waive Reading of Title and Text of All Ordinances and Resolutions Included in the Agenda PREPARED BY: Randi Johl, Director of Legislative Affairs/City Clerk RECOMMENDATION: That the City Council waive the reading of the title and text of all ordinances and resolutions included in the agenda. BACKGROUND: The City of Temecula is a general law city formed under the laws of the State of California. With respect to adoption of ordinances and resolutions, the City adheres to the requirements set forth in the Government Code. In accordance with Government Code Section 34934, the title of each ordinance is included on the published agenda and a copy of the full ordinance has been available to the public online on the City's website and will be available in print at the meeting prior to the introduction or passage of the ordinance. Unless otherwise required, the full reading of the title and text of all ordinances and resolutions is waived. FISCAL IMPACT: None ATTACHMENTS: None Item No. 2 ACTION MINUTES TEMECULA CITY COUNCIL REGULAR MEETING COUNCIL CHAMBERS 41000 MAIN STREET TEMECULA, CALIFORNIA AUGUST 8, 2023 - 6:00 PM CALL TO ORDER at 6:00 PM: Mayor Zak Schwank PRELUDE MUSIC: Temecula Conservatory of Music INVOCATION: Chaplain Themba M. Mzizi of Riverside County Sheriffs Department FLAG SALUTE: Commissioner Robert Carter ROLL CALL: Alexander, Brown, Kalfus, Schwank, Stewart BOARD / COMMISSION REPORTS Traffic Safety Commission PUBLIC SAFETY REPORT County of Riverside, Fire Department (CAL FIRE) PUBLIC COMMENTS - NON -AGENDA ITEMS The following individual(s) addressed the City Council: • Brad Bohn • Supervisor Karen Spiegel CITY COUNCIL REPORTS CONSENT CALENDAR Unless otherwise indicated below, the following pertains to all items on the Consent Calendar. Approved the Staff Recommendation (5-0): Motion by Stewart, Second by Alexander. The vote reflected unanimous approval. 1. Waive Reading of Title and Text of All Ordinances and Resolutions Included in the Agenda Recommendation: That the City Council waive the reading of the title and text of all ordinances and resolutions included in the agenda. 2. Approve Action Minutes of July 25, 2023 Recommendation: That the City Council approve the action minutes of July 25, 2023. 3. Approve List of Demands Recommendation: That the City Council adopt a resolution entitled: RESOLUTION NO. 2023-69 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA ALLOWING CERTAIN CLAIMS AND DEMANDS AS SET FORTH IN EXHIBIT A 4. Receive Report Regarding Status of Upcoming Vacancies on Commissions Recommendation: That the City Council receive the report regarding the status of upcoming vacancies on Commissions. Receive and file only, no action. RECESS: At 6:16 PM, the City Council recessed and convened as the Temecula Community Services District and Temecula Public Financing Authority Meetings. At 6:18 PM the City Council resumed with the remainder of the City Council Agenda. RECONVENE TEMECULA CITY COUNCIL BUSINESS 7. Receive Report Regarding Senate Bill 329 Pertaining to City Council Compensation and Provide General Direction Regarding the Same (At the Request of Council Member Brown) Recommendation: That the City Council receive a report regarding Senate Bill 329 pertaining to City Council compensation and provide general direction regarding the same. Motion to bring ordinance to future meeting reflecting Council compensation adjustment from $600 to $1,900 per month (3-2): Motion by Brown, Second by Schwank. The vote reflected unanimous approval with Alexander and Stewart opposing. ITEMS FOR FUTURE CITY COUNCIL AGENDAS The City Council approved the placement of the following topic on a future agenda — Board and Commission Compensation. CITY MANAGER REPORT CITY ATTORNEY REPORT ADJOURNMENT At 6:32 PM, the City Council meeting was formally adjourned to Tuesday, August 22, 2023, at 4:30 PM for Closed Session, with regular session commencing at 6:00 PM, City Council Chambers, 41000 Main Street, Temecula, California. Adjourned in Memory of Assistant Chief Josh Bischof, Fire Captain Tim Rodriguez and Pilot Tony Sousa Zak Schwank, Mayor ATTEST: Randi Johl, City Clerk [SEAL] Item No. 3 CITY OF TEMECULA AGENDA REPORT TO: City Manager/City Council FROM: Jennifer Hennessy, Director of Finance DATE: August 22, 2023 SUBJECT: Approve List of Demands PREPARED BY: Pam Espinoza, Senior Accounting Technician RECOMMENDATION: That the City Council adopt a resolution entitled: RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA ALLOWING CERTAIN CLAIMS AND DEMANDS AS SET FORTH IN EXHIBIT A BACKGROUND: All claims and demands are reported and summarized for review and approval by the City Council on a routine basis at each City Council meeting. The attached claims represent the paid claims and demands since the last City Council meeting. FISCAL IMPACT: All claims and demands were paid from appropriated funds or authorized resources of the City and have been recorded in accordance with the City's policies and procedures. ATTACHMENTS: 1. Resolution 2. List of Demands RESOLUTION NO.2023- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA ALLOWING CERTAIN CLAIMS AND DEMANDS AS SET FORTH IN EXHIBIT A THE CITY COUNCIL OF THE CITY OF TEMECULA DOES HEREBY RESOLVE AS FOLLOWS: Section 1. That the following claims and demands as set forth in Exhibit A, on file in the office of the City Clerk, has been reviewed by the City Manager's Office and that the same are hereby allowed in the amount of $ 12,333,895.73. Section 2. The City Clerk shall certify the adoption of this resolution. PASSED, APPROVED, AND ADOPTED by the City Council of the City of Temecula this 22"d day of August, 2023. Zak Schwank, Mayor ATTEST: Randi Johl, City Clerk [SEAL] STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss CITY OF TEMECULA ) I, Randi Johl, City Clerk of the City of Temecula, do hereby certify that the foregoing Resolution No. 2023- was duly and regularly adopted by the City Council of the City of Temecula at a meeting thereof held on the 22"d day of August, 2023, by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: Randi Johl, City Clerk CITY OF TEMECULA LIST OF DEMANDS 7/27/2023 - 8/3/2023 TOTAL CHECK RUN: 7/20/2023 TOTAL PAYROLL RUN: 11,401,787.30 932,108.43 TOTAL LIST OF DEMANDS FOR 08/22/2023 COUNCIL MEETING: g 12,333,895.73 apChkLst Final Check List Page: 1 07/25/2023 1:46:08PM CITY OF TEMECULA Bank: union UNION BANK Check # Date Vendor 15052 6/12/2023 000246 PERS EMPLOYEES RETIREMENT 15085 7/6/2023 014486 VERIZON WIRELESS Description PERS RETIREMENT PAYMENT Amount Paid 2,175.35 5/16-6/15 11,384.24 CELLULAR/BROADBAND:CITYWIDE Grand total for UNION BANK: Check Total 2,175.35 11,384.24 13,559.59 Page:1 apChkLst Final Check List Page: 2 07/25/2023 1:46:08PM CITY OF TEMECULA Bank: eunion EFT UNION BANK Check # Date Vendor Description Amount Paid Check Total 505185 7/27/2023 004240 AMERICAN FORENSIC NURSES DRUG/ALCOHOL ANALYSIS: TEM 343.94 343.94 AFN SHERIFF 505186 7/27/2023 021400 AYERS ELECTRIC INC ELECTRICAL REPAIRS: IWTCM: PW 500.00 ELECTRICAL REPAIRS: CRC 100.00 ELECTRICAL REPAIRS: OLD TOWN I 100.00 ELECTRICAL REPAIRS: OLD TOWN I 1,000.00 1,700.00 505187 7/27/2023 001323 BLUETRITON BRANDS INC, WATER DLVRY SVCS: HELP CTR 2.16 DBA READYREFRESH WATER DLVRY SVCS: FOC 178.90 181.06 505188 7/27/2023 022670 BROWN JAMAL DEON, DBA TCSD INSTRUCTOR EARNINGS 315.00 JDB TRAINING TCSD INSTRUCTOR EARNINGS 2,030.00 2,345.00 505189 7/27/2023 023248 CORTEZ GASTELUM, MARIA NEWSPAPER SUBSCRIPTION: MPSC: 118.75 118.75 VICTORIA TCSD 505190 7/27/2023 001393 DATATICKET INC, DBA JUN CITATIONS PROCESSING: POLICE 1,268.58 1,268.58 REVENUE EXPERTS 505191 7/27/2023 012217 DUDEK CONSULTANT SVCS: CITYWIDE 9,813.75 9,813.75 DRAINAGE PLAN 505192 7/27/2023 020904 ECONOMIC ALTERNATIVES INC BOILER HOT LOOP FILTER: CIVIC CTR 2,817.35 2,817.35 505193 7/27/2023 018098 ELITE CLAIMS MANAGEMENT JUN '23 3RD PARTY CLAIM ADMIN: WC 1,250.00 1,250.00 INC 505194 7/27/2023 014819 FLATIRON WEST INC 1-15/FV PKWY IMPROVEMENTS: PH II: 1,306,238.71 1,306,238.71 CIP 505195 7/27/2023 010028 GOFORTH & MART, DBA GM FURNITURE: BOOKSHELVES: LIBRARY 16,246.18 BUSINESS INTERIORS FURNITURE: BOOKSHELVES: LIBRA 14,582.87 30,829.05 505196 7/27/2023 004890 GOLDEN STATE FIRE FIRE INSPECTION REPAIR: CIVIC CTR 2,270.00 2,270.00 PROTECTION 505197 7/27/2023 017334 HOUSE OF AUTOMATION INC GARAGE DOOR REPAIR: CIVIC 476.44 CENTER GARAGE DOOR REPAIR: CIVIC CEN 760.60 1,237.04 505198 7/27/2023 006914 INNOVATIVE DOCUMENT JUN COPIER MAINT/REPAIR/USAGE: 4,850.90 SOLUTIONS CITYWIDE JUN COPIER MAI NT/REPAI R/U SAGE 379.91 5,230.81 505199 7/27/2023 000482 LEIGHTON CONSULTING INC Geotechnical Review for FORE Temecula 3,831.00 GEOTECH & MATERIALS TESTING E 410.60 4,241.60 Paget apChkLst Final Check List Page: 3 07/25/2023 1:46:08PM CITY OF TEMECULA Bank: eunion EFT UNION BANK (Continued) Check # Date Vendor Description Amount Paid Check Total 505200 7/27/2023 022664 MARIPOSA TREE TREE SVCS: S-24 ACACIS: PARKS 202.00 MANAGEMENT INC TREE SVCS: S-13 EMERGENCY: PAf 535.13 TREE SVCS: F-06 OLD TOWN: PARK 6,363.00 TREE SVCS: S-10 EMERGENCY: PAf 4,848.00 TREE SVCS: S-01 EMERGENCY: PAf 4,600.30 TREE SVCS: MEDIANS: PARKS 173.80 TREE SVCS: S-05 & S-24 EMERGEN, 4,136.60 TREE SVCS: S-12 EMERGENCY: PAf 3,176.25 TREE SVCS: S-10 PALM PRUNING: F 7,726.95 TREE SVCS: S-05 EMERGENCY: PAf 1,651.65 TREE SVCS: F-03 FOC: PARKS 1,107.75 TREE SVCS: S-13 PRESLEY SLOPE: 354.22 TREE SVCS: S-12 VINTAGE HILLS: P 3,801.75 38,677.40 505201 7/27/2023 018675 MDG ASSOCIATES INC JUN ADA LABOR COMPLIANCE: 151.26 PW22-08 JUN ADA LABOR COMPLIANCE SVC 1,415.76 JUN ADA LABOR COMPLIANCE: PW' 128.13 1,695.15 505202 7/27/2023 018314 MICHAEL BAKER CONSULT SVCS: I-15/79 INTRCHG 5,570.00 5,570.00 INTERNATIONAL 17-19 505203 7/27/2023 004951 MIKE'S PRECISION WELDING HAND RAIL REPAIRS: CRC: PW 3,880.00 3,880.00 INC 505204 7/27/2023 004043 MISSION ELECTRIC SUPPLY ELECTRICAL SUPPLIES: OLD TOWN 28.75 28.75 INC MAINT 505205 7/27/2023 022599 NIEVES LANDSCAPE INC LANDSCAPE MAINT SVCS: FIRE STA 84 191.71 LDSCP REPAIRS: SERENA HILLS: S- 900.00 IRRIGATION REPAIRS: DATE STREE 197.42 1,289.13 505206 7/27/2023 023204 OMB ELECTRICAL ENGINEERS CONSULTANT SVCS: STREETLIGHTS: 285.00 285.00 INC, SALAS OBRIEN PW22-17 505207 7/27/2023 005075 PRUDENTIAL OVERALL UNIFORM SVCS: STREETS: PW 52.44 SUPPLY UNIFORM SCS: PARKS MAINT: PW 4.62 57.06 Page:3 apChkLst Final Check List Page: 4 07/25/2023 1:46:08PM CITY OF TEMECULA Bank: eunion EFT UNION BANK Check # Date Vendor 505208 7/27/2023 002412 RICHARDS WATSON AND GERSHON 505209 7/27/2023 004274 SAFE AND SECURE LOCKSMITH SRVC 505210 7/27/2023 000519 SOUTH COUNTY PEST CONTROL INC (Continued) Description Amount Paid Check Total JUN 2023 LEGAL SERVICES 1,291.00 JUN 2023 LEGAL SERVICES 1,268.50 JUN 2023 LEGAL SERVICES 12,643.00 JUN 2023 LEGAL SERVICES 2,597.00 JUN 2023 LEGAL SERVICES 5,876.00 JUN 2023 LEGAL SERVICES 430.00 JUN 2023 LEGAL SERVICES 2,407.00 JUN 2023 LEGAL SERVICES 147.50 JUN 2023 LEGAL SERVICES 4,929.00 JUN 2023 LEGAL SERVICES 76.50 JUN 2023 LEGAL SERVICES 5,251.00 JUN 2023 LEGAL SERVICES 287.00 JUN 2023 LEGAL SERVICES 59.00 JUN 2023 LEGAL SERVICES 1,207.00 JUN 2023 LEGAL SERVICES 7,728.00 JUN 2023 LEGAL SERVICES 142.50 JUN 2023 LEGAL SERVICES 8,569.80 JUN 2023 LEGAL SERVICES 1,913.50 JUN 2023 LEGAL SERVICES 2,001.50 JUN 2023 LEGAL SERVICES 5,018.50 JUN 2023 LEGAL SERVICES 206.50 JUN 2023 LEGAL SERVICES 3,331.00 JUN 2023 LEGAL SERVICES 3,331.00 JUN 2023 LEGAL SERVICES 678.50 JUN 2023 LEGAL SERVICES 635.00 JUN 2023 LEGAL SERVICES 265.50 JUN 2023 LEGAL SERVICES 69.00 JUN 2023 LEGAL SERVICES 2,162.00 JUN 2023 LEGAL SERVICES 5,220.50 JUN 2023 LEGAL SERVICES 531.00 JUN 2023 LEGAL SERVICES 6,506.40 JUN 2023 LEGAL SERVICES 59.00 JUN 2023 LEGAL SERVICES 2,150.00 88,988.70 LOCKSMITH SVCS: CIVIC CTR 46.13 46.13 PEST CONTROL SVCS: CRC 268.00 PEST CONTROL SVCS: MARG SPLA 94.00 PEST CONTROL SVCS: TES POOL 59.00 PEST CONTROL SVCS: CRC 90.00 PEST CONTROL SVCS: CRC IRRIGA 94.00 PEST CONTROL SVCS: THEATER 90.00 PEST CONTROL SVCS: MARG SPLA 49.00 744.00 Page:4 apChkLst Final Check List Page: 5 07/25/2023 1:46:08PM CITY OF TEMECULA Bank: eunion EFT UNION BANK (Continued) Check # Date Vendor Description Amount Paid Check Total 505211 7/27/2023 006145 STENO SOLUTIONS JUN TRANSCRIPTION SVCS: TEM 105.84 105.84 TRANSCRIPTION, SRVCS INC SHERIFF 505212 7/27/2023 003849 TERRYBERRY COMPANY EMPLOYEE SERVICE RECOGNITION: 238.27 238.27 HR 505213 7/27/2023 016311 TIERCE, NICHOLAS GRAPHIC DESIGN SVCS: THEATER 6,420.00 6,420.00 505214 7/27/2023 014866 TWM ROOFING INC ROOF REPAIRS: JRC & CIVIC CENTER 19,345.00 19,345.00 505215 7/27/2023 023055 VAN OTTERLOO INC EQUIP REPAIR: STREET MAINT: PW 1,059.68 1,059.68 Grand total for EFT UNION BANK: 1,538,315.75 Page:5 apChkLst Final Check List Page: 6 07/25/2023 1:46:08PM CITY OF TEMECULA 33 checks in this report. Grand Total All Checks: 1,551,875.34 Page:6 apChkLst 07/27/2023 10:56:47AM Final Check List CITY OF TEMECULA Page: 1 Bank: union UNION BANK Check # Date Vendor Description Amount Paid Check Total 212984 7/25/2023 013935 SOUTHERN CALIFORNIA TRAFFIC SIGNAL: RING ROAD: 3,400.47 3,400.47 EDISON CO PW21-15 212985 7/27/2023 003951 ALL AMERICAN ASPHALT CONSTRUCTION CONTRACT SVCS: 1,282,457.25 PAVMT REHAB CONSTRUCTION CONTRACT SVCS: PAV 418,285.00 1,700,742.25 212986 7/27/2023 017795 ALTA LANGUAGE SERVICES LANGUAGE SVCS: HR 132.00 132.00 INC 212987 7/27/2023 022888 ARAMARK SERVICES INC, DBA RFRSHMNTS SVCS: CIVIC CTR 113.74 113.74 ARAMARK REFRESHMENT 212988 7/27/2023 015592 BAMM PROMOTIONAL UNIFORMS: EMBROIDERY: CODE ENF 201.19 201.19 PRODUCTS INC 212989 7/27/2023 004262 BIO TOX LABORATORIES PHLEBOTOMY SERVICES: TEM 3,189.01 SHERIFF PHLEBOTOMY SERVICES: TEM SHERIFF 2,245.13 5,434.14 212990 7/27/2023 023447 BRIGHT PLANET SOLAR REFUND: PERMIT CANCELLED 133.92 133.92 212991 7/27/2023 023446 BUCKLIN, KIMBERLY REFUND: PERMITS CANCELLED 137.60 137.60 212992 7/27/2023 007794 CAL PASEO DEL SOL LLC REIMB: DIF FEES: MEADOWS 237,426.00 237,426.00 PKWY/PAUBA 212993 7/27/2023 021851 CALIF NEWSPAPERS LEGAL PUBLICATIONS: CITY CLERK 1,860.35 PARTNERSHIP, DBA SO CALIF NEWS GROUP LEGAL PUBLICATIONS: PW 1,009.66 2,870.01 212994 7/27/2023 023391 CLARK COUNTY, LAS VEGAS PRESENTATION: EMERGENCY 644.25 644.25 METROPOLITAN MANAGMENT 212995 7/27/2023 011922 CORELOGIC INC, DBA JUN SOFTWARE SUBSCRIPTION: 411.00 411.00 CORELOGIC SOLUTIONS CODE ENF 212996 7/27/2023 000864 CORONA CLAY COMPANY SPECIALTY MIX BRICKDUST: PARKS 4,825.31 4,825.31 212997 7/27/2023 012600 DAVID EVANS AND APR DSGN SVCS: DIAZ RD PROJ: 13,782.99 ASSOCIATES INC PW17-25 ENG SVCS: PICKLEBALL COURTS: PW21 10,025.50 MAY DSGN SVCS: DIAZ RD PROJ: PW17- 6,870.52 CONST SPPRT SVC: MPSC OUTDOOR R 1,225.50 CONST SUPPORT SVC: RECYCLED WTR 480.50 32,385.01 212998 7/27/2023 002990 DAVID TURCH AND JUN FEDERAL LOBBYING SVCS: CITY 5,500.00 5,500.00 ASSOCIATES MGR Page-1 apChkLst 07/27/2023 10:56:47AM Final Check List CITY OF TEMECULA Page: 2 Bank: union UNION BANK (Continued) Check # Date Vendor Description Amount Paid Check Total 212999 7/27/2023 022798 DS SERVICES OF AMERICA WATER DELIVERY: CMO 69.13 69.13 INC, SPARKLETTS 213000 7/27/2023 012066 GEOCON WEST INC GEOTECHNICAL REVIEW: ALTAIR 542.50 FAULT: PLNG GEOTECHNICAL REVIEW: ALTAIR FAULT: 514.50 1,057.00 213001 7/27/2023 019177 GOSCH FORD TEMECULA VEHICLE REPAIRS: STREET MAINT: 5,376.20 5,376.20 PW 213002 7/27/2023 000186 HANKS HARDWARE INC MISC MAINT SUPPLIES: CIVIC CTR 2,008.40 MISC HARDWARE SUPPLIES: FIRE DEPI 1,327.20 MAINT SUPPLIES: PARKS: PW 743.71 MAINT MAINT SUPPLIES: HARVESTON 609.45 HARDWARE SUPPLIES: LIBRARY 475.38 MISC HRDWR SUPPLIES: CODE ENFOR( 453.40 MISC MAINT SUPPLIES: OLD TOWN 209.94 MISC SMALL TOOLS & EQUIP: NPDES: P' 180.49 6,007.97 213003 7/27/2023 013749 HELIXSTORM INC IT INFRASTRUCTURE SUPPORT: INFO 2,250.00 2,250.00 TECH 213004 7/27/2023 013321 HESS, JOHN PAUL VIDEOGRAPHY SVCS: CITY MGR 957.50 957.50 213005 7/27/2023 003198 HOME DEPOT HARDWARE SUPPLIES: STREET 978.63 978.63 MAINT: PW 213006 7/27/2023 011049 HOSPICE OF THE VALLEYS SC CDBG REIMBURSEMENT: APR - JUN 997.14 997.14 '23 213007 7/27/2023 023448 IPERMITS REFUND: PERMITS: BLDG & SAFETY 987.04 987.04 213008 7/27/2023 001282 KNORR SYSTEMS INC POOL HEATER REBUILD: CRC 21,090.92 21,090.92 213009 7/27/2023 017118 KRACH BREE B, DBA EMPLOYEE RECOGNITION: NEW HIRE 54.38 TEMECULA TROPHY& DES EMPLOYEE RECOGNITION: AWARDS 53.29 107.67 213010 7/27/2023 019691 L C PAVING AND SEALING INC RET REL: CONCRETE REPAIRS: 16,943.82 16,943.82 PW22-01 213011 7/27/2023 003782 MAIN STREET SIGNS, DBA VARI SIGNS & SUPPLIES: PARKS: PW 115.82 115.82 ATHACO INC 213012 7/27/2023 023292 MGG TECHNOLOGIES INC HELP DESK TICKETING & ASSET MNG 1,058.00 1,058.00 SW: IT Paget apChkLst Final Check List Page: 3 07/27/2023 10:56:47AM CITY OF TEMECULA Bank: union UNION BANK (Continued) Check # Date Vendor Description 213013 7/27/2023 018099 NATIONAL SAFETY DOT TESTING: HR COMPLIANCE INC 213014 7/27/2023 022585 NORMAN A TRAUB & WORKPLACE INVESTIGATIONS: HR ASSOCIATES, LLC 213015 7/27/2023 000209 NUTRIEN AG SOLUTIONS INC TOOL & EQUIP: STREET MAINT: PW 213016 7/27/2023 003964 OFFICE DEPOT BUSINESS SVS MISC OFC SUPPLIES: LAND DEV: PW DIV MISC OFC SUPPLIES: NPDES: PW MISC OFC SUPPLIES: CIP: PW MISC OFC SUPPLIES: NPDES: PW 213017 7/27/2023 003663 PECHANGA BAND OF MONITORING SVCS: I-15/FVP IMPRV: LUISENO, MISSION INDIANS PW16-01 213018 7/27/2023 022476 RICHERSON ANTHONY, BLINDS: FIRE STA73 BUDGET BLINDS OF TEMECULA 213019 7/27/2023 022715 RIVERSIDE CO PUBLIC JUN EMERG RADIO RENTALS: POLICE SAFETY, ENTERPRISE COMMUNICATION JUN EMERG RADIO RENTALS: CODE EN 213020 7/27/2023 000406 RIVERSIDE CO SHERIFFS 5/1-6/1 YOUTH COURT SVCS DEPT 213021 7/27/2023 001097 ROADLINE PRODUCTS INC TRAFFIC PAINT: STREET MAINT: PW 213022 7/27/2023 016778 ROW TRAFFIC SAFETY INC TYPE 1 BARRICADES: PARKS: PW 213023 7/27/2023 013911 SANTA ROSA PLATEAU FY 22/23 COMMUNITY SERVICE FOUNDATION, DBASANTA FUNDING ROSA PLATEAU 213024 7/27/2023 019250 ST FRANCIS ELECTRIC LLC ON -CALL TRAFFIC SIGNAL MAINT: TRAFFIC: P 213025 7/27/2023 019018 SUNRUN INSTALLATION REFUND: BLDG PERMITS: BLDG & SRVCSINC SAFETY 213026 7/27/2023 023445 T MOBILE WEST TOWER LLC REFUND: LEASE OVERPAYMENT 213027 7/27/2023 008379 THE THEATER FOUNDATION FY 22/23 COMMUNITY SERVICE FUNDING Amount Paid Check Total 407.80 407.80 6,815.00 6,815.00 890.79 890.79 100.30 78.28 30.44 13.23 222.25 16,943.60 16,943.60 4,227.81 4,227.81 1,893.31 388.35 2,281.66 274.16 274.16 4,452.19 4,452.19 2,925.61 2,925.61 5,000.00 5,000.00 8,020.76 8,020.76 1,473.60 1,473.60 144.48 144.48 33,750.00 33,750.00 Page3 apChkLst Final Check List Page: 4 07/27/2023 10:56:47AM CITY OF TEMECULA Bank: union UNION BANK Check # Date Vendor 213028 7/27/2023 002702 USPS POC, ACCOUNT 8089685 213029 7/27/2023 014486 VERIZON WIRELESS 213030 7/27/2023 020670 WEBB MUNICIPAL FINANCE LLC 213031 7/27/2023 017366 WESTERN FLOORING, INC. (Continued) Description MAY'23 POSTAGE METER DEPOSIT JUN '23 POSTAGE METER DEPOSIT 6/11-7/10 TASK FORCE TABLETS: POLICE PROF SVCS: TEMECULA COMM MAILING: PW REFINISH FLOOR: CRC: PW Amount Paid Check Total 4,995.14 1,355.24 6,350.38 462.35 462.35 2,069.59 2,069.59 4,308.20 4,308.20 Grand total for UNION BANK: 2,153,373.96 Page:4 apChkLst Final Check List Page: 5 07/27/2023 10:56:47AM CITY OF TEMECULA 48 checks in this report. Grand Total All Checks: 2,153,373.96 Page:5 apChkLst 08/01/2023 5:24:48PM Final Check List CITY OF TEMECULA Page: 1 Bank : union UNION BANK Check # Date Vendor Description Amount Paid Check Total 15086 7/11/2023 021434 MATRIX TELECOM LLC DBA JUN 800 SERVICES: CIVIC CENTER 67.50 67.50 LINGO 15087 7/14/2023 000262 RANCHO CALIF WATER VARIOUS WATER JUN BATCH 1 52,368.39 52,368.39 DISTRICT Grand total for UNION BANK: 52,435.89 Page:1 apChkLst 08/01/2023 5:24:48PM Final Check List CITY OF TEMECULA Page: 2 Bank: eunion EFT UNION BANK Check # Date Vendor Description Amount Paid Check Total 505216 8/3/2023 023335 ASTER CONSTRUCTION, CONST CONTRACT SVCS: MPSC 24,656.06 24,656.06 SERVICES INC OUTDOOR REC AR 505217 8/3/2023 004248 CALIF DEPT OF JUSTICE JUN FINGERPRINTING SVCS: POLICE 2,281.00 ACCTING JUN FINGERPRINTING SVCS: TCSD 2,220.00 JUN BLOOD & ALCOHOL ANALYSIS: 1,295.00 JUN FINGERPRINTING SVCS: HR 196.00 5,992.00 505218 8/3/2023 022790 CLEARSTAR INC PRE -EMPLOYMENT SCREENINGS: HR 811.71 PRE -EMPLOYMENT SCREENINGS: F 330.72 1,142.43 505219 8/3/2023 011870 CRIME SCENE STERI CLEAN BIO-HAZARD CLEANUP: TEM SHERIFF 850.00 850.00 LLC 505220 8/3/2023 020648 DG INVESTMENT HOLDINGS 2 CITY SECURITY CAMERA SYST: 61,925.41 61,925.41 INC, CONVERGINT FRIENDSHIP PA TECHNOLOGIES 505221 8/3/2023 012217 DUDEK CONSTRUCTION MGT SVCS: MPSC: 20,880.00 20,880.00 PW20-13 505222 8/3/2023 014865 FREIZE UHLER KIMBERLY DBA, PROMOTIONAL ITEMS: SPEC EVENTS: 567.75 567.75 CLEAR BLUE PROMOTIONS FIRE 505223 8/3/2023 021365 GEORGE HILLS COMPANY INC SUBROGATION RECOVERY FEE: RISK 1,750.00 1,750.00 MGMT 505224 8/3/2023 015534 GOVERNMENT JOBS.COM INC, REGIST: NEOGOV CONFERENCE: HR 3,972.00 3,972.00 DBA NEOGOV 505225 8/3/2023 006914 INNOVATIVE DOCUMENT COLOR COPIER: WELCOME CENTER: 2,115.51 2,115.51 SOLUTIONS INFO TECH 505226 8/3/2023 022671 JFL ELECTRIC INC CNSTRCTN CONTRACT SVCS: FIBER 7,461.14 7,461.14 OPTIC SYS 505227 8/3/2023 004905 LIEBERT CASSIDY AND JUN HR LEGAL SVCS FOR TE060-00001 892.50 892.50 WHITMORE 505228 8/3/2023 022664 MARIPOSA TREE TREE SVCS: M-13 REDHAWK PARKWAY 34,843.61 34,843.61 MANAGEMENT INC 505229 8/3/2023 021370 MARK THOMAS AND COMPANY JUN DSGN CONSULTANT SVCS: 7,147.50 7,147.50 INC CHERRY ST EXT 505230 8/3/2023 004040 MORAMARCO ANTHONY J, 2ND SAT ART ROOM ACTIVITY: TVM 400.00 400.00 DBA BIGFOOT GRAPHICS Paget apChkLst Final Check List Page: 3 08/01/2023 5:24:48PM CITY OF TEMECULA Bank: eunion EFT UNION BANK Check # Date Vendor 505231 8/3/2023 002412 RICHARDS WATSON AND GERSHON 505232 8/3/2023 005329 SAFE FAMILY JUSTICE CENTERS (Continued) Description Amount Paid Check Total JUN 2023 LEGAL SERVICES 24,912.03 JUN 2023 LEGAL SERVICES 20,968.56 JUN 2023 LEGAL SERVICES 20,678.83 NOV 2022 LEGAL SERVICES 7,300.90 JUN 2023 LEGAL SERVICES 6,809.87 JUN 2023 LEGAL SERVICES 1,317.00 JUN 2023 LEGAL SERVICES 531.00 JUN 2023 LEGAL SERVICES 299.00 82,817.19 FY 2022-23 CDBG Subrecipient 3,719.82 3,719.82 505233 8/3/2023 023341 SMER RESEARCH 1 LLC JUN SOLAR GENERATION: VARI 29,832.69 LOCATIONS 505234 8/3/2023 020545 SOCIAL WORK ACTION GROUP JUN HOMELESS/STREET OUTREACH: 32,848.75 TCSD JUN BRIDGE HOUSING/CDBG -CV: T 9,166.67 505235 8/3/2023 000519 SOUTH COUNTY PEST PEST CONTROL SVCS: RYCREST & 94.00 CONTROL INC VAILBROOK 505236 8/3/2023 010046 TV CONVENTION &VISITORS MAY'23 BUS. IMPRV DISTRICT ASMNTS 228,300.47 BUREAU, DBA VISIT TEMECULA VALLEY 505237 8/3/2023 020399 VOICES FOR CHILDREN CDBG REIMBURSEMENT: APR-MAR'23 871.02 505238 8/3/2023 020275 WALLACE & ASSOC JUN CONSTRUCTION MGMT SVCS: 378.00 CONSULTING LLC, ANSER PW18-05 ADVISORY MNGMT LLC Grand total for EFT UNION BANK: 29,832.69 42,015.42 94.00 228.300.47 871.02 378.00 562,624.52 Page:3 apChkLst Final Check List Page: 4 08/01/2023 5:24:48PM CITY OF TEMECULA 25 checks in this report. Grand Total All Checks: 615,060.41 Page:4 apChkLst 08/03/2023 2:21:31PM Final Check List CITY OF TEMECULA Page: 1 Bank: union UNION BANK Check # Date Vendor Description Amount Paid Check Total 213032 8/3/2023 000101 APPLEONE INC, DBA JUN TEMP HELP: COMM DEV 3,472.56 3,472.56 APPLEONE 213033 8/3/2023 021689 ASCENT ENVIRONMENTAL INC SEIR: TEM VLY HOSPITAL: PA22-0105 430.00 430.00 213034 8/3/2023 004262 BIO TOX LABORATORIES PHLEBOTOMY SERVICES: TEM 51.55 51.55 SHERIFF 213035 8/3/2023 003048 BOYS AND GIRLS CLUB, OF CDBG FY 2022-23 Subrecipient Before 7,226.00 7,226.00 SOUTHWEST COUNTY and 213036 8/3/2023 005970 BUTTERFIELD STAGE FY 22/23 COMMUNITY SERVICE 12,000.00 12,000.00 PLAYERS, DBA TEMECULA FUNDING VALLEY 213037 8/3/2023 021851 CALIF NEWSPAPERS LEGAL PUBLICATION NOTICES: 2,330.82 2,330.82 PARTNERSHIP, DBA SO CALIF PLANNING NEWS GROUP 213038 8/3/2023 009640 CERTIFION CORP DBA JUN ONLINE DATABASE SUBSCR: 200.00 200.00 ENTERSECT POLICE 213039 8/3/2023 016530 COMMUNITY MISSION OF CDBG REIMBURSEMENT: JUL'22 - JUN 7,226.00 7,226.00 HOPE '23 213040 8/3/2023 008943 DEPT OF GENERAL SERVICES APPEALS: CITY CLERK 7,751.25 DGS APPEALS: CITY CLERK 3,644.00 APPEALS: CITY CLERK 810.50 APPEALS: CITY CLERK 16,246.50 28,452.25 213041 8/3/2023 000164 ESGIL LLC MAY PLAN CK SVCS: COMDEV 18,646.32 18,646.32 213042 8/3/2023 015330 FAIR HOUSING COUNCIL, OF JUN SUB -RECIPIENT: FAIR HOUSING 1,502.71 1,502.71 RIVERSIDE COUNTY INC SVCS 213043 8/3/2023 019469 FALCON ENGINEERING CNSTCTN MGMT SVCS: I-15/FVP 345,539.32 345,539.32 SERVICES IMPROV PH II 213044 8/3/2023 020474 JULIE NGO AGENCY TEM GRANT PRGM: COMM 10,000.00 10,000.00 REINVESTMENT 213045 8/3/2023 002187 LAKE ELSINORE ANIMAL JUN ANIMAL CONTROL SVCS: 10,500.00 10,500.00 FRIENDS, DBAANIMAL TEMECULA FRIENDS OF Page:1 apChkLst Final Check List Page: 2 08/03/2023 2:21:31PM CITY OF TEMECULA Bank: union UNION BANK (Continued) Check # Date Vendor Description Amount Paid Check Total 213046 8/3/2023 005690 MICHELLES PLACE CANCER, FY 22/23 COMMUNITY SERVICE 18,000.00 18,000.00 RESOURCE CENTER FUNDING 213047 8/3/2023 007409 OLD TOWN DINING LLC TEM GRANT PRGM: COMM 10,000.00 10,000.00 REINVESTMENT 213048 8/3/2023 020127 QUINN COMPANY GENERATOR MAINT: STA73: FIRE 558.87 GENERATOR MAINT: STA92: FIRE 558.87 GENERATOR MAINT: STA84: FIRE 558.87 1,676.61 213049 8/3/2023 000418 RIVERSIDE CO CLERK AND, CEQA FILINGS: CIP: PW18-16 50.00 50.00 RECORDER 213050 8/3/2023 014027 RIVERSIDE CO ECO DEV STAFFING: LIBRARY 34,580.00 34,580.00 AGENCY, LIBRARY DIV 213051 8/3/2023 000406 RIVERSIDE CO SHERIFFS 06/01/23-06/30/23 LAW ENFORCEMENT 3,146,725.63 DEPT 05/04-05/31 LAW ENFORCEMENT 2,887,103.01 6,033,828.64 213052 8/3/2023 008910 ROSENSTEIN & ASSOCIATES TEM GRANT PRGM: COMM 10,000.00 10,000.00 APLC REINVESTMENT 213053 8/3/2023 019997 SPURLOCK LANDSCAPE ARCHITECTURAL SVCS: TOC-231: 850.00 850.00 ARCHITECTS PLNG 213054 8/3/2023 017814 STC TRAFFIC INC TRAFFIC ENG SVCS: CITYWIDE 10,013.00 SIGNAL REVIEW TRAFFIC ENG SVCS: SUPPORT SVC 2,625.00 TRAFFIC ENG SVCS: SUPPORT SVC 750.00 13,388.00 213055 8/3/2023 023221 SWCA INCORPORATED CONSULT SVCS: WILDFIRE 8,901.75 8,901.75 PROTECTION PLAN 213056 8/3/2023 003599 T Y LIN INTERNATIONAL JUN CONSULTING SVCS: FV 779.35 779.35 PKWY/I-15: PH II 213057 8/3/2023 000919 TEMECULA VALLEY UNIFIED FY22/23 JOINT USE FIELD RENO 25,617.12 25,617.12 SCHOOL, DISTRICT AGRMNT PMT 213058 8/3/2023 004124 TRUELINE CONSTRUCTION TENNIS COURT MAINT: TV HIGH 70,152.84 70,152.84 AND, SURFACING INC SCHOOL: PARK 213059 8/3/2023 014866 TWM ROOFING INC ROOF REPAIRS: JRC & CIVIC CENTER 19,345.00 19,345.00 213060 8/3/2023 020670 WEBB MUNICIPAL FINANCE SPECIAL TAXADMIN FY 22/23 4TH QTR 11,441.05 LLC SPECIAL TAX ADMIN: TCSD SRVC LE 10,083.38 21,524.43 Paget apChkLst Final Check List Page: 3 08/03/2023 2:21:31PM CITY OF TEMECULA Bank: union UNION BANK (Continued) Check # Date Vendor Description Amount Paid Check Total 213061 8/3/2023 000339 WEST PUBLISHING JUN CLEAR SUBSCRIPTION: TEM 1,179.86 1,179.86 CORPORATION, DBATHOMSON SHERIFF REUTERS Grand total for UNION BANK: 6,717,451.13 Page:3 apChkLst Final Check List Page: 4 08/03/2023 2:21:31PM CITY OF TEMECULA 30 checks in this report. Grand Total All Checks: 6,717,451.13 Page:4 Check# Check Date Vendor# Vendor Description Invoice Net 600006 07/27/2023 2238 79 FIELD HOCKEY INC TCSD INSTRUCTOR EARNINGS $724.50 300024 08/03/2023 1411 AB MAILING SOLUTIONS MAILING SVCS: THEATER BROCHURE: TCSD $4,413.11 600020 08/03/2023 1512 ALLEGRO MUSICAL VENTURES PIANO SVCS:THEATER:TCSD $380.00 600021 08/03/2023 2233 ANN M HOWELL GRAPHIC DESIGN SVCS: ECO DEV $85.00 600007 07/27/2023 1805 AQUA CHILL OF SAN DIEGO DRINKING WATER SRVCS:IT $28.55 600008 07/27/2023 1980 B G P RECREATION INC TCSD INSTRUCTOR EARNINGS $2,821.70 600008 07/27/2023 1980 B G P RECREATION INC TCSD INSTRUCTOR EARNINGS $1,362.20 600008 07/27/2023 1980 B G P RECREATION INC TCSD INSTRUCTOR EARNINGS $300.30 600022 08/03/2023 1980 B G P RECREATION INC TCSD INSTRUCTOR EARNINGS $2,720.90 600022 08/03/2023 1980 B G P RECREATION INC TCSD INSTRUCTOR EARNINGS $1,913.56 600022 08/03/2023 1980 B G P RECREATION INC TCSD INSTRUCTOR EARNINGS $273.00 300005 07/27/2023 1383 BALLET FOLKLORICO TCSD INSTRUCTOR EARNINGS $150.00 600009 07/27/2023 3122 BEARD, RYAN TCSD INSTRUCTOR EARNINGS $1,764.00 600023 08/03/2023 3122 BEARD, RYAN TCSD INSTRUCTOR EARNINGS $1,690.50 600023 08/03/2023 3122 BEARD, RYAN TCSD INSTRUCTOR EARNINGS $1,764.00 300025 08/03/2023 2935 BETTS, KENNETH TCSD INSTRUCTOR EARNINGS $700.00 300025 08/03/2023 2935 BETTS, KENNETH TCSD INSTRUCTOR EARNINGS $700.00 600010 07/27/2023 2541 BRIGHTON HILL ACADEMY SPORTS & LEARNING ACADEMY TCSD INSTRUCTOR EARNINGS $1,960.00 600024 08/03/2023 2541 BRIGHTON HILL ACADEMY SPORTS & LEARNING ACADEMY TCSD INSTRUCTOR EARNINGS $1,764.00 600011 07/27/2023 2622 BROWN JAMAL DEON TCSD INSTRUCTOR EARNINGS $1,566.25 600011 07/27/2023 2622 BROWN JAMAL DEON TCSD INSTRUCTOR EARNINGS $1,449.00 600011 07/27/2023 2622 BROWN JAMAL DEON TCSD INSTRUCTOR EARNINGS $1,071.00 600011 07/27/2023 2622 BROWN JAMAL DEON TCSD INSTRUCTOR EARNINGS $1,837.50 600025 08/03/2023 2622 BROWN JAMAL DEON TCSD INSTRUCTOR EARNINGS $1,260.00 600025 08/03/2023 2622 BROWN JAMAL DEON TCSD INSTRUCTOR EARNINGS $2,100.00 600026 08/03/2023 2836 BRYANT, ROBERT TCSD INSTRUCTOR EARNINGS $1,680.00 600026 08/03/2023 2836 BRYANT, ROBERT TCSD INSTRUCTOR EARNINGS $627.20 600026 08/03/2023 2836 BRYANT, ROBERT TCSD INSTRUCTOR EARNINGS $588.00 600026 08/03/2023 2836 BRYANT, ROBERT TCSD INSTRUCTOR EARNINGS $735.00 600026 08/03/2023 2836 BRYANT, ROBERT TCSD INSTRUCTOR EARNINGS $686.00 600026 08/03/2023 2836 BRYANT, ROBERT TCSD INSTRUCTOR EARNINGS $1,008.00 600026 08/03/2023 2836 BRYANT, ROBERT TCSD INSTRUCTOR EARNINGS $1,243.20 600026 08/03/2023 2836 BRYANT, ROBERT TCSD INSTRUCTOR EARNINGS $621.60 600027 08/03/2023 2836 BRYANT, ROBERT TCSD INSTRUCTOR EARNINGS $336.00 600027 08/03/2023 2836 BRYANT, ROBERT TCSD INSTRUCTOR EARNINGS $362.60 600027 08/03/2023 2836 BRYANT, ROBERT TCSD INSTRUCTOR EARNINGS $358.40 600026 08/03/2023 2836 BRYANT, ROBERT TCSD INSTRUCTOR EARNINGS $448.00 600027 08/03/2023 2836 BRYANT, ROBERT TCSD INSTRUCTOR EARNINGS $327.04 600026 08/03/2023 2836 BRYANT, ROBERT TCSD INSTRUCTOR EARNINGS $2,576.00 300026 08/03/2023 3178 CARDOSO DENYS CA PERF: CULTURE DAY: 07/07/23 $500.00 300006 07/27/2023 1280 CDW LLC MISC SMALL TOOLS& EQUIP:IT $82.05 600012 07/27/2023 1280 CDW LLC MISC SMALL TOOLS& EQUIP:IT $384.98 300007 07/27/2023 3138 CHING-YUN HU DEPOSIT FOR PERFORMACE $2,750.00 600028 08/03/2023 2030 CIVICPLUS LLC RECREATION MNG SOFTWARE:TCSD $32,201.34 600029 08/03/2023 1771 COSSOU, CELINE TCSD INSTRUCTOR EARNINGS $1,487.50 600029 08/03/2023 1771 COSSOU, CELINE TCSD INSTRUCTOR EARNINGS $2,100.00 300008 07/27/2023 1268 COSTCO TEMECULA 491 MISCSUPPLIES: MRC, MPSC & SFSP $380.79 300008 07/27/2023 1268 COSTCOTEMECULA491 MISC SUPPLIES: SFSP $1,017.58 300008 07/27/2023 1268 COSTCO TEMECULA 491 MISC SUPPLIES: SFSP $1,333.77 300027 08/03/2023 1268 COSTCOTEMECULA 491 MISCSUPPLIES: MRC MPSC & SFSP $1,617.35 600013 07/27/2023 2004 COX, KRISTI LYN TCSD INSTRUCTOR EARNINGS $75.00 600014 07/27/2023 1254 DOWNS ENERGY FUEL FUEL FOR CITY VEHICLES: PARK MAINT: PW $2,110.25 600030 08/03/2023 1254 DOWNS ENERGY FUEL FUEL FOR CITY VEHICLES: STREETS: PW $1,409.97 600030 08/03/2023 1254 DOWNS ENERGY FUEL FUEL FOR CITY VEHICLES: PARK MAINT $2,542.23 600030 08/03/2023 1254 DOWNS ENERGY FUEL FUEL FOR CITY VEHICLES: TCSD $557.84 600030 08/03/2023 1254 DOWNS ENERGY FUEL FUEL FOR CITY VEHICLES: INFO TECH $93.77 600030 08/03/2023 1254 DOWNS ENERGY FUEL FUEL FOR CITY VEHICLES: STREET MAINT $1,756.63 600031 08/03/2023 1243 ECALDRE MANALILI DE VILLA AILEEN TCSD INSTRUCTOR EARNINGS $150.00 300028 08/03/2023 3210 EMH SPORTS USA INC TCSD INSTRUCTOR EARNINGS $2,730.00 300028 08/03/2023 3210 EMH SPORTS USA INC TCSD INSTRUCTOR EARNINGS $2,240.00 300028 08/03/2023 3210 EMH SPORTS USA INC TCSD INSTRUCTOR EARNINGS $3,360.00 300029 08/03/2023 1703 FAITH AUTO GLASS & TINTING WINDOWSHIELD REPAIR: HUMAN SVCS VAN $340.29 300030 08/03/2023 1005 FEDERAL EXPRESS INC EXPRESS MAIL SVCS: THEATER: TCSD $13.85 600032 08/03/2023 1219 FINE ARTS NETWORK TICKET SALES ADVANCE: LITTLE MERMAID $17,000.00 600033 08/03/2023 1219 FINE ARTS NETWORK THEATRE CO, AND BALLET THEATER STTLMNT: DISNEY'S LITTLE MERMAID $2,608.71 300009 07/27/2023 1497 FULL COMPASS SYSTEMS SOUND/LIGHTING SUPPLIES:THEATER:TCSD $768.05 300010 07/27/2023 2239 GRANICUS LLC AGENDA MGMT RENEWAL: CITY CLERK $64,428.34 300011 07/27/2023 1791 HELIXSTORM INC SECURITY SYSTEM SWITCHES SUPPORT: IT $14,270.00 600015 07/27/2023 1585 1 P C INDUSTRIES INC GOLF CART RENTALS: TCSD $2,572.10 600015 07/27/2023 1585 1 P C INDUSTRIES INC GOLF CART RENTALS: TCSD $978.75 300031 08/03/2023 2076 ICMA MEMBERSHIP RENEWAL CITY MGR OFC $1,200.00 300013 07/27/2023 1934 MID AMERICA ARTS ALLIANCE TVM EXHIBIT: WALKING IN ANTARTICA $5,250.00 600016 07/27/2023 1241 MISSION ELECTRIC SUPPLY INC ELECTRICAL SUPPLIES: CITY HALL: PW $114.19 600016 07/27/2023 1241 MISSION ELECTRIC SUPPLY INC ELECTRICAL SUPPLIES: LIBRARY: PW $67.21 600016 07/27/2023 1241 MISSION ELECTRIC SUPPLY INC ELECTRICAL SUPPLIES: CRC: PW $249.04 600034 08/03/2023 1241 MISSION ELECTRIC SUPPLY INC ELECTRICAL SUPPLIES: SENIOR CENTER: PW $23.84 600017 07/27/2023 1118 MIYAMOTO JURKOSKY SUSAN TCSD INSTRUCTOR EARNINGS $318.50 600035 08/03/2023 1118 MIYAMOTO JURKOSKY SUSAN TCSD INSTRUCTOR EARNINGS $364.00 600035 08/03/2023 1118 MIYAMOTO JURKOSKY SUSAN TCSD INSTRUCTOR EARNINGS $364.00 600036 08/03/2023 1240 MORAMARCO ANTHONYJ TCSD INSTRUCTOR EARNINGS $500.00 600036 08/03/2023 1240 MORAMARCO ANTHONYJ TCSD INSTRUCTOR EARNINGS $2,522.63 600036 08/03/2023 1240 MORAMARCO ANTHONYJ TCSD INSTRUCTOR EARNINGS $2,658.25 600036 08/03/2023 1240 MORAMARCO ANTHONYJ TCSD INSTRUCTOR EARNINGS $1,519.00 600036 08/03/2023 1240 MORAMARCO ANTHONYJ TCSD INSTRUCTOR EARNINGS $500.00 300013 07/27/2023 1375 NORTH JEFFERSON BUSINESS PARK JUL-SEP'23 ASSN DUES 8329 #17: FV $531.43 300013 07/27/2023 1375 NORTH JEFFERSON BUSINESS PARK JUL-SEP ASSN DUES 8358 #20: FV $722.04 300013 07/27/2023 1375 NORTH JEFFERSON BUSINESS PARK JUL-SEP'23 ASSN DUES 1810 #16: fv $571.82 300013 07/27/2023 1375 NORTH JEFFERSON BUSINESS PARK JUL-SEP'23 ASSN DUES 0155 #19: FV $694.58 300014 07/27/2023 1835 PROQUEST LLC ANCESTRY SOFTWARE RENEWAL:LIBRARY $1,262.58 300015 07/27/2023 1134 RANCHO CALIF BUS PK ASSOC JUL SEP BUS PK ASSN DUE DIAZ RD $2,236.38 300015 07/27/2023 1134 RANCHO CALIF BUS PK ASSOC JUL SEP BUS PK ASSN DUE FOC $2,027.49 300015 07/27/2023 1134 RANCHO CALIF BUS PK ASSOC JUL SEP BUS PK ASSN DUE DIAZ RD $2,457.55 300032 08/03/2023 2431 EMPLOYEE # 00590 TEAM PACE PRIZE CLAIM: FINANCE $196.26 600037 08/03/2023 2008 SARNOWSKI SHAWNA M PRESTON PHOTOGRAPHY SVCS: MUSEUM/ACE $275.00 600037 08/03/2023 2008 SARNOWSKI SHAWNA M PRESTON PHOTOGRAPHY SVCS: MUSEUM/ACE $275.00 600037 08/03/2023 2008 SARNOWSKI SHAWNA M PRESTON PHOTOGRAPHY SVCS: SPECIAL EVENTS $400.00 300016 07/27/2023 1168 SEA WORLD OF CALIFORNIA SUMMER DAY CAMP EXCURSION: TCSD $3,058.30 600038 08/03/2023 1780 SILVERMAN ENTERPRISES INC SECURITY: SPECIAL EVENTS: TCSD $5,731.50 600018 07/27/2023 1061 SMART AND FINAL INC MISC SUPPLIES: MPSC: TCSD $352.45 600018 07/27/2023 1061 SMART AND FINAL INC MISC SUPPLIES: SFSP: TCSD $285.75 600039 08/03/2023 1061 SMART AND FINAL INC MISC SUPPLIES: SFSP: TCSD $262.58 600039 08/03/2023 1061 SMART AND FINAL INC MISC SUPPLIES: WORKFORCE DEV: TCSD $183.48 300019 07/27/2023 1028 STADIUM PIZZA RFRSHMNTS: CRC: TCSD $285.35 300017 07/27/2023 1028 STADIUM PIZZA INC RFRSHMNTS: WORKFORCE DEV: TCSD $198.64 300017 07/27/2023 1028 STADIUM PIZZA INC RFRSHMNTS: WORKFORCE DEV: TCSD $175.85 300017 07/27/2023 1028 STADIUM PIZZA INC RFRSHMNTS: WORKFORCE DEV: TCSD $185.94 300017 07/27/2023 1028 STADIUM PIZZA INC RFRSHMNTS: WORKFORCE DEV: TCSD $172.34 300017 07/27/2023 1028 STADIUM PIZZA INC RFRSHMNTS: WORKFORCE DEV: TCSD $159.25 300017 07/27/2023 1028 STADIUM PIZZA INC RFRSHMNTS: WORKFORCE DEV: TCSD $76.56 300017 07/27/2023 1028 STADIUM PIZZA INC RFRSHMNTS: WORKFORCE DEV: TCSD $215.06 300017 07/27/2023 1028 STADIUM PIZZA INC RFRSHMNTS: WORKFORCE DEV: TCSD $181.18 300017 07/27/2023 1028 STADIUM PIZZA INC RFRSHMNTS: WORKFORCE DEV: TCSD $58.61 300018 07/27/2023 1028 STADIUM PIZZA INC RFRSHMNTS: WORKFORCE DEV: TCSD $67.74 300017 07/27/2023 1028 STADIUM PIZZA INC RFRSHMNTS: WORKFORCE DEV: TCSD $69.34 300017 07/27/2023 1028 STADIUM PIZZA INC RFRSHMNTS: WORKFORCE DEV: TCSD $146.62 300017 07/27/2023 1028 STADIUM PIZZA INC RFRSHMNTS: WORKFORCE DEV: TCSD $150.93 300017 07/27/2023 1028 STADIUM PIZZA INC RFRSHMNTS: WORKFORCE DEV: TCSD $206.59 300033 08/03/2023 1028 STADIUM PIZZA INC RFRSHMNTS: AQUATICS: TCSD $525.83 300034 08/03/2023 1452 STAPLES BUSINESS CREDIT MISC OFC SUPPLIES: OPERATIONS: TCSD $225.38 300035 08/03/2023 1495 STURDIVANT, ANGELA P TCSD INSTRUCTOR EARNINGS $2,352.00 300020 07/27/2023 1453 SUNBELT RENTALS INC LIGHT TOWER/ POWER RENTALS: TCSD $3,288.01 300036 08/03/2023 1453 SUNBELT RENTALS INC LIGHT TOWER/ POWER RENTALS: TCSD $11,761.57 300037 08/03/2023 3179 TEMECULA AUTO GLASS INC WINDSHIELD INSTALL: STREET MAINT: PW $560.31 600040 08/03/2023 1063 TIMMY D PRODUCTIONS INC DJ SVCS: CULTURE DAYS AND ART NIGHTS MUSIC $850.00 600040 08/03/2023 1063 TIMMY D PRODUCTIONS INC DJ/MC/SOUND SERVICES: SPECIAL EVENTS $1,000.00 600040 08/03/2023 1063 TIMMY D PRODUCTIONS INC DJ/MC/SOUND SERVICES: SPECIAL EVENTS $45,012.00 600041 08/03/2023 2421 TITAN RENTALS GROUP INC TITAN RENTALS: CANOPIES & EQUIPMENT: SPECIAL EVENI $4,076.86 600041 08/03/2023 2421 TITAN RENTALS GROUP INC TITAN RENTALS: CANOPIES & EQUIPMENT: SPECIAL EVENI $4,974.65 600019 07/27/2023 2089 TNT ENTERTAINMENT GROUP LLC DJ/MC/SOUND SERVICES: TCSD $4,300.00 600042 08/03/2023 2410 EMPLOYEE # 00534 REIMB: TEAM PACE $139.84 300038 08/03/2023 2827 TRANSPORTATION CHARTER SRVS SDC TRANSPORTATION 7/6/23 $4,851.54 600043 08/03/2023 2142 URBANE CAFE RFRSHMNTS: TVM/ACE EVENTS $308.19 600043 08/03/2023 2142 URBANE CAFE RFRSHMNTS: WORKSHOPS: TVE2 $265.23 600043 08/03/2023 2142 URBANE CAFE REFRESHMNTS: MEETINGS: TVE2 $188.68 600044 08/03/2023 2077 VILLANUEVA, CHRISTOPHER TCSD INSTRUCTOR EARNINGS $1,417.50 600044 08/03/2023 2077 VILLANUEVA, CHRISTOPHER TCSD INSTRUCTOR EARNINGS $1,512.00 600044 08/03/2023 2077 VILLANUEVA, CHRISTOPHER TCSD INSTRUCTOR EARNINGS $1,134.00 600044 08/03/2023 2077 VILLANUEVA, CHRISTOPHER TCSD INSTRUCTOR EARNINGS $850.50 600045 08/03/2023 2034 WADDLETON, JEFFREY L TCSD INSTRUCTOR EARNINGS $1,059.10 600045 08/03/2023 2034 WADDLETON, JEFFREY L DJ/MC: SPECIAL EVENTS: TCSD $525.00 300021 07/27/2023 1439 WALMART MISC SUPPLIES: CRC: TCSD $576.22 300021 07/27/2023 1439 WALMART MISC SUPPLIES: CRC: TCSD $152.26 300021 07/27/2023 1439 WALMART MISC SUPPLIES: CRC: TCSD $58.33 300022 07/27/2023 1439 WALMART MISC SUPPLIES: CRC: TCSD $684.12 300021 07/27/2023 1439 WALMART MISC SUPPLIES: RESPONSIBLE COMPASSION: TCSD $483.44 300021 07/27/2023 1439 WALMART MISC SUPPLIES: WORKFORCE DEV PROGRAM: TCSD $376.12 300039 08/03/2023 1439 WALMART MISC SUPPLIES: CRC: TCSD $635.51 300039 08/03/2023 1439 WALMART MISC SUPPLIES: CRC: TCSD $26.46 300039 08/03/2023 1439 WALMART MISC SUPPLIES: CRC: TCSD $386.78 300039 08/03/2023 1439 WALMART MISC SUPPLIES: CRC: TCSD $814.93 300023 07/27/2023 2069 WONDER SCIENCE TCSD INSTRUCTOR EARNINGS $4,816.00 300023 07/27/2023 2069 WONDER SCIENCE TCSD INSTRUCTOR EARNINGS $4,620.00 300023 07/27/2023 2069 WONDER SCIENCE TCSD INSTRUCTOR EARNINGS $4,732.00 300040 08/03/2023 2069 WONDER SCIENCE TCSD INSTRUCTOR EARNINGS $4,704.00 Total Munis $364,026.46 Item No. 4 CITY OF TEMECULA AGENDA REPORT TO: City Manager/City Council FROM: Jennifer Hennessy, Director of Finance DATE: August 22, 2023 SUBJECT: Approve City Treasurer's Report as of May 31, 2023 PREPARED BY: Jordan Snider, Senior Accountant RECOMMENDATION: That the City Council approve and file the City Treasurer's Report as of May 31, 2023. BACKGROUND: Government Code Sections 53646 and 41004 require reports to the City Council regarding the City's investment portfolio, receipts, and disbursements respectively. Adequate funds will be available to meet budgeted and actual expenditures of the City for the next six months. Current market values are derived from the Local Agency Investment Fund (LAIF) reports, Union Bank of California trust and custody statements, and from US Bank trust statements. Attached is the City Treasurer's Report that provides this information. The City's investment portfolio is in compliance with the statement of investment policy and Government Code Sections 53601 and 53635 as of as of May 31, 2023. FISCAL IMPACT: None ATTACHMENTS: City Treasurer's Report as of May 31, 2023 'tll LLJ149 Investments City of Temecula Portfolio Managment Treasury Report 41000 Main Street Portfolio Management Temecula, 92590 g (951)694-6430 Portfolio Summary May 31, 2023 Par Market Book % of Days to YTM YTM Value Value Value Portfolio Term Maturity 360 Equiv. 365 Equiv. Managed Pool Accounts 34,223,086.64 34,223,086.64 34,223,086.64 16.52 1 1 4.051 4.108 Letter of Credit 3.00 3.00 3.00 0.00 1 1 0.000 0.000 Trust Accounts 14,145,986.69 14,145,986.69 14,145,986.69 6.83 1 1 0.533 0.540 Local Agency Investment Funds 102,553,388.43 101,169,976.97 102,553,388.43 49.52 1 1 0.249 0.252 Money Market 6,907,992.90 6,907,992.90 6,907,992.90 3.34 1 1 2.091 2.120 Medium Term Notes 12,000,000.00 11,673,170.00 11,638,260.00 5.62 717 490 4.691 4.756 Federal Agency Callable Securities 17,000,000.00 15,569,730.00 16,997,500.00 8.21 1,590 868 0.723 0.733 Treasury Coupon Securities 15,000,000.00 14,763,620.00 14,705,937.51 7.10 493 286 4.415 4.476 Federal Agency Bullet Securities 5,000,000.00 4,892,550.00 4,945,480.00 2.39 898 191 1.969 1.996 Supranational 1,000,000.00 981,030.00 985,430.00 0.48 634 396 4.069 4.126 207,830,457.66 204,327,146.20 207,103,065.17 100.00% 231 126 1.601 1.624 Investments Cash Passbook/Checking 27,993,101.78 27,993,101.78 27,993,101.78 1 1 0.000 0.000 (not included in yield calculations) Total Cash and Investments 235,823,559.44 232,320,247.98 235,096,166.95 231 126 1.601 1.624 Total Earnings Current Year Average Daily Balance Effective Rate of Return May 31 Month Ending 223,286.75 215,386,448.40 1.22% Fiscal Year To Date 2,019,032.45 217,774,984.78 1.01 % Reporting period 05/01/2023-05/31/2023 Portfolio TEME Data Updated: SET_MTH: 08/07/2023 09:09 NL! CP Run Date: 08/07/2023 - 09:09 PM (PRF_PM1) 7.3.0 Report Ver. 7.3.6.1 Portfolio Managment Treasury Report Portfolio Management Portfolio Details - Investments May 31, 2023 Page 1 Average Purchase Stated YTM YTM Days to Maturity CUSIP Investment # Issuer Balance Date Par Value Market Value Book Value Rate 360 365 Maturity Date Managed Pool Accounts 233358001-6 01-2 BOND F First Amer Govt Oblig Fund Cl 57.11 57.11 57.11 4.920 4.853 4.920 1 233358006-6 01-2 REF RES First Amer Govt Oblig Fund Cl 503,823.01 503,823.01 503,823.01 4.930 4.862 4.930 1 233358000-6 01-2 REF ST First Amer Govt Oblig Fund Cl 185,996.79 185,996.79 185,996.79 4.930 4.862 4.930 1 233358005-1 01-2 SPECF First Amer Govt Oblig Fund Cl 09/30/2022 12,238.41 12,238.41 12,238.41 4.930 4.862 4.930 1 276213009-6 03-02 COI First Amer Govt Oblig Fund Cl 07/01/2022 0.00 0.00 0.00 0.000 0.000 1 276213008-6 03-02 IMPR First Amer Govt Oblig Fund Cl 748.58 748.58 748.58 4.930 4.862 4.930 1 276213006-6 03-02 RES First Amer Govt Oblig Fund Cl 762,380.15 762,380.15 762,380.15 4.930 4.862 4.930 1 164741029-0 03-03 22 COI First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 4.060 4.004 4.060 1 164741028-0 03-03 22 IF First Amer Govt Oblig Fund Cl 199,849.28 199,849.28 199,849.28 4.930 4.862 4.930 1 164741010-0 03-03 22 SPE First Amer Govt Oblig Fund Cl 07/01/2022 0.00 0.00 0.00 0.000 0.000 1 164741026-6 03-03 22 SRB First Amer Govt Oblig Fund Cl 424,497.27 424,497.27 424,497.27 4.930 4.862 4.930 1 164741020-0 03-03 22 STIR First Amer Govt Oblig Fund Cl 598,924.39 598,924.39 598,924.39 4.930 4.862 4.930 1 164741002-6 03-03 BOND F First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.620 0.612 0.620 1 164741022 03-03 STRB First Amer Govt Oblig Fund Cl 08/01/2022 2.20 2.20 2.20 5.000 4.932 5.000 1 164741008-6 03-03IMP First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.620 0.612 0.620 1 164741006-6 03-03RES First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.180 0.178 0.180 1 164741000-6 03-03SPEC First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.620 0.612 0.620 1 164742002-6 03-06 BOND F First Amer Govt Oblig Fund Cl 88.12 88.12 88.12 4.920 4.853 4.920 1 164742000-6 03-06SPEC First Amer Govt Oblig Fund Cl 155,574.65 155,574.65 155,574.65 4.930 4.862 4.930 1 229462007-6 03-1 2012 RF First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.000 0.000 1 229462002--6 03-1 BOND FD First Amer Govt Oblig Fund Cl 0.01 0.01 0.01 4.330 4.271 4.330 1 229462009-6 03-1 COI First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.000 0.000 1 229462006-6 03-1 RESERV First Amer Govt Oblig Fund Cl 17,723.29 17,723.29 17,723.29 4.930 4.862 4.930 1 229462000-6 03-1 SPECF First Amer Govt Oblig Fund Cl 389,310.28 389,310.28 389,310.28 4.930 4.862 4.930 1 94669921-6 03-1ACQ11 First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.870 0.858 0.870 1 94669911-6 03-1ACQA11 First Amer Govt Oblig Fund Cl 07/01/2022 0.00 0.00 0.00 0.000 0.000 1 94669917-6 03-1 RES First Amer Govt Oblig Fund Cl 07/01/2022 0.00 0.00 0.00 0.000 0.000 1 94669916-6 03-1 RESB11 First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.000 0.000 1 94669000-6 03-1 SPTAX11 First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.000 0.000 1 276213002-6 03-2 REFU First Amer Govt Oblig Fund Cl 2.32 2.32 2.32 4.740 4.675 4.740 1 276213000-6 03-2 SPEC First Amer Govt Oblig Fund Cl 325,210.32 325,210.32 325,210.32 4.930 4.862 4.930 1 94686001-6 034ADMIN11 First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.060 0.059 0.060 1 94686005-6 034PREP11 First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.070 0.069 0.070 1 94686000-6 034RED11 First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.050 0.049 0.050 1 94686006-6 034RES11 First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.060 0.059 0.060 1 276213022-6 16-01 BOND F First Amer Govt Oblig Fund Cl 0.18 0.18 0.18 5.560 5.484 5.560 1 Data Updated: SET_MTH: 08/07/2023 09:09 Run Date: 08/07/2023 - 09:09 Portfolio TEME NL! CP PM (PRF_PM2) 7.3.0 Report Ver. 7.3.6.1 Portfolio Managment Treasury Report Portfolio Management Portfolio Details - Investments May 31, 2023 Page 2 Average Purchase Stated YTM YTM Days to Maturity CUSIP Investment # Issuer Balance Date Par Value Market Value Book Value Rate 360 365 Maturity Date Managed Pool Accounts 276213033 16-01 CAPIN2 First Amer Govt Oblig Fund Cl 03/01/2023 138,689.50 138,689.50 138,689.50 4.930 4.862 4.930 1 276213023-6 16-01 CAPINT First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.870 0.858 0.870 1 276213029-6 16-01 COI First Amer Govt Oblig Fund Cl 07/01/2022 0.00 0.00 0.00 0.000 0.000 1 276213039 16-01 C012 First Amer Govt Oblig Fund Cl 03/01/2023 102,961.51 102,961.51 102,961.51 4.930 4.862 4.930 1 276213028-6 16-01 IMP First Amer Govt Oblig Fund Cl 1,955,009.76 1,955,009.76 1,955,009.76 4.930 4.862 4.930 1 276213038 16-01 IMPF2 First Amer Govt Oblig Fund Cl 03/01/2023 7,569,834.24 7,569,834.24 7,569,834.24 4.930 4.862 4.930 1 276213026-6 16-01 RESERV First Amer Govt Oblig Fund Cl 3,212,813.33 3,212,813.33 3,212,813.33 4.930 4.862 4.930 1 276213020-6 16-01SPECF First Amer Govt Oblig Fund Cl 1,149,860.03 1,149,860.03 1,149,860.03 4.930 4.862 4.930 1 276213025-1 16-01 SPECTF First Amer Govt Oblig Fund Cl 09/30/2022 22,408.39 22,408.39 22,408.39 4.930 4.862 4.930 1 276213036 16-01 RESF2 First Amer Govt Oblig Fund Cl 03/01/2023 247,211.45 247,211.45 247,211.45 4.930 4.862 4.930 1 218848001-6 2017A&B INT First Amer Govt Oblig Fund Cl 0.97 0.97 0.97 5.150 5.079 5.150 1 218848008-6 2017ABPRIORP First Amer Govt Oblig Fund Cl 18,488.64 18,488.64 18,488.64 4.930 4.862 4.930 1 218848013-2 2017B COI First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.000 0.000 1 218848000-6 2017B DS First Amer Govt Oblig Fund Cl 1,461,689.66 1,461,689.66 1,461,689.66 4.930 4.862 4.930 1 218848002-6 2017B PRIN First Amer Govt Oblig Fund Cl 6.80 6.80 6.80 5.000 4.932 5.000 1 218848009-6 2017B_PROJ First Amer Govt Oblig Fund Cl 5,327,651.57 5,327,651.57 5,327,651.57 4.930 4.862 4.930 1 233358009-6 233358009-6 First Amer Govt Oblig Fund Cl 07/01/2022 0.00 0.00 0.00 0.000 0.000 1 94434160-6 RDA-021NT First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.000 0.000 1 94434161-6 RDA-02PRIN First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.000 0.000 1 107886000-6 RDA-06AINT First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.000 0.000 1 107886001-6 RDA06APRIN First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.000 0.000 1 107886010-6 RDA06BINT First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.000 0.000 1 107886011-6 RDA06BPRIN First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.680 0.671 0.680 1 107886016-6 RDA06BRES First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.940 0.927 0.940 1 107886020-6 RDA071NT First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.000 0.000 1 107886021-6 RDA07PRIN First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.930 0.917 0.930 1 107886028-6 RDA07PROJ First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.940 0.927 0.940 1 107886026-6 RDA07RES First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.940 0.927 0.940 1 136343008-6 RDA10APROJ First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.000 0.000 1 136343018-6 RDA10BPROJ First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.000 0.000 1 136343000-6 RDA10INT First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.000 0.000 1 136343001-6 RDA10PRIN First Amer Govt Oblig Fund Cl 07/01/2022 0.00 0.00 0.00 0.000 0.000 1 136343006-6 RDA10RSRV First Amer Govt Oblig Fund Cl 07/01/2022 0.00 0.00 0.00 0.000 0.000 1 146161000-6 RDA11AINT First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.000 0.000 1 146161001-6 RDA11APRIN First Amer Govt Oblig Fund Cl 0.00 0.00 0.00 0.000 0.000 1 94669902-3 03-1 BOND3 First American Treasury 07/01/2022 0.00 0.00 0.00 0.000 0.000 1 Data Updated: SET_MTH: 08/07/2023 09:09 Run Date: 08/07/2023 - 09:09 Portfolio TEME NL! CP PM (PRF_PM2) 7.3.0 Portfolio Managment Treasury Report Portfolio Management Portfolio Details - Investments May 31, 2023 Page 3 CUSIP Investment # Average Issuer Balance Purchase Date Par Value Market Value Book Value Stated Rate YTM 360 YTM Days to Maturity 365 Maturity Date Managed Pool Accounts 94434160-1 RDA 02 INT1 First American Treasury 0.00 0.00 0.00 0.010 0.010 0.010 1 94434161-2 RDA 02 PRIN2 First American Treasury 0.00 0.00 0.00 0.010 0.010 0.010 1 136343018-2 RDA 10B CIP2 First American Treasury 0.00 0.00 0.00 0.010 0.010 0.010 1 146161008-3 RDA11APROJ Federated Institutional Tax Fr 0.00 0.00 0.00 0.800 0.789 0.800 1 146161006-3 RDA11ARSRV Federated Institutional Tax Fr 07/01/2022 0.00 0.00 0.00 0.000 0.000 1 94669921-5 03-01 ACQ11 Federated Tax Free Obligations 0.00 0.00 0.00 0.250 0.247 0.250 1 94669911-5 03-01 ACQA11 Federated Tax Free Obligations 0.00 0.00 0.00 0.250 0.247 0.250 1 94669917-5 03-01 RES Federated Tax Free Obligations 07/01/2022 0.00 0.00 0.00 0.000 0.000 1 94669906-5 03-01 RESA11 Federated Tax Free Obligations 0.00 0.00 0.00 0.001 0.001 0.001 1 94669916-5 03-01 RESB11 Federated Tax Free Obligations 0.00 0.00 0.00 0.250 0.247 0.250 1 94669000-5 03-01SPTAX11 Federated Tax Free Obligations 0.00 0.00 0.00 0.250 0.247 0.250 1 164742006-5 03-06 RES Federated Tax Free Obligations 07/01/2022 0.00 0.00 0.00 0.000 0.000 1 164742000-5 03-06 SPEC Federated Tax Free Obligations 0.00 0.00 0.00 0.250 0.247 0.250 1 94669902-5 03-1 bond fd Federated Tax Free Obligations 07/01/2022 0.00 0.00 0.00 0.000 0.000 1 94686001-5 034 ADMIN11 Federated Tax Free Obligations 0.00 0.00 0.00 0.250 0.247 0.250 1 94686005-5 034 PREP11 Federated Tax Free Obligations 07/01/2022 0.00 0.00 0.00 0.000 0.000 1 94686006-5 034 RES11 Federated Tax Free Obligations 0.00 0.00 0.00 0.250 0.247 0.250 1 94669917-1 03-01-1 RES CA Local Agency Investment Fun 0.00 0.00 0.00 0.339 0.334 0.339 1 276213008-1 03-02 IMP CA Local Agency Investment Fun 8,296,399.88 8,296,399.88 8,296,399.88 2.010 1.982 2.010 1 164742006-1 03-06 RES-1 CA Local Agency Investment Fun 312,326.88 312,326.88 312,326.88 4.930 4.862 4.930 1 229462007-1 03-1 2012 RE CA Local Agency Investment Fun 831,306.78 831,306.78 831,306.78 0.221 0.218 0.221 1 94669911-1 03-1 ACQ A2 CA Local Agency Investment Fun 0.00 0.00 0.00 0.339 0.334 0.339 1 94669921-1 03-1 ACQ B2 CA Local Agency Investment Fun 0.00 0.00 0.00 0.339 0.334 0.339 1 744727011-1 03-3 ACQ 2 CA Local Agency Investment Fun 0.00 0.00 0.00 0.339 0.334 0.339 1 164741006-1 0303-1 RES CA Local Agency Investment Fun 0.00 0.00 0.00 0.620 0.612 0.620 1 107886028-1 RDA 07 PRO-1 CA Local Agency Investment Fun 0.00 0.00 0.00 0.339 0.334 0.339 1 107886026-1 RDA 07 RES-1 CA Local Agency Investment Fun 0.00 0.00 0.00 0.339 0.334 0.339 1 136343018-1 RDA 10B CIP1 CA Local Agency Investment Fun 0.00 0.00 0.00 0.339 0.334 0.339 1 229462020-0 03-01 CASH USBANK 0.89 0.89 0.89 0.000 0.000 1 164742006-0 03-06 Cash USBANK 07/01/2022 0.00 0.00 0.00 0.000 0.000 1 233358050-1 01-2 SPECESC U.S. Treasury 0.00 0.00 0.00 0.360 0.355 0.360 1 Subtotal and Average 33,203,682.11 34,223,086.64 34,223,086.64 34,223,086.64 4.051 4.108 1 Retention Escrow Account NOBEL COMPANY 3354 Banner Bank 0.00 0.00 0.00 0.150 0.148 0.150 1 Portfolio TEME Data Updated: SET_MTH: 08/07/2023 09:09 NL! CP Run Date: 08/07/2023 - 09:09 PM (PRF_PM2) 7.3.0 Portfolio Managment Treasury Report Portfolio Management Portfolio Details - Investments May 31, 2023 Page 4 Average Purchase Stated YTM YTM Days to Maturity CUSIP Investment # Issuer Balance Date Par Value Market Value Book Value Rate 360 365 Maturity Date Retention Escrow Account 218848050-0 2002 ESCROW USBANK 07/01/2022 0.00 0.00 0.00 0.000 0.000 1 218848060-0 2006AESCRO USBANK 07/01/2022 0.00 0.00 0.00 0.000 0.000 1 218848070-0 2006BESCRO USBANK 07/01/2022 0.00 0.00 0.00 0.000 0.000 1 218848080-0 2007ESCROW USBANK 07/01/2022 0.00 0.00 0.00 0.000 0.000 1 229462020-2 03-01 ESCROW U.S. Treasury 0.00 0.00 0.00 0.063 0.062 0.063 1 Subtotal and Average 0.00 0.00 0.00 0.00 0.000 0.000 0 Letter of Credit 164741026-1 03-03 22 Res ASSURED GUARANTY MUNICIPAL COR 07/01/2022 1.00 1.00 1.00 0.000 0.000 1 218848006-1 2017B RESER ASSURED GUARANTY MUNICIPAL COR 07/01/2022 1.00 1.00 1.00 0.000 0.000 1 233358006-1 01-2 REFRESI ASSURANCE CO BOND INSURANCE 07/01/2022 1.00 1.00 1.00 0.000 0.000 1 Subtotal and Average 3.00 3.00 3.00 3.00 0.000 0.000 1 Trust Accounts 6746058700 PARS Pension US Bank Trust 14,145,986.69 14,145,986.69 14,145,986.69 0.540 0.533 0.540 1 Subtotal and Average 14,236,428.00 14,145,986.69 14,145,986.69 14,145,986.69 0.533 0.540 1 Local Agency Investment Funds SYSCITY CITY CA Local Agency Investment Fun 72,909,366.30 71,925,842.94 72,909,366.30 0.206 0.203 0.206 1 SYSRDA RDA CA Local Agency Investment Fun 1,927.61 1,901.61 1,927.61 0.365 0.360 0.365 1 SYSTCSD TCSD CA Local Agency Investment Fun 29,642,094.52 29,242,232.42 29,642,094.52 0.365 0.360 0.365 1 Subtotal and Average 102,553,388.43 102,553,388.43 101,169,976.97 102,553,388.43 0.249 0.252 1 Money Market 31846V542 Money Mkt USBANK 08/31/2022 6,907,992.90 6,907,992.90 6,907,992.90 2.120 2.091 2.120 1 Subtotal and Average 5,085,941.45 6,907,992.90 6,907,992.90 6,907,992.90 2.091 2.120 1 Medium Term Notes 04685A3J8 01285 Athene Global Funding 10/06/2022 2,000,000.00 1,929,380.00 1,920,360.00 2.514 5.385 5.460 281 03/08/2024 06406RAJ6 01282 Bank of NY Mellon Corp 09/27/2022 1,000,000.00 996,580.00 994,200.00 3.450 4.100 4.157 71 08/11/2023 14913Q21-2 01276 Caterpillar Financial Service 08/31/2022 0.00 0.00 0.00 3.450 3.398 3.445 15 05/15/2023 25160PAM9 01292 Deutsche Bank NY 11/14/2022 1,000,000.00 987,450.00 961,560.00 5.371 6.220 6.306 1,561 09/09/2027 46849LSQ5 01294 Jackson Natl Life Global 12/23/2022 2,000,000.00 1,849,600.00 1,879,480.00 3.050 4.957 5.026 1,063 04/29/2026 594918BQ6 01279 Microsoft Corp 09/07/2022 2,000,000.00 1,990,320.00 1,973,940.00 2.000 3.403 3.451 68 08/08/2023 21688AAU6 01284 Cooperat Rabobank UA/NY 09/30/2022 2,000,000.00 1,964,400.00 1,968,180.00 3.875 4.696 4.761 448 08/22/2024 Portfolio TEME Data Updated: SET_MTH: 08/07/2023 09:09 NL! CP Run Date: 08/07/2023 - 09:09 PM (PRF_PM2) 7.3.0 Portfolio Managment Treasury Report Portfolio Management Portfolio Details - Investments May 31, 2023 Page 5 Average Purchase Stated YTM YTM Days to Maturity CUSIP Investment # Issuer Balance Date Par Value Market Value Book Value Rate 360 365 Maturity Date Medium Term Notes 89236TJX4 01288 Toyota Motor Credit Corp 10/14/2022 2,000,000.00 1,955,440.00 1,940,540.00 2.500 4.595 4.659 295 03/22/2024 Subtotal and Average 12,541,485.81 12,000,000.00 11,673,170.00 11,638,260.00 4.691 4.756 490 Federal Agency Callable Securities 3133EMQGO 01259 Federal Farm Credit Bank 02/10/2021 1,000,000.00 922,130.00 1,000,000.00 0.320 0.316 0.320 620 02/10/2025 3133EMK92 01265 Federal Farm Credit Bank 06/23/2021 1,000,000.00 917,430.00 1,000,000.00 0.580 0.572 0.580 753 06/23/2025 3133EMN57 01266 Federal Farm Credit Bank 06/28/2021 1,000,000.00 948,660.00 1,000,000.00 0.440 0.434 0.440 393 06/28/2024 3133EMP22 01267 Federal Farm Credit Bank 06/30/2021 1,000,000.00 894,590.00 1,000,000.00 0.910 0.898 0.910 1,125 06/30/2026 3133ENAP5 01273 Federal Farm Credit Bank 10/14/2021 1,000,000.00 913,910.00 1,000,000.00 0.800 0.789 0.800 866 10/14/2025 313OAKQ41 01258 Federal Home Loan Bank 01/28/2021 1,000,000.00 907,270.00 1,000,000.00 0.520 0.513 0.520 972 01/28/2026 3130ALEU4 01260 Federal Home Loan Bank 02/25/2021 1,000,000.00 930,460.00 1,000,000.00 0.350 0.345 0.350 543 11/25/2024 3130ALWV2 01261 Federal Home Loan Bank 04/21/2021 1,000,000.00 917,410.00 1,000,000.00 0.550 1.011 1.025 1,055 04/21/2026 3130AM2V3 01262 Federal Home Loan Bank 04/29/2021 1,000,000.00 934,190.00 1,000,000.00 0.700 0.690 0.700 698 04/29/2025 3130AMNMO 01263 Federal Home Loan Bank 05/27/2021 1,000,000.00 911,390.00 1,000,000.00 0.500 0.493 0.500 1,091 05/27/2026 3130AMM90 01264 Federal Home Loan Bank 06/10/2021 1,000,000.00 911,360.00 1,000,000.00 0.500 1.973 2.000 1,105 06/10/2026 3130AN4N7 01268 Federal Home Loan Bank 07/14/2021 1,000,000.00 918,690.00 1,000,000.00 0.720 0.710 0.720 774 07/14/2025 3130ANAZ3 01269 Federal Home Loan Bank 07/28/2021 1,000,000.00 930,650.00 1,000,000.00 0.600 0.592 0.600 697 04/28/2025 3130AP3M5 01270 Federal Home Loan Bank 09/28/2021 1,000,000.00 928,380.00 1,000,000.00 0.550 0.542 0.550 666 03/28/2025 3134GXJL9 01257 Federal Home Loan Mtg Corp 12/30/2020 1,000,000.00 899,560.00 1,000,000.00 0.500 0.493 0.500 943 12/30/2025 3130APBV6 01271 Union Bank 10/07/2021 1,000,000.00 891,030.00 999,000.00 1.000 1.007 1.021 1,224 10/07/2026 3130APAM7 01272 Union Bank 10/14/2021 1,000,000.00 892,620.00 998,500.00 0.900 0.918 0.931 1,231 10/14/2026 Subtotal and Average 16,997,500.00 17,000,000.00 15,569,730.00 16,997,500.00 0.723 0.733 868 Treasury Coupon Securities 912828T26 01281 U.S. Treasury 09/26/2022 2,000,000.00 1,973,760.00 1,945,703.13 1.375 4.088 4.145 121 09/30/2023 91282CEX5 01283 U.S. Treasury 09/29/2022 2,000,000.00 1,954,760.00 1,960,312.50 3.000 4.126 4.184 395 06/30/2024 91282CEX5 01287 U.S. Treasury 10/13/2022 2,000,000.00 1,954,760.00 1,955,312.50 3.000 4.304 4.364 395 06/30/2024 9128285P1 01289 U.S. Treasury 10/19/2022 2,000,000.00 1,976,480.00 1,966,093.75 2.875 4.387 4.448 182 11/30/2023 9128285UO 01290 U.S. Treasury 10/19/2022 2,000,000.00 1,969,540.00 1,957,265.63 2.625 4.412 4.473 213 12/31/2023 91282CFQ9 01291 U.S. Treasury 11/04/2022 2,000,000.00 1,987,180.00 1,988,281.25 4.375 4.622 4.687 518 10/31/2024 912828V23 01295 U.S. Treasury 02/09/2023 3,000,000.00 2,947,140.00 2,932,968.75 2.250 4.778 4.844 213 12/31/2023 Subtotal and Average 14,705,937.51 15,000,000.00 14,763,620.00 14,705,937.51 4.415 4.476 286 Data Updated: SET_MTH: 08/07/2023 09:09 Run Date: 08/07/2023 - 09:09 Portfolio TEME NL! CP PM (PRF_PM2) 7.3.0 Portfolio Managment Treasury Report Portfolio Management Portfolio Details - Investments May 31, 2023 Page 6 Average Purchase Stated YTM YTM Days to Maturity CUSIP Investment # Issuer Balance Date Par Value Market Value Book Value Rate 360 365 Maturity Date Federal Agency Bullet Securities 3133ELMA9 01254 Federal Farm Credit Bank 02/07/2020 1,000,000.00 992,860.00 1,000,000.00 1.420 1.401 1.420 67 08/07/2023 3133ELTU8 01256 Federal Farm Credit Bank 03/18/2020 1,000,000.00 968,000.00 1,000,000.00 0.920 0.907 0.920 291 03/18/2024 3133ENCA6 01274 Federal Farm Credit Bank 10/25/2021 1,000,000.00 942,910.00 1,000,000.00 0.700 0.690 0.700 512 10/25/2024 3135GO5G4 01278 Federal National Mtg Assn 09/02/2022 2,000,000.00 1,988,780.00 1,945,480.00 0.250 3.464 3.512 39 07/10/2023 Subtotal and Average 4,945,480.00 5,000,000.00 4,892,550.00 4,945,480.00 1.969 1.996 191 Supranational 4581XOEE4 01286 Inter -American Devel Bk Subtotal and Average Total and Average 985,430.00 215,386,448.40 10/06/2022 1,000,000.00 1,000,000.00 207,830,457.66 981,030.00 981,030.00 204, 327,146.20 985,430.00 3.250 4.069 4.126 396 07/01/2024 985,430.00 4.069 4.126 396 207,103,065.17 1.601 1.624 126 Portfolio TEME Data Updated: SET_MTH: 08/07/2023 09:09 NL! CP Run Date: 08/07/2023 - 09:09 PM (PRF_PM2) 7.3.0 Portfolio Managment Treasury Report Portfolio Management Portfolio Details - Cash May 31, 2023 Page 7 Average Purchase Stated YTM YTM Days to CUSIP Investment # Issuer Balance Date Par Value Market Value Book Value Rate 360 365 Maturity Passbook/Checking Accounts 1453718479 WORKERS BANK OF AMERICA MERRILL LYNC 07/01/2022 21,242.22 21,242.22 21,242.22 0.000 0.000 1 SYSPetty Cash Petty Cash City of Temecula 07/01/2022 3,911.00 3,911.00 3,911.00 0.000 0.000 1 SYSGen Ck Acct Gen Ck Acct Union Bank of California 27,954,161.56 27,954,161.56 27,954,161.56 0.000 0.000 1 SYSParking Ck PARKING CITA Union Bank of California 07/01/2022 13,787.00 13,787.00 13,787.00 0.000 0.000 1 Average Balance 0.00 Total Cash and Investments 215,386,448.40 0 235,823,559.44 232,320,247.98 235,096,166.95 1.601 1.624 126 Portfolio TEME Data Updated: SET_MTH: 08/07/2023 09:09 NL! CP Run Date: 08/07/2023 - 09:09 PM (PRF_PM2) 7.3.0 Cash and Investments Report CITY OF TEMECULA Through May 2023 Fund 9 Fund Name Beginning Balance Receipts Disbursements Fund Total 001 GENERAL FUND $ 46,614,378.88 $ 10,904,125.58 $ 5,345,598.58 $ 52,172,905.88 002 MEASURE S FUND 41,104,154.48 3,300,656.98 44,404,811.46 006 FIRE FACILITY ACQUISITION FUND 1,518,755.18 5,304.84 $ 1,524,060.02 100 STATE GAS TAX FUND 2,349,905.37 171,973.24 2,521,878.61 102 RMRA-ROAD MAINTENANCE REHABILITATION ACT 3,399,294.07 188,712.28 3,588,006.35 103 STREETS MAINTENANCE FUND 7,000,416.04 18,931.76 7,019,347.80 105 NPDES 175,821.35 512.56 176,333.91 106 UPTOWN TEMECULA NEW STREETS IN LIEU FEES 899,948.74 2,620.80 902,569.54 110 COVID-19 PANDEMIC COMMUNITY REINVESTMENT 12,247,507.25 10,000.00 391,623.40 11,865,883.85 120 DEVELOPMENT IMPACT FUND 13,546,335.93 224,585.36 - 13,770,921.29 125 PEG PUBLIC EDUCATION & GOVERNMENT 798,854.95 45,561.37 844,416.32 145 TEMECULA ENERGY EFFICIENCY ASSET TEAM 844,091.99 2,948.32 847,040.31 150 AB 2766 FUND 352,145.29 1,148.40 353,293.69 160 SUPPLEMENTAL LAW ENFORCEMENT SERVICES 172,706.19 8,869.89 181,576.08 161 TEMECULA MAJOR CRIMES REWARD FUND 53.44 - - 53.44 165 AFFORDABLE HOUSING 5,358,531.70 18,931.98 9,957.24 5,367,506.44 170 MEASURE A FUND 8,912,364.34 34,041.57 359,541.98 8,586,863.93 190 TEMECULA COMMUNITY SERVICES DISTRICT 2,088,887.34 2,349,469.92 1,016,779.19 3,421,578.07 191 TCSD SERVICE LEVEL "B" STREET LIGHT REPLACEMENT 863,506.08 3,016.14 - 866,522.22 192 TCSD SERVICE LEVEL "B" STREET LIGHTS 371,639.75 290,704.73 26,464.50 635,879.98 194 TCSD SERVICE LEVEL "D" REFUSE/RECYCLING 827,101.47 4,313,588.87 4,781.84 5,135,908.50 195 TCSD SERVICE LEVEL "R" STREET/ROAD MAINT 30,518.19 2,208.37 - 32,726.56 196 TCSD SERVICE LEVEL "L" LAKE PARK MAINT. 372,499.13 117,480.97 70,770.91 419,209.19 197 TEMECULA LIBRARY FUND 652,422.31 11,740.17 55,385.00 608,777.48 198 PUBLIC ART 196,394.56 4,332.77 - 200,727.33 210 CAPITAL IMPROVEMENT PROJECT FUND 1,339,086.00 438,116.78 2,425,223.91 (648,021.13) 275 CFD 03-3 WOLF CREEK IMPROVEMENT FUND 216,464.44 822.08 217,286.52 277 CFD-RORIPAUGH 8,386,419.45 56,130.99 8,442,550.44 278 CFD-RORIPAUGH II 9,481,054.14 43,789.86 - 9,524,844.00 300 INSURANCE FUND 1,220,989.13 4,333.10 16,887.92 1,208,434.31 305 WORKER'S COMPENSATION 1,300,844.04 34,757.58 70,409.54 1,265,192.08 310 VEHICLES AND EQUIPMENT FUND 3,330,176.24 11,200.12 2,019.22 3,339,357.14 320 INFORMATION TECHNOLOGY 1,770,972.89 11,207.26 447,525.09 1,334,655.06 325 TECHNOLOGY REPLACEMENT FUND 2,648,962.77 8,752.30 - 2,657,715.07 330 CENTRAL SERVICES 23,949.52 94.52 31,768.96 (7,724.92) 335 CENTRAL SERVICES 341,919.36 1,171.70 - 343,091.06 340 FACILITIES 542,653.12 19,386.39 157,447.21 404,592.30 350 FACILITY REPLACEMENT FUND 951,926.78 2,915.28 - 954,842.06 380 SARDA DEBT SERVICE FUND 4,286,316.79 2,223,496.61 1,433,905.37 5,075,908.03 381 REDEVELOPMEN PROPERTY TAX TRUST - 3,685,096.00 769,118.71 2,915,977.29 460 CFD 88-12 DEBT SERVICE FUND 95,894.33 334.94 - 96,229.27 472 CFD 01-2 HARVESTON A&B DEBT SERVICE 944,069.71 443,884.44 1,387,954.15 473 CFD 03-1 CROWNE HILL DEBT SERVICE FUND 1,249,693.15 375,418.17 1,625,111.32 474 AD 034 JOHN WARNER ROAD DEBT SERVICE 7,227.35 25.24 7,252.59 475 CFD 03-3 WOLF CREEK DEBT SERVICE FUND 1,053,467.08 808,901.50 1,862,368.58 476 CFD 03-6 HARVESTON 2 DEBT SERVICE FUND 498,974.84 142,270.74 641,245.58 477 CFD 03-02 RORIPAUGH DEBT SERVICE FUND 1,101,926.09 355,008.74 1,456,934.83 478 CFD-RORIPAUGH II 4,854,676.94 1,138,016.91 5,992,693.85 481 CFD 20-01 ALTAIR 150,000.00 - - 150,000.00 501 SERVICE LEVEL"C"ZONE 1 SADDLEWOOD 7,908.63 17,441.50 2,317.65 23,032.48 502 SERVICE LEVEL"C"ZONE 2 WINCHESTER CREEK 121,628.84 20,454.12 16,562.38 125,520.58 503 SERVICE LEVEL"C"ZONE 3 RANCHO HIGHLANDS 52,192.18 21,027.84 2,108.91 71,111.11 504 SERVICE LEVEL"C"ZONE 4 THE VINEYARDS 5,306.32 3,007.61 336.21 7,977.72 505 SERVICE LEVEL"C"ZONE 5 SIGNET SERIES 21,848.84 17,147.52 2,173.35 36,823.01 506 SERVICE LEVEL"C"ZONE 6 WOODCREST COUNTRY 44,027.61 12,781.42 1,023.85 55,785.18 507 SERVICE LEVEL"C"ZONE 7 RIDGEVIEW 7,645.51 7,105.38 794.04 13,956.85 508 SERVICE LEVEL"C"ZONE 8 VILLAGE GROVE 90,143.65 61,399.95 9,026.56 142,517.04 509 SERVICE LEVEL"C"ZONE 9 RANCHO SOLANA 28,905.43 2,381.75 156.80 31,130.38 510 SERVICE LEVEL"C"ZONE 10 MARTINIQUE 14,521.12 4,518.40 458.07 18,581.45 511 SERVICE LEVEL"C"ZONE 11 MEADOWVIEW 3,149.48 1,061.72 107.34 4,103.86 512 SERVICE LEVEL"C"ZONE 12 VINTAGE HILLS 66,185.67 43,205.45 4,920.80 104,470.32 513 SERVICE LEVEL"C"ZONE 13 PRESLEY DEVELOP 29,556.27 15,508.14 1,793.73 43,270.68 514 SERVICE LEVEL"C"ZONE 14 MORRISON HOMES 8,971.23 6,579.18 744.24 14,806.17 515 SERVICE LEVEL"C"ZONE 15 BARCLAY ESTATES 11,742.58 4,943.64 530.52 16,155.70 516 SERVICE LEVEL"C"ZONE 16 TRADEWINDS 79,314.60 17,634.78 7,127.99 89,821.39 517 SERVICE LEVEL"C"ZONE 17 MONTE VISTA 2,409.49 879.46 108.74 3,180.21 518 SERVICE LEVEL"C"ZONE 18 TEMEKU HILLS 46,328.37 40,636.50 4,587.75 82,377.12 519 SERVICE LEVEL"C"ZONE 19 CHANTEMAR 74,126.23 27,308.27 11,158.91 90,275.59 520 SERVICE LEVEL"C"ZONE 20 CROWNE HILL 251,260.75 82,923.93 35,723.65 298,461.03 521 SERVICE LEVEL"C"ZONE 21 VAIL RANCH 144,776.08 105,496.09 23,446.24 226,825.93 522 SERVICE LEVEL"C"ZONE 22 SUTTON PLACE 10,900.23 2,126.92 203.17 12,823.98 523 SERVICE LEVEL"C"ZONE 23 PHEASENT RUN 26,178.41 3,999.88 313.24 29,865.05 524 SERVICE LEVEL"C"ZONE 24 HARVESTON 47,549.40 71,631.78 8,664.80 110,516.38 525 SERVICE LEVEL"C"ZONE 25 SERENA HILLS 64,882.65 20,945.61 1,925.42 83,902.84 526 SERVICE LEVEL"C"ZONE 26 GALLERYTRADITION 2,012.21 952.50 122.84 2,841.87 527 SERVICE LEVEL"C"ZONE 27 AVONDALE 9,583.47 4,132.84 668.21 13,048.10 528 SERVICE LEVEL"C"ZONE 28 WOLF CREEK 581,270.18 108,886.63 12,435.58 677,721.23 529 SERVICE LEVEL"C"ZONE 29 GALLERY PORTRAIT 8,037.73 1,590.46 171.09 9,457.10 530 SERVICE LEVEL"C"ZONE 30 FUTURE ZONES 36,485.77 127.44 - 36,613.21 701 PENSION RATE STABILIZATION FUND $ 14,239,442.71 - 93,456.02 $ 14,145,986.69 Grand Total: $ 212,634,189.82 $ 32,564,434.83 $ 12,878,376.67 $ 232,320,247.98 Journal Entries completed after April's Treasurer's Report was issued are reflected in the Receipts / Disbursements columns. Item No. 5 CITY OF TEMECULA AGENDA REPORT TO: City Manager/City Council FROM: Patrick A. Thomas, Director of Public Works/City Engineer DATE: August 22, 2023 SUBJECT: Amend the Capital Improvement Program Budget for Fiscal Years 2024-28 for Various Projects PREPARED BY: Amer Attar, Engineering Manager RECOMMENDATION: That the City Council: 1. Adopt a resolution entitled: RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA TO AMEND THE CAPITAL IMPROVEMENT PROGRAM BUDGET FOR FISCAL YEARS 2024-28 FOR VARIOUS PROJECTS 2. Approve an appropriation of $1,500,000 from Transportation Uniform Mitigation Fee, from Western Riverside Council of Governments in Fiscal Year 2023-24 for the I-15 / French Valley Parkway Improvements — Phase III project; and 3. Approve an appropriation and corresponding fund transfer of $200,000 from Measure S for Fiscal Year 2023-24 to the I-15 / French Valley Parkway Improvements — Phase III project; and 4. Approve an appropriation of $1,000,000 grant funding from California State Assembly Bill 102 as amended in Senate on June 24, 2023 for Fiscal Year 2023-24 for the Ynez Road Improvements — Phase I project; and 5. Approve a fund Transfer of $1,000,000 of Development Impact Fee — Street Improvements from Ynez Road Improvements, Phase I to Fiscal Year 2025-26 of the Rancho California Road Median Improvements project; and 6. Approve a fund transfer of $594,524 from Fiscal Year 2023-24 of the Sidewalks — Citywide project to Fiscal Year 2023-24 of a separately established project, Sidewalks — Pauba Road; and 7. Approve an appropriation of $362,600 grant funding from California Senate Bill 821 for Fiscal Year 2023-24 for the Sidewalks — Pauba Road; and 8. Approve an appropriation of $200,000 grant funding from American Rescue Plan Act, signed into law March 11, 2021, through the County of Riverside for Fiscal Year 2023-24 to the Dog Park Renovation project; and 9. Approve an appropriation and corresponding fund transfer of $100,000 from Measure S for Fiscal Year 2023-24 to the Dog Park Renovation project. BACKGROUND: On June 13, 2023, the City Council adopted the Capital Improvement Program (CIP) Budget for Fiscal Years 2024-28. Since the adoption of the CIP Budget, the City received information that it has been approved to receive funds from several outside fund sources for the benefit of several projects. This amendment to the CIP Budget will cover the following changes: 1- I-15 / French Valley Parkway Improvements — Phase III — Add an appropriation of $1,500,000 from Transportation Uniform Mitigation Fee (TUMF), from Western Riverside Council of Governments (WRCOG) in Fiscal Year 2023-24. WRCOG has approved this appropriation and it was included in the Fiscal Year 2023-24 Southwest Zone 5-Year Transportation Improvement Program. This appropriation will be used to acquire one parcel needed for this phase of the project. Existing Agreement No. 20-SW-TEM-1197 between the City and WRCOG will be amended to add this amount. In addition, add an appropriation and corresponding fund transfer of $200,000 from Measure S for Fiscal Year 2023-24 to the 1-15 / French Valley Parkway Improvements — Phase III project. This amount is needed to look at various options to break this phase of the project to multiple phases and coordinating this work with Caltrans. 2- Ynez Road Improvements — Phase I - Add an appropriation of $1,000,000 grant funding the City received from California State Assembly Bill (AB) 102 as amended in Senate on June 24, 2023. This appropriation is for Fiscal Year 2023-24. 3- Rancho California Road Median Improvements — Transfer $1,000,000 of Development Impact Fee (DIF) — Street Improvements from Ynez Road Improvements, Phase I to Fiscal Year 2025-26 of the Rancho California Road Median Improvements project. This will close the funding gap for this project 4- Sidewalks - Citywide — Transfer the entire approved appropriation for Fiscal Year 2023- 24, $594,524 to a separate project called Sidewalks — Pauba Road. This appropriation is for the current Fiscal Year 2023-24. 5- Sidewalks — Pauba Road — Add this project as a separate project and transfer the entire approved appropriation for Fiscal Year 2023-24, $594,524, of the Sidewalks — Citywide project to Fiscal Year 2023-24 of this project. The City was awarded grant funding from California Senate Bill (SB) 821 for this project in the amount of $362,600. The separation of this project from the Sidewalks — Citywide is necessary for tracking and reporting purposes of the grant funds. 6- Dog Park Renovation — Add an appropriation of $200,000 grant funding from American Rescue Plan Act (ARPA), signed into law March 11, 2021, through the County of Riverside for Fiscal Year 2023-24. In addition, add an appropriation and corresponding fund transfer of $100,000 from Measure S for Fiscal Year 2023-24 to the Dog Park Renovation project. The grant funding and the additional requested Measure S appropriation will be used to add American with Disability Act (ADA) access to the Dog Park and administer the grant including reporting requirements. This amendment to the Capital Improvement Program (CIP) is consistent with the City of Temecula General Plan and all its elements. FISCAL IMPACT: The net result of this amendment to the Capital Improvement Program (CIP) Budget for Fiscal Years 2024-28 is an increase of Transportation Uniform Mitigation Fee (TUMF) appropriation from Western Riverside Council of Governments (WRCOG) in the amount of $1,500,000, an increase of appropriation of grant funding in the amount of $1,562,600, and an appropriation increase from Measure S in the amount of $300,000. ATTACHMENTS: 1. Resolution 2. Amended CIP Budget Sheets 3. CIP Budget Amendment Summary RESOLUTION NO. 2023- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA TO AMEND THE CAPITAL IMPROVEMENT PROGRAM BUDGET FOR FISCAL YEARS 2024-28 FOR VARIOUS PROJECTS THE CITY COUNCIL OF THE CITY OF TEMECULA DOES HEREBY RESOLVE AS FOLLOWS: Section 1. The City Council finds, determines, and declares that: A. On June 13, 2023, the City Council adopted the Capital Improvement Program Budget for Fiscal Years 2024-28. B. Since the adoption of the Capital Improvement Program (CIP) Budget, the City has been approved to receive funds from several outside fund sources for the benefit of several projects. C. These changes have made it necessary to amend the CIP Budget for I-15 / French Valley Parkway Improvements — Phase III, Rancho California Road Median Improvements, Ynez Road Improvements — Phase I, Sidewalks — Citywide, and Dog Park Renovation projects. D. Receiving SB 821 funds for the sidewalk project on Pauba Road, from Elinda to Showalter will necessitate establishing a standalone project and separating it from the Sidewalks — Citywide project. E. The Capital Improvement Program (CIP) as amended by this Resolution is consistent with the City of Temecula General Plan and each element thereof. Section 2. Amendment of the Capital Improvement Program (CIP) A. The Capital Improvement Program (CIP) for Fiscal Years 2024-28 is hereby amended as follows: 1) I-15 / French Valley Parkway Improvements — Phase III — Add an appropriation of $1,500,000 from Transportation Uniform Mitigation Fee (TUMF), from Western Riverside Council of Governments (WRCOG) in Fiscal Year 2023-24. WRCOG has approved this appropriation and it was included in the Fiscal Year 2023-24 Southwest Zone 5-Year Transportation Improvement Program. This appropriation will be used to acquire one parcel needed for this phase of the project. Existing Agreement No. 20-SW-TEM-1197 between the City and WRCOG will be amended to add this amount. In addition, add an appropriation and corresponding fund transfer of $200,000 from Measure S for Fiscal Year 2023-24 to the I-15 / French Valley Parkway Improvements — Phase III project. This amount is needed to look at various options to break this phase of the project to multiple phases and coordinating this work with Caltrans. 2) Ynez Road Improvements — Phase I - Add an appropriation of $1,000,000 grant funding the City received from California State Assembly Bill (AB) 102 as amended in Senate on June 24, 2023. This appropriation is for Fiscal Year 2023-24. 3) Rancho California Road Median Improvements — Transfer $1,000,000 of Development Impact Fee (DIF) — Street Improvements from Ynez Road Improvements, Phase I to Fiscal Year 2025-26 of the Rancho California Road Median Improvements project. This will close the funding gap for this project 4) Sidewalks - Citywide — Transfer the entire approved appropriation for Fiscal Year 2023-24, $594,524 to a separate project called Sidewalks — Pauba Road. This appropriation is for the current Fiscal Year, 2023-24. 5) Sidewalks — Pauba Road — Add this project as a separate project and transfer the entire approved appropriation for Fiscal Year 2023-24, $594,524, of the Sidewalks — Citywide project to Fiscal Year 2023-24 of this project. The City was awarded grant funding from California Senate Bill (SB) 821 for this project in the amount of $362,600. The separation of this project from the Sidewalks — Citywide is necessary for tracking and reporting purposes of the grant funds. 6) Dog Park Renovation — Add an appropriation of $200,000 grant funding from American Rescue Plan Act (ARPA), signed into law March 11, 2021, through the County of Riverside for Fiscal Year 2023-24. In addition, add an appropriation and corresponding fund transfer of $100,000 from Measure S for Fiscal Year 2023-24 to the Dog Park Renovation project. The grant funding and the additional requested Measure S appropriation will be used to add American with Disability Act (ADA) access to the Dog Park and administer the grant including reporting requirements. B. The net result of this amendment to the Capital Improvement Program (CIP) Budget for Fiscal Years 2024-28 is an increase of Transportation Uniform Mitigation Fee (TUMF) appropriation from Western Riverside Council of Governments (WRCOG) in the amount of $1,500,000, an increase of appropriation of grant funding in the amount of $1,562,600, and an appropriation increase from Measure S in the amount of $300,000. C. Projects that are part of this amendment without an impact to Measure "S" and other City funds are funded with external sources, either reimbursements to the City or a direct grant. Section 3. The City Clerk shall certify the adoption of this Resolution. PASSED, APPROVED, AND ADOPTED by the City Council of the City of Temecula this 22nd day of August, 2023. Zak Schwank, Mayor ATTEST: Randi Johl, City Clerk [SEAL] STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss CITY OF TEMECULA ) I, Randi Johl, City Clerk of the City of Temecula, do hereby certify that the foregoing Resolution No. 2023- was duly and regularly adopted by the City Council of the City of Temecula at a meeting thereof held on the 22"d day of August, 2023, by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: Randi Johl, City Clerk Adk The Heart of Southern California Wine Country City of Temecula Fiscal Years 2024-28 Capital Improvement Program 1-15 / FRENCH VALLEY PARKWAY IMPROVEMENTS - PHASE III Circulation Project Project Description: This project includes the design and construction of the French Valley Parkway Interchange and the southbound collector/distributor road system. Benefit: This project will address and improve traffic circulation in the City's northern area by providing a full service interchange with on and off ramps in both directions. Core Value: Transportation Mobility and Connectivity Project Status: Design will begin once funds are available. Department: Public Works - Account No. 210.265.999.5800.PW19-03 / 728 2023-24 Prior Years 2022-23 Amended 2024-25 2025-26 2026-27 2027-28 Total Project Project Cost: Actuals Adjusted Budget Projected Projected Projected Projected Cost 5801-Ad ministration 89,491 237,509 454,000 874,000 1,655,000 5807-Caltrans Oversight 17,250,000 17,250,000 5804-Construction 102,500,000 102,500,000 5805-Construction Engineering 2,050,000 2,050,000 5802-Design & Environmental 200,000 8,500,000 8,700,000 5700-Land Acquisition 2,979,147 270,647 1,500,000 7,390,000 12,139,794 Total Expenditures 1 3,068,6381 508,156 1,700,000 8,954,000 - 130,064,000 144 294 794 Sours of Funds• 4165-Affordable Housing 1,669,794 1,669,794 4001-General Fund 30,000 30,000 4002-Measure S 150,000 61,817 200,000 411,817 4076-Reimbursements 165,183 165,183 4472-TUMF (WRCOG) 1,500,000 1,500,000 3,000,000 4452-Unspecified 8,954,000 130,064,000 139,018,000 Total Fundine 1 180,0001 3.396.794 1,700,000 8,954,000 - 130,064,0001 144,294,794 Future Operating & Maintenance Costs: Total Operating Costs Notes: 1. TUMF (WRCOG) - TUMF Zone Funding is eligible for construction of Winchester Interchange pursuant to 2009 Nexus - $9,822,980.00 2. TUMF (WRCOG) - TUMF Zone Funding is eligible for construction of French Valley Interchange pursuant to 2009 Nexus - $43,480,000.00 3. TUMF (WRCOG) -TUMF Zone Funding for right-of-way (ROW) pursuant to Agreement No. 20-SW-TEM-1197 - $1,500,000 4. TUMF (WRCOG) - TUMF Zone Funding for right-of-way (ROW as approved by WRCOG for FY 2023-24, $1,500,000) - Amendment of Agreement No. 20-SW-TEM 1197 is pending Alk The Heart of Southern California Wine Country YNEZ ROAD IMPROVEMENTS - PHASE I Circulation Project Project Description: This project includes widening the easterly side of Ynez Road, from Rancho Vista Road north roughly 1600 feet, to two lanes in each direction, and the completion of missing segments of curb and gutter, sidewalk, and striped medians, in coordination with adjacent development. Benefit: This project improves traffic circulation by widening an important arterial road in this part of the City. Core Value: Transportation Mobility and Connectivity Project Status: Design is initiated in FY 2022-23. Department: Public Works - Account No. 210.265.999.5800.PW23-02 / 534 City of Temecula Fiscal Years 2024-28 Capital Improvement Program 2023-24 Prior Years 2022-23 Amended 2024-25 2025-26 2026-27 2027-28 Total Project Project Cost: Actuals Adjusted Budget Projected Projected Projected Projected Cost 5801-Administration 90,000 342,500 432,500 5804-Construction 1,299,628 1,299,628 5805-Construction Engineering 158,172 158,172 5802-Design & Environmental 510,000 495,500 1,005,500 5806-MSHCP 1 54,200 54,200 Total Expenditures 1 600,000 2,350,000 2 950 000 Source of Funds: 4666-Developer Contribution 435,750 435,750 4242-DIF-Street Improvements 600,000 (560,750) 39,250 4025-Grants 1,475,000 1,475,000 4025-Grants 1,000,000 1,000,000 Total Funding 2 2 Future Operating & Maintenance Costs: Total Operating Costs Notes : 1. Grants Funding of $1,475,000 reflects the 2023 RCTC Western Riverside County Regional call for projects using Measure A Regional Arterial (MARA) grant funds 2. Developer Contribution reflects fees paid by the Rancho Highlands Development for this project. 3. Grant Funding of $1,000,000 reflects California State Assembly Bill (AB) 102 as amended in Senate June 24, 2023. Adk The Heart of Southern California Wine Country RANCHO CALIFORNIA ROAD MEDIAN IMPROVEMENTS Circulation Project Project Description: This project will design and construct missing raised medians on Rancho California Road between Humber Drive and Butterfield Stage Road in accordance with the City's General Plan. In addition, missing street improvements will be constructed on the north side of Rancho California Road between Riesling Court and Promenade Chardonnay Hills. The improvements will include median curbs, curb and gutter, sidewalks, and landscape and irrigation. City of Temecula Fiscal Years 2024-28 Capital Improvement Program Benefit: The raised medians will enhance the safety of the street. In addition, the `� landscaping of the proposed medians will improve the aesthetics of this road for "� motorists. Core Value: A Safe and Prepared Community 2023-24 Prior Years 2022-23 Amended 2024-25 2025-26 2026-27 2027-28 Total Project Project Cost: Actuals Adjusted Budget Projected Projected Projected Projected Cost 5801-Administration 105,000 60,000 40,000 300,000 505,000 5804-Construction 2,512,000 2,512,000 5805-Construction Engineering 85,000 85,000 5802-Design & Environmental 113,000 585,000 698,000 5240-Utilities 55.000 55,000 Snurra of Fundc 4666-Developer Contribution 57,200 57,200 4242-DIF-Street Improvements 10,800 700,000 40,000 1,720,750 2,471,550 4002-Measure S 150,000 150,000 4452-Unspecified 1,176, 250 1,176,250 Total Funding 218,000 700,000 40 00 22 897,000 3 855 000 Future Operating & Maintenance Costs: Total Operating Costs Notes : 1. Developer Contribution represents the Pervis Development's fair share of the medians. Adk The Heart of Southern California Wine Country SIDEWALKS - CITYWIDE Infrastructure Project Project Description: This project will include the construction of sidewalks at various locations throughout the City. Benefit: This project will provide walking surfaces for pedestrians. Core Value: Transportation Mobility and Connectivity Project Status: A study to identify areas with missing sidewalks and prioritize them was completed as part of the Trails and Bikeways Master Plan Update in Fiscal Year 2015-16. Based on the study and the available resources, sidewalks will be constructed in the selected areas considering economy of scale and proximity to private development. City of Temecula Fiscal Years 2024-28 Capital Improvement Program Prior Years 2022-23 Amended 2024-25 2025-26 2026-27 2027-28 Total Project Project Cost: Actuals Adjusted Budget Projected Projected Projected Projected Cost 5801-Administration 551,869 50,476 50,000 50,000 50,000 50,000 802,345 5804-Construction 146,315 879,541 320,000 320,000 320,000 320,000 2,305,856 5805-Construction Engineering 4,412 155,588 60,000 60,000 60,000 60,000 400,000 5802-Design & Environmental 225,808 161,121 70,000 70,000 70,000 70,000 666,929 4001-General Fund 371,000 1 37.1,000 4002-Measure 5 1 736.533 1.063.596 500.000 500.000 500.000 500.000 3.800.129 Future Operating & Maintenance Costs: Total Operating Costs Alk R The Heart of Southern California Wine Country SIDEWALKS - PAUBA ROAD Infrastructure Project Project Description: This project will include the construction of sidewalks along Pauba Road from Elinda Road to Showalter Road. Benefit: This project will provide walking surfaces for pedestrians. Core Value: Transportation Mobility and Connectivity Project Status: This section Pauba Road was identified in the City's Sidewalk Gap Study. Construction is anticipated to commence in Fiscal Year 2023-2024. Department: Public Works - Account No. 210.265.999.PW19-20 Level: I City of Temecula Fiscal Years 2024-28 Capital Improvement Program 2023-24 Prior Years 2022-23 Amended 2024-25 2025-26 2026-27 2027-28 Total Project Project Cost: Actuals Adjusted Budget Projected Projected Projected Projected Cost Administration 75,000 75,000 Construction 752,124 752,124 Construction Engineering 60,000 60,000 Design & Environmental 70,000 70,000 Total Ex enditures 957,124 957 124 SB 821 Funds Measure S I I 594,524 594,524 Future Operating & Maintenance Costs: Total Operating Costs Adk The Heart of Southern California Wine Country DOG PARK RENOVATION Parks/Recreation Project Project Description: This project is to design and construct a dog park at Michael "Mike" Naggar Community Park. The dog park will include small and large dog pens, seating, drinking fountains, shade and an agility dog course feature in addition to ADA access. Benefit: This project protects the City's vast investment in parks and open space facilities. In addition, this project satisfies the City's Core Values of a Healthy and Livable City and Responsive City Government. Core Value: Healthy and Livable City City of Temecula Fiscal Years 2024-28 Capital Improvement Program Project Status: Design is currently at 90%. The project is estimated to be complete "s in Fiscal Year 2023-24. Prior Years 2022-23 Amended 2024-25 2025-26 2026-27 2027-28 Total Project Project Cost: Actuals Adjusted Budget Projected Projected Projected Projected Cost 5801-Ad ministration 25,000 150,000 175,000 5804-Construction 533,484 260,000 793,484 5802-Design & Environmental 15,116 56,400 71,516 cnurro of Funrfc- 4025-Grants 1 247,126 247,126 4002-Measure 5 25,000 357,874 210,000 592,874 4025-GrantS2 200,000 200,000 Total Funding 25,000 605,000 410,000 1 040 000 Future Operating & Maintenance Costs: Total Operating Costs Notes : 1. Proposition 68 Grant from the California Department of Parks and Recreation 2. American Rescue Plan Act (ARPA), signed into law March 11, 2021, grant through the County of Riverside Fiscal Years 2024-28 Capital Improvement Program (CIP) Budget Amendment Summary for Various Projects August 22, 2023 Adopted Proposed Proposed Amended Proposed Project Name FY 2024-28 Amendment Amendment FY 2024-28 Source Budget City Funds External Fund Source Budget of Fund 1 I-15 / French Valley Parkway Improvements - Phase III F$144,094,794 $200,000 $1,500,000 $144,294,794 > City -Measure S > External -TUMF > City - Move to Rancho 2 Ynez Road Improvements - Phase I $2,950,000 -$1,000,000 $1,000,000 $2,950,000 California Medians > External - State AB 102 > City - Moved from Ynez, 3 Rancho California Road Median Improvements $3,855,000 $1,000,000 $0 $3,855,000 Phase 1 to reduced funding gap -IF FP oved to Sidewalks - 4 Sidewalks - Citywide $4,769,653-$594,524 $0 $4,175,129 uba Road > City - Moved from 5 Sidewalks - Pauba Road $0 $594,524 $362,600 $957,124 Sidewalks - Citywide > External - SB 821 16��t City - Measure S I Dog Park Renovation $740,000 $100,000 $200,000 $1,040,000 External - ARPA $300,000 11 $3,062,600 Total New Appropriation from Measure "S" $300,000 Move D/F - Streets from Ynez Road, Phase 1 to $1,000,000 Rancho California Road Medians Move Measure S from Sidewalks - Citywide to $594,524 Sidewalks - Pauba Road External Fund Sources - Grants $1,562,600 External Fund Sources - TUMF $1,500,000 Item No. 6 CITY OF TEMECULA AGENDA REPORT TO: City Manager/City Council FROM: Patrick Thomas, Director of Public Works/City Engineer DATE: August 22, 2023 SUBJECT: Approve Form of Rancho California Water District Recycled Water Agreements and Authorize the City Manager to Execute Said Agreements on Behalf of the City PREPARED BY: Anissa Sharp, Management Assistant Ron Moreno, Assistant Director of Public Works RECOMMENDATION: That the City Council adopt a resolution entitled: RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA APPROVING THE FORM OF RECYCLED WATER AGREEMENTS AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENTS ON BEHALF OF THE CITY BACKGROUND: The Santa Rosa Regional Resources Authority ("SRRRA"), a Joint Powers Authority formed by several water districts including the Rancho California Water District ("RCWD"), owns and operates a Regional Water Reclamation System which is a sewage interceptor, transmission, treatment, disposal, and water reclamation facilities. Water that has been completely treated through RCWD's Regional Water Reclamation System is considered recycled water. In accordance with RCWD's policies, the recycled water, which results from the operation of the Regional Water Reclamation System, has been made available for approved uses. Given the availability, some projects could stand to benefit from utilizing recycled water while constructing improvements. In order to facilitate the ability for sites to gain access to recycled water, RCWD developed their Recycled Water Agreement ("Agreement"). The Agreement was created for execution by RCWD for any projects located within the City where a recycled water system is operated. There are two versions of the Agreement. One version of the Agreement is used in cases where the User is a developer or private entity. The other version of the Agreement is used in cases where the User is a public entity. The Agreement specifies whether the Property on which the recycled water system will be operated is owned by a public entity or by another party. An Agreement in which the City is the User or owner of the Property on which the recycled water system will be operated, would be reviewed and approved by the City Engineer and City Attorney prior to routing said Agreement for execution, with such changes as mutually agreed to between the Public Works Department and City Attorney. All costs will be billed to the User on monthly basis. An Agreement in which the User of the recycled water system is a developer or private entity would result in no fiscal impact to the City. An Agreement in which the User is the City of Temecula would result in costs relating to the operation and use of the recycled water system. Such costs for the recycled water commodity and applicable service charges will be included in the current Fiscal Year Operating Budget. RCWD will have the right to modify or adjust the rate schedule(s) for providing recycled water to reflect changes in the RCWD's operation costs, if any, as determined by RCWD. All of the costs will be based on actual quantities of recycled water deliveries made during the preceding month, based on meter reading at the Point of Delivery. The Recycled Water Agreement sets forth the obligations of all parties with respect to purchase price, quantity, and all terms and conditions. City Staff recommends that the City Council authorize the City Manager to execute that certain agreement entitled "Recycled Water Agreement" on behalf of the City in the form attached to this Resolution, with such provisions that apply to the specific project, Property, or recycled water system that are the subject of the Agreement, and with any non -substantive changes and completed exhibits as may be approved by the Public Works Department and the City Attorney as necessary and convenient to implement the purposes of the Agreement. FISCAL IMPACT: No fiscal impact for agreements where the User is a developer or private entity. For agreements where the User is the City of Temecula, costs of the recycled water commodity and applicable service charges will be included in the current Fiscal Year Operating Budget. ATTACHMENTS: 1. Resolution 2. Agreement - City Version 3. Agreement - Private Version RESOLUTION NO.2023- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA APPROVING THE FORM OF RECYCLED WATER AGREEMENTS AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENTS ON BEHALF OF THE CITY THE CITY COUNCIL OF THE CITY OF TEMECULA DOES HEREBY RESOLVE AS FOLLOWS: Section 1. Rancho California Water District ("RCWD"), as a part of Santa Rosa Regional Resources Authority ("SRRRA"), a Joint Powers Authority, owns and operates a Regional Water Reclamation System which is a sewage interceptor, transmission, treatment, disposal, and water reclamation facilities. Section 2. Water that has been completely treated through RCWD's Regional Water Reclamation System is considered recycled water. In accordance with RCWD's policies, the recycled water, which results from the operation of the Regional Water Reclamation System, has been made available for approved uses. Section 3. RCWD prepared two versions of a Recycled Water Agreement ("Agreement") for use on any projects located within the City that will operate a recycled water system. One version of the Agreement is used in cases where the User is a developer or private entity. The other version of the Agreement is used in cases where the User is a public entity. The Agreement specifies whether the Property on which the recycled water system will be operated is owned by a public entity or by another party. Section 4. An Agreement in which the City is the User or owner of the Property on which the recycled water system will be operated, would be reviewed and approved by the City Engineer and City Attorney prior to routing said Agreement for execution, with such changes as mutually agreed to between the Public Works Department and City Attorney. Section 5. An Agreement in which the User of the recycled water system is a developer or private entity would result in no fiscal impact to the City. An Agreement in which the User is the City of Temecula would result in costs relating to the operation and use of the recycled water system. Such costs for the recycled water commodity and applicable service charges will be included in the current Fiscal Year Operating Budget. Section 6. The City Council hereby authorizes the City Manager to execute that certain agreement entitled "Recycled Water Agreement" on behalf of the City in the form attached to this Resolution, with such provisions that apply to the specific project, Property, or recycled water system that are the subject of the Agreement, and with any non -substantive changes and completed exhibits as may be approved by the Public Works Department and the City Attorney as necessary and convenient to implement the purposes of the Agreement. Section 7. The City Manager is hereby authorized to execute such Recycled Water Agreement, subject to City Attorney's final review. Section 8. This Resolution shall take effect immediately upon its adoption. PASSED, APPROVED, AND ADOPTED by the City Council of the City of Temecula this 22"d day of August, 2023. Zak Schwank, Mayor ATTEST: Randi Johl, City Clerk [SEAL] STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss CITY OF TEMECULA ) I, Randi Johl, City Clerk of the City of Temecula, do hereby certify that the foregoing Resolution No. 2023- was duly and regularly adopted by the City Council of the City of Temecula at a meeting thereof held on the 22"d day of August, 2023, by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: Randi Johl, City Clerk RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: RANCHO CALIFORNIA WATER DISTRICT 42135 Winchester Road Temecula, CA 92590-4800 Exempt from Recording Fee (Gov. Code §6103) LOCATION NO. SPACE ABOVE THIS LINE FOR RECORDER'S USE RECYCLED WATER AGREEMENT RANCHO CALIFORNIA WATER DISTRICT RA — — THIS AGREEMENT is made and entered into this day of 20 by and between Rancho California Water District, a public agency ("DISTRICT"), and the City of Temecula, a municipal corporation ("Owner"). The Owner of Lot No. of Tract Map No. APN Owner shall hereinafter be referred to as "USER." A. The Santa Rosa Regional Resources Authority ("SRRRA"), a Joint Powers Authority formed by several water districts including the DISTRICT, owns and operates a major system of sewage interceptor, transmission, treatment, disposal, and water reclamation facilities, hereafter referred to as DISTRICT'S Regional Water Reclamation System; and B. Water that has been completely treated through the DISTRICT'S Regional Water Reclamation System shall hereinafter be referred to as recycled water; and C. Pipelines conveying recycled water shall hereinafter be referred to as recycled water mains; and D. In accordance with DISTRICT policies, the recycled water, which results from the operation of the DISTRICT'S Regional Water Reclamation System, has been made available for approved uses; and E. USER desires to purchase, accept delivery of, control, and use the quantity of recycled water provided for in Paragraph 4 herein for approved irrigation purposes within the boundaries of the DISTRICT, under the terms and conditions set forth below; and F. Such sales and deliveries would be in accordance with the DISTRICT'S policy of using recycled water for beneficial purposes; and G. DISTRICT is willing to sell and deliver recycled water for irrigation purposes under the terms and conditions set forth below. M ncho California Water District 42135 Winchester Road • Temecula, California 92590-4800 • (951) 296-6900 • FAX (951) 296-6860 • www.ranchowater.com In consideration of the mutual covenants herein contained, it is mutually agreed as follows: 1. SALE AND DELIVERY TERMS AND CONDITIONS A. Point of Delivery The recycled water delivered pursuant to this Agreement shall be measured through the DISTRICT -owned, -operated, and -maintained metering facilities located at the Point of Delivery shown on the attached Exhibit "A." Any facilities that have been or shall be installed by DISTRICT at USER'S request shall be paid for by the USER, in accordance with applicable DISTRICT Rules and Regulations. B. Availability Acknowledgment The USER acknowledges that the DISTRICT does not guarantee the availability of recycled water throughout the term of this Agreement due to possible changes in regulatory agency requirements, reduction in plant flow, demands from other recycled water use areas, and/or other conditions beyond DISTRICT'S control. USER holds DISTRICT free and harmless from any and all legal liabilities and/or economic losses that it may sustain as the result of discontinuance or reduction in amount of delivery of recycled water as specified above. C. Pressure The recycled water to be delivered pursuant to this Agreement shall, as far as possible, be delivered at the Point of Delivery shown on the attached Exhibit "A." USER shall be responsible for, at its cost, providing any and all devices to increase or decrease delivery pressure, and/or any and all conveyance equipment (e.g. piping, pumps, etc.) required to deliver the recycled water to the point(s) of use. USER agrees not to operate its recycled water system in a fashion that may cause surge pressures to propagate past the Point of Delivery into the DISTRICT'S recycled water mains. D. Facility Provision and Operational Responsibility (1) DISTRICT shall be responsible for providing and operating its Regional Water Reclamation System facilities, up to and including the Point of Delivery, in compliance with the applicable requirements of DISTRICT, federal, state, and local regulatory agencies. DISTRICT shall be responsible for supplying recycled water, which meets or exceeds all applicable federal, state, and local regulatory agency quality standards. DISTRICT shall monitor recycled water deliveries and use sites as it deems necessary and in accordance with applicable federal, state, and local regulatory agency requirements. ncho California Water District 42135 Winchester Road • Temecula, California 92590-4800 • (951) 296-6900 • FAX (951) 296-6860 • www.ranchowater.com (2) USER shall: ■ Make application for recycled water service. ■ Pay all fees and deposits for recycled water service. ■ Post all required warning signs informing the public and all on -site and off -site personnel (employees, tenants, occupants, and CITY staff) that recycled water is being used on -site and off -site for irrigation purposes. ■ Install and maintain a certified backflow device on all potable water sources including, but not limited to, the DISTRICT'S potable water meters, all exterior sources of potable water on- and offsite, and all potable water supplies to fountains, ponds, and/or swimming pools. ■ Designate a Site Supervisor. The Site Supervisor must/will: a) Be knowledgeable about recycled water and how it is manufactured. b) Be the contact person at USER's site, and be available at all times to contact and respond in the event of an emergency. c) Be knowledgeable about the practices and procedures of using recycled water. d) Be responsible for the safe and efficient use of recycled water. e) Provide instruction and training to on -site and off -site personnel in the proper handling of recycled water and the potential health hazards involved with its use. f) Submit plans to the DISTRICT for all proposed changes to the irrigation system on the USER's site(s) for review and approval prior to any modifications being made. g) Have all proposed changes approved by the DISTRICT inspected by the DISTRICT'S staff during construction. h) Maintain irrigation system record drawings of USER's site(s). i) Communicate all recycled water rules and regulations to on -site and off -site personnel. j) Be knowledgeable of all on -site and off -site potable water systems, and take appropriate measures to prevent cross - connection with the recycled water system. k) Inform DISTRICT of all system failures or cross -connection events so that appropriate measures may be taken to mitigate the contamination or pollution. If the USER desires to designate another person as Site Supervisor, then the USER is responsible for notifying DISTRICT in writing of such action. In the event that someone other than the USER is designated as the Site Supervisor and this person is no longer associated with the property, the USER shall again be considered the Site Supervisor and will assume the above -listed requirements until an approved Site Supervisor is designated. M ncho California Water District 42135 Winchester Road • Temecula, California 92590-4800 • (951) 296-6900 • FAX (951) 296-6860 • www.ranchowater.com ■ Identify all above -ground fittings and appurtenances, etc. as containing recycled water and not suitable for human consumption. Signs shall be painted or otherwise permanently affixed to equipment. ■ Altogether avoid introducing recycled water into any potable/domestic water piping system and no connection shall be made between equipment containing, or having contained, recycled water and/or any part of a domestic water system until such time as equipment has been properly disinfected. ■ Take full responsibility for providing, operating, maintaining, and repairing USER pipelines, together with all appurtenant facilities, as are necessary to accept, convey, control, and use the recycled water in compliance with the applicable requirements of DISTRICT, federal, state, CITY's Conditions of Approval, and local regulatory agencies on their respective owned or controlled lands. ■ Allow recycled water to be used only on the areas depicted on the attached exhibit and irrigation construction plans. ■ Allow recycled water use between the hours of 9:00 p.m. and 6:00 a.m. E. USER Acknowledgment USER acknowledges it is understood that: (1) DISTRICT'S Regional Water Reclamation System's purpose is to control the biological quality of the recycled water resulting from its operation. (2) Said System is not equipped to detect, treat, or remove harmful chemicals or toxic materials, except as required to meet federal, state, and local regulatory agency discharge standards. F. Indemnification USER, CITY, and the DISTRICT each agree, to the fullest extent permitted by law, to indemnify and hold the other party, and its directors, officers, employees, or authorized volunteers harmless from any claims, damage, liability, or cost (including attorneys' fees and costs of defense) to the extent caused by the indemnifying party's negligent acts, errors, or omissions in the performance of this agreement, including such negligent acts, errors, or omissions by sub -contractors or others for whom the indemnifying party is legally liable; provided, however, that this indemnity shall not apply to any acts, errors, or omissions attributable to the indemnified party, its directors, officers, employees, authorized volunteers, sub -contractors, or to any others for whom the indemnified party is legally liable. M ncho California Water District 42135 Winchester Road • Temecula, California 92590-4800 • (951) 296-6900 • FAX (951) 296-6860 • www.ranchowater.com 2. USE TERMS AND CONDITIONS Use of the recycled water delivered pursuant to this Agreement shall be subject to the following terms and conditions: A. Rules and Regulations All recycled water delivered pursuant to this Agreement shall be used only for approved uses on the specified use site, as shown and depicted as USER and CITY lands on attached Exhibit "A," in compliance with applicable rules and regulations of DISTRICT, federal, state, and local regulatory agencies, including CITY's Conditions of Approval. This Agreement has no application to the operation of the DISTRICT'S sewer and domestic water operation, including the assessment of fees and the enforcement of rules and regulations pertaining thereto. USER must comply with all rules and regulations of the DISTRICT pertaining to any properties owned or maintained by USER that connect to the DISTRICT'S Regional Water Reclamation System. Failure to observe all regulations governing the use of recycled water will result in the immediate termination of recycled water service until such time as the deficiencies are corrected to the satisfaction of the DISTRICT. Failure to observe said regulations shall be subject to Unauthorized Use Charges established by the DISTRICT. B. Reclamation Requirements USER shall apply to the DISTRICT for all applicable use permits. DISTRICT shall apply for all required Permits of Reclamation Requirements from the California Regional Water Quality Control Board, hereinafter referred to as the Regional Board, covering the use of the disinfected recycled water to be delivered and used pursuant to this Agreement. USER shall comply with the provisions of such Reclamation Requirements. USER shall use recycled water on only those areas specified in such Reclamation Requirements, unless otherwise provided for in future amendments to said Reclamation Requirements. C. Responsibility for Conveyance and Control (1) DISTRICT DISTRICT shall be solely responsible for conveying and controlling the recycled water up to and including the Point of Delivery provided for in Paragraph LA., above. (2) USER USER shall be responsible for conveying and controlling, in compliance with applicable regulatory agency requirements, the recycled water delivered through USER's facilities, from the Point of Delivery as shown on the attached Exhibit "A," and the DISTRICT shall have no responsibility whatsoever relative to said USER's facilities. ncho California Water District 42135 Winchester Road • Temecula, California 92590-4800 • (951) 296-6900 • FAX (951) 296-6860 • www.ranchowater.com 3. PURCHASE PRICE During the term of this Agreement, the USER shall pay to the DISTRICT the in -effect commodity and applicable service charges, which are modified from time to time, as published in the DISTRICT'S Customer Guide to Rates and Charges. * The District reserves the right to modify or adjust the rate schedule(s) for providing recycled water to reflect changes in the District's operating costs, if any, as determined by the District. 4. QUANTITY DISTRICT agrees to sell and deliver and USER agrees to purchase, accept delivery of, control, and use recycled water at an average basic quantity in the amount of ( ) gallons per day. Said quantity shall be delivered on an "as available" basis. 5. BILLING FOR RECYCLED WATER DISTRICT will render monthly billings for recycled water deliveries made during the preceding month to the USER, based on the meter reading at the Point of Delivery. Billings, in accordance with the DISTRICT'S prevailing rules and regulations, shall be paid within thirty days of the date thereof. Any late payments shall be considered delinquent and shall be subject to the DISTRICT'S standard penalty charges and disconnection procedures then in effect. 6. ASSIGNMENT Except as provided below, the USER shall not assign any of its individual or collective rights under this Agreement to any person or entity, or become associated with any other party involving, in anyway, the recycled water to be delivered pursuant to this Agreement without the prior written consent of the DISTRICT and of any regulatory agencies having jurisdiction, which consent shall not be unreasonably withheld. In the event USER desires to enter into a transaction for the sale or financing of the use site, DISTRICT will not unreasonably withhold its consent to continue to provide recycled water contingent upon the new owner complying with the terms of this Agreement. 7. TERM OF AGREEMENT The term of this Agreement shall begin with the date of Agreement (first written above) and shall continue until terminated by the USER or DISTRICT. E ��1enL��wer7L�P►1 A. USER or DISTRICT shall have the right to terminate this Agreement, with no financial liability to the other party or CITY, by giving thirty working days' written notice, as long as both parties mutually agree. B. DISTRICT shall have the right to terminate this Agreement, with no financial liability to the USER or CITY, for USER'S noncompliance with applicable use and/or payment requirements. IL/ ncho California Water District 42135 Winchester Road • Temecula, California 92590-4800 • (951) 296-6900 • FAX (951) 296-6860 • www.ranchowater.com C. Notwithstanding Paragraph 1.13., the DISTRICT shall also have the right to terminate this Agreement by giving the USER and CITY ten days' written notice in the event the wastewater treatment criteria under which the DISTRICT currently operates is changed by operation of law, or by any regulatory agency having jurisdiction, such that the DISTRICT'S Regional Water Reclamation System, as it presently exists, cannot produce wastewater that complies with such changes without incurring additional costs or modifications to said facilities. D. Upon termination of this Agreement by either the USER or the DISTRICT, within thirty calendar days of termination, the USER shall make a payment to the DISTRICT for all costs to remove recycled water service from the Point of Delivery to the DISTRICT'S recycled water main (hereinafter referred to a "Service Lateral"). After thirty calendar days, if a payment has not been made by the USER, the DISTRICT may elect to remove the Service Lateral and lien the USER lands for the amount due. 9. RECORDATION AGAINST TITLE This Agreement shall be recorded against the title to the real property for which recycled water is used pursuant to this Agreement in the county in which the real property is situated. The obligations set forth herein shall accordingly transfer to subsequent purchasers of the real property. 10. ATTORNEYS' FEES In the event of litigation or arbitration between the parties hereto arising out of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs to be fixed by the court or by arbitration. 11. PREPARATION OF THIS AGREEMENT This Agreement shall not be construed against the party preparing it, but shall be construed as if both parties prepared it. 12. CAPTIONS Captions to Paragraph/Subparagraphs of this Agreement are for convenience purposes only and are not part of this Agreement. 13. PROVISIONS BINDING This Agreement and Exhibit "A" attached shall be binding upon and shall inure to the heirs, representatives, successors, and assigns of the parties of this Agreement. The DISTRICT, CITY and USER intend that the benefits and burdens described herein constitute covenants running with the land for the benefit of the USER lands. M ncho California Water District 42135 Winchester Road • Temecula, California 92590-4800 • (951) 296-6900 • FAX (951) 296-6860 • www.ranchowater.com 14. CERTIFICATION The undersigned PROPERTY OWNER and RECYCLED WATER SITE SUPERVISOR hereby certify compliance with all operational responsibilities contained in Section 1.D.(2) above. 15. AUTHORITY TO SIGN AGREEMENT The undersigned individuals hereby warrant and represent that they each have full legal authority to sign this Agreement and bind the parties hereto. IN WITNESS WHEREOF, this Agreement has been executed as of the day, month, and year first above written. RANCHO CALIFORNIA WATER DISTRICT By: Robert S. Grantham, General Manager Date CITY OF TEMECULA By: Zak Schwank, Mayor Date Attest: By: Randi Johl, City Clerk Approved as to form: By: Peter M. Thorson, City Attorney Rancho California Water District 42135 Winchester Road • Temecula, California 92590-4800 • (951) 296-6900 • FAX (951) 296-6860 • www.ranchowater.com Exhibit "A" Point of Delivery Rancho California Water District 42135 Winchester Road • Temecula, California 92590-4800 • (951) 296-6900 • FAX (951) 296-6860 • www.ranchowater.com RANCHO CALIFORNIA WATER DISTRICT APPLICATION FOR USE OF RECYCLED WATER PROJECT NAME: PROJECT ADDRESS: LOCATION: DEVELOPER: CONTACT PERSON: ADDRESS: PHONE: *SITE SUPERVISOR: PHONE: (DAY) (NIGHT) PAGER: DESCRIPTION OF RECYCLED WATER USE START DATE: END DATE: QUANTITY (GALLONS PER DAY): MEANS OF DISTRIBUTION: DEVELOPER SIGNATURE CUSTOMER SIGNATURE DATE DATE *MUST BE ABLE TO CONTACT 24 HOURS/DAY M nchn California Water District 42135 Winchester Road • Temecula, California 92590-4800 • (951) 296-6900 • FAX (951) 296-6860 • www.ranchowater.com RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: RANCHO CALIFORNIA WATER DISTRICT 42135 Winchester Road Temecula, CA 92590-4800 Exempt from Recording Fee (Gov. Code §6103) LOCATION NO. SPACE ABOVE THIS LINE FOR RECORDER'S USE RECYCLED WATER AGREEMENT RANCHO CALIFORNIA WATER DISTRICT RA — — THIS AGREEMENT is made and entered into this day of 20 by and between Rancho California Water District, a public agency ("DISTRICT"), and (Property Owner[s]lAgency Name) ("Owner"), the owner of Parcel No. of Parcel Map No. , APN , and the City of Temecula, a public agency ("CITY"). Owner shall hereinafter be referred to as "USER." A. The Santa Rosa Regional Resources Authority ("SRRRA"), a Joint Powers Authority formed by several water districts including the DISTRICT, owns and operates a major system of sewage interceptor, transmission, treatment, disposal, and water reclamation facilities, hereafter referred to as DISTRICT'S Regional Water Reclamation System; and B. Water that has been completely treated through the DISTRICT'S Regional Water Reclamation System shall hereinafter be referred to as recycled water; and C. Pipelines conveying recycled water shall hereinafter be referred to as recycled water mains; and D. In accordance with DISTRICT policies, the recycled water, which results from the operation of the DISTRICT'S Regional Water Reclamation System, has been made available for approved uses; and E. USER desires to purchase, accept delivery of, control, and use the quantity of recycled water provided for in Paragraph 4 herein for approved irrigation purposes within the boundaries of the DISTRICT, under the terms and conditions set forth below; and F. Such sales and deliveries would be in accordance with the DISTRICT'S policy of using recycled water for beneficial purposes; and G. DISTRICT is willing to sell and deliver recycled water for irrigation purposes under the terms and conditions set forth below. M ncho California Water District 42135 Winchester Road • Temecula, California 92590-4800 • (951) 296-6900 • FAX (951) 296-6860 • www.ranchowater.com In consideration of the mutual covenants herein contained, it is mutually agreed as follows: 1. SALE AND DELIVERY TERMS AND CONDITIONS A. Point of Delivery The recycled water delivered pursuant to this Agreement shall be measured through the DISTRICT -owned, -operated, and -maintained metering facilities located at the Point of Delivery shown on the attached Exhibit "A." Any facilities that have been or shall be installed by DISTRICT at USER'S request shall be paid for by the USER, in accordance with applicable DISTRICT Rules and Regulations. B. Availability Acknowledgment The USER acknowledges that the DISTRICT does not guarantee the availability of recycled water throughout the term of this Agreement due to possible changes in regulatory agency requirements, reduction in plant flow, demands from other recycled water use areas, and/or other conditions beyond DISTRICT'S control. USER holds DISTRICT free and harmless from any and all legal liabilities and/or economic losses that it may sustain as the result of discontinuance or reduction in amount of delivery of recycled water as specified above. C. Pressure The recycled water to be delivered pursuant to this Agreement shall, as far as possible, be delivered at the Point of Delivery shown on the attached Exhibit "A." USER shall be responsible for, at its cost, providing any and all devices to increase or decrease delivery pressure, and/or any and all conveyance equipment (e.g. piping, pumps, etc.) required to deliver the recycled water to the point(s) of use. USER agrees not to operate its recycled water system in a fashion that may cause surge pressures to propagate past the Point of Delivery into the DISTRICT'S recycled water mains. D. Facility Provision and Operational Responsibility (1) DISTRICT shall be responsible for providing and operating its Regional Water Reclamation System facilities, up to and including the Point of Delivery, in compliance with the applicable requirements of DISTRICT, federal, state, and local regulatory agencies. DISTRICT shall be responsible for supplying recycled water, which meets or exceeds all applicable federal, state, and local regulatory agency quality standards. DISTRICT shall monitor recycled water deliveries and use sites as it deems necessary and in accordance with applicable federal, state, and local regulatory agency requirements. ncho California Water District 42135 Winchester Road • Temecula, California 92590-4800 • (951) 296-6900 • FAX (951) 296-6860 • www.ranchowater.com (2) USER shall: ■ Make application for recycled water service. ■ Pay all fees and deposits for recycled water service. ■ Post all required warning signs informing the public and all on -site and off -site personnel (employees, tenants, occupants, and CITY staff) that recycled water is being used on -site and off -site for irrigation purposes. ■ Install and maintain a certified backflow device on all potable water sources including, but not limited to, the DISTRICT'S potable water meters, all exterior sources of potable water on- and offsite, and all potable water supplies to fountains, ponds, and/or swimming pools. ■ Designate a Site Supervisor. The Site Supervisor must/will: a) Be knowledgeable about recycled water and how it is manufactured. b) Be the contact person at USER's site, and be available at all times to contact and respond in the event of an emergency. c) Be knowledgeable about the practices and procedures of using recycled water. d) Be responsible for the safe and efficient use of recycled water. e) Provide instruction and training to on -site and off -site personnel in the proper handling of recycled water and the potential health hazards involved with its use. f) Submit plans to the DISTRICT for all proposed changes to the irrigation system on the USER's site(s) for review and approval prior to any modifications being made. g) Have all proposed changes approved by the DISTRICT inspected by the DISTRICT'S staff during construction. h) Maintain irrigation system record drawings of USER's site(s). i) Communicate all recycled water rules and regulations to on -site and off -site personnel. j) Be knowledgeable of all on -site and off -site potable water systems, and take appropriate measures to prevent cross - connection with the recycled water system. k) Inform DISTRICT of all system failures or cross -connection events so that appropriate measures may be taken to mitigate the contamination or pollution. If the USER desires to designate another person as Site Supervisor, then the USER is responsible for notifying DISTRICT in writing of such action. In the event that someone other than the USER is designated as the Site Supervisor and this person is no longer associated with the property, the USER shall again be considered the Site Supervisor and will assume the above -listed requirements until an approved Site Supervisor is designated. IL/ ncho California Water District 42135 Winchester Road • Temecula, California 92590-4800 • (951) 296-6900 • FAX (951) 296-6860 • www.ranchowater.com ■ Identify all above -ground fittings and appurtenances, etc. as containing recycled water and not suitable for human consumption. Signs shall be painted or otherwise permanently affixed to equipment. ■ Altogether avoid introducing recycled water into any potable/domestic water piping system and no connection shall be made between equipment containing, or having contained, recycled water and/or any part of a domestic water system until such time as equipment has been properly disinfected. ■ Take full responsibility for providing, operating, maintaining, and repairing USER pipelines, together with all appurtenant facilities, as are necessary to accept, convey, control, and use the recycled water in compliance with the applicable requirements of DISTRICT, federal, state, CITY's Conditions of Approval, and local regulatory agencies on their respective owned or controlled lands. ■ Allow recycled water to be used only on the areas depicted on the attached exhibit and irrigation construction plans. ■ Allow recycled water use between the hours of 9:00 p.m. and 6:00 a.m. E. USER Acknowledgment USER acknowledges it is understood that: (1) DISTRICT'S Regional Water Reclamation System's purpose is to control the biological quality of the recycled water resulting from its operation. (2) Said System is not equipped to detect, treat, or remove harmful chemicals or toxic materials, except as required to meet federal, state, and local regulatory agency discharge standards. F. Indemnification USER, CITY, and the DISTRICT each agree, to the fullest extent permitted by law, to indemnify and hold the other party, and its directors, officers, employees, or authorized volunteers harmless from any claims, damage, liability, or cost (including attorneys' fees and costs of defense) to the extent caused by the indemnifying party's negligent acts, errors, or omissions in the performance of this agreement, including such negligent acts, errors, or omissions by sub -contractors or others for whom the indemnifying party is legally liable; provided, however, that this indemnity shall not apply to any acts, errors, or omissions attributable to the indemnified party, its directors, officers, employees, authorized volunteers, sub -contractors, or to any others for whom the indemnified party is legally liable. M ncho California Water District 42135 Winchester Road • Temecula, California 92590-4800 • (951) 296-6900 • FAX (951) 296-6860 • www.ranchowater.com 2. USE TERMS AND CONDITIONS Use of the recycled water delivered pursuant to this Agreement shall be subject to the following terms and conditions: A. Rules and Regulations All recycled water delivered pursuant to this Agreement shall be used only for approved uses on the specified use site, as shown and depicted as USER and CITY lands on attached Exhibit "A," in compliance with applicable rules and regulations of DISTRICT, federal, state, and local regulatory agencies, including CITY's Conditions of Approval. This Agreement has no application to the operation of the DISTRICT'S sewer and domestic water operation, including the assessment of fees and the enforcement of rules and regulations pertaining thereto. USER must comply with all rules and regulations of the DISTRICT pertaining to any properties owned or maintained by USER that connect to the DISTRICT'S Regional Water Reclamation System. Failure to observe all regulations governing the use of recycled water will result in the immediate termination of recycled water service until such time as the deficiencies are corrected to the satisfaction of the DISTRICT. Failure to observe said regulations shall be subject to Unauthorized Use Charges established by the DISTRICT. B. Reclamation Requirements USER shall apply to the DISTRICT for all applicable use permits. DISTRICT shall apply for all required Permits of Reclamation Requirements from the California Regional Water Quality Control Board, hereinafter referred to as the Regional Board, covering the use of the disinfected recycled water to be delivered and used pursuant to this Agreement. USER shall comply with the provisions of such Reclamation Requirements. USER shall use recycled water on only those areas specified in such Reclamation Requirements, unless otherwise provided for in future amendments to said Reclamation Requirements. C. Responsibility for Conveyance and Control (1) DISTRICT DISTRICT shall be solely responsible for conveying and controlling the recycled water up to and including the Point of Delivery provided for in Paragraph 1.A., above. (2) USER USER shall be responsible for conveying and controlling, in compliance with applicable regulatory agency requirements, the recycled water delivered through USER's facilities, from the Point of Delivery as shown on the attached Exhibit "A," and the DISTRICT shall have no responsibility whatsoever relative to said USER's facilities. ncho California Water District 42135 Winchester Road • Temecula, California 92590-4800 • (951) 296-6900 • FAX (951) 296-6860 • www.ranchowater.com K 01C%l:/-M4:1.1140 During the term of this Agreement, the USER shall pay to the DISTRICT the in -effect commodity and applicable service charges, which are modified from time to time, as published in the DISTRICT'S Customer Guide to Rates and Charges. * The District reserves the right to modify or adjust the rate schedule(s) for providing recycled water to reflect changes in the District's operating costs, if any, as determined by the District. 4. QUANTITY DISTRICT agrees to sell and deliver and USER agrees to purchase, accept delivery of, control, and use recycled water at an average basic quantity in the amount of ( ) gallons per day. Said quantity shall be delivered on an "as available" basis. 5. BILLING FOR RECYCLED WATER DISTRICT will render monthly billings for recycled water deliveries made during the preceding month to the USER, based on the meter reading at the Point of Delivery. Billings, in accordance with the DISTRICT'S prevailing rules and regulations, shall be paid within thirty days of the date thereof. Any late payments shall be considered delinquent and shall be subject to the DISTRICT'S standard penalty charges and disconnection procedures then in effect. 6. ASSIGNMENT Except as provided below, the USER shall not assign any of its individual or collective rights under this Agreement to any person or entity, or become associated with any other party involving, in any way, the recycled water to be delivered pursuant to this Agreement without the prior written consent of the DISTRICT and of any regulatory agencies having jurisdiction, which consent shall not be unreasonably withheld. In the event USER desires to enter into a transaction for the sale or financing of the use site, DISTRICT will not unreasonably withhold its consent to continue to provide recycled water contingent upon the new owner complying with the terms of this Agreement. 7. TERM OF AGREEMENT The term of this Agreement shall begin with the date of Agreement (first written above) and shall continue until terminated by the USER or DISTRICT. 8. CANCELLATION A. USER or DISTRICT shall have the right to terminate this Agreement, with no financial liability to the other party or CITY, by giving thirty working days' written notice, as long as both parties mutually agree. B. DISTRICT shall have the right to terminate this Agreement, with no financial liability to the USER or CITY, for USER'S noncompliance with applicable use and/or payment requirements. IL/ ncho California Water District 42135 Winchester Road • Temecula, California 92590-4800 • (951) 296-6900 • FAX (951) 296-6860 • www.ranchowater.com C. Notwithstanding Paragraph 1.13., the DISTRICT shall also have the right to terminate this Agreement by giving the USER and CITY ten days' written notice in the event the wastewater treatment criteria under which the DISTRICT currently operates is changed by operation of law, or by any regulatory agency having jurisdiction, such that the DISTRICT'S Regional Water Reclamation System, as it presently exists, cannot produce wastewater that complies with such changes without incurring additional costs or modifications to said facilities. D. Upon termination of this Agreement by either the USER or the DISTRICT, within thirty calendar days of termination, the USER shall make a payment to the DISTRICT for all costs to remove recycled water service from the Point of Delivery to the DISTRICT'S recycled water main (hereinafter referred to a "Service Lateral"). After thirty calendar days, if a payment has not been made by the USER, the DISTRICT may elect to remove the Service Lateral and lien the USER lands for the amount due. 9. RECORDATION AGAINST TITLE This Agreement shall be recorded against the title to the real property for which recycled water is used pursuant to this Agreement in the county in which the real property is situated. The obligations set forth herein shall accordingly transfer to subsequent purchasers of the real property. 10. ATTORNEYS' FEES In the event of litigation or arbitration between the parties hereto arising out of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs to be fixed by the court or by arbitration. 11. PREPARATION OF THIS AGREEMENT This Agreement shall not be construed against the party preparing it, but shall be construed as if both parties prepared it. 12. CAPTIONS Captions to Paragraph/Subparagraphs of this Agreement are for convenience purposes only and are not part of this Agreement. 13. PROVISIONS BINDING This Agreement and Exhibit "A" attached shall be binding upon and shall inure to the heirs, representatives, successors, and assigns of the parties of this Agreement. The DISTRICT, CITY and USER intend that the benefits and burdens described herein constitute covenants running with the land for the benefit of the USER lands. 14. CERTIFICATION IL/ ncho California Water District 42135 Winchester Road • Temecula, California 92590-4800 • (951) 296-6900 • FAX (951) 296-6860 • www.ranchowater.com The undersigned PROPERTY OWNER and RECYCLED WATER SITE SUPERVISOR hereby certify compliance with all operational responsibilities contained in Section 1.D.(2) above. 15. AUTHORITY TO SIGN AGREEMENT The undersigned individuals hereby warrant and represent that they each have full legal authority to sign this Agreement and bind the parties hereto. IN WITNESS WHEREOF, this Agreement has been executed as of the day, month, and year first above written. RANCHO CALIFORNIA WATER DISTRICT By: Robert S. Grantham, General Manager Date CITY OF TEMECULA By: (Signature) Date (Print Nome) Its: (Title/Position) (OWNER NAME) Rancho California Water District 42135 Winchester Road • Temecula, California 92590-4800 • (951) 296-6900 • FAX (951) 296-6860 • www.ranchowater.com By: (Signature) Date (Print Nome) Its: (Title/Position) Rancho California Water District 42135 Winchester Road • Temecula, California 92590-4800 • (951) 296-6900 • FAX (951) 296-6860 • www.ranchowater.com Exhibit "A" Point of Delivery Rancho California Water District 42135 Winchester Road • Temecula, California 92590-4800 • (951) 296-6900 • FAX (951) 296-6860 • www.ranchowater.com RANCHO CALIFORNIA WATER DISTRICT APPLICATION FOR USE OF RECYCLED WATER PROJECT NAME: PROJECT ADDRESS: LOCATION: DEVELOPER: CONTACT PERSON: ADDRESS: PHONE: *SITE SUPERVISOR: PHONE: (DAY) (NIGHT) PAGER: DESCRIPTION OF RECYCLED WATER USE START DATE: END DATE: QUANTITY (GALLONS PER DAY): MEANS OF DISTRIBUTION: DEVELOPER SIGNATURE CUSTOMER SIGNATURE DATE DATE *MUST BE ABLE TO CONTACT 24 HOURS/DAY M nchn California Water Distr 42135 Winchester Road • Temecula, California 92590-4800 • (951) 296-6900 • FAX (951) 296-6860 • www.ranchowater.com Item No. 7 CITY OF TEMECULA AGENDA REPORT TO: City Manager/City Council FROM: Luke Watson, Deputy City Manager DATE: August 22, 2023 SUBJECT: Approve First Amendment to the Agreement for On Call Services with Keyser Marston and Associates, Inc. PREPARED BY: Brandon Rabidou, Principal Management Analyst RECOMMENDATION: That the City Council approve the first amendment to the agreement with Keyser Marston Associates, Inc., in the amount of $110,000, for a total agreement of $275,000, for on call services. BACKGROUND: From time to time, Keyser Marson and Associates, Inc. provides various on call services to the City of Temecula to support affordable housing analysis, land use scenario planning, fiscal impact analysis, and other similar services. These services help the City Council, staff, and the community understand potential impacts to various proposals that come before the City of Temecula. FISCAL IMPACT: There are sufficient funds budgeted in the Planning line item 001.161.999.5248 for these services. ATTACHMENTS: Amendment FIRST AMENDMENT TO AGREEMENT BETWEEN CITY OF TEMECULA AND KEYSER MARSTON ASSOCIATES, INC. ON CALL CONSULTANT SERVICES THIS FIRST AMENDMENT is made and entered into as of August 8, 2023, by and between the City of Temecula, a municipal corporation (hereinafter referred to as "City"), and Keyser Marston Associates, Inc., a Corporation (hereinafter referred to as "Consultant"). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows: 1. This Amendment is made with the respect to the following facts and purposes a. On March 1, 2020, the City and Consultant entered into that certain Agreement entitled "Agreement for Consultant Services between City of Temecula and Keyser Marston Associates, Inc.," in the amount of $165,000.00. b. The parties now desire to extend the term of the agreement to June 30, 2025, increase the payment in the amount of $110,000.00 and to amend the Agreement as set forth in this Amendment. 2. Section 1 of the Agreement entitled "TERM" is hereby amended to read as follows: "This Agreement shall remain and continue in effect until tasks herein are completed, but in no event later than June 30, 2025, unless sooner terminated pursuant to the provisions of this Agreement. 3. Section 4 of the Agreement entitled "PAYMENT" at paragraph "a" is hereby amended to read as follows: The City agrees to pay Consultant monthly, in accordance with the payment rates and schedules and terms set forth in Exhibit B, Payment Rates and Schedule, attached hereto and incorporated herein by this reference as though set forth in full, based upon actual time spent on the above tasks. Any terms in Exhibit B, other than the payment rates and schedule of payment, are null and void. The First Amendment amount shall not exceed one hundred ten thousand dollars and zero cents ($110,000.00), for a total Agreement amount of two hundred seventy- five thousand dollars and zero cents ($275,000.00). 4. Except for the changes specifically set forth herein, all other terms and conditions of the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. CITY OF TEMECULA By: Aaron Adams, City Manager ATTEST: By: Randl Johl, City Clerk APPROVED AS TO FORM: By: Peter M. Thorson, City Attorney KEYSER MARSTON ASSOCIATES, INC. By: flcLA,'e Paul C. Marra, Vice President By: CONSULTANT Keyser Marston Associates, Inc. Attn: Paul Marra 655 West Beech Streetr Suite 460 619 718-9600 _W-- arr ka sermarston.corn Purchasin r. Initials 2 OBI09 MI Item No. 8 CITY OF TEMECULA AGENDA REPORT TO: City Manager/City Council FROM: Patrick Thomas, Director of Public Works/City Engineer DATE: August 22, 2023 SUBJECT: Adopt Resolution to Approve the Administering Agency - State Agreement - Master Agreement No. 08-5459S21 with the State of California, Department of Transportation PREPARED BY: Julie Tarrant, Principal Management Analyst RECOMMENDATION: That the City Council adopt a resolution entitled: RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA TO APPROVE THE ADMINISTERING AGENCY - STATE AGREEMENT - MASTER AGREEMENT NO. 08- 5459S21 AND AUTHORIZE THE CITY MANAGER TO EXECUTE THE AGREEMENT AND ALL PERTINENT PROGRAM SUPPLEMENT AGREEMENTS FOR STATE FUNDED PROJECTS BACKGROUND: On March 8, 2011, City Council adopted Resolution No. 11-24 to approve the Administering Agency -State Agreement for State -Funded Projects, Master Agreement No. 00325S. Periodically, the Legislature of the State of California may enact new legislation by which certain State Funds are made available for use on local transportation related projects public entities qualified to act as recipients of these state funds. Before State Funds will be made available for projects, the Administering Agency and State are required to enter into an agreement to establish terms and conditions applicable to public entities when receiving State Funds. Relevant to the City's grant award of $1,502,000 in Active Transportation Program -Senate Bill 1 (ATP-SB 1) program funds for the Santa Gertrudis Creek Phase II — Margarita Road Undercrossing from the California Transportation Commission (CTC), we are required to enter into a new Master Agreement, Administering Agency -State Agreement for State Funded Project, Agreement No. 08- 5459S21. The Master Agreement has been revised to incorporate the various changes in regulations and policies, as defined in the Local Assistance Program Guidelines (LAPG) and/or in the current CTC Guidelines, for use on local authorized transportation related projects as a local administered project(s). In addition to the Master Agreement, Administering Agency - State Agreement for State Funded Project, Agreement No. 08-5459521, this Agreement shall have no force or effect with respect to any program project unless and until a project -specific Program Supplement to the Agreement for State funded projects has been fully executed by both State and Administering Agency. Therefore, the Administering Agency agrees to execute the project -specific Program Supplement Agreement No's. OOOOOA212 and OOOOOA213, for State Only Funds in the amount of $1,462,000, and $40,000, respectively. The Program Supplement Agreement (PSA) sets out special covenants and a condition for the Administering Agency to receive State Funds for designated projects. The PSA also show these State fund that have been initially encumbered for the Project, along with the match funds to be provided by the administering Agency. Execution of the PSA by all parties shall cause Administering Agency to adopt all terms of the Master Agreement, as though fully set forth therein in the PSA. FISCAL IMPACT: The Santa Gertrudis Creek Phase II — Margarita Road Undercrossing project is identified in the City's Capital Improvement Program for Fiscal Years 2024-28. Adequate funds are available to include ATP-SB 1 program funds in the amount of $1,502,000, and Measure S. There is no fiscal impact to approve and execute the Master Agreement and Program Supplement Agreements. ATTACHMENTS: 1. Resolution 2. Master Agreement No. 08-5459521 3. Program Supplement Agreement No. OOOOOA212 4. Program Supplement Agreement No. OOOOOA213 RESOLUTION NO. 2023- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA TO APPROVE THE ADMINISTERING AGENCY - STATE AGREEMENT - MASTER AGREEMENT NO. 08-5459521 AND AUTHORIZE THE CITY MANAGER TO EXECUTE THE AGREEMENT AND ALL PERTINENT PROGRAM SUPPLEMENT AGREEMENTS FOR STATE FUNDED PROJECTS THE CITY COUNCIL OF THE CITY OF TEMECULA DOES HEREBY RESOLVE AS FOLLOWS: Section 1. The Legislature of the State of California has enacted legislation by which certain State funds are made available for use on local transportation related projects of public entities qualified to act as recipients of these state funds; and Section 2. The Administering Agency has applied to the California Transportation Commission (CTC) and/or State for funding from a State - funded program, as defined in the Local Assistance Program Guidelines (LAPG) and/or in the respective CTC Guidelines, for use on local authorized transportation related projects as a local administered project(s), hereinafter referred to as "PROJECT"; and Section 3. Said PROJECT will not receive any federal funds; and Section 4. Before State funds will be made available for PROJECT, Administering Agency and State are required to enter into an agreement to establish terms and conditions applicable to the Administering Agency with receiving State funds for a designated PROJECT facility and to the subsequent operation and maintenance of the completed facility; and Section 5. The Program Supplement sets out special covenants as a condition for the Administering Agency to receive State Funds from/through State for designated project(s) and shall also show these State Funds that have been initial encumbered for PROJECT along with the matching funds to be provided by the Administering Agency; and Section 6. Program Supplement Agreement Nos. OOOOOA212 and OOOOOA213 encumber State Funds in the amount of $1,462,000 and $40,000, respectively, for the Santa Gertrudis Creek Phase II — Margarita Road Undercrossing, Lighting, Signage, and Public Outreach Campaign; and Section 7. The City Council approve the Administering Agency - State Agreement for State Funded Projects — Master Agreement No. 08-5459521 and authorize the City Manager to execute the Agreement and all Pertinent Program Supplement Agreements for State Funded Projects. PASSED, APPROVED, AND ADOPTED by the City Council of the City of Temecula this 22nd day of August, 2023. Zak Schwank, Mayor ATTEST: Randi Johl, City Clerk [SEAL] STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss CITY OF TEMECULA ) I, Randi Johl, City Clerk of the City of Temecula, do hereby certify that the foregoing Resolution No. 2023- was duly and regularly adopted by the City Council of the City of Temecula at a meeting thereof held on the 22nd day of August, 2023, by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: Randi Johl, City Clerk MASTER AGREEMENT ADMINISTERING AGENCY -STATE AGREEMENT STATE -FUNDED PROJECTS 08 City of Temecula -------- ---------------------------------------------- District Administering Agency Agreement No. 08-5459521 This AGREEMENT, is entered into effective this day of , 20 , by and between the City of Temecula, hereinafter referred to as "ADMINISTERING AGENCY," and the State of California, acting by and through its Department of Transportation (Caltrans), hereinafter referred to as "STATE", and together referred to as "PARTIES" or individually as a "PARTY." RECITALS: 1. WHEREAS, the Legislature of the State of California has enacted legislation by which certain State funds are made available for use on local transportation related projects of public entities qualified to act as recipients of these state funds; and 2. WHEREAS, ADMINISTERING AGENCY has applied t Commission (CTC) and/or STATE for funding from a referred to as STATE FUNDS), as defined in the Local (LAPG) and/or in the respective CTC Guidelines, transportation related projects as a local administered to as "PROJECT"; and the California Transportation State -funded program (herein Assistance Program Guidelines for use on local authorized project(s), hereinafter referred 3. WHEREAS, said PROJECT will not receive any federal funds; and 4. WHEREAS, before STATE FUNDS will be made available for PROJECT, ADMINISTERING AGENCY and STATE are required to enter into an agreement to establish terms and conditions applicable to the ADMINISTERING AGENCY when receiving STATE FUNDS for a designated PROJECT facility and to the subsequent operation and maintenance of that completed facility. NOW, THEREFORE, the PARTIES agree as follows: Page 1 of 15 ARTICLE I - PROJECT ADMINISTRATION 1. This AGREEMENT shall have no force or effect with respect to any program project unless and until a project- specific Program Supplement to this AGREEMENT for state funded projects, hereinafter referred to as "PROGRAM SUPPLEMENT", has been fully executed by both STATE and ADMINISTERING AGENCY. 2. The State approved project -specific allocation notification letter and approved CTC allocation documentation designate the party responsible for implementing PROJECT, type of work, and location of PROJECT for projects requiring CTC allocation by PROJECT component of work. 3. The PROGRAM SUPPLEMENT sets out special covenants as a condition for the ADMINISTERING AGENCY to receive STATE FUNDS from/through STATE for designated PROJECT. The PROGRAM SUPPLEMENT shall also show these STATE FUNDS that have been initially encumbered for PROJECT along with the matching funds to be provided by ADMINISTERING AGENCY and/or others. Execution of PROGRAM SUPPLEMENT by the PARTIES shall cause ADMINISTERING AGENCY to adopt all the terms of this AGREEMENT as though fully set forth therein in the PROGRAM SUPPLEMENT. Unless otherwise expressly delegated in a resolution by the governing body of ADMINISTERING AGENCY, and with written concurrence by STATE, the PROGRAM SUPPLEMENT shall be approved and managed by the governing body of ADMINISTERING AGENCY. 4. ADMINISTERING AGENCY agrees to execute and return each project -specific PROGRAM SUPPLEMENT. The PARTIES agree that STATE may suspend future allocations, encumbrances and invoice payments for any on- going or future STATE FUNDED PROJECT performed by ADMINISTERING AGENCY if any project -specific PROGRAM SUPPLEMENT is not returned, unless otherwise agreed by STATE in writing. 5. ADMINISTERING AGENCY further agrees, as a condition to the release and payment of STATE FUNDS encumbered for the PROJECT described in each PROGRAM SUPPLEMENT, to comply with the terms and conditions of this AGREEMENT and all the agreed -upon Special Covenants or Remarks incorporated within the PROGRAM SUPPLEMENT, and Cooperative/Contribution Agreement where appropriate, defining and identifying the nature of the specific PROJECT. 6. STATE FUNDS will not participate in any portion of PROJECT work performed in advance of the effective date of allocation by CTC, or by STATE for allocations delegated to STATE by CTC, for said PROJECT. 7. Projects allocated with STATE FUNDS will be administered in accordance with the current CTC STIP Guidelines, applicable chapter(s) of the LAPG, LAPM and/or any other instructions published by STATE. 8. ADMINISTERING AGENCY agrees to ensure compliance with all relevant State laws and requirements for work related to PROJECT, including the California Environmental Quality Act (CEQA). 9. ADMINISTERING AGENCY's eligible costs for preliminary engineering work includes all preliminary work directly related to PROJECT up to contract award for construction, including, but not limited to, environmental studies and permits (E&P), preliminary surveys and reports, laboratory work, soil investigations, the preparation of plans, specifications and estimates (PS&E), advertising for bids, awarding of a contract and project development contract administration. Page 2 of 15 10. ADMINISTERING AGENCY's eligible costs for construction engineering include actual inspection and supervision of PROJECT construction work; construction staking; laboratory and field testing; and the preparation and processing of field reports, records, estimates, final reports, and allowable expenses of employees/consultants engaged in such activities. 11. Unless the PARTIES agree otherwise in writing, ADMINISTERING AGENCY's employees or its contracted engineering consultant shall be responsible for all PROJECT engineering work. 12. ADMINISTERING AGENCY shall not proceed with final design of PROJECT until final environmental approval of PROJECT. Final design entails the design work necessary to complete the PS&E and other work necessary for a construction contract but not required earlier for environmental clearance of that PROJECT. 13. If PROJECT is not on STATE -owned right-of-way, PROJECT shall be constructed in accordance with Chapter 11 of the LAPM that describes minimum statewide design standards for local agency streets and roads. The design standards for projects off the National Highway System (NHS) allow STATE to accept either the current Caltrans Highway Design Manual standards, the current FHWA-adopted American Association of State Highway and Transportation Officials (AASHTO) A Policy on Geometric Design of Highways and Streets standards, or the approved geometric design standards of ADMINISTERING AGENCY. Additionally, for projects off the NHS, STATE will accept ADMINISTERING AGENCY -approved standard specifications, standard plans, materials sampling and testing quality assurance programs that meet the conditions described in the then current Local Assistance Procedures Manual. 14. If PROJECT involves work within or partially within STATE -owned right-of-way, that PROJECT shall also be subject to compliance with the policies, procedures and standards of the STATE Project Development Procedures Manual and Highway Design Manual and where appropriate, an executed cooperative agreement between STATE and ADMINISTERING AGENCY that outlines the PROJECT responsibilities and respective obligations of the PARTIES. ADMINISTERING AGENCY and its contractors shall each obtain an encroachment permit through STATE prior to commencing any work within STATE rights -of -way or work which affects STATE facilities. 15. When PROJECT is not on the State Highway System (SHS) but includes work to be performed by a railroad, the contract for such work shall be prepared by ADMINISTERING AGENCY or by STATE, as the PARTIES may hereafter agree. In either event, ADMINISTERING AGENCY shall enter into an agreement with the railroad providing for future maintenance of protective devices or other facilities installed under the contract. 16. ADMINISTERING AGENCY shall comply with the provisions of sections 4450 and 4454 of the California Government Code, as well as other Department of General Services guidance, if applicable, for the contract PS&E for the construction of buildings, structures, sidewalks, curbs and related facilities for accessibility and usability. Further requirements and guidance are provided in Title 24 of the California Code of Regulations. 17. ADMINISTERING AGENCY shall provide a full-time public employee to be in responsible charge of each PROJECT. ADMINISTERING AGENCY shall provide or arrange for adequate supervision and inspection of each PROJECT. ADMINISTERING AGENCY may utilize consultants to perform supervision and inspection work for PROJECT with a Page 3 of 15 fully qualified and licensed engineer. Utilization of consultants does not relieve ADMINISTERING AGENCY of its obligation to provide a full-time public employee to be in responsible charge of each PROJECT. 18. Unless otherwise provided in the PROGRAM SUPPLEMENT, ADMINISTERING AGENCY shall advertise, award, and administer the PROJECT construction contract or contracts. 19. The cost of maintenance, security, or protection performed by ADMINISTERING AGENCY or contractor forces during any temporary suspension of PROJECT or at any other time may not be charged to the PROJECT. 20. ADMINISTERING AGENCY shall submit PROJECT -specific award information to STATE's District Local Assistance Engineer, within sixty (60) days after contract award. 21. ADMINISTERING AGENCY shall submit the final report documents that collectively constitute a "Final Project Expenditure Report", LAPM Exhibit 17-M, within one hundred eighty (180) days of PROJECT completion. Failure by ADMINISTERING AGENCY to submit a "Final Project Expenditure Report", within 180 days of project completion will result in STATE imposing sanctions upon ADMINISTERING AGENCY in accordance with the Local Assistance Procedures Manual. 22. ADMINISTERING AGENCY shall comply with the Americans with Disabilities Act (ADA) of 1990 that prohibits discrimination on the basis of disability and all applicable regulations and guidelines issued pursuant to the ADA. 23. The Governor and the Legislature of the State of California, each within their respective jurisdictions, have prescribed certain nondiscrimination requirements with respect to contract and other work financed with public funds. ADMINISTERING AGENCY agrees to comply with the requirements of the FAIR EMPLOYMENT PRACTICES ADDENDUM, attached hereto as Exhibit A and further agrees that any agreement entered into by ADMINISTERING AGENCY with a third party for performance of work connected with PROJECT shall incorporate Exhibit A (with third party's name replacing ADMINISTERING AGENCY) as parts of such agreement. 24. ADMINISTERING AGENCY shall include in all contracts and subcontracts awarded when applicable, a clause that requires each subcontractor to comply with California Labor Code requirements that all workers employed on public works aspects of any project (as defined in California Labor Code sections 1720-1815) be paid not less than the general prevailing wage rates predetermined by the Department of Industrial Relations as effective at the date of contract award by the ADMINISTERING AGENCY. ARTICLE II - RIGHTS -OF -WAY 1. No contract for the construction of a STATE FUNDED PROJECT shall be awarded until all necessary rights of way have been secured. Prior to the advertising for construction of PROJECT, ADMINISTERING AGENCY shall certify and, upon request, shall furnish STATE with evidence that all necessary rights -of -way are available for construction purposes or will be available by the time of award of the construction contract. 2. The furnishing of rights of way by ADMINISTERING AGENCY as provided for herein includes, and is limited to, the following, unless the PROGRAM SUPPLEMENT provides otherwise. (a) Expenditures of capital and support to purchase all real property required for Page 4 of 15 PROJECT free and clear of liens, conflicting easements, obstructions and encumbrances, after crediting PROJECT with the fair market value of any excess property retained and not disposed of by ADMINISTERING AGENCY. (b) The cost of furnishing of right-of-way as provided for herein includes, in addition to real property required for the PROJECT, title free and clear of obstructions and encumbrances affecting PROJECT and the payment, as required by applicable law, of damages to owners of remainder real property not actually taken but injuriously affected by PROJECT. (c) The cost of relocation payments and services provided to owners and occupants pursuant to Government Code sections 7260-7277 when PROJECT displaces an individual, family, business, farm operation or nonprofit organization. (d) The cost of demolition and/or the sale of all improvements on the right-of-way after credit is recorded for sale proceeds used to offset PROJECT costs. (e) The cost of all unavoidable utility relocation, protection or removal. (f) The cost of all necessary hazardous material and hazardous waste treatment, encapsulation or removal and protective storage for which ADMINISTERING AGENCY accepts responsibility and where the actual generator cannot be identified, and recovery made. 3. ADMINISTERING AGENCY agrees to indemnify and hold STATE harmless from any liability that may result in the event the right-of-way for a PROJECT is not clear as certified by ADMINISTERING AGENCY, including, but not limited to, if said right-of-way is found to contain hazardous materials requiring treatment or removal to remediate in accordance with Federal and State laws. ADMINISTERING AGENCY shall pay, from its own non- matching funds, any costs which arise out of delays to the construction of PROJECT because utility facilities have not been timely removed or relocated, or because rights -of -way were not available to ADMINISTERING AGENCY for the orderly prosecution of PROJECT work. ARTICLE III - MAINTENANCE AND MANAGEMENT 1. ADMINISTERING AGENCY will maintain and operate the property acquired, developed, constructed, rehabilitated, or restored by PROJECT for its intended public use until such time as the parties might amend this AGREEMENT to otherwise provide. With the approval of STATE, ADMINISTERING AGENCY or its successors in interest in the PROJECT property may transfer this obligation and responsibility to maintain and operate PROJECT property for that intended public purpose to another public entity. 2. Upon ADMINISTERING AGENCY's acceptance of the completed construction contract or upon contractor being relieved of the responsibility for maintaining and protecting PROJECT, ADMINISTERING AGENCY will be responsible for the maintenance, ownership, liability, and the expense thereof, for PROJECT in a manner satisfactory to the authorized representatives of STATE and if PROJECT falls within the jurisdictional limits of another Agency or Agencies, it is the duty of ADMINISTERING AGENCY to facilitate a separate maintenance agreement(s) between itself and the other jurisdictional Agency or Agencies providing for the operation, maintenance, ownership and liability of PROJECT. Until those agreements are executed, ADMINISTERING AGENCY will be responsible for all PROJECT operations, maintenance, ownership and liability in a manner satisfactory to the authorized representatives of STATE. If, within ninety (90) days after receipt of notice from STATE that a PROJECT, or any portion thereof, is not Page 5 of 15 being properly operated and maintained and ADMINISTERING AGENCY has not satisfactorily remedied the conditions complained of, the approval of future STATE FUNDED PROJECTS of ADMINISTERING AGENCY will be withheld until the PROJECT shall have been put in a condition of operation and maintenance satisfactory to STATE. The provisions of this section shall not apply to a PROJECT that has been vacated through due process of law with STATE's concurrence. 3. PROJECT and its facilities shall be maintained by an adequate and well -trained staff of engineers and/or such other professionals and technicians as PROJECT reasonably requires. Said operations and maintenance staff may be employees of ADMINISTERING AGENCY, another unit of government, or a contractor under agreement with ADMINISTERING AGENCY. All maintenance will be performed at regular intervals or as required for efficient operation of the complete PROJECT improvements. 4. ADMINISTERING AGENCY shall comply with all applicable law, including but not limited to, all applicable legal authority regarding construction standards. ARTICLE IV - FISCAL PROVISIONS 1. All contractual obligations of STATE are subject to the appropriation of resources by the Legislature and the allocation of resources by the CTC. 2. STATE'S financial commitment of STATE FUNDS will occur only upon the execution of this AGREEMENT, the execution of each project -specific PROGRAM SUPPLEMENT and/or STATE's approved finance letter. 3. ADMINISTERING AGENCY agrees, as a minimum, to submit invoices in arrears for reimbursement of allowable PROJECT costs at least once every six months commencing after the STATE FUNDS are encumbered on either the project -specific PROGRAM SUPPLEMENT or through a project -specific finance letter approved by STATE. STATE reserves the right to suspend future allocations and invoice payments for any on -going or future STATE FUNDED project performed by ADMINISTERING AGENCY if PROJECT costs have not been invoiced by ADMINISTERING AGENCY for a six- month period 4. Invoices shall be submitted on a accordance with Chapter 5 of the LAPM AGENCY. For construction invoices, pay standardized billing summary template, in to claim reimbursement by ADMINISTERING estimates must be included. 5. ADMINISTERING AGENCY must retain at least one copy of supporting backup documentation for allowable costs incurred and claimed for reimbursement by ADMINISTERING AGENCY. ADMINISTERING AGENCY agrees to submit supporting backup documentation with invoices if requested by State. Acceptable backup documentation includes, but is not limited to, agency's progress payment to the contractors, copies of cancelled checks showing amounts made payable to vendors and contractors, and/or a computerized summary of PROJECT costs. 6. Payments to ADMINISTERING AGENCY can only be released by STATE as reimbursements of actual allowable PROJECT costs already incurred and paid for by the ADMINISTERING AGENCY. 7. Indirect Cost Allocation Plans/Indirect Cost Rate Proposals (ICAP/ICRP), Central Service Cost Allocation Plans and related documentation are to be prepared and provided to the Inspector General - Independent Office of Audits and Investigations for review and approval prior to ADMINISTERING AGENCY seeking reimbursement of Page 6 of 15 indirect cost incurred within each fiscal year being claimed for reimbursement. ICAPs/ICRPs must be prepared in accordance with the requirements set forth in 2 CFR, Part 200, Chapter 5 of the LAPM, and the ICAP/ICRP approval procedures established by STATE. 8. STATE will withhold the greater of either two (2) percent of the total of all STATE FUNDS encumbered for each PROGRAM SUPPLEMENT or $40,000 until ADMINISTERING AGENCY submits the Final Report of Expenditures for each completed PROGRAM SUPPLEMENT PROJECT. 9. The estimated total cost of PROJECT, the amount of STATE FUNDS obligated, and the required matching funds may be adjusted by mutual consent of the PARTIES with a finance letter, and an allocation notification letter when applicable. STATE FUNDING may be increased to cover PROJECT cost increases only if such additional funds are available and the CTC and/or STATE concurs with that increase in the form of an allocation and finance letter. 10. When such additional STATE FUNDS are not available, ADMINISTERING AGENCY agrees that any increases in PROJECT costs must be defrayed with ADMINISTERING AGENCY's own funds. 11. ADMINISTERING AGENCY shall use its own non -STATE FUNDS to finance the local share of eligible costs and all PROJECT expenditures or contract items ruled ineligible for financing with STATE FUNDS. STATE shall make the final determination of ADMINISTERING AGENCY's cost eligibility for STATE FUNDED financing with respect to claimed PROJECT costs. 12. ADMINISTERING AGENCY will reimburse STATE for STATE's share of costs for work performed by STATE at the request of ADMINISTERING AGENCY. STATE's costs shall include overhead assessments in accordance with section 8755.1 of the State Administrative Manual. 13. STATE FUNDS allocated by the CTC and/or STATE are subject to the timely use of funds provisions approved in CTC Guidelines and State procedures approved by the CTC and STATE. 14. STATE FUNDS encumbered for PROJECT are available for liquidation only for a limited period from the beginning of the State fiscal year when those funds were appropriated in the State Budget. STATE FUNDS not liquidated within these periods will be reverted unless a Cooperative Work Agreement (CWA) is submitted by ADMINISTERING AGENCY and approved by the California Department of Finance in accordance with Section 16304 of the Government Code. The exact date of fund reversion will be reflected in the STATE signed PROJECT finance letter. 15. Payments to ADMINISTERING AGENCY for PROJECT -related travel and subsistence (per diem) expenses of ADMINISTERING AGENCY forces and its contractors and subcontractors claimed for reimbursement or as local match credit shall not exceed rates authorized to be paid to rank and file STATE employees under current California Department of Human Resources (CaIHR) rules unless a Cooperative Work Agreement (CWA) is submitted by ADMINISTERING AGENCY and approved by the California Department of Finance in accordance with Government Code section 16304. If the rates invoiced by ADMINISTERING AGENCY are in excess of CaIHR rates, ADMINISTERING AGENCY is responsible for the cost difference, and any overpayments inadvertently paid by STATE shall be reimbursed to STATE by ADMINISTERING AGENCY on demand. Page 7 of 15 16. ADMINISTERING AGENCY agrees to comply with California Government Code 4525- 4529.14. Administering Agency shall undertake the procedures described in California Government Code 4527(a) and 4528(a). Administering Agency shall also comply with 2 CFR Part 200 Uniform Administrative Requirements, Cost Principles and Audit Requirement for Federal Awards, excluding 2 CFR Part 200.318-200.326. 17. ADMINISTERING AGENCY agrees and will assure that its contractors and subcontractors will be obligated to agree that Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31, et seq., shall be used to determine the allowability of individual PROJECT cost items. Every recipient and sub -recipient receiving PROJECT funds under this AGREEMENT shall comply with Federal administrative procedures in accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles and Audit Requirement for Federal Awards, excluding 2 CFR Part 200.318-200.326Governments. ADMINISTERING AGENCY agrees to comply with the provisions set forth in 23 CFR Parts 140, 645 and 646 when contracting with railroad and utility companies. 18. Every recipient and sub -recipient receiving PROJECT funds under this AGREEMENT shall comply with 2 CFR 200 excluding 2 CFR Part 200.318-200.326, 48 CFR Chapter 1, Part 31, LAPM, Public Contract Code (PCC) 10300- 10334 (procurement of goods), PCC 10335-10381 (non-A&E services), California Government Code 4525-4529.5 including 4527(a) and 4528(a), and other applicable STATE regulations. 19. Any PROJECT costs for which ADMINISTERING AGENCY has received payment or credit that are determined by subsequent audit to be questioned, disallowed, or unallowable under 2 CFR, Part 200, 48 CFR, Chapter 1, Part 31, 23 CFR Parts 140, 645 and 646, LAPM, Public Contract Code (PCC) 10300-10334 (procurement of goods), PCC 10335-10381 (non-A&E services), California Government Code 4525-4529.5 including 4527(a) and 4528(a), and other applicable STATE regulations are subject to repayment by ADMINISTERING AGENCY to STATE and may result in STATE imposing sanctions on ADMINISTERING AGENCY as described in Chapter 20 of the Local Assistance Procedures Manual. 20. Should ADMINISTERING AGENCY fail to refund any moneys due upon written demand by STATE as provided herein or should ADMINISTERING AGENCY breach this AGREEMENT by failing to complete PROJECT without adequate justification and approval by STATE, then, within thirty (30) days of demand, or within such other period as may be agreed to in writing between the PARTIES hereto, STATE, acting through the State Controller, the State Treasurer, the CTC or any other public entity or agency, may intercept, withhold and demand the transfer of an amount equal to the amount paid by or owed to STATE for each PROJECT, from future apportionments, or any other funds due ADMINISTERING AGENCY from the Highway Users Tax Fund or any other sources of funds, and/or may also withhold approval of future STATE FUNDED projects proposed by ADMINISTERING AGENCY. 21. Should ADMINISTERING AGENCY be declared to be in breach of this AGREEMENT or otherwise in default thereof by STATE, and if ADMINISTERING AGENCY is constituted as a joint powers authority, special district, or any other public entity not directly receiving funds through the State Controller, STATE is authorized to obtain reimbursement from whatever sources of funding are available, including the withholding or transfer of funds, from those constituent entities comprising a joint powers authority or by bringing of an action against ADMINISTERING AGENCY or its constituent member entities, to recover all funds provided by STATE hereunder. Page 8 of 15 22. ADMINISTERING AGENCY acknowledges that the signatory party represents the ADMINISTERING AGENCY and further warrants that there is nothing within a Joint Powers Agreement, by which ADMINISTERING AGENCY was created, if any exists, that would restrict or otherwise limit STATE's ability to recover STATE FUNDS improperly spent by ADMINISTERING AGENCY in contravention of the terms of this AGREEMENT. ARTICLE V AUDITS, THIRD PARTY CONTRACTING, RECORDS RETENTION AND REPORTS 1. STATE reserves the right to conduct technical and financial audits of PROJECT work and records and ADMINISTERING AGENCY agrees, and shall require its contractors and subcontractors to agree, to cooperate with STATE by making all appropriate and relevant PROJECT records available for audit and copying as required by paragraph three (3) of Article V. 2. ADMINISTERING AGENCY, its contractors and subcontractors shall establish and maintain a financial management system and records that properly accumulate and segregate reasonable, allowable, and allocable incurred PROJECT costs and matching funds by line item for the PROJECT. The financial management system of ADMINISTERING AGENCY, its contractors and all subcontractors shall conform to Generally Accepted Accounting Principles, enable the determination of incurred costs at interim points of completion, and provide support for reimbursement payment vouchers or invoices sent to or paid by STATE. 3. ADMINISTERING AGENCY, ADMINISTERING AGENCY'S contractors and subcontractors, and STATE shall each maintain and make available for inspection and audit by STATE, the California State Auditor, or any duly authorized representative of STATE or the United States, all books, documents, papers, accounting records, and other evidence pertaining to the performance of such contracts, including, but not limited to, the costs of administering those various contracts, and ADMINISTERING AGENCY shall furnish copies thereof if requested. All of the above -referenced parties shall make such AGREEMENT and PROGRAM SUPPLEMENT materials available at their respective offices at all reasonable times during the entire PROJECT period and for three (3) years, or 35 years for Prop 1B funds, from the date of final payment to ADMINISTERING AGENCY. 4. ADMINISTERING AGENCY shall not award a construction contract over $25,000 on the basis of a noncompetitive negotiation for work to be performed under this AGREEMENT without the prior written approval of STATE. All contracts awarded by ADMINISTERING AGENCY intended or used as local match credit must meet the requirements set forth in this AGREEMENT regarding local match funds. 5. ADMINISTERING AGENCY shall comply with Chapter 10 (commencing with Section 4525) Division 5 of Title 1 of the Government Code and shall undertake the procedures described in California Government Code 4527(a) and 4528(a). Administering Agency shall comply with Chapter 10 of the LAPM for AE Consultant Contracts. 6. ADMINISTERING AGENCY shall comply with Government Code Division 5 Title 1 sections 4525-4529.5 and shall undertake the procedures described in California Government Code 4527(a) and 4528(a) for procurement of professional service contracts. Administering Agency shall follow Public Contract Code Section 10335- 10381 for other professional service contracts. Page 9 of 15 7. Any subcontract entered into by ADMINISTERING AGENCY as a result of this AGREEMENT shall contain all of the provisions of Article IV, FISCAL PROVISIONS, and this ARTICLE V, AUDITS, THIRD -PARTY CONTRACTING, RECORDS RETENTION AND REPORTS and shall mandate that travel and per diem reimbursements and third- party contract reimbursements to subcontractors will be allowable as PROJECT costs only after those costs are incurred and paid for by the subcontractors. 8. To be eligible for local match credit, ADMINISTERING AGENCY must ensure that local match funds used for a PROJECT meet the fiscal provisions requirements outlined in ARTICLE IV in the same manner that is required of all other PROJECT expenditures. 9. Except as provided in this Article, this AGREEMENT is solely between and for the benefit of the PARTIES and there are no third -party beneficiaries. ARTICLE VI - MISCELLANEOUS PROVISIONS 1. ADMINISTERING AGENCY agrees to use all PROJECT funds reimbursed hereunder only for transportation purposes that are in conformance with Article XIX of the California State Constitution and other California laws. 2. ADMINISTERING AGENCY shall conform to all applicable State and Federal statutes and regulations, and the Local Assistance Program Guidelines and Local Assistance Procedures Manual as published by STATE and incorporated herein, including all subsequent approved revisions thereto applicable to PROJECT unless otherwise designated in the project -specific executed PROJECT SUPPLEMENT. 3. This AGREEMENT is subject to any additional restrictions, limitations, conditions, or any statute enacted by the State Legislature or adopted by the CTC that may affect the provisions, terms, or funding of this AGREEMENT in any manner. 4. ADMINISTERING AGENCY and the officers and employees of ADMINISTERING AGENCY, when engaged in the performance of this AGREEMENT, shall act in an independent capacity and not as officers, employees or agents of STATE. 5. Each project -specific PROGRAM SUPPLEMENT shall separately establish the terms and funding limits for each described PROJECT funded under this AGREEMENT and that PROGRAM SUPPLEMENT. No STATE FUNDS are obligated against this AGREEMENT. 6. ADMINISTERING AGENCY certifies that neither ADMINISTERING AGENCY nor its principals are suspended or debarred at the time of the execution of this AGREEMENT, and ADMINISTERING AGENCY agrees that it will notify STATE immediately in the event a suspension or a debarment occurs after the execution of this AGREEMENT. 7. ADMINISTERING AGENCY certifies, by execution of this AGREEMENT, that no person or selling agency has been employed or retained to solicit or secure this AGREEMENT upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by ADMINISTERING AGENCY for the purpose of securing business. For breach or violation of this warranty, STATE has the right to annul this AGREEMENT without liability, pay only for the value of the PROJECT work actually performed, or in STATE's discretion, to deduct from the price of PROGRAM SUPPLEMENT consideration, or otherwise recover, the full amount of such commission, percentage, brokerage, or contingent fee. Page 10 of 15 8. In accordance with Public Contract Code section 10296, ADMINISTERING AGENCY hereby certifies under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against ADMINISTERING AGENCY within the immediate preceding two (2) year period because of ADMINISTERING AGENCY's failure to comply with an order of a federal court that orders ADMINISTERING AGENCY to comply with an order of the National Labor Relations Board. 9. ADMINISTERING AGENCY shall disclose any financial, business, or other relationship with STATE that may have an impact upon the outcome of this AGREEMENT or any individual PROJECT encompassed within a PROGRAM SUPPLEMENT. ADMINISTERING AGENCY shall also list current contractors who may have a financial interest in the outcome of a PROJECT undertaken pursuant to this AGREEMENT. These disclosures shall be delivered to STATE in a form deemed acceptable by the STATE prior to execution of this AGREEMENT. 10. ADMINISTERING AGENCY hereby certifies that it does not have, nor shall it acquire, any financial or business interest that would conflict with the performance of any PROJECT initiated under this AGREEMENT. 11. ADMINISTERING AGENCY certifies that this AGREEMENT was not obtained or secured through rebates, kickbacks or other unlawful consideration either promised or paid to any STATE employee. For breach or violation of this warranty, STATE shall have the right, in its sole discretion, to terminate this AGREEMENT without liability, to pay only for PROJECT work actually performed, or to deduct from a PROGRAM SUPPLEMENT price or otherwise recover the full amount of such rebate, kickback, or other unlawful consideration. 12. Any dispute concerning a question of fact arising under this AGREEMENT that is not disposed of by agreement shall be decided by the STATE's Contract Manager, who shall be identified to ADMINISTERING AGENCY at the time of execution of this AGREEMENT and, as applicable , any time that Contract Manager changes during the duration of this AGREEMENT who may consider any written or verbal evidence submitted by ADMINISTERING AGENCY. The decision of the Contract Manager, issued in writing, shall be conclusive and binding on the PARTIES on all questions of fact considered and determined by the Contract Manager. 13. Neither the pendency of a dispute nor its consideration by the Contract Manager will excuse the ADMINISTERING AGENCY from full and timely performance in accordance with the terms of this AGREEMENT and each PROGRAM SUPPLEMENT. 14. Neither STATE nor any officer or employee thereof is responsible for any injury, damage or liability occurring by reason of anything done or omitted to be done by ADMINISTERING AGENCY under or in connection with any work, authority or jurisdiction of ADMINISTERING AGENCY arising under this AGREEMENT. It is understood and agreed that ADMINISTERING AGENCY shall fully defend, indemnify and save harmless STATE and all of its officers and employees from all claims and suits or actions of every name, kind and description brought forth under, including but not limited to, tortious, contractual, inverse condemnation or other theories or assertions of liability occurring by reason of anything done or omitted to be done by ADMINISTERING AGENCY under this AGREEMENT. 15. Neither ADMINISTERING AGENCY nor any officer or employee thereof is responsible for any injury, damage or liability occurring by reason of anything done or omitted to be done by STATE, under or in connection with any work, authority or Page 11 of 15 jurisdiction arising under this AGREEMENT. It is understood and agreed that STATE shall fully defend, indemnify and save harmless the ADMINISTERING AGENCY and all of its officers and employees from all claims, suits or actions of every name, kind and description brought forth under, including but not limited to, tortious, contractual, inverse condemnation and other theories or assertions of liability occurring by reason of anything done or omitted to be done by STATE under this AGREEMENT. 16. In the event of (a) ADMINISTERING AGENCY failing to timely proceed with effective PROJECT work in accordance with the project -specific PROGRAM SUPPLEMENT; (b) failing to maintain any applicable bonding requirements; and (c) otherwise materially violating the terms and conditions of this AGREEMENT and/or any PROGRAM SUPPLEMENT, STATE reserves the right to terminate funding for that PROJECT upon thirty (30) days' written notice to ADMINISTERING AGENCY. 17. No termination notice shall become effective if, within thirty (30) days after receipt of a Notice of Termination, ADMINISTERING AGENCY either cures the default involved or, if the default is not reasonably susceptible of cure within said thirty (30) day period the ADMINISTERING AGENCY proceeds thereafter to complete that cure in a manner and time line acceptable to STATE. 18. Any such termination shall be accomplished by delivery to ADMINISTERING AGENCY of a Notice of Termination, which notice shall become effective not less than thirty (30) days after receipt, specifying the reason for the termination, the extent to which funding of work under this AGREEMENT and the applicable PROGRAM SUPPLEMENT is terminated and the date upon which such termination becomes effective, if beyond thirty (30) days after receipt. During the period before the effective termination date, ADMINISTERING AGENCY and STATE shall meet to attempt to resolve any dispute. In the event of such termination, STATE may proceed with the PROJECT work in a manner deemed proper by STATE. If STATE terminates funding for PROJECT with ADMINISTERING AGENCY for the reasons stated in paragraph sixteen (16) of ARTICLE VI, STATE shall pay ADMINISTERING AGENCY the sum due ADMINISTERING AGENCY under the PROGRAM SUPPLEMENT and/or STATE -approved finance letter prior to termination, provided, however, ADMINISTERING AGENCY is not in default of the terms and conditions of this AGREEMENT or the project -specific PROGRAM SUPPLEMENT and that the cost of any PROJECT completion to STATE shall first be deducted from any sum due ADMINISTERING AGENCY. 19. In the case of inconsistency or conflicts with the terms of this AGREEMENT and that of a project -specific PROGRAM SUPPLEMENT and/or Cooperative Agreement, the terms stated in that PROGRAM SUPPLEMENT and/or Cooperative Agreement shall prevail over those in this AGREEMENT. 20. Without the written consent of STATE, this AGREEMENT is not assignable by ADMINISTERING AGENCY either in whole or in part. 21. No alteration or variation of the terms of this AGREEMENT shall be valid unless made in writing and signed by the PARTIES, and no oral understanding or agreement not incorporated herein shall be binding on any of the PARTIES. Page 12 of 15 IN WITNESS WHEREOF, the parties have executed this AGREEMENT by their duly authorized officer. STATE OF CALIFORNIA City of Temecula DEPARTMENT OF TRANSPORTATION as 10 Aaron Adams, City Manager Chief, Office of Project Management Oversight Date Division of Local Assistance Date ATTEST: Randi Johl, City Clerk APPROVED AS TO FORM: Peter M. Thorson, City Attorney Page 13 of 15 EXHIBIT A - FAIR EMPLOYMENT PRACTICES ADDENDUM 1. In the performance of this Agreement, ADMINISTERING AGENCY will not discriminate against any employee for employment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. ADMINISTERING AGENCY will take affirmative action to ensure that employees are treated during employment without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. Such action shall include, but not be limited to, the following: employment; upgrading; demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. ADMINISTERING AGENCY shall post in conspicuous places, available to employees for employment, notices to be provided by STATE setting forth the provisions of this Fair Employment section. 2. ADMINISTERING AGENCY, its contractor(s) and all subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code, 12900 et seq.), and the applicable regulations promulgated thereunder (Cal. Code Regs., Title 2, 11000, et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code section 12900(a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations are incorporated into this AGREEMENT by reference and made a part hereof as if set forth in full. Each of the ADMINISTERING AGENCY'S contractors and all subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreements, as appropriate. 3. ADMINISTERING AGENCY shall include the nondiscrimination and compliance provisions of this clause in all contracts and subcontracts to perform work under this AGREEMENT. 4. ADMINISTERING AGENCY will permit access to the records of employment, employment advertisements, application forms, and other pertinent data and records by STATE, the State Fair Employment and Housing Commission, or any other agency of the State of California designated by STATE, for the purposes of investigation to ascertain compliance with the Fair Employment section of this Agreement. 5. Remedies for Willful Violation: (a) STATE may determine a willful violation of the Fair Employment provision to have occurred upon receipt of a final judgment to that effect from a court in an action to which ADMINISTERING AGENCY was a party, or upon receipt of a written notice from the Fair Employment and Housing Commission that it has investigated and determined that ADMINISTERING AGENCY has violated the Fair Employment Practices Act. (b) For willful violation of this Fair Employment Provision, STATE shall have the right to terminate this Agreement either in whole or in part, and any loss or damage sustained by STATE in securing the goods or services thereunder shall be borne and paid for by ADMINISTERING AGENCY and by the surety under the performance bond, if any, and STATE may deduct from any moneys due or thereafter may become due to ADMINISTERING AGENCY, the difference between the price named in the Agreement Page 14 of 15 and the actual cost thereof to STATE to cure ADMINISTERING AGENCY'S breach of this Agreement. Page 15 of 15 PROGRAM SUPPLEMENT NO. OOOOOA212 to ADMINISTERING AGENCY -STATE AGREEMENT FOR STATE FUNDED PROJECTS NO 08-5459521 Adv. Project ID Date: July 31, 2023 0822000135 Location: 08-RIV-0-TMCA Project Number: ATPL-5459(032) E.A. Number: Locode: 5459 This Program Supplement, effective 06/28/2023, hereby adopts and incorporates into the Administering Agency -State Agreement No. 08-5459521 for State Funded Projects which was entered into between the ADMINISTERING AGENCY and the STATE with an effective date of and is subject to all the terms and conditions thereof. This PROGRAM SUPPLEMENT is executed in accordance with Article I of the aforementioned Master Agreement under authority of Resolution No. approved by the ADMINISTERING AGENCY on (See copy attached). The ADMINISTERING AGENCY further stipulates that as a condition to the payment by the State of any funds derived from sources noted below encumbered to this project, Administering Agency accepts and will comply with the Special Covenants and remarks set forth on the following pages. PROJECT LOCATION: Santa Gertrudis Creek Trail Undercrossing, Lighting, Signage, and Public Outreach Campaign. TYPE OF WORK: Bike Path LENGTH: 0.0(MILES) Estimated Cost State Funds Matching Funds LOCAL OTHER STATE $1,462,000.00 $1,882,331.00 $420,331.00 $0.0c CITY OF TEMECULA By Aaron Adams, City Manager Date Attest Randi Johl, City Clerk Approved As To Form Peter M. Thorson, City Attorney STATE OF CALIFORNIA Department of Transportation By Chief, Office of Project Implementation Division of Local Assistance Date I hereby certify upon my personal knowledge that budgeted funds are available for this encumbrance: Accounting Officer Date 7/31 /2023 $1,462,000.00 Program Supplement 08--545-A212- SERIAL Page 1 of 4 08-RIV-0-TMCA ATPL-5459(032) SPECIAL COVENANTS OR REMARKS 1. A. This PROJECT will be administered in accordance with the applicable CTC STIP guidelines and the Active Transportation Program guidelines as adopted or amended, the Local Assistance Procedures Manual (LAPM), the Local Assistance Program Guidelines (LAPG), and this PROGRAM SUPPLEMENT. B. This PROJECT is programmed to receive State funds from the Active Transportation Program (ATP). Funding may be provided under one or more components. A component(s) specific fund allocation is required, in addition to other requirements, before reimbursable work can occur for the component(s) identified. Each allocation will be assigned an effective date and identify the amount of funds allocated per component(s). This PROGRAM SUPPLEMENT has been prepared to allow reimbursement of eligible PROJECT expenditures for the component(s) allocated. Unless otherwise determined, the effective date of the component specific allocation will constitute the start of reimbursable expenditures. C. STATE and ADMINISTERING AGENCY agree that any additional funds made available by future allocations will be encumbered on this PROJECT by use of a STATE -approved Allocation Letter and STATE Finance Letter. ADMINISTERING AGENCY agrees that STATE funds available for reimbursement will be limited to the amount allocated by the California Transportation Commission (CTC) and/or the STATE. D. Upon ADMINISTERING AGENCY request, the CTC and/or STATE may approve supplementary allocations, time extensions, and fund transfers between components. Funds transferred between allocated project components retain their original timely use of funds deadlines, but an approved time extension will revise the timely use of funds criteria for the component(s) and allocation(s) requested. Approved supplementary allocations, time extensions, and fund transfers between components made after the execution of this PROGRAM SUPPLEMENT will be documented and considered subject to the terms and conditions thereof. Documentation will consist of a STATE approved Allocation Letter, Fund Transfer Letter, Time Extension Letter, and Finance Letter, as appropriate. E. This PROJECT is subject to the timely use of funds provisions enacted by the Active Transportation Program guidelines, as adopted or amended, and by approved CTC and State procedures as outlined below. Funds allocated for the environmental & permits (E&P), plan specifications & estimate (PS&E), and right-of-way components are available for expenditure until the end of the second fiscal year following the year in which the funds were allocated. Program Supplement 08--545-A212- SERIAL Page 2 of 4 08-RIV-0-TMCA ATPL-5459(032) SPECIAL COVENANTS OR REMARKS Funds allocated for the construction component are subject to an award deadline and contract completion deadline. ADMINISTERING AGENCY agrees to award the contract within 6 months of the construction fund allocation and to complete and accept the construction within 36 months of award. F. Award information shall be submitted by the ADMINISTERING AGENCY to the District Local Assistance Engineer immediately after project contract award and prior to the submittal of the ADMINISTERING AGENCY'S first invoice for the construction contract. Failure to do so will cause a delay in the State processing of invoices for the construction phase. G. The ADMINISTERING AGENCY shall invoice STATE for environmental & permits (E&P), plans specifications & estimate (PS&E), and right-of-way costs no later than 180 days after the end of last eligible fiscal year of expenditure. For construction costs, the ADMINISTERING AGENCY has 180 days after project completion or contract acceptance to make the final payment to the contractor prepare the final Report of Expenditures and final invoice, and submit to STATE for verification and payment. H. ADMINISTERING AGENCY agrees to submit the final report documents that collectively constitute a "Report of Expenditures" within one hundred eighty (180) days of PROJECT completion. Failure of ADMINISTERING AGENCY to submit a "Final Report of Expenditures" within 180 days of PROJECT completion will result in STATE imposing sanctions upon ADMINISTERING AGENCY in accordance with the current LAPM and the Active Transportation Program (ATP) Guidelines. I. ADMINISTERING AGENCY indirect costs, as defined in 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles and Audit Requirement for Federal Awards, to be claimed must be allocated in accordance with an Indirect Cost Allocation Plan (ICAP), submitted, reviewed, and approved in accordance with Caltrans Audits and Investigations requirements which may be accessed at: www.dot.ca.gov/hq/audits/. ADMINISTERING AGENCY agrees to comply with, and require all sub -recipients and project sponsors to comply with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles and Audit Requirement for Federal Awards, and all applicable Federal and State laws and regulations. ADMINISTERING AGENCY agrees, and will assure that its contractors and subcontractors will be obligated to agree, that Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31, et seq., and all applicable Federal and State laws and regulations, shall be used to determine the allowability of individual PROJECT cost items. Any Fund expenditures for costs for which ADMINISTERING AGENCY has received Program Supplement 08--545-A212- SERIAL Page 3 of 4 08-RIV-0-TMCA ATPL-5459(032) SPECIAL COVENANTS OR REMARKS payment or credit that are determined by subsequent audit to be unallowable under 2 CFR, Part 200, or 48 CFR, Chapter 1, Part 3, are subject to repayment by ADMINISTERING AGENCY to STATE. Should ADMINISTERING AGENCY fail to reimburse Funds due STATE within 30 days of demand, or within such other period as may be agreed in writing between the Parties hereto, STATE is authorized to intercept and withhold future payments due ADMINISTERING AGENCY from STATE or any third -party source, including, but not limited to, the State Treasurer, the State Controller, and the California Transportation Commission. J. By executing this PROGRAM SUPPLEMENT, ADMINISTERING AGENCY agrees to comply with all reporting requirements in accordance with the Active Transportation Program guidelines, as adopted or amended. K. This PROJECT has received funds from Active Transportation Program (ATP). The ADMINISTERING AGENCY agrees to administer the project in accordance with the CTC Adopted SB1 Accountability and Transparency Guidelines. 2. The ADMINISTERING AGENCY shall construct the PROJECT in accordance with the scope of work presented in the application and approved by the California Transportation Commission. Any changes to the approved PROJECT scope without the prior expressed approval of the California Transportation Commission are ineligible for reimbursement and may result in the entire PROJECT becoming ineligible for reimbursement. Program Supplement 08--545-A212- SERIAL Page 4 of 4 PROGRAM SUPPLEMENT NO. OOOOOA213 to ADMINISTERING AGENCY -STATE AGREEMENT FOR STATE FUNDED PROJECTS NO 08-5459521 Adv. Project ID Date: July 31, 2023 0822000136 Location: 08-RIV-0-TMCA Project Number: ATPL-5459(033) E.A. Number: Locode: 5459 This Program Supplement, effective 06/28/2023, hereby adopts and incorporates into the Administering Agency -State Agreement No. 08-5459521 for State Funded Projects which was entered into between the ADMINISTERING AGENCY and the STATE with an effective date of and is subject to all the terms and conditions thereof. This PROGRAM SUPPLEMENT is executed in accordance with Article I of the aforementioned Master Agreement under authority of Resolution No. approved by the ADMINISTERING AGENCY on (See copy attached). The ADMINISTERING AGENCY further stipulates that as a condition to the payment by the State of any funds derived from sources noted below encumbered to this project, Administering Agency accepts and will comply with the Special Covenants and remarks set forth on the following pages. PROJECT LOCATION: Santa Gertrudis Creek Trail Undercrossing, Lighting, Signage, and Public Outreach Campaign. TYPE OF WORK: Pedestrian Safety Program LENGTH: 0.0(MILES) Estimated Cost State Funds Matching Funds LOCAL OTHER STATE $40,000.00 $40,000.00 $0.00 $0.0c CITY OF TEMECULA By Date Attest Approved As To Form Aaron Adams, City Manager Randi Johl, City Clerk Peter M. Thorson, City Attorney STATE OF CALIFORNIA Department of Transportation By Chief, Office of Project Implementation Division of Local Assistance Date I hereby certify upon my personal knowledge that budgeted funds are available for this encumbrance: Accounting Officer Date 7/31 /2023 $40,000.00 Program Supplement 08--545-A213- SERIAL Page 1 of 4 08-RIV-0-TMCA ATPL-5459(033) SPECIAL COVENANTS OR REMARKS 1. A. This PROJECT will be administered in accordance with the applicable CTC STIP guidelines and the Active Transportation Program guidelines as adopted or amended, the Local Assistance Procedures Manual (LAPM), the Local Assistance Program Guidelines (LAPG), and this PROGRAM SUPPLEMENT. B. This PROJECT is programmed to receive State funds from the Active Transportation Program (ATP). Funding may be provided under one or more components. A component(s) specific fund allocation is required, in addition to other requirements, before reimbursable work can occur for the component(s) identified. Each allocation will be assigned an effective date and identify the amount of funds allocated per component(s). This PROGRAM SUPPLEMENT has been prepared to allow reimbursement of eligible PROJECT expenditures for the component(s) allocated. Unless otherwise determined, the effective date of the component specific allocation will constitute the start of reimbursable expenditures. C. STATE and ADMINISTERING AGENCY agree that any additional funds made available by future allocations will be encumbered on this PROJECT by use of a STATE -approved Allocation Letter and STATE Finance Letter. ADMINISTERING AGENCY agrees that STATE funds available for reimbursement will be limited to the amount allocated by the California Transportation Commission (CTC) and/or the STATE. D. Upon ADMINISTERING AGENCY request, the CTC and/or STATE may approve supplementary allocations, time extensions, and fund transfers between components. Funds transferred between allocated project components retain their original timely use of funds deadlines, but an approved time extension will revise the timely use of funds criteria for the component(s) and allocation(s) requested. Approved supplementary allocations, time extensions, and fund transfers between components made after the execution of this PROGRAM SUPPLEMENT will be documented and considered subject to the terms and conditions thereof. Documentation will consist of a STATE approved Allocation Letter, Fund Transfer Letter, Time Extension Letter, and Finance Letter, as appropriate. E. This PROJECT is subject to the timely use of funds provisions enacted by the Active Transportation Program guidelines, as adopted or amended, and by approved CTC and State procedures as outlined below. Funds allocated for the environmental & permits (E&P), plan specifications & estimate (PS&E), and right-of-way components are available for expenditure until the end of the second fiscal year following the year in which the funds were allocated. Program Supplement 08--545-A213- SERIAL Page 2 of 4 08-RIV-0-TMCA ATPL-5459(033) SPECIAL COVENANTS OR REMARKS Funds allocated for the construction component are subject to an award deadline and contract completion deadline. ADMINISTERING AGENCY agrees to award the contract within 6 months of the construction fund allocation and to complete and accept the construction within 36 months of award. F. Award information shall be submitted by the ADMINISTERING AGENCY to the District Local Assistance Engineer immediately after project contract award and prior to the submittal of the ADMINISTERING AGENCY'S first invoice for the construction contract. Failure to do so will cause a delay in the State processing of invoices for the construction phase. G. The ADMINISTERING AGENCY shall invoice STATE for environmental & permits (E&P), plans specifications & estimate (PS&E), and right-of-way costs no later than 180 days after the end of last eligible fiscal year of expenditure. For construction costs, the ADMINISTERING AGENCY has 180 days after project completion or contract acceptance to make the final payment to the contractor prepare the final Report of Expenditures and final invoice, and submit to STATE for verification and payment. H. ADMINISTERING AGENCY agrees to submit the final report documents that collectively constitute a "Report of Expenditures" within one hundred eighty (180) days of PROJECT completion. Failure of ADMINISTERING AGENCY to submit a "Final Report of Expenditures" within 180 days of PROJECT completion will result in STATE imposing sanctions upon ADMINISTERING AGENCY in accordance with the current LAPM and the Active Transportation Program (ATP) Guidelines. I. ADMINISTERING AGENCY indirect costs, as defined in 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles and Audit Requirement for Federal Awards, to be claimed must be allocated in accordance with an Indirect Cost Allocation Plan (ICAP), submitted, reviewed, and approved in accordance with Caltrans Audits and Investigations requirements which may be accessed at: www.dot.ca.gov/hq/audits/. ADMINISTERING AGENCY agrees to comply with, and require all sub -recipients and project sponsors to comply with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles and Audit Requirement for Federal Awards, and all applicable Federal and State laws and regulations. ADMINISTERING AGENCY agrees, and will assure that its contractors and subcontractors will be obligated to agree, that Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31, et seq., and all applicable Federal and State laws and regulations, shall be used to determine the allowability of individual PROJECT cost items. Any Fund expenditures for costs for which ADMINISTERING AGENCY has received Program Supplement 08--545-A213- SERIAL Page 3 of 4 08-RIV-0-TMCA ATPL-5459(033) SPECIAL COVENANTS OR REMARKS payment or credit that are determined by subsequent audit to be unallowable under 2 CFR, Part 200, or 48 CFR, Chapter 1, Part 3, are subject to repayment by ADMINISTERING AGENCY to STATE. Should ADMINISTERING AGENCY fail to reimburse Funds due STATE within 30 days of demand, or within such other period as may be agreed in writing between the Parties hereto, STATE is authorized to intercept and withhold future payments due ADMINISTERING AGENCY from STATE or any third -party source, including, but not limited to, the State Treasurer, the State Controller, and the California Transportation Commission. J. By executing this PROGRAM SUPPLEMENT, ADMINISTERING AGENCY agrees to comply with all reporting requirements in accordance with the Active Transportation Program guidelines, as adopted or amended. K. This PROJECT has received funds from Active Transportation Program (ATP). The ADMINISTERING AGENCY agrees to administer the project in accordance with the CTC Adopted SB1 Accountability and Transparency Guidelines. 1. The ADMINISTERING AGENCY shall construct the PROJECT in accordance with the scope of work presented in the application and approved by the California Transportation Commission. Any changes to the approved PROJECT scope without the prior expressed approval of the California Transportation Commission are ineligible for reimbursement and may result in the entire PROJECT becoming ineligible for reimbursement. Program Supplement 08--545-A213- SERIAL Page 4 of 4 Item No. 9 CITY OF TEMECULA AGENDA REPORT TO: City Manager/City Council FROM: Patrick Thomas, Director of Public Works/City Engineer DATE: August 22, 2023 SUBJECT: Approve Increase to the Professional Services Contingency Authorization for the Margarita Recreation Center Project, PW17-21 PREPARED BY: Amer Attar, Engineering Manager Nino Abad, Senior Civil Engineer RECOMMENDATION: That the City Council: 1. Approve an increase to the contingency for professional services for the Margarita Recreation Center Project, PW17-21 by $43,000; and 2. Increase the City Manager's authorized contingency by $43,000. BACKGROUND: The Margarita Recreation Center (MRC), PW 17-21 is a Capital Improvement Program (CIP) project to design -build a new MRC building and pool to replace the old facility. Currently, the design phase is complete, the old MRC facility has been demolished, and the new MRC building and pool are under construction. The new MRC will be approximately 8,600 square feet of indoor space including a classroom, multipurpose room with operable partition, dance/fitness room, kitchen, administrative/reception offices, lifeguard/aquatic and first aid rooms, locker rooms, and restrooms. The new center's outdoor facilities include multiple patio spaces and a 65'wide x 75' long pool with shallow depth entry, transitioning to a 9' maximum depth, with a 3/4 meter height diving board. An accessory structure for mechanical equipment related to the pool as well as additional storage is also included. On February 26, 2019, the City Council approved an agreement for consultant services with NV5, Inc. in the amount of $880,365 and authorized the City Manager Extra Work Authorizations not to exceed the contingency amount of $88,036.50 for the project. The agreement generally included the development of preliminary design and bridging documents, bid support, design -build project management services, geotechnical inspections, special inspections, and construction management services. The City Council approved increases to the City Manager's authorized contingency on September 13, 2022 and on February 28, 2023 by $80,000 and $150,000 respectively. These increases were to accommodate City requested design changes, increasing the design duration, and supply issues related to critical electrical components increases the construction duration. At this time staff anticipates it has funding for construction management and inspection services through approximately September 1, 2023. It is anticipated that construction will be completed on or before October 16, 2023 and therefore additional contingency is required to provide construction management and inspection services through that time period. Staff recommends an increase to the City Manager's authorized contingency in the amount of $43,000 for a total authorized contingency of $361,036.50. FISCAL IMPACT: The Margarita Recreation Center project is identified in the City's Capital Improvement Program (CIP) budget for Fiscal Years 2024-28 funded with Capital Financing, DIF (Park & Rec Improvements), and Measure S. There are sufficient funds in the project account to the increase to the authorized contingency by $43,000. ATTACHMENTS: Project Description Alk The Heart of Southern California Wine Country MARGARITA RECREATION CENTER Infrastructure Project Project Description: This project consists of the construction of a new recreation center in Mike Naggar Community Park in place of the former YMCA building. The project includes the demolition of the existing building and pool, constructing a new building and pool as determined by a Community Needs Assessment and available budget. The Information Technology component includes camera system infrastructure, access control, Public Wi-Fi and other identified technology needs. Benefit: This project will provide the City a new facility to meet the increasing demands of recreational programs. Core Value: Healthy and Livable City Project Status: Under construction. Construction completion and Grand Opening anticipated in September 2023. Department: Public Works - Account No. 210.265.999.5800.PW17-21 / 692 Level: I City of Temecula Fiscal Years 2024-28 Capital Improvement Program 4;. / Project Cost: Prior Years Actuals 2023-24 2022-23 Adopted 2024-25 2025-26 2026-27 2027-28 Adjusted Budget Projected Projected Projected Projected Total Project Cost 5801-Administration 276,051 160,606 436,657 5804-Construction 1,244,331 8,701,128 9,945,459 5805-Construction Engineering 4,739 1,907 6,646 5802-Design & Environmental 531,607 666,795 1,198,402 5809-Information Technology 344,343 670,000 1,014,343 Total Expenditures 2,401,072 10,200,436 12,601,508 Source of Funds: 4481-Capital Financing 6,405,000 6,405,000 4244-DIF-Park & Rec Improvements 600,000 600,000 4256-DIF-Police Facilities 137,000 137,000 4002-Measure S 1,636,773 3,822,735 5,459,508 Total Funding 8,041,773 4,559,735 12,601,508 Future Operating & Maintenance Costs: Total Operating Costs 1 1,383,815 1,435,233 1,488,628 1,544,079 Notes : 1. Capital Financing reflects the Temecula Public Financing Authority's 2018 Lease Financing arrangement which provides $6.4M in funding, with a term of 15 years at an interest rate of3.42%, repaid by the General Fund.(Loan Paid off in 2022) Do Not Remove Supplemental Material Item No. 10 – Approve the Funding Agreement with the County of Riverside for the Michael “Mike” Naggar Park Dog Park Renovation Project, PW21-14 and Authorize the City Manager to Execute the Agreement – REVISED Funding Agreement 1 FUNDING AGREEMENT FOR CITY OF TEMECULA MIKE NAGGAR COMMUNITY PARK EXPANSION PROJECT This Funding Agreement (“Agreement”) is entered into by and between the County of Riverside, a political subdivision of the State of California, (“County”) and the City of Temecula, (“Subrecipient”). County and Subrecipient are sometimes individually referred to as “Party” and collectively as “Parties.” RECITALS WHEREAS, on March 11, 2021, the American Rescue Plan Act (ARPA) was signed into law, amending Section 9901 of Title VI of the Social Security Act which establishes the Coronavirus State and Local Fiscal Recovery Funds (Fiscal Recovery Funds) to provide state, local and Tribal governments with the resources needed to respond to the pandemic and its economic effects and to build a stronger, more equitable economy during the recovery; and WHEREAS, on February 8, 2022, Minute Order 3.3, the Board of Supervisors of the County of Riverside approved allocation of ARPA funds to support eligible projects within Riverside County; and WHEREAS, on January 6, 2022, the U.S. Department of the Treasury (U.S. Treasury) adopted a final rule implementing the Fiscal Recovery Funds which took effect on April 1, 2022 (Final Rule); and WHEREAS, to respond to the negative effects of the pandemic, which in turn affect our community as a whole, the County has dedicated a portion of the allotted ARPA funds to local agencies for the delivery and implementation of eligible neighborhood revitalization projects; and WHEREAS, the County desires to reimburse and the Subrecipient desires to accept ARPA Fiscal Recovery Funds in a total amount not to exceed $200,000, for expenditures identified in Attachment A related to the Mike Naggar Community Park Expansion Project (“Neighborhood Revitalization Project”); and NOW THEREFORE, in consideration of the mutual benefits, covenants, terms and conditions contained herein, the Parties agree as follows: AGREEMENT 1. Incorporation of Recitals. The Recitals set forth above are incorporated herein and made an operative part of this Agreement. 2. Contract Documents. This Agreement consists of this Agreement and the following attachments, attached hereto and by this reference incorporated herein: 2.1 Attachment A – Neighborhood Revitalization Project Scope 2.2 Attachment B – U.S. Treasury ARPA Fiscal Recovery Funds Final Rule 2.3 Attachment C – Uniform Administrative Requirements, Cost Principles, Federal Provisions and Audit Requirements for Federal Awards -2 CFR Part 200 et seq 2.4 Attachment D – Indemnification and Insurance Requirements 2.5 Attachment E – Project Monitoring Requirements 2.6 Attachment F – Construction Requirements 2 3. Neighborhood Revitalization Project; Scope of Work. Subrecipient shall be responsible for completion of all activities associated with design, implementation, installation and construction of the Neighborhood Revitalization Project, as described in Attachment A, on or before December 31, 2026, by first using funds received from the County in the amount provided in Section 4 of this Agreement. The Subrecipient shall also furnish timely reporting and documentation assuring Subrecipient’s compliance with the U.S. Treasury ARPA Guidelines (as stated in the Final Rule of the U.S. Department of the Treasury published in the Federal Register on January 27, 2022), and within the timelines and specifications provided in Attachment E. Under the provisions of the Agreement, the County shall bear no responsibility for the Neighborhood Revitalization Project, including without limitation any activities associated with implementation, installation and construction, or any future operation or maintenance of the Neighborhood Revitalization Project. 3.1 Project Signage. Subrecipient shall include appropriate acknowledgement of credit to the County for its support when promoting the Neighborhood Revitalization Project or using any data and/or information developed under this Agreement. Signage shall be posted in a prominent location at Neighborhood Revitalization Project site(s) and shall include the U.S. Department of Treasury’s, and the County’s color logos, along with the following disclosure statement: “Funding for this project has been provided in full or in part from the American Rescue Plan Act, and through an agreement with the County of Riverside.” The Subrecipient shall also include in each of its contracts for work under this Agreement a provision that incorporates the requirements stated within this Paragraph. 4. Funding. 4.1 County shall provide funding to Subrecipient in a total amount not to exceed $200,000 (“Award”), in quarterly payments in accordance with progress pay estimates submittals, and in compliance with ARPA Guidelines as set forth in Attachment B, attached hereto and by this reference incorporated herein, for the completion of the Neighborhood Revitalization Project. In the event that there is a conflict in the terms for payment in this Agreement and the terms in Attachments B and C, the terms in Attachments B and C shall take precedence. Subrecipient shall provide other non-federal funding at least equal to the amounts shown in Attachment A, attached hereto and by this reference incorporated herein, as a match to the funds provided by the County for the Neighborhood Revitalization Project. 4.2 Except as expressly provided in Attachment A of this Agreement, Subrecipient shall not be entitled to, nor receive from County any additional funding or other type of remuneration for services rendered under this Agreement. The Award amounts described in this Section are specifically for the Neighborhood Revitalization Project and make up the entire amount which the County has approved to fund for the Neighborhood Revitalization Project. Subrecipient shall not be entitled by virtue of this Agreement to consideration in excess of specified per-project Award amounts, and Subrecipient shall be responsible for any and all costs incurred above any Award amount for its implementation and completion of the Neighborhood Revitalization Project. Any subsequent amendments to the Neighborhood Revitalization Project scope or description is not covered by this Agreement, and the funding for any such amendment or for any Neighborhood Revitalization Project cost overruns shall be the sole responsibility of Subrecipient, unless otherwise approved in writing by the County. 4.3 Should it be determined at any time by the Subrecipient or the County that the Subrecipient cannot, will not or is unable to complete the Neighborhood Revitalization Project subject to this Agreement in accordance with the applicable State and Federal requirements and the provisions of this Agreement on or before December 31, 2026, then the subrecipient shall return 100% of the Award amount reimbursed to Subrecipient for the uncompleted Neighborhood Revitalization Project as of the date of notification to the County, within thirty (30) days of notification. 3 4.4 In the event the actual cost for Neighborhood Revitalization Project is less than Award, Subrecipient shall refund the difference to County within thirty (30) days of filing the Notice of Completion for the Neighborhood Revitalization Project, or by June 30, 2026, whichever occurs first. Subrecipient shall return any reimbursed Award Funds that have not been expended or are not adequately supported by invoices and documentation to the County, within thirty (30) days of completion of construction of the Neighborhood Revitalization Project, or upon request by the County, whichever occurs first. 5. Invoicing and Billing 5.1 Invoices. 5.1.1 Invoices shall be submitted via e-mail to RIVCOARPA@RIVCO.ORG. The final invoice from the Subrecipient will be submitted with enough time for the County to reimburse the Subrecipient prior to December 31, 2026, per the final rule of ARPA. 5.1.2 Supporting documentation shall accompany each invoice: copies of paid receipts and invoices of all Neighborhood Revitalization Project costs incurred by Subrecipient. 5.1.3 To ensure compliance with Federal and State regulations, County may require additional supporting documentation or clarification of claimed expenses as follows: 5.1.3.1 County Executive Office staff shall notify Subrecipient to obtain necessary additional documentation or clarification. 5.1.3.2 Subrecipient shall respond within three (3) business days with required additional documentation or clarification to avoid disallowances/partial payment of invoice. 5.1.3.3 All invoices containing expenses that need additional documentation or clarification not provided to County within three (3) business days of request shall have those expenses disallowed and only the allowed expenses shall be paid. 5.1.3.4 Subrecipient may resubmit disallowed expenses as a supplemental invoice only and must be accompanied by required documentation. 5.2 Payments 5.2.1 If the conditions set forth in this Agreement are met, County shall pay, on/or before the thirtieth (30th) day after receipt of a complete and accurate invoice, the sum of money claimed by the approved invoice, (less any credit due County for adjustments of prior invoices). If the conditions are not met, County shall pay when the necessary processing is completed and/or proper backup documentation is provided. 5.2.2 County shall not pay for unauthorized costs incurred by Subrecipient or for the claimed work which County monitoring shows have not been provided as authorized. 5.2.3 County retains the right to withhold payment on disputed claims. 6. Term. The Term of this Agreement shall be from the date of approval of this Agreement until filing of notice of completion for the Neighborhood Revitalization Project, or on December 31, 2026, whichever is sooner, unless sooner terminated as provided herein. 4 7. Subrecipient Compliance Obligations. The Subrecipient agrees to comply with the terms and conditions of this Agreement. The Subrecipient also agrees to apply the terms and conditions of this Agreement to all of its subcontractors (if applicable) and to require their strict compliance therewith. If it is determined that the Subrecipient is noncompliant, County may temporarily withhold or disallow reimbursement of costs, under 2 C.F.R. Part 200, as supplemented by 2 C.F.R. Part 910. 7.1 Federal Provisions. Subrecipient and all of its subcontractors shall comply with the Uniform Administrative Requirements, Cost Principles, Federal Provisions and Audit Requirements for Federal Awards Provisions contained in Attachment C 8. Contract Representatives. 8.1 County Representative. The County Executive Officer, or designee, shall be the designated representative who shall administer this Agreement on behalf of the County. 8.2 Subrecipient Representative. The City Manager, or designee, shall be the designated representative who shall administer this Agreement on behalf of the Subrecipient. 8.3 The Contract Representatives may be contacted as described in Section 11, below. 9. Records and Audit. 9.1 Subrecipient shall store and maintain all writings, documents and records prepared or compiled in connection with the performance of this Agreement for a minimum of five (5) years from the termination or completion of this Agreement. This includes any handwriting, typewriting, printing, photostatic, photographing and every other means of recording upon any tangible thing, any form of communication or representation including letters, words, pictures, sounds or symbols or any combination thereof. Any authorized representative of County shall have access to any writings as defined above for the purposes of making a report, audit, evaluation, or examination Further, County has the right at all reasonable times to audit, inspect or otherwise evaluate the work performed or being performed under this Agreement. 9.2 If it is determined pursuant to an audit that any funds provided pursuant to this Agreement have been improperly expended, Subrecipient shall, at the direction of the agency performing the audit, reimburse the County within thirty (30) days the full amount of such improperly expended funds. The funds shall be reimbursed in accordance with the recommendations in the audit. 10. Monitoring of Contract Compliance and Infrastructure Progress Reports. 10.1 Contract Compliance. The Subrecipient shall comply with the monitoring arrangements set forth in Project Monitoring Requirements, and Construction Requirements, attached as Attachments E and F, respectively. 10.2 Neighborhood Revitalization Project Progress Reports and Progress Pay Estimates. Subrecipient shall, as specified herein, provide quarterly reports detailing Neighborhood Revitalization Project’s progress, including a financial status report and milestone progress report as described in Attachment E. 11. Notices. As used in this Agreement, notice includes but is not limited to the communications of any notice, request, demand, approval, statement, report, acceptance, consent, waiver, and appointment. All notices must be in writing. All such notices from one party to another may be delivered in person, sent via reputable overnight courier, or served by first-class mail, certified or registered, postage prepaid, to each and all of the addresses set forth below. 5 If to County: If to Subrecipient: Riverside County Executive Office City of Temecula Attention: Rania Odenbaugh and Scott Bruckner Attention: Aaron Adams 4080 Lemon Street, 4th Floor, 41000 Main Street Riverside, CA. 92501 Temecula, CA 92590 12. Conflicts of Interest. Subrecipient covenants that it presently has no interest, including but not limited to, other projects or independent contracts, and shall not acquire any such interest, direct or indirect, which would conflict in any manner or degree with the performance of services required under this Agreement. Subrecipient further covenants that in the performance of this Agreement, no person having any such interest shall be employed or retained by it under this Agreement. In the event federal funds are used, in whole or in part, for this Neighborhood Revitalization Project, Subrecipient understands and agrees it must maintain a conflict of interest policy consistent with 2. C.F.R. section 200.318 (c) and that such conflict of interest policy is applicable to each activity funded under this award. Subrecipient must disclose in writing to the U.S. Treasury or through County, as appropriate, any potential conflict of interest affecting the awarded funds in accordance with 2. C.F.R. section 200.12. 13. Nondiscrimination. During any period in which Subrecipient is in receipt of funds from County, Subrecipient and its Board, officers, employees, agents, representatives or subcontractors shall not unlawfully discriminate in violation of any Federal, State or local law, rule or regulation against any employee, applicant for employment or person receiving services under this Agreement because of race, religious creed, color, national origin, ancestry, physical or mental disability including perception of disability, medical condition, genetic information, pregnancy related condition, marital status, gender/sex, sexual orientation, gender identity, gender expression, age (over 40), political affiliation or belief, or military and veteran status. Subrecipient and its officers, employees, agents, representatives or subcontractors shall comply with all applicable Federal, State and local laws and regulations related to non- discrimination and equal opportunity, including without limitation the County’s non- discrimination policy; Title VI of the Civil Rights Act of 1964 (42 US.C. sections 2000d et seq.) and U.S. Treasury’s implementing regulations at 31 C.F.R. Part 22, which prohibit discrimination on the basis of race, color, or national origin under programs or activities receiving federal financial assistance; The Fair Housing Act, Title VIII of the Civil Rights Act of 1968 (42 U.S.C. sections 3601 et seq.), which prohibits discrimination in housing on the basis of race, color, religion, national origin, sex, familial status, or disability; Section 504 of the Rehabilitation Act of 1973, as amended (42 U.S.C. sections 6101 et seq.), and the U.S. Treasury’s implementing regulations at 31 C.F.R. part 23, which prohibit discrimination on the basis of age in programs or activities receiving federal financial assistance; and Title II of the Americans with Disabilities Act of 1990, as amended (42 U.S.C. sections 12101 et seq.)which prohibits discrimination on the basis of disability under programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto; The Fair Employment and Housing Act (Government Code sections 12900 et seq.); California Labor Code sections 1101, and 1102; the Federal Civil Rights Act of 1964 (P.L. 88-352), as amended; and all applicable regulations promulgated in the California Code of Regulations or the Code of Federal Regulations, and Riverside County’s non-discrimination policy. Subrecipient shall include the non-discrimination and compliance provisions of this Section in all subcontracts to perform work under or as a derivative of this Agreement. 6 14. Indemnification. The Subrecipient shall be bound by the indemnification, hold harmless and defend provisions contained in Attachment D. 15. Insurance. Subrecipient shall obtain, and maintain, or caused to be obtained and maintained, at all times during the Term of this Agreement, insurance coverage in the amounts and coverage specified in Attachment D. 16. Termination. The County may terminate this agreement upon a determination that Subrecipient is not complying with ARPA terms and conditions. The County may withhold additional planned distributions of funding to Subrecipient pending receipt of requisite reporting requirements by Subrecipient to the County as described herein. 17. Compliance with Laws. The Subrecipient is required to comply with all applicable federal, state and local laws and regulations for all work performed or funded by and through this Agreement. The Subrecipient is required to obtain all necessary federal, state and local permits, authorizations and approvals for all work performed under this Agreement. 18. Disputes. The parties shall attempt to resolve any disputes amicably at the working level. If that is not successful, the dispute shall be referred to the senior management of the parties. The Subrecipient shall proceed diligently with the Neighborhood Revitalization Project described in this Agreement pending the resolution of a dispute. The Parties reserve the right to pursue any remedies at law or in equity should any dispute relating to this Agreement not by resolved by the Parties. Notwithstanding the foregoing, prior to the filing of any legal action related to this Agreement, the Parties shall be obligated to attend a mediation session in Riverside County before a neutral third party mediator. A second mediation session shall be required if the first session is not successful. The parties shall share the cost of the mediations. 19. Status of Subrecipient. The Subrecipient is, for purposes relating to this Agreement, an independent contractor and shall not be deemed an employee of the County. It is expressly understood and agreed that the Subrecipient (including its employees, agents, and subcontractors) shall in no event be entitled to any benefits to which County employees are entitled, including but not limited to overtime, any retirement benefits, worker's compensation benefits, and injury leave or other leave benefits. There shall be no employer-employee relationship between the parties nor is there a joint venture; and Subrecipient shall indemnify and hold County harmless from any and all claims that may be made against County based upon any contention by a third party that an employer-employee relationship exists by reason of this Agreement. 19.1 All acts of Subrecipient and its officers, employees, agents, representatives, subcontractors, and all others acting on behalf of Subrecipient relating to the performance of this Agreement, shall be performed as independent contractors and not as agents, officers, or employees of County. Subrecipient, by virtue of this Agreement, has no authority to bind or incur any obligation on behalf of County. No agent, officer or employee of the County is to be considered an employee of Subrecipient. At all times during the term of this Agreement, the Subrecipient and its officers, employees, agents, representatives, or subcontractors are, and shall represent and conduct themselves as, independent contractors and not employees of County. 19.2 Subrecipient shall determine the method, details, and means of performing the work and services to be provided by Subrecipient under this Agreement. Subrecipient shall be responsible to County only for the requirements and results specified in this Agreement and, except as expressly 7 provided in this Agreement, shall not be subjected to County's control with respect to the physical action or activities of Subrecipient in fulfillment of this Agreement. Subrecipient has control over the manner and means for completion of the Neighborhood Revitalization Project described in this Agreement. If necessary, Subrecipient has the responsibility for employing or engaging other persons or firms to assist Subrecipient in fulfilling the terms and obligations under this Agreement. 19.3 If in the performance of this Agreement any third persons are employed by Subrecipient, such persons shall be entirely and exclusively under the direction, supervision, and control of Subrecipient. All terms of employment including hours, wages, working conditions, discipline, hiring and discharging or any other term of employment or requirements of law shall be determined by the Subrecipient. It is further understood and agreed that Subrecipient must issue W-2 forms or other forms as required by law for income and employment tax purposes for all Subrecipient’s assigned personnel under the terms and conditions of this Agreement. 20. Entire Agreement. This Agreement is the result of negotiations between the Parties. This Agreement is intended by the Parties as a full and final expression of their understanding with respect to the matters contained in this Agreement and shall not be modified in any manner except by an instrument in writing executed by the Parties or their respective successors in interest. 21. Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 22. Governing Law and Venue. The interpretation and performance of this Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County, California. 23. Construction/Interpretation. Headings or captions to the provisions of this Agreement are solely for the convenience of the Parties, are not part of this Agreement, and shall not be used to interpret or determine the validity of this Agreement. Any ambiguity in this Agreement shall not be construed against the drafter, but rather the terms and provisions hereof shall be given a reasonable interpretation as if both parties had in fact drafted this Agreement. 24. No Waiver. Failure of the Parties to insist upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be deemed a waiver or relinquishment of such other right or power at any other time or times. 25. No Third-Party Beneficiaries. There are no intended third-party beneficiaries of any right or obligation assumed by the Parties. 26. Severability. It is intended that each paragraph of this Agreement shall be treated as separate and divisible, and in the event that any paragraphs are deemed unenforceable, the remainder shall continue to be in full force and effect so long as the primary purpose of this Agreement is unaffected. 27. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. 28. Use of Electronic (Digital) Signatures. This Agreement may be executed in any number of counterparts, each of which will be an original, but all of which together will constitute one instrument. Each party of this Agreement agrees to the use of electronic signatures, such as digital signatures that 8 meet the requirements of the California Uniform Electronic Transactions Act ((“CUETA”) Cal. Civ. Code §§ 1633.1 to 1633.17), for executing this Agreement. The parties further agree that the electronic signatures of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic signature means an electronic sound, symbol, or process attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the electronic record pursuant to the CUETA as amended from time to time. The CUETA authorizes use of an electronic signature for transactions and contracts among parties in California, including a government agency. Digital signature means an electronic identifier, created by computer, intended by the party using it to have the same force and effect as the use of a manual signature, and shall be reasonably relied upon by the parties. For purposes of this section, a digital signature is a type of "electronic signature" as defined in subdivision (i) of Section 1633.2 of the Civil Code [Signature Provisions on Following Page] 9 28.Authority to Enter Agreement. Each Party to this Agreement warrants to the other that it is duly organized and existing and that it and the respective signatories have full right and authority to enter into and consummate this Agreement and all related documents and bind the parties thereto. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date as indicated beside each Party's signature. COUNTY: COUNTY OF RIVERSIDE, a political subdivision of the State of California By: ______________________________ SUBRECIPIENT: CITY OF TEMECULA By: _______________________________ Chair, Board of Supervisors Aaron Adams, City Manager ATTEST: Clerk of the Board Kimberly Rector By: _____________________________ Deputy (Seal) APPROVED AS TO FORM County Counsel By: ________________________ Kristine Bell-Valdez Deputy County Counsel ATTEST: ___________________________ Randi Johl, City Clerk APPROVED AS TO FORM: ___________________________ Peter M. Thorson, City Attorney 10 Attachment A – Neighborhood Revitalization Project Scope Dog Park Renovation at Michael “Mike” Naggar Park Scope of Work The Subrecipient will complete all planning, design, and procurement necessary to construct the Project. The Subrecipient will construct a dog park at Michael “Mike” Naggar Community Park that includes a pen for small breed dogs and a pen for large breed dogs. In addition, there will be new water fountains, benches, trash receptacles, dog bag dispensers, trees and other landscape improvements, and shade structures. Project Budget ITEM DESCRIPTION COUNTY OF RIVERSIDE ARPA PROJECT FUNDING AMOUNT (Not to Exceed) SUBRECIPIENT NON-FEDERAL FUNDING AMOUNT ESTIMATED PROJECT COST 1 Facility Planning $0 $0 $0 2 Preliminary Design $0 $0 $0 3 Final Design $0 $71,516 $71,516 4 Spec Review, Bid/Award $0 $100,000 $100,000 5 Construction $200,000 $593,484 $793,484 6 Admin Closeout $0 $75,000 $75,000 TOTAL: $200,000 $840,000 $1,040,000 Schedule ITEM DESCRIPTION OF SUBMITTAL ESTIMATED DUE DATE 1 Feasibility Report N/A 2 Preliminary Design Report N/A 3 Final Design August 30, 2023 4 Spec Review, Bid/Award August 30, 2023 5 Construction and Implementation January 31, 2024 6 Admin Closeout April 30, 2024 11 Attachment B – U.S. Treasury ARPA Fiscal Recovery Funds Final Rule 4338 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 1 Public Law 117–2. https://www.congress.gov/ 117/plaws/publ2/PLAW-117publ2.pdf. 2 Throughout this Supplementary Information, Treasury uses ‘‘state, local, and Tribal governments’’ or ‘‘recipients’’ to refer generally to governments receiving SLFRF funds; this includes states, territories, Tribal governments, counties, metropolitan cities, and nonentitlement units of local government. 3 86 FR 26786 (May 17, 2021). 4 Centers for Disease Control and Prevention, COVID Data Tracker: COVID–19 Vaccinations in the United States, https://covid.cdc.gov/covid-data- tracker/#vaccinations (last visited December 31, 2021). 5 Centers for Disease Control and Prevention, COVID Data Tracker, http://www.covid.cdc.gov/ covid-data-tracker/#datatracker-home (last visited December 7, 2021). 6 U.S. Bureau of Labor Statistics, Unemployment Rate [UNRATE], retrieved from FRED, Federal Reserve Bank of St. Louis; https://fred. stlouisfed.org/series/UNRATE (last visited December 7, 2021). 7 Id. 8 U.S. Bureau of Economic Analysis, Real Gross Domestic Product [GDPC1], retrieved from FRED, Federal Reserve Bank of St. Louis, https://fred. stlouisfed.org/series/GDPC1 (last visited December 7, 2021). 9 U.S. Bureau of Labor Statistics, supra note 6. 10 U.S. Bureau of Labor Statistics, All Employees, State Government [CES9092000001] and All Employees, Local Government [CES9093000001], retrieved from FRED, Federal Reserve Bank of St. Louis, https://fred.stlouisfed.org/series/ CES9092000001 and https://fred.stlouisfed.org/ series/CES9093000001 (last visited December 7, 2021). 11 The ARPA adds section 602 of the Social Security Act, which creates the State Fiscal Recovery Fund, and section 603 of the Social Security Act, which creates the Local Fiscal Recovery Fund (together, SLFRF). Sections 602 and 603 contain substantially similar eligible uses; the primary difference between the two sections is that section 602 establishes a fund for states, territories, and Tribal governments and section 603 establishes a fund for metropolitan cities, nonentitlement units of local government, and counties. DEPARTMENT OF THE TREASURY 31 CFR Part 35 RIN 1505–AC77 Coronavirus State and Local Fiscal Recovery Funds AGENCY: Department of the Treasury. ACTION: Final rule. SUMMARY: The Secretary of the Treasury (Treasury) is adopting as final the interim final rule published on May 17, 2021, with amendments. This rule implements the Coronavirus State Fiscal Recovery Fund and the Coronavirus Local Fiscal Recovery Fund established under the American Rescue Plan Act. DATES: The provisions in this final rule are effective April 1, 2022. FOR FURTHER INFORMATION CONTACT: Katharine Richards, Director, Coronavirus State and Local Fiscal Recovery Funds, Office of Recovery Programs, Department of the Treasury, (844) 529–9527. SUPPLEMENTARY INFORMATION: I. Introduction Overview Since the first case of coronavirus disease 2019 (COVID–19) was discovered in the United States in January 2020, the pandemic has caused severe, intertwined public health and economic crises. In March 2021, as these crises continued, the American Rescue Plan Act of 2021 (ARPA)1 established the Coronavirus State and Local Fiscal Recovery Funds (SLFRF) to provide state, local, and Tribal governments 2 with the resources needed to respond to the pandemic and its economic effects and to build a stronger, more equitable economy during the recovery. The U.S. Department of the Treasury (Treasury) issued an interim final rule implementing the SLFRF program on May 10, 2021 3 and has since disbursed over $240 billion to state, local, and Tribal governments and received over 1,500 public comments on the interim final rule. Treasury is now issuing this final rule which responds to public comments, implements the ARPA statutory provisions on eligible and ineligible uses of SLFRF funds, and makes several changes to the provisions of the interim final rule, summarized below in the section Executive Summary of Major Changes. Since Treasury issued the interim final rule in May 2021, both the public health and economic situations facing the country have evolved. On the public health front, the United States has made tremendous progress in the fight against COVID–19, including a historic vaccination campaign that has reached over 80 percent of adults with at least one dose and is reaching millions of children as well.4 However, the disease continues to present an imminent threat to public health, especially among unvaccinated individuals. As the Delta variant spread across the country this summer and fall, the United States faced another severe wave of cases, deaths, and strain on the healthcare system, with the risk of hospitalization and mortality exponentially greater to unvaccinated Americans. COVID–19 has now infected over 50 million and killed over 800,000 Americans since January 2020; tens of thousands of Americans continue to be infected each day.5 Even as the nation recovers, new and emerging COVID–19 variants may continue to pose threats to both public health and the economy. Moving forward, state, local, and Tribal governments will continue to play a major role in responding through vaccination campaigns, testing, and other services. The economic recovery similarly has made tremendous progress but faces continued risks from the disease and the disruptions it has caused. In the early months of the pandemic, the United States experienced the sharpest economic downturn on record, with unemployment spiking to 14.8 percent in April 2020.6 The economy has gradually added back jobs, with growth accelerating in the first half of 2021.7 However, as the Delta variant spread, the intensified health risks and renewed disruptions slowed growth, demonstrating the continued risks from the virus. By fall 2021, the economy had exceeded its pre-pandemic size 8 and unemployment had fallen below 5 percent,9 but despite this progress, too many Americans remain unemployed, out of the labor force, or unable to pay their bills, with this pain particularly acute among lower-income Americans and communities of color. Again, moving forward, state, local, and Tribal governments will remain on the frontlines of the economic response and rebuilding a stronger economy in the aftermath of the pandemic. However, as state, local, and Tribal governments continue to face substantial needs to respond to public health and economic conditions, they have also experienced severe impacts from the pandemic and resulting recession. State, local, and Tribal governments cut over 1.5 million jobs in the early months of the pandemic amid sharp declines in revenue and remain over 950,000 jobs below their pre- pandemic levels.10 As the Great Recession demonstrated, austerity among state, local, and Tribal governments can hamper overall economic growth and severely curtail the ability of governments to serve their constituents. Recognizing these imperatives, the SLFRF program provides vital resources for state, local, and Tribal governments to respond to the pandemic and its economic effects and to replace revenue lost due to the public health emergency, preventing cuts to government services. Specifically, the ARPA provides that SLFRF funds 11 may be used: (a) To respond to the public health emergency or its negative economic impacts, including assistance to households, small businesses, and nonprofits, or aid to impacted industries such as tourism, travel, and hospitality; (b) To respond to workers performing essential work during the COVID–19 VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4339 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations public health emergency by providing premium pay to eligible workers; (c) For the provision of government services to the extent of the reduction in revenue due to the COVID–19 public health emergency relative to revenues collected in the most recent full fiscal year prior to the emergency; and (d) To make necessary investments in water, sewer, or broadband infrastructure. In addition, Congress specified two types of ineligible uses of funds: funds may not be used for deposit into any pension fund or, for states and territories only, to directly or indirectly offset a reduction in net tax revenue resulting from a change in law, regulation, or administrative interpretation. Issued May 10, 2021, Treasury’s interim final rule provided further detail on eligible uses of funds within the four statutory categories, ineligible uses of funds, and administration of the program. The interim final rule provided state, local, and Tribal governments substantial flexibility to determine how best to use payments from the SLFRF program to meet the needs of their communities. The interim final rule aimed to facilitate swift and effective implementation by establishing a framework for determining the types of programs and services that are eligible under the ARPA along with examples of eligible uses of funds that state, local, and Tribal governments may consider. State, local, and Tribal governments are already deploying SLFRF funds to make an impact in their communities. The SLFRF program ensures that state, local, and Tribal governments have the resources needed to fight the pandemic, sustain and strengthen the economic recovery, maintain vital public services, and make investments that support long-term growth, opportunity, and equity. Treasury looks forward to supporting and engaging with state, local, and Tribal governments as they use these funds to make transformative investments in their communities. Finally, with so many pressing and effective ways to use SLFRF funds, there is no excuse for waste, fraud, or abuse of these funds. Treasury received over 1,500 comments spanning nearly all aspects of the interim final rule. The final rule considers and responds to comments, provides clarification to many aspects of the interim final rule, and makes several changes to eligible uses under the program, summarized immediately below. Executive Summary of Major Changes and Clarifications The final rule provides broader flexibility and greater simplicity in the program, in response to public comments. Among other clarifications and changes, the final rule provides for the following: •Public Health and Negative Economic Impacts: In addition to programs and services, the final rule clarifies that recipients may use funds for capital expenditures that support an eligible COVID–19 public health or economic response. For example, recipients may build certain affordable housing, childcare facilities, schools, hospitals, and other projects consistent with the requirements in this final rule and the Supplementary Information. In addition, the final rule presumes that an expanded set of households and communities are ‘‘impacted’’ or ‘‘disproportionately impacted’’ by the pandemic, thereby allowing recipients to provide responses to a broad set of households and entities without requiring additional analysis. Further, the final rule provides a broader set of enumerated eligible uses available for these communities as part of COVID–19 public health and economic response, including making affordable housing, childcare, and early learning services eligible in all impacted communities and making certain community development and neighborhood revitalization activities eligible for disproportionately impacted communities. Further, the final rule allows for a broader set of uses to restore and support government employment, including hiring above a recipient’s pre- pandemic baseline, providing funds to employees that experienced pay cuts or furloughs, avoiding layoffs, and providing retention incentives. •Premium Pay: The final rule offers more streamlined options to provide premium pay, by broadening the share of essential workers who can receive premium pay without a written justification while maintaining a focus on lower-income and frontline essential workers. •Revenue Loss: The final rule offers a standard allowance for revenue loss of up to $10 million, not to exceed a recipient’s SLFRF award amount, allowing recipients to select between a standard amount of revenue loss or complete a full revenue loss calculation. Recipients that select the standard allowance may use that amount for government services. •Water, Sewer, and Broadband Infrastructure: The final rule significantly broadens eligible broadband infrastructure investments to address challenges with broadband access, affordability, and reliability, and adds additional eligible water and sewer infrastructure investments, including a broad range of lead remediation and stormwater management projects. Structure of the Supplementary Information In addition to this Introduction, this Supplementary Information is organized into four sections: (1) Eligible Uses, (2) Restrictions on Use, (3) Program Administration Provisions, and (4) Regulatory Analyses. The Eligible Uses section describes the standards to determine eligible uses of funds in each of the four eligible use categories: (1) Responding to the public health and negative economic impacts of the pandemic (which includes several sub- categories) (2) Providing premium pay to essential workers (3) Providing government services to the extent of revenue loss due to the pandemic, and (4) Making necessary investments in water, sewer, and broadband infrastructure. Each eligible use category has separate and distinct standards for assessing whether a use of funds is eligible. Standards, restrictions, or other provisions in one eligible use category do not apply to the others. Therefore, recipients should first determine which eligible use category a potential use of funds fits within, then assess whether the potential use of funds meets the eligibility standard or criteria for that category. In the case of uses to respond to the public health and negative economic impacts of the pandemic, recipients should also determine which sub-category the eligible use fits within (i.e., public health, assistance to households, assistance to small businesses, assistance to nonprofits, aid to impacted industries, or public sector capacity and workforce), then assess whether the potential use of funds meets the eligibility standard for that sub-category. Treasury does not pre- approve uses of funds; recipients are advised to review the final rule and may pursue eligible projects under it. In some sections of the rule, Treasury identifies specific uses of funds that are eligible, called ‘‘enumerated eligible uses’’; for example, Treasury provides many enumerated eligible uses of funds to respond to the public health and negative economic impacts of the pandemic. Uses of funds that are not specifically named as eligible in this VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4340 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 12 Centers for Disease Control and Prevention, COVID Data Tracker, http://www.covid.cdc.gov/ covid-data-tracker/#datatracker-home (last visited December 31, 2021). 13 U.S. Bureau of Labor Statistics, All Employees, Total Nonfarm [PAYEMS] https://fred. stlouisfed.org/series/PAYEMS (last visited December 7, 2021). final rule may still be eligible in two ways. First, under the revenue loss eligible use category, recipients have broad latitude to use funds for government services up to their amount of revenue loss due to the pandemic. A potential use of funds that does not fit within the other three eligible use categories may be permissible as a government service, which recipients can fund up to their amount of revenue loss. For example, transportation infrastructure projects are generally ineligible as a response to the public health and negative economic impacts of the pandemic; however, a recipient could fund these projects as a government service up to its amount of revenue loss, provided that other restrictions on use do not apply. See sections Revenue Loss and Restrictions on Use for further information. Second, the eligible use category for responding to the public health and negative economic impacts of the pandemic provides a non-exhaustive list of enumerated eligible uses, which means that the listed eligible uses include some, but not all, of the uses of funds that could be eligible. The Eligible Uses section provides a standard for determining if other uses of funds, beyond those specifically enumerated, are eligible. If a recipient would like to pursue a use of funds that is not specifically enumerated, the recipient should use the standard and other guidance provided in the section Public Health and Negative Economic Impacts to assess whether the use of funds is eligible. Next, the Restrictions on Use section describes limitations on how funds may be used. Treasury has divided the Restriction on Use section into (A) statutory restrictions under the ARPA, which include (1) offsetting a reduction in net tax revenue, and (2) deposits into pension funds, and (B) other restrictions on use, which include (1) debt service and replenishing reserves, (2) settlements and judgments, and (3) general restrictions. These restrictions apply to all eligible use categories; however, some restrictions apply only to certain types of recipient governments, and recipients are advised to review the final rule to determine which restrictions apply to their type of government (e.g., state, territory, Tribal government, county, metropolitan city, or nonentitlement unit of government). To reiterate, for recipient governments covered by a specific restriction, that restriction applies to all eligible use categories and any use of funds under the SLFRF program. Specifically: •For states and territories only, funds may not be used to offset directly or indirectly a reduction in net tax revenue resulting from a change in state or territory law. •For all recipients except Tribal governments, funds may not be used for deposits into a pension fund. •For all recipients, funds may not be used for debt service or replenishing financial reserves. •All recipients must also comply with three general restrictions. First, a recipient may not use SLFRF funds for a program, service, or capital expenditure that conflicts with or contravenes the statutory purpose of ARPA, including a program, service, or capital expenditure that includes a term or condition that undermines efforts to stop the spread of COVID–19. Second, recipients may not use SLFRF funds in violation of the conflict-of-interest requirements contained in the Award Terms and Conditions, including any self-dealing or violation of ethics rules. Lastly, recipients should be aware that federal, state, and local laws and regulations, outside of SLFRF program requirements, also apply, including for example, environmental laws and federal civil rights and nondiscrimination requirements, which include prohibitions on discrimination on the basis of race, color, national origin, sex (including sexual orientation and gender identity), religion, disability, age, or familial status (having children under the age of 18). The Program Administration Provisions section describes the processes and requirements for administering the program on an ongoing basis, specifically as relates to the following: Distribution of funds, timeline for using funds, transfer of funds from a recipient to different organizations, use of funds for program administration, reporting on use of funds, and remediation and recoupment of funds used for ineligible purposes. Of note, SLFRF funds may only be used for costs incurred within a specific time period, beginning March 3, 2021, with all funds obligated by December 31, 2024 and all funds spent by December 31, 2026. Recipients are advised to also consult Treasury’s Reporting and Compliance Guidance for additional information on program administration processes and requirements, including applicability of the Uniform Guidance. Finally, the section Regulatory Analyses provides Treasury’s analysis of the impacts of this rulemaking, as required by several laws, regulations, and Executive Orders. Throughout this Supplementary Information, statements using the terms ‘‘should’’ or ‘‘must’’ refer to requirements, except when used in summarizing opinions expressed in public comments. Statements using the term ‘‘encourage’’ refer to recommendations, not requirements. II. Eligible Uses A. Public Health and Negative Economic Impacts Background Since the first case of COVID–19 was discovered in the United States in January 2020, the disease has infected over 50 million and killed over 800,000 Americans.12 The disease—and necessary measures to respond—have had an immense public health and economic impact on millions of Americans across many areas of life, as detailed below in the respective sections on Public Health and Negative Economic Impacts. Since the release of the interim final rule in May 2021, the country has made major progress in fighting the disease and rebuilding the economy but faces continued risks, as illustrated by the spread of the Delta variant and the resulting slowdown in the economic recovery. The SLFRF program, and Treasury’s interim final rule, provide substantial flexibility to recipients to respond to pandemic impacts in their local community; this flexibility is designed to help state, local, and Tribal governments adapt to the evolving public health emergency and tailor their response as needs evolve and to the particular local needs of their communities. Indeed, state, local, and Tribal governments face continued needs to respond at scale to the public health emergency. This includes continued public health efforts to slow the spread of the disease, to increase vaccination rates and provide vaccinations to new populations as they become eligible, to protect individuals living in congregate facilities, and to address the broader impacts of the pandemic on public health. Similarly, while a strong economic recovery is underway, the economy remains 3.9 million jobs below its pre-pandemic level, pointing to the continued need for response efforts, with low-income workers and communities of color facing elevated rates of unemployment and economic hardship.13 Long-standing disparities in health and economic outcomes in VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4341 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 14 Treasury uses ‘‘underserved’’ to refer to populations sharing a particular characteristic, as well as geographic communities, that have been systematically denied a full opportunity to participate in aspects of economic, social, and civic life. In the interim final rule, Treasury generally used the term ‘‘disadvantaged’’ to refer to these same populations and communities. 15 U.S. Bureau of Labor Statistics, All Employees, State Government [CES9092000001] and All Employees, Local Government [CES9093000001], retrieved from FRED, Federal Reserve Bank of St. Louis, https://fred.stlouisfed.org/series/ CES9092000001 and https://fred.stlouisfed.org/ series/CES9093000001 (last visited December 7, 2021). 16 Tracy Gordon, State and Local Budgets and the Great Recession, Brookings Institution (Dec. 31, 2012), http://www.brookings.edu/articles/state-and- local-budgets-and-the-great-recession. 17 In some cases, a use may be permissible under another eligible use category even if it falls outside the scope of section (c)(1)(A) of section 602 and 603 of the Social Security Act. underserved 14 communities, that amplified and exacerbated the impacts of the pandemic, also present continued barriers to full and equitable recovery. As state, local, and Tribal governments work to meet the public health and economic needs of their communities, these governments are also confronting the need to rebuild their own capacity. Facing severe budget challenges during the pandemic, many state, local, and Tribal governments have been forced to make cuts to services or their workforces, including cutting over 1.5 million jobs from February to May 2020, or delay critical investments. As of fall 2021, state, local, and Tribal government employment remained over 950,000 jobs below pre-pandemic levels.15 In the recovery from the Great Recession, cuts to state, local, and Tribal governments became a meaningful drag on economic growth for several years, and the SLFRF program provides the resources needed to re-invest in vital public services and workers to avoid this outcome.16 1. General Provisions: Structure and Standards Background: Sections 602(c)(1)(A) and 603(c)(1)(A) of the Social Security Act establish that recipients may use funds ‘‘to respond to the public health emergency with respect to COVID–19 or its negative economic impacts, including assistance to households, small businesses, and nonprofits, or aid to impacted industries such as tourism, travel, and hospitality.’’ The interim final rule established three categories within this eligible use: (1) Public health responses for those impacted by the pandemic, including the general public; (2) responses to the negative economic impacts that were experienced by those impacted as a result of the pandemic; and (3) additional services, either as a public health response or a response to the negative economic impacts of the pandemic, for disproportionately impacted communities. The interim final rule established the method to determine which specific programs or services may be eligible to respond to the public health emergency or to respond to the negative economic impacts of the public health emergency within this framework. The interim final rule included multiple enumerated uses that are eligible within each of these categories when provided to eligible populations, including populations that the interim final rule presumed to have been impacted (in the case of public health responses and responses to negative economic impacts) or disproportionately impacted (in the case of disproportionately impacted communities). Finally, the interim final rule also allowed recipients to designate additional individuals or classes as impacted or disproportionately impacted. The standards for each of these criteria under the interim final rule are discussed below. To assess whether a program or service would be eligible to respond to the public health emergency or its negative economic impacts, the interim final rule stated that, ‘‘the recipient [is required] to, first, identify a need or negative impact of the COVID–19 public health emergency and, second, identify how the program, service, or other intervention addresses the identified need or impact [. . . .] [E]ligible uses under this category must be in response to the disease itself or the harmful consequences of the economic disruptions resulting from or exacerbated by the COVID–19 public health emergency.’’ The enumerated eligible uses were presumed to meet this criterion. With respect to uses not specifically enumerated in the interim final rule as eligible public health responses, the interim final rule stated that, ‘‘[t]o assess whether additional uses would be eligible under this category, recipients should identify an effect of COVID–19 on public health, including either or both of immediate effects or effects that may manifest over months or years, and assess how the use would respond to or address the identified need.’’ With respect to uses not specifically enumerated in the interim final rule as eligible responses to a negative economic impact of the public health emergency, the interim final rule stated that ‘‘[e]ligible uses that respond to the negative economic impacts of the public health emergency must be designed to address an economic harm resulting from or exacerbated by the public health emergency. In considering whether a program or service would be eligible under this category, the recipient should assess whether, and the extent to which, there has been an economic harm, such as loss of earnings or revenue, that resulted from the COVID–19 public health emergency and whether, and the extent to which, the use would respond to or address this harm.17 A recipient should first consider whether an economic harm exists and whether this harm was caused or made worse by the COVID–19 public health emergency.’’ The interim final rule went on to say that: ‘‘In addition, the eligible use must ‘respond to’ the identified negative economic impact. Responses must be related and reasonably proportional to the extent and type of harm experienced; uses that bear no relation or are grossly disproportionate to the type or extent of harm experienced would not be eligible uses.’’ Throughout this final rule, Treasury refers to households, communities, small businesses, nonprofits, and industries that experienced public health or negative economic impacts of the pandemic as ‘‘impacted.’’ The first section in the interim final rule under this eligible use category included public health responses for these impacted classes. The second category in the interim final rule under this eligible use category included responses to the negative economic impacts that were experienced by these impacted classes as a result of the pandemic. The interim final rule further recognized that certain populations have experienced disproportionate health or negative economic impacts during the pandemic, as pre-existing disparities in these communities amplified the impacts of the pandemic. For example, the interim final rule recognized that the negative economic effects of the pandemic were particularly pronounced among lower- income families, who were more likely to experience income loss and more likely to have a job that required in- person work. The interim final rule recognized the role of pre-existing social vulnerabilities and disparities in driving the disparate health and economic outcomes and presumed that programs designed to address these health or economic disparities are responsive to the public health or negative economic impacts of the COVID–19 public health emergency, when provided in disproportionately impacted communities. In addition to identifying certain populations and communities VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4342 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 18 Note that small businesses, nonprofits, and industries may also function as subrecipients. For additional information on these distinctions see section Distinguishing Subrecipients versus Beneficiaries. presumed to be disproportionately impacted, it also empowered recipients to identify other disproportionately impacted households, populations, communities, or small businesses. The interim final rule provided that, in identifying these disproportionately impacted communities, recipients should be able to support their determination that the pandemic resulted in disproportionate public health or economic outcomes to the specific populations, households, or geographic areas to be served. Throughout this final rule, Treasury refers to those households, communities, small businesses, and nonprofits that experienced disproportionate public health or negative economic impacts of the pandemic as ‘‘disproportionately impacted.’’ The third category in the interim final rule under this eligible use included public health responses and responses to the negative economic impacts for these disproportionately impacted classes. The interim final rule provided significant flexibility for recipients to determine which households, populations, communities, or small businesses have been impacted and/or disproportionately impacted by the pandemic and to identify appropriate responses. The interim final rule included several provisions to provide simple methods for recipients to identify impacts and design programs to address those impacts. First, the interim final rule allowed recipients to demonstrate a negative economic impact on a population or class and provide assistance to households or small businesses that fall within that population or class. In such cases, the recipient need only demonstrate that an individual household or business is within the class that experienced a negative economic impact, rather than requiring a recipient to demonstrate that each individual household or small business experienced a negative economic impact, because the impact was already identified for the class. Second, in the interim final rule, Treasury presumed that certain populations have been impacted or disproportionately impacted and are thus eligible for services that respond to these impacts or disproportionate impacts. Specifically, the interim final rule permitted recipients to presume that households that experienced unemployment, increased food or housing insecurity, or are low- or moderate-income experienced a negative economic impact from the pandemic. The interim final rule also permitted recipients to presume that certain services provided in Qualified Census Tracts (QCTs), to individuals living in QCTs, or by Tribal governments are responsive to disproportionate impacts of the pandemic. In addition to the populations presumed to be impacted or disproportionately impacted, under the interim final rule, recipients could identify other impacted households or classes, as described above, as well as other populations, households, or geographic areas that are disproportionately impacted by the pandemic. Third, as mentioned previously, the interim final rule included a non- exhaustive list of uses of funds that Treasury identified as responsive to the impacts or disproportionate impacts of the pandemic. Treasury refers to these as ‘‘enumerated eligible uses.’’ To summarize, the interim final rule identified certain populations that are presumed to be impacted by the pandemic (and specific enumerated uses of funds that are responsive to that impact) and populations that are presumed to be disproportionately impacted by the pandemic (and specific enumerated uses of funds that are responsive to those disproportionate impacts). In addition, the interim final rule provided standards for recipients to assess whether additional uses of funds, beyond the enumerated eligible uses, are eligible for impacted and disproportionately impacted populations and permitted recipients to identify other households or classes that experienced impacts of the pandemic or disproportionate impacts of the pandemic. Rule Structure Public Comment: Many commenters expressed concern regarding the structure of the eligible uses, indicating they found the structure of the public health and negative economic impacts section of the interim final rule to be confusing or difficult to navigate. Other commenters indicated that they understood the enumerated uses to be the only eligible uses and/or the presumed eligible populations to be the only eligible populations. Several commenters expressed frustration about the number of eligible uses specifically enumerated in the interim final rule, which they considered too few, and commenters proposed a wide range of additional enumerated eligible uses (for further discussion, see the section Public Health and section Negative Economic Impacts). Commenters expressed concern with pursuing uses of funds not explicitly enumerated in the eligible use section or uncertainty regarding the broad flexibility provided under the interim final rule to pursue additional programs that respond to the public health or negative economic impacts of the pandemic or the process for doing so. Treasury Response: Treasury recognizes that many commenters felt the structure of the interim final rule could be clarified. These comments are consistent with many of the questions that Treasury has received from recipients, which requested clarification regarding the category their desired response fits into. Treasury observes that these comments and questions generally fall into four categories: (1) How to identify the correct public health or negative economic impact category for a particular response, (2) how to identify whether a particular use is eligible, (3) how to identify an impacted or disproportionately impacted class, and (4) whether an enumerated use can be provided to a class other than those presumed impacted or disproportionately impacted. In response to comments, Treasury is adjusting the structure of the public health and negative economic impacts eligible use section of the final rule to improve clarity and make it easier for recipients to interpret and apply the final rule. Specifically, Treasury is restructuring the rule to aid recipients in determining whether a particular response is eligible and how the particular response might be eligible under a particular category. This restructuring reinforces the fundamental criteria that a use of funds is eligible based on its responsiveness to a public health or negative economic impact experienced by individuals, households, small businesses, nonprofits, or impacted industries (together ‘‘beneficiaries’’).18 This restructuring is intended to make the rule easier to navigate and to implement, including any criteria or conditions on particular uses of funds. The reorganization of the public health and negative economic impacts section of the final rule is also intended to clarify the enumerated eligible uses described in the interim final rule. The reorganization itself is not intended to change the scope of the enumerated uses that were included in the interim final rule or that were allowable under the interim final rule. In some cases, specific enumerated uses are being altered, and those changes are discussed VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4343 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 19 In designing an intervention to mitigate COVID–19, the recipient should consider guidance from public health authorities, particularly the Centers for Disease Control and Prevention (CDC), in assessing appropriate COVID–19 mitigation and prevention strategies (see Centers for Disease Control and Prevention, COVID–19, https:// www.cdc.gov/coronavirus/2019-ncov/index.html). A program or service that imposes conditions on participation in or acceptance of the service that would undermine efforts to stop the spread of COVID–19 or discourage compliance with practices in line with CDC guidance for stopping the spread of COVID–19 is not a permissible use of funds. as changes within the section on that enumerated use. The final rule streamlines and aligns services and standards that are generally applicable or are provided for public health purposes. Under this approach, eligible uses to respond to the public health emergency are organized based on the type of public health problem: (1) COVID–19 mitigation and prevention, (2) medical expenses, (3) behavioral health care, and (4) preventing and responding to violence. Under this approach, eligible uses to respond to the negative economic impacts of the public health emergency are organized based on the type of beneficiary: (1) Assistance to households, (2) assistance to small businesses, and (3) assistance to nonprofits, alongside a fourth standalone eligibility category for aid to travel, tourism, hospitality, and other impacted industries. The first three categories, assistance to households, small businesses, and nonprofits, include enumerated eligible uses for impacted and disproportionately impacted beneficiaries. This change in structure is intended to provide a framework that clearly identifies the intended beneficiaries of uses of funds and provides clarity about what types of assistance are ‘‘responsive to the pandemic or its negative economic impacts’’ for these beneficiaries. a. Standards for Identifying a Public Health or Negative Economic Impact Standards: Designating a Public Health Impact Public Comment: Many commenters expressed uncertainty about how to determine whether a use of funds, beyond those specifically enumerated as eligible, might be an eligible public health response. For example, many commenters submitted questions asking whether specific uses of funds would be eligible. Others described what they considered to be impacts of the pandemic and argued that uses of funds to respond to these issues should be eligible. Some commenters requested that Treasury provide additional detail to guide their assessments of eligible uses of funds. For example, a commenter requested more clarification around exactly what and whose medical expenses can be covered. These comments ranged in their specificity and covered the full range of the enumerated eligible uses. Treasury Response: Treasury is clarifying that when assessing whether a program or service is an eligible use to respond to the public health impacts of the COVID–19 public health emergency, the Department will consider the two eligibility requirements discussed below. These standards apply to all proposed public health uses. First, there must be a negative public health impact or harm experienced by an individual or a class. For ease of administration, the interim final rule allowed, and the final rule maintains the ability for, recipients to identify a public health impact on a population or group of individuals, referred to as a ‘‘class,’’ and to provide assistance to that class. In determining whether an individual is eligible for a program designed to address a harm experienced by a class, the recipient need only document that the individual is within the class that experienced a public health impact, see section Standards: Designating Other Impacted Classes. In the case of some impacts, for example impacts of COVID–19 itself that are addressed by providing prevention and mitigation services, such a class could reasonably include the general public. Second, the program, service, or other intervention must address or respond to the identified impact or harm. The final rule maintains the interim final rule requirement that eligible uses under this category must be in response to the disease itself or other public health harms that it caused.19 Responses must be reasonably designed to benefit the individual or class that experienced the public health impact or harm. Uses of funds should be assessed based on their responsiveness to their intended beneficiaries and the ability of the response to address the impact or harm experienced by those beneficiaries. Responses must also be related and reasonably proportional to the extent and type of public health impact or harm experienced. Uses that bear no relation or are grossly disproportionate to the type or extent of harm experienced would not be eligible uses. Reasonably proportional refers to the scale of the response compared to the scale of the harm. It also refers to the targeting of the response to beneficiaries compared to the amount of harm they experienced. In evaluating whether a use is reasonably proportional, recipients should consider relevant factors about the harm identified and the response. For example, recipients may consider the size of the population impacted and the severity, type, and duration of the impact. Recipients may also consider the efficacy, cost, cost- effectiveness, and time to delivery of the response. If a recipient intends to fund capital expenditures in response to the public health impacts of the pandemic, recipients should refer to the section Capital Expenditures for details about the eligibility of capital expenditures. Standards: Designating a Negative Economic Impact Public Comment: Many commenters expressed uncertainty about how to determine whether uses of funds, beyond those specifically enumerated as eligible, might be eligible responses to negative economic impacts. For example, many commenters submitted questions asking whether specific uses of funds would be eligible. Others described what they considered to be impacts of the pandemic and argued that uses of funds to respond to these issues should be eligible. Some commenters requested that Treasury provide additional detail to guide their assessments of eligible uses of funds. These comments ranged in their specificity and covered the full range of eligible uses to respond to negative economic impacts. Several commenters asked for clarification about what types of food assistance would be considered eligible. Another commenter requested that the establishment of outdoor dining be eligible. Many commenters inquired about homeless shelters as an eligible use of SLFRF funds. Commenters also expressed uncertainty about the ability to establish classes, including geographic areas, that experienced a negative economic impact or disagreed with the requirement that an individual entity be impacted by the pandemic in order to receive assistance. For example, a commenter argued that interventions should not be limited to individuals or businesses that experienced an economic impact and should instead be used broadly to support economic growth. These commenters argued that an expenditure that supports a more robust economy may help combat the pandemic’s negative economic impacts, and it can do so even if funding is provided to individuals or entities that did not themselves experience a negative economic impact during the pandemic. Treasury Response: The final rule maintains the standard articulated in VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4344 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 20 For example, expenses such as excessive compensation to employees or expenses which have already been reimbursed through another federal program, are not reasonably designed to address a negative economic impact to a beneficiary. 21 For example, a program or service that imposes conditions on participation in or acceptance of the service that would undermine efforts to stop the spread of COVID–19 or discourage compliance with practices in line with CDC guidance for stopping the spread of COVID–19 is not a permissible use of funds. the interim final rule. For clarity, the final rule re-articulates that when assessing whether a program or service is an eligible use to respond to the negative economic impacts of the COVID–19 public health emergency, Treasury will consider the two eligibility requirements discussed below. First, there must be a negative economic impact, or an economic harm, experienced by an individual or a class. The recipient should assess whether, and the extent to which, there has been an economic harm, such as loss of earnings or revenue, that resulted from the COVID–19 public health emergency. A recipient should first consider whether an economic harm exists and then whether this harm was caused or made worse by the COVID–19 public health emergency. This approach is consistent with the text of the statute, which provides that funds in this category must be used to ‘‘respond to the public health emergency with respect to . . . its negative economic impacts.’’ While economic impacts may either be immediate or delayed, individuals or classes that did not experience a negative economic impact from the public health emergency would not be eligible beneficiaries under this category. As noted above, the interim final rule permitted recipients to presume that households that experienced unemployment, increased food or housing insecurity, or are low- or moderate-income experienced a negative economic impact from the pandemic. For discussion of the final rule’s approach to this presumption, see section Populations Presumed Eligible. The final rule also maintains several provisions included in the interim final rule and subsequent guidance that are intended to ease administration of identifying that the beneficiary experienced a negative economic impact or harm. For example, the interim final rule allowed, and the final rule maintains the ability for, recipients to demonstrate a negative economic impact on a population or group, referred to as a ‘‘class,’’ and to provide assistance to households, small businesses, or nonprofits that fall within that class. In such cases, the recipient need only demonstrate that the household, small business, or nonprofit is within the class that experienced a negative economic impact, see section Standards: Designating Other Impacted Classes. This would allow, for example, an internet access assistance program for all households with children to support those households’ ability to participate in healthcare, work, and educational activities like extending learning opportunities, among other critical activities. In that case, the recipient would only need to identify a negative economic impact to the class of ‘‘households with children’’ and would not need to document or otherwise demonstrate that each individual household served experienced a negative economic impact. Second, the response must be designed to address the identified economic harm or impact resulting from or exacerbated by the public health emergency. In selecting responses, the recipient must assess whether, and the extent to which, the use would respond to or address this harm or impact. This approach is consistent with the text of the statute, which provides that funds may be used to ‘‘respond to’’ the ‘‘negative economic impacts’’ of the public health emergency ‘‘including assistance to households, small businesses, and nonprofits, or aid to impacted industries such as tourism, travel, and hospitality.’’ The list of potential responses (‘‘assistance’’ or ‘‘aid’’) suggests that responses should address the ‘‘negative economic impacts’’ of particular types of beneficiaries (e.g., households or small businesses). Responses must be reasonably designed to benefit the individual or class that experienced the negative economic impact or harm. Uses of funds should be assessed based on their responsiveness to their intended beneficiary and the ability of the response to address the impact or harm experienced by that beneficiary.20 Responses must also be related and reasonably proportional to the extent and type of harm experienced; uses that bear no relation or are grossly disproportionate to the type or extent of harm experienced would not be eligible uses.21 Reasonably proportional refers to the scale of the response compared to the scale of the harm. It also refers to the targeting of the response to beneficiaries compared to the amount of harm they experienced; for example, it may not be reasonably proportional for a cash assistance program to provide assistance in a very small amount to a group that experienced severe harm and in a much larger amount to a group that experienced relatively little harm. In evaluating whether a use is reasonably proportional, recipients should consider relevant factors about the harm identified and the response. For example, recipients may consider the size of the population impacted and the severity, type, and duration of the impact. Recipients may also consider the efficacy, cost, cost-effectiveness, and time to delivery of the response. Finally, recipients should be aware of the distinction between beneficiaries of funds and subrecipients; a recipient may provide services to beneficiaries through subrecipients that did not experience a negative economic impact, see section Distinguishing Subrecipients versus Beneficiaries. That is, a recipient may award SLFRF funds to an entity that did not experience a negative economic impact in order to implement a program or provide a service to beneficiaries on its behalf. Such transfers, when implementing a public health or negative economic impact response, should be responsive to and designed to benefit individuals, households, small businesses, nonprofits, or impacted industries that did experience a public health or negative economic impact. Determining the Appropriate Eligible Use Category Public Comment: Some commenters expressed uncertainty about how to analyze negative economic impacts to different entities (e.g., households, small businesses, nonprofits). For example, commenters asked whether a nonprofit, which did not experience a negative economic impact itself, could be granted funds to provide services to individuals experiencing homelessness, who did experience negative economic impacts. Other commenters proposed providing assistance to support the expansion of small businesses, under the theory that this would create more job opportunities for unemployed workers who experienced negative economic impacts. Treasury Response: In the final rule, Treasury is clarifying that recipients should assess a potential use of funds based on which beneficiary experienced the negative economic impact, in other words, the households, small businesses, nonprofits, or impacted industries that experienced the negative economic impact. Treasury notes that recipients may award SLFRF funds to many different types of organizations to carry out eligible uses of funds and serve beneficiaries on behalf of a recipient. VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4345 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 22 AMI is also often referred to as median family income for the area. Since AMI is synonymous with this term and used more generally, the final rule refers to AMI. 23 For the six New England states of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont, HUD provides AMI for towns rather than counties. Recipients in these states should use the AMI corresponding to their town when determining thresholds for both low and moderate income. When a recipient provides funds to another entity to carry out eligible uses of funds and serve beneficiaries the entity becomes a subrecipient (see section Distinguishing a Subrecipient versus a Beneficiary). For example, a recipient may grant funds to a nonprofit organization to provide food assistance (an eligible use) to low-income households (the beneficiaries). Recipients only need to assess whether the beneficiaries experienced a negative economic impact and whether the eligible use responds to that impact, consistent with the two-part framework described above; the organization carrying out the eligible use does not need to have experienced a negative economic impact if it is serving as the vehicle for reaching the beneficiaries. When making determinations about how to implement a program, recipients should consider whether that method of program implementation is an effective and efficient method to implement the program and do so in accordance with the Uniform Guidance provisions that govern procurements and sub-granting of federal funds, as applicable. As noted above, recipients should analyze eligible uses based on the beneficiary of the assistance or the entity that experienced a negative economic impact. Assistance to a small business or to an impacted industry must respond to a negative economic impact experienced by that small business or industry. Recipients may not provide assistance to small businesses or impacted industries that did not experience a negative economic impact, although recipients can identify negative economic impacts for classes, rather than individual businesses, and may also presume that small businesses in certain areas experienced impacts; see section General Provisions: Structure and Standards and section Assistance to Small Businesses for details. Several examples illustrate the application of these concepts. For example, a recipient could provide assistance to households via a contract with a business to create subsidized jobs for the long-term unemployed; in this case the business is a subrecipient and need not have experienced a negative economic impact, but the recipient would need to identify a specific connection between the assistance provided and addressing the negative economic impact experienced by the unemployed households. The recipient could, for instance, document the subsidized jobs created under the contract and their reservation for long- term unemployed individuals. Similarly, a recipient might provide assistance to a small business that experienced a pandemic-related loss of revenue. This small business is a beneficiary and may use those funds in many ways, potentially including hiring or retaining staff. However, general assistance to a business that did not experience a negative economic impact under the theory that this assistance generally grows the economy and therefore enhances opportunities for unemployed workers would not be an eligible use, because such assistance is not reasonably designed to impact the individuals or classes that experienced a negative economic impact. In other words, there is not a reasonable connection between the assistance provided and an impact on the beneficiaries. Such an activity would be attenuated from and thus not reasonably designed to benefit the households that experienced the negative economic impact. b. Populations Presumed Eligible Presumed Eligibility: Impacted and Disproportionately Impacted Households and Communities Background: As noted above, the interim final rule allowed recipients to presume that certain households were impacted or disproportionately impacted by the pandemic and thus eligible for responsive programs or services. Specifically, under the interim final rule, recipients could presume that a household or population that experienced unemployment, experienced increased food or housing insecurity, or is low- or moderate- income experienced negative economic impacts resulting from the pandemic, and recipients may provide services that respond to these impacts. The interim final rule also recognized that pre-existing health, economic, and social disparities contributed to disproportionate pandemic impacts in certain communities and allowed for a broader list of enumerated eligible uses to respond to the pandemic in disproportionately impacted communities. Under the interim final rule, recipients were allowed to presume that families residing in QCTs or receiving services provided by Tribal governments were disproportionately impacted by the pandemic. Definition of Low- and Moderate- Income Public Comment: As noted earlier, many commenters sought a definition for ‘‘low- and moderate-income’’ to provide recipients greater clarity on which specific households could be presumed to be impacted by the pandemic. Treasury Response: The final rule maintains the presumptions identified in the interim final rule and defines low- and moderate-income for the purposes of determining which households and populations recipients may presume to have been impacted. To simplify the administration of this presumption, the final rule adopts a definition of low- and moderate-income based on thresholds established and used in other federal programs. Definitions. The final rule defines a household as low income if it has (i) income at or below 185 percent of the Federal Poverty Guidelines (FPG) for the size of its household based on the most recently published poverty guidelines by the Department of Health and Human Services (HHS) or (ii) income at or below 40 percent of the Area Median Income (AMI) for its county and size of household based on the most recently published data by the Department of Housing and Urban Development (HUD).22 The final rule defines a household as moderate income if it has (i) income at or below 300 percent of the FPG for the size of its household based on the most recently published poverty guidelines by HHS or (ii) income at or below 65 percent of the AMI for its county and size of household based on the most recently published data by HUD.23 Recipients may determine whether to measure income levels for specific households or for a geographic area based on the type of service to be provided. For example, recipients developing a program that serves specific households (e.g., a subsidy for internet access, a childcare program) may measure income at the household level. Recipients providing a service that reaches a general geographic area (e.g., a park) may measure median income of that area. Further, recipients should generally use the income threshold for the size of the household to be served (e.g., when providing childcare to a household of five, recipients should reference the income threshold for a household of five); however, recipients may use the income threshold for a default household size of three if providing VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4346 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 24 U.S. Department of Health and Human Service, HHS Poverty Guidelines for 2021, available at https://aspe.hhs.gov/topics/poverty-economic- mobility/poverty-guidelines. 25 U.S. Department of Housing and Urban Development, FY 2021 Section 8 Income Limits, available at https://www.huduser.gov/portal/ datasets/il/il21/Section8-FY21.xlsx. Recipients may refer to the list of counties (and New England towns) identified by state and metropolitan area for identifying the appropriate area. U.S. Department of Housing and Urban Development, FY 2021 List of Counties (and New England Towns) Identified by State and Metropolitan Area, available at https:// www.huduser.gov/portal/datasets/il/il21/area- definitions-FY21.pdf. 26 The U.S. Census Bureau provides an interactive map: U.S. Census Bureau, Median Household Income State Selection Map, available at https:// data.census.gov/cedsci/map?q=Median %20Household%20Income&g=0100000US %2404000%24001&tid=ACSST5Y2019.S1901&cid= S1901_C01_012E&vintage=2019. The U.S. Census Bureau also provides an interactive table: U.S. Census Bureau, Median Household Income In The Past 12 Months (In 2019 Inflation-Adjusted Dollars), available at https://data.census.gov/cedsci/table?q= b19013&tid=ACSDT5Y2019.B19013&hidePreview= true. 27 See U.S. Bureau of Labor Statistics, Occupational Employment and Wage Estimates, https://www.bls.gov/oes/current/oes_nat.htm (last visited December 7, 2021). 28 U.S. Census Bureau, Poverty Status by State, https://www.census.gov/data/tables/time-series/ demo/income-poverty/cps-pov/pov-46.html (last visited December 7, 2021). services that reach a general geographic area or if doing so would simplify administration of the program to be provided (e.g., when developing a park, recipients should use the income threshold for a household size of three and compare it to median income of the geographic area to be served). Note that recipients can also identify and serve other classes of households that experienced negative economic impacts or disproportionate impacts from the pandemic; recipients can identify these classes based on their income levels, including above the levels defined as low- and moderate- income in the final rule. For example, a recipient may identify that households in their community with incomes above the final rule threshold for low-income nevertheless experienced disproportionate impacts from the pandemic and provide responsive services. See section General Provisions: Standards for Identifying Other Eligible Populations for details on applicable standards. Applicable levels. For reference, the FPG is commonly referred to as the federal poverty level (FPL) and is related to—although distinct from—the U.S. Census Bureau’s poverty threshold. The final rule uses the FPG when referring specifically to the HHS guidelines, as these are the quantitative metrics used for determining low- and moderate-income households. The FPG by household size for 2021 is included in the table below. Recipients should refer to HHS Poverty Guidelines for this information, which is updated annually and available on the HHS website.24 For calculating the thresholds of 40 percent and 65 percent of AMI, recipients should refer to the annual HUD Section 8 50 percent income limits by county and household size published by HUD and available on the HUD website; in particular, recipients should calculate the 40 percent threshold as 0.8 times the 50 percent income limit, and recipients should calculate the 65 percent threshold as 1.3 times the 50 percent income limit.25 Finally, for median income of Census Tracts and other geographic areas, recipients should refer to the most recent American Community Survey 5-year estimates available through the Census website.26 2021 FEDERAL POVERTY GUIDELINES Household size 48 contiguous states and the District of Columbia Alaska Hawaii 1 ................................................................................................................................................... $12,880 $16,090 $14,820 2 ................................................................................................................................................... 17,420 21,770 20,040 3 ................................................................................................................................................... 21,960 27,450 25,260 4 ................................................................................................................................................... 26,500 33,130 30,480 5 ................................................................................................................................................... 31,040 38,810 35,700 6 ................................................................................................................................................... 35,580 44,490 40.920 7 ................................................................................................................................................... 40,120 50,170 46,140 8 ................................................................................................................................................... 44,660 55,850 51,360 For families/households with more than 8 persons, add the following amounts for each additional person: 48 Contiguous States and the District of Columbia: $4,540. Alaska: $5,680. Hawaii: $5,220. Source: ‘‘HHS Poverty Guidelines for 2021,’’ available at https://aspe.hhs.gov/topics/poverty-economic-mobility/poverty-guidelines. Rationale. In defining low income, the final rule uses both the FPG and AMI to account for national trends and regional differences. The metric of 185 percent of FPG aligns with some other programs; for instance, under the National School Lunch Program, students with household incomes under 185 percent of FPG qualify for free or reduced-price lunch, and schools often use eligibility for free or reduced-price lunch as an indicator of low-income status under Title 1–A of the Elementary and Secondary Education Act. Eligibility for other programs, such as the Federal Communications Commission’s e-Rate program and the Special Supplemental Nutrition Program for Women, Infants and Children employ this metric as well. In addition, 185 percent of the FPG for a family of four is $49,025, which is approximately the wage earnings for a two-earner household in which both earners receive the median wage in occupations, such as waiters and waitresses and hotel clerks, that were heavily impacted by COVID–19.27 This measure is targeted toward those at the bottom of the income distribution and thus helps to promote use of SLFRF funds towards populations with the greatest needs. At the same time, with approximately one-quarter of Americans below 185 percent of the poverty threshold, this approach is broad enough to facilitate use of SLFRF funds across many jurisdictions.28 Because regions have different cost and income levels, this definition also allows for upward adjustment based on AMI for those regions where 40 percent of AMI exceeds 185 percent of FPG. The metric of 40 percent of AMI is based on the midpoint of values often used to designate certain categories of low- income households; specifically, it is the midpoint of the 30 percent income limit and the 50 percent income limit VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4347 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 29 For instance, Melissa Kearney et al. (2013) cap the ‘‘struggling lower middle-income class’’ at 250 percent of the federal poverty level, while Isabel Sawhill and Edward Rodrigue (2015) define the ‘‘middle class’’ as those with incomes of at least 300 percent of the poverty line. Melissa Kearney et al., ‘‘A Dozen Facts about America’s Struggling Lower- Middle Class,’’ The Hamilton Project (December 2013), https://www.hamiltonproject.org/assets/ legacy/files/downloads_and_links/THP_12Low IncomeFacts_Final.pdf; Isabel Sawhill and Edward Rodrigue, ‘‘An Agenda for Reducing Poverty and Improving Opportunity,’’ Brookings Institution, https://www.brookings.edu/wp-content/uploads/ 2016/07/Sawhill_FINAL.pdf. 30 Data on median annual wages from: U.S. Bureau of Labor and Statistics, Occupational Employment and Wage Statistics, available at https://www.bls.gov/oes/current/oes_nat.htm (last visited December 7, 2021). 31 For instance, households earning between 200 and 300 percent of the FPG have significantly higher rates of food and housing insecurity than those earning above 300 percent of the FPG. Table 1, Kyle J. Caswell and Stephen Zuckerman, Food Insecurity, Housing Hardship, and Medical Care Utilization, Urban Institute (June 2018), https:// www.urban.org/sites/default/files/publication/ 98701/2001896_foodinsecurity_housinghardship_ medicalcareutilization_finalized.pdf. used in programs such as the Community Development Block Grant (CDBG) Program. In defining moderate income, the final rule uses both the FPG and AMI to account for national trends and regional differences. While there are different definitions of moderate income, 300 percent of FPG falls within the range commonly used by researchers.29 Analysis of median wages among a sample of occupations likely impacted by the pandemic also suggests that an income cutoff of 300 percent of FPG would include many households with workers in such occupations.30 Moreover, the metric of 300 percent of FPG covers households that, while above the poverty line, often lack economic security.31 Treasury determined the AMI threshold for moderate income by maintaining the same ratio of FPG multiplier to AMI multiplier as in the definition of low income. This anchors the threshold to the existing definitions of moderate income from the literature while taking into account geographical variation in income and expenses in the same manner as the definition of low income. Eligibility Presumptions Public Comment: Many commenters believed that a broader range of groups should be considered presumptively impacted and disproportionately impacted, arguing that many households had been affected by the pandemic and that broader presumed eligibility would help recipients provide assistance quickly and effectively. Treasury also received many comments on the presumption that families living in QCTs or receiving services from Tribal governments were disproportionately impacted by the pandemic. While many commenters supported the interim final rule’s recognition of disproportionate impacts of the pandemic on low-income communities, many commenters disagreed with treating QCTs as the only presumed eligible group of disproportionately impacted households, apart from households served by Tribal governments. While acknowledging a potential increase in administrative burden, commenters recommended that Treasury presume other households or geographic areas, in addition to QCTs, were disproportionately impacted; suggestions included all low- and moderate-income households, geographic areas designated as Opportunity Zones, Difficult Development Areas (DDAs), areas with a certain amount of Real Estate Advantage Program (REAP) recipients, or use of eligibility criteria from the Community Reinvestment Act. One commenter generally recommended that a clearer definition of ‘‘disproportionately impacted’’ should be provided and that any definition should include communities of color and people of limited means. Another recommended specific eligibility for people that had recently interacted with the criminal justice system. Many commenters representing Tribal governments and groups recommended a presumption of eligibility for all Tribal uses of funds, clarification that off reservation members remained eligible, and broad flexibility on use of funds. Additionally, commenters noted that some areas are technically eligible to be QCTs but fall short because of the aggregate population of eligible tracts. One commenter noted that these areas should be considered the same as QCTs for the purpose of SLFRF funds. Some commenters argued that rural counties typically have few QCTs despite high levels of poverty and disruption caused by the COVID–19 pandemic. Other rural commenters recommended that the designation be by county rather than at a more granular level, arguing that the QCT designation is biased towards urban areas and understates the harm done to rural America. Many commenters representing Tribal governments supported the presumption that services provided by Tribal governments respond to disproportionate impacts. Treasury Response Summary: While households residing in QCTs or served by Tribal governments were presumed to be disproportionately impacted, Treasury emphasizes that under the interim final rule recipients could also identify other households, populations, or geographic areas that were disproportionately impacted by the pandemic and provide services to respond. The final rule maintains the presumptions identified in the interim final rule, as well as recipients’ ability to identify other impacted or disproportionately impacted classes. The final rule also allows recipients to presume that low-income households were disproportionately impacted, and as discussed above, defines low- and moderate-income. Finally, under the final rule recipients may also presume that households residing in the U.S. territories or receiving services from territorial governments were disproportionately impacted. Households presumed to be impacted: Impacted households are those that experienced a public health or negative economic impact from the pandemic. With regard to public health impacts, recipients may presume that the general public experienced public health impacts from the pandemic for the purposes of providing services for COVID–19 mitigation and behavioral health. In other words, recipients may provide a wide range of enumerated eligible uses in these categories to the general public without further analysis. As discussed in the introduction, COVID–19 as a disease has directly affected the health of tens of millions of Americans, and efforts to prevent and mitigate the spread of the disease are needed and in use across the country. Further, the stress of the pandemic and resulting recession have affected nearly all Americans. Accordingly, the final rule presumes that the general public are impacted by and eligible for services to respond to COVID–19 mitigation and prevention needs, as well as behavioral health needs. With regard to negative economic impacts, as with the interim final rule, under the final rule recipients may presume that a household or population that experienced unemployment, experienced increased food or housing insecurity, or is low- or moderate- income experienced negative economic impacts resulting from the pandemic. The final rule’s definition of low- and moderate-income, by providing standard metrics based on widely available data, is intended to simplify administration for recipients. Households presumed to be disproportionately impacted: Disproportionately impacted households are those that experienced a VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4348 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 32 For instance, the American Community Survey does not include all territories. U.S. Census Bureau, Areas Published, https://www.census.gov/ programs-surveys/acs/geography-acs/areas- published.html (last visited November 9, 2021). 33 U.S. Department of Health and Human Services, supra note 24. 34 For instance, data from the American Community Survey is based on geographical location rather than Tribal membership. U.S. Census Bureau, My Tribal Area, https:// www.census.gov/Tribal/Tribal_glossary.php. 35 Lina Stoylar et. al., Challenges in the U.S. Territories: COVID–19 and the Medicaid Financing Cliff, Kaiser Family Foundation (May 18, 2021), https://www.kff.org/coronavirus-covid-19/issue- brief/challenges-in-the-u-s-territories-covid-19-and- the-medicaid-financing-cliff/. disproportionate, or meaningfully more severe, impact from the pandemic. As discussed in the interim final rule, pre- existing disparities in health and economic outcomes magnified the impact of the COVID–19 public health emergency on certain households and communities. As with the interim final rule, under the final rule recipients may presume that households residing in QCTs or receiving services provided by Tribal governments were disproportionately impacted by the pandemic. In addition, under the final rule recipients may presume that low- income households were disproportionately impacted by the pandemic. Finally, under the final rule recipients may also presume that households residing in the U.S. territories or receiving services from territorial governments were disproportionately impacted. Treasury notes that households presumed to be disproportionately impacted would also be presumptively impacted, as these households have not only experienced pandemic impacts but have experienced disproportionate pandemic impacts; as a result, these households are presumptively eligible for responsive services for both impacted and disproportionately impacted households. Many different geographic, income- based, or poverty-based presumptions could be used to designate disproportionately impacted populations. The combination of permitting recipients to use QCTs, low- income households, and services provided by Tribal or territorial governments as presumptions balances these varying methods. Specifically, QCTs are a commonly used designation of geographic areas based on low incomes or high poverty rates of households in the community; for recipients providing geographically targeted services, QCTs may provide a simple metric with readily available maps for use. However, Treasury recognizes that QCTs do not capture all underserved populations, including for reasons noted by commenters. By allowing recipients to also presume that low-income households were disproportionately impacted, the final rule provides greater flexibility to serve underserved households or communities. Data on household incomes is also readily available at varying levels of geographic granularity (e.g., Census Tracts, counties), again permitting flexibility to adapt to local circumstances and needs. Finally, Treasury notes that, as discussed further below, recipients may also identify other households, populations, and communities disproportionately impacted by the pandemic, in addition to those presumed to be disproportionately impacted. Additionally, Tribal and territorial governments may face both disproportionate impacts of the pandemic and administrability challenges with operationalizing the income-based standard; therefore, Treasury has presumed that services provided by these governments respond to disproportionate pandemic impacts. Given a lack of regularly published data on household incomes in most territories,32 as well as a lack of poverty guidelines developed for these jurisdictions,33 it may be highly challenging to assess disproportionate impact in these communities according to an income- or poverty-based standard. Similarly, data on incomes in Tribal communities are not readily available.34 Finally, as described in the sections on Public Health and Negative Economic Impacts, Tribal communities have faced particularly severe health and economic impacts of the pandemic. Similarly, available research suggests that preexisting health and economic disparities in the territories amplified the impact of the pandemic on these communities.35 Categorical Eligibility Public Comment: Several commenters suggested that the final rule permit recipients to rely on a beneficiary’s eligibility for other federal benefits programs as an easily administrable proxy for identifying a group or population that experienced a negative economic impact as a result of the COVID–19 public health emergency (i.e., categorical eligibility). In other words, a recipient would determine that individuals or households are eligible for an SLFRF-funded program based on the individual or household’s eligibility in another program, typically another federal benefit program. Commenters noted that categorical eligibility is a common policy in program administration that can significantly ease administrative burden on both program administrators and beneficiaries. Treasury Response: Treasury agrees that allowing recipients to identify impacted and disproportionately impacted beneficiaries based on their eligibility for other programs with similar income tests would ease administrative burden. To the extent that the other program’s eligibility criteria align with a population or class that experienced a negative economic impact of the pandemic, this approach is also consistent with the process allowed under the final rule for recipients to determine that a class has experienced a negative economic impact, and then document that an individual receiving services is a member of the class. For these reasons, the final rule recognizes categorical eligibility for the following programs and populations: •Impacted households. Treasury will recognize a household as impacted if it otherwise qualifies for any of the following programs: Æ Children’s Health Insurance Program (CHIP) Æ Childcare Subsidies through the Child Care and Development Fund (CCDF) Program Æ Medicaid Æ National Housing Trust Fund (HTF), for affordable housing programs only Æ Home Investment Partnerships Program (HOME), for affordable housing programs only •Disproportionately impacted households. Treasury will recognize a household as disproportionately impacted if it otherwise qualifies for any of the following programs: Æ Temporary Assistance for Needy Families (TANF) Æ Supplemental Nutrition Assistance Program (SNAP) Æ Free and Reduced-Price Lunch (NSLP) and/or School Breakfast (SBP) programs Æ Medicare Part D Low-income Subsidies Æ Supplemental Security Income (SSI) Æ Head Start and/or Early Head Start Æ Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) Æ Section 8 Vouchers Æ Low-Income Home Energy Assistance Program (LIHEAP) Æ Pell Grants Æ For services to address educational disparities, Treasury will recognize Title VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4349 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 36 Title I eligible schools means schools eligible to receive services under section 1113 of Title I, Part A of the Elementary and Secondary Education Act of 1965, as amended (20 U.S.C. 6313), including schools served under section 1113(b)(1)(C) of that Act. I eligible schools 36 as disproportionately impacted and responsive services that support the school generally or support the whole school as eligible c. Standards for Identifying Other Eligible Populations Standards: Designating Other Impacted Classes Public Comment: Treasury received multiple comments requesting additional clarification about how classes of impacted individuals may be designated, as well as questions asking whether recipients must demonstrate a specific public health or negative economic impact to each entity served (e.g., each household receiving assistance under a program). There were several comments requesting that specific geographic designations, like a county or Impact Zone, be eligible to use as a determining boundary. Treasury Response: The interim final rule allowed, and the final rule maintains, the ability for recipients to demonstrate a public health or negative economic impact on a class and to provide assistance to beneficiaries that fall within that class. Consistent with the scope of beneficiaries included in sections 602(c)(1)(A) and 603(c)(1)(A) of the Social Security Act, Treasury is clarifying that a recipient may identify such impacts for a class of households, small businesses, or nonprofits. In such cases, the recipient need only demonstrate that the household, small business, or nonprofit is within the relevant class. For example, a recipient could determine that restaurants in the downtown area had generally experienced a negative economic impact and provide assistance to those small businesses to respond. When providing this assistance, the recipient would only need to demonstrate that the small businesses receiving assistance were restaurants in the downtown area. The recipient would not need to demonstrate that each restaurant served experienced its own negative economic impact. In identifying an impacted class and responsive program, service, or capital expenditure, recipients should consider the relationship between the definition of the class and proposed response. Larger and less-specific classes are less likely to have experienced similar harms and thus the responses are less likely to be responsive to the harms identified. That is, as the group of entities being served by a program has a wider set of fact patterns, or the type of entities, their circumstances, or their pandemic experiences differ more substantially, it may be more difficult to determine that the class has actually experienced the same or similar negative economic impact and that the response is appropriately tailored to address that impact. Standard: Designating Other Disproportionately Impacted Classes Summary of Interim Final Rule: As noted above, the interim final rule provided a broad set of enumerated eligible uses of funds in disproportionately impacted communities, including to address pre- existing disparities that contributed to more severe pandemic impacts in these communities. The interim final rule presumed that these services are eligible uses when provided in a QCT, to families and individuals living in QCTs, or when these services are provided by Tribal governments. Recipients may also provide these services to ‘‘other populations, households, or geographic areas disproportionately impacted by the pandemic’’ and, in identifying these disproportionately impacted communities, should be able to support their determination that the pandemic resulted in disproportionate public health or economic outcomes to the group identified. Public Comment: A significant number of commenters expressed uncertainty regarding the process for determining eligibility for disproportionately impacted communities beyond QCTs. A commenter noted that a clearer definition of ‘‘disproportionately impacted’’ should be delineated and that any definition should include communities of color and people of limited means. Some commenters suggested a template or checklist to see if an area meets the standard for disproportionately impacted communities outside of QCTs. Some commenters stated that QCT and non- QCT beneficiaries should be treated the same. Treasury Response: Under the interim final rule, presuming eligibility for services in QCTs, for populations living in QCTs, and for Tribal governments was intended to ease administrative burden, providing a simple path for recipients to offer services in underserved communities, and is not an exhaustive list of disproportionately impacted communities. To further clarify, the final rule codifies the interpretive framework discussed above, including presumptions of groups disproportionately impacted, as well as the ability to identify other disproportionately impacted populations, households, or geographies (referred to here as disproportionately impacted classes). As discussed in the interim final rule, in identifying other disproportionately impacted classes, recipients should be able to support their determination that the pandemic resulted in disproportionate public health or economic outcomes to the specific populations, households, or geographic areas to be served. For example, the interim final rule considered data regarding the rate of COVID–19 infections and deaths in low-income and socially vulnerable communities, noting that these communities have experienced the most severe health impacts, compared to national averages. Similarly, the interim final rule considered the high concentration of low-income workers performing essential work, the reduced ability to socially distance, and other pre-existing public health challenges, all of which correlate with more severe COVID–19 outcomes. The interim final rule also considered the disproportionate economic impacts of the pandemic, citing, for example, the rate of job losses among low-income persons as compared to the general population. The interim final rule then identified QCTs, a common, readily accessible, and geographically granular method of identifying communities with a large proportion of low-income residents, as presumed to be disproportionately impacted by the pandemic. In other words, the interim final rule identified disproportionately impacted populations by assessing the impacts of the pandemic and finding that some populations experienced meaningfully more severe impacts than the general public. Similarly, to identify disproportionately impacted classes, recipients should compare the impacts experienced by that class to the typical or average impacts of the pandemic in their local area, state, or nationally. Recipients may identify classes of households, communities, small businesses, nonprofits, or populations that have experienced a disproportionate impact based on academic research or government research publications, through analysis of their own data, or through analysis of other existing data sources. To augment their analysis, or when quantitative data is not readily available, recipients may also consider qualitative research and sources like resident interviews or VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4350 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 37 Press Release, Centers for Disease Control and Prevention, First Travel-related Case of 2019 Novel Coronavirus Detected in United States (Jan. 21, 2020), https://www.cdc.gov/media/releases/2020/ p0121-novel-coronavirus-travel-case.html. 38 Centers for Disease Control and Prevention, COVID Data Tracker: Trends in Number of COVID– 19 Cases and Deaths in the US Reported to CDC, by State/Territory, https://covid.cdc.gov/covid-data- tracker/#trends_dailytrendscases (last visited December 7, 2021). 39 Id. 40 Centers for Disease Control and Prevention, COVID Data Tracker, http://www.covid.cdc.gov/ covid-data-tracker/#datatracker-home (last visited December 31, 2021). 41 Centers for Disease Control and Prevention, COVID Data Tracker: COVID–19 Vaccinations in the United States, https://covid.cdc.gov/covid-data- tracker/#vaccinations (last visited December 7, 2021). 42 Id. 43 Columbus, Ohio Recovery Plan, https:// www.columbus.gov/recovery/. 44 Luzerne County, Pennsylvania Recovery Plan, https://www.luzernecounty.org/DocumentCenter/ View/26304/Final-Interim-Recovery-Plan- Performance-Report-83121. 45 This includes implementing mitigation strategies consistent with the Centers for Disease Control and Prevention’s (CDC) Guidance for COVID–19 Prevention in K–12 Schools (November 5, 2021), available at https://www.cdc.gov/ coronavirus/2019-ncov/community/schools- childcare/k-12-guidance.html. feedback from relevant state and local agencies, such as public health departments or social services departments. In both cases, recipients should consider the quality of the research, data, and applicability of analysis to their determination. In designing a program or service that responds to a disproportionately impacted class, a recipient must first identify the impact and then identify an appropriate response. To assess disproportionate impact, recipients should rely on data or research that measures the public health or negative economic impact. An assessment of the effects of a response (e.g., survey data on levels of resident support for various potential responses) is not a substitute for an assessment of the impact experienced by a particular class. Data about the appropriateness or desirability of a response may be used to assess the reasonableness of a response, once an impact or disproportionate impact has been identified but should not be the basis for assessing impact. 2. Public Health Background On January 21, 2020, the Centers for Disease Control and Prevention (CDC) identified the first case of novel coronavirus in the United States.37 Since that time, and through present day, the United States has faced numerous waves of the virus that have brought acute strain on health care and public health systems. At various points in the pandemic, hospitals and emergency medical services have seen significant influxes of patients; response personnel have faced shortages of personal protective equipment; testing for the virus has been scarce; and congregate living facilities like nursing homes have seen rapid spread. Since the initial wave of the COVID– 19 pandemic, the United States has faced several additional major waves that continued to impact communities and stretch public health services. The summer 2020 wave impacted communities in the south and southwest. As the weather turned colder and people spent more time indoors, a wave throughout fall and winter 2020 impacted communities in almost every region of the country as the virus reached a point of uncontrolled spread and over 3,000 people died per day due to COVID–19.38 In December 2020, the Food and Drug Administration (FDA) authorized COVID–19 vaccines for emergency use, and soon thereafter, mass vaccination in the United States began. At the time of the interim final rule publication in May 2021, the number of daily new infections was steeply declining as rapid vaccination campaigns progressed across the country. By summer 2021, COVID–19 cases had fallen to their lowest level since early months of the pandemic, when testing was scarce. However, throughout late summer and early fall, the Delta variant, a more infectious and transmittable variant of the SARS–CoV–2 virus, sparked yet another surge. From June to early September, the seven-day moving average of reported cases rose from 12,000 to 165,000.39 As of December 2021, COVID–19 in total has infected over 50 million and killed over 800,000 Americans.40 Preventing and mitigating the spread of COVID–19 continues to require a major public health response from federal, state, local, and Tribal governments. First, state, local, and Tribal governments across the country have mobilized to support the national vaccination campaign. As of December 2021, more than 80 percent of adults have received at least one dose, with more than 470 million total doses administered.41 Additionally, more than 15 million children over the age of 12 have received at least one dose of the vaccine and over 47 million people have received a booster dose.42 Vaccines for younger children, ages 5 through 11, have been approved and are reaching communities and families across the country. As new variants continue to emerge globally, the national effort to administer vaccinations and other COVID–19 mitigation strategies will be a critical component of the public health response. In early reporting on uses of SLFRF funds, recipients have indicated that they plan to put funds to immediate use to support continued vaccination campaigns. For example, one recipient has indicated that it plans to use SLFRF funds to support a vaccine incentive program, providing $100 gift cards to residents at community vaccination clinics. The program aimed to target communities with high public health needs.43 Another recipient reported that it is partnering with multiple agencies, organizations, and providers to distribute COVID–19 vaccinations to homebound residents in assisted living facilities.44 State, local, and Tribal governments have also continued to execute other aspects of a wide-ranging public health response, including increasing access to COVID–19 testing and rapid at-home tests, contact tracing, support for individuals in isolation or quarantine, enforcement of public health orders, new public communication efforts, public health surveillance (e.g., monitoring case trends and genomic sequencing for variants), enhancement to health care capacity through alternative care facilities, and enhancement of public health data systems to meet new demands or scaling needs. State, local, and Tribal governments have also supported major efforts to prevent COVID–19 spread through safety measures at key settings like nursing homes, schools, congregate living settings, dense worksites, incarceration settings, and in other public facilities. This has included, for example, implementing infection prevention measures or making ventilation improvements. In particular, state, local, and Tribal governments have mounted significant efforts to safely reopen schools. A key factor in school reopening is the ability to implement COVID–19 mitigation strategies such as providing masks and other hygiene resources, improving air- quality and ventilation, increasing outdoor learning and eating spaces, testing and contact tracing protocols, and a number of other measures.45 For example, one recipient described plans to use SLFRF funds to further invest in school health resources that were critical components of school reopening and reducing the spread of COVID–19 in schools. Those investments include the increasing school nurses and social VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4351 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 46 Nirmita Panchal et al., The Implications of COVID–19 for Mental Health and Substance Abuse (Feb. 10, 2021), https://www.kff.org/coronavirus covid-19/issue-brief/the-implications-of-covid-19- for-mental-health-and-substance-use/#:∼:text= Older%20adults%20are%20also%20 more, prior%20to%20the%20current%20crisis; Mark E´. Czeisler et al., Mental Health, Substance Abuse, and Suicidal Ideation During COVID–19 Pandemic— United States, June 24–30 2020, Morb. Mortal. Wkly. Rep. 69(32):1049–57 (Aug. 14, 2020), https:// www.cdc.gov/mmwr/volumes/69/wr/ mm6932a1.htm. 47 Id. 48 Rebecca T. Leeb et al., Mental Health-Related Emergency Department Visits Among Children Aged <18 Years During the COVID Pandemic— United States, January 1–October 17, 2020, Morb. Mortal. Wkly. Rep. 69(45):1675–80 (Nov. 13, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/ mm6945a3.htm. 49 Centers for Disease Prevention and Control, National Center for Health Statistics, Provisional Drug Overdose Death Counts, https://www.cdc.gov/ nchs/nvss/vsrr/drug-overdose-data.htm (last visited May 8 December 6, 2021). 50 Panchal, supra note 46; Mark E´. Czeisler et al., supra note 46. 51 The White House, FACT SHEET: More Details on the Biden-Harris Administration’s Investments in Community Violence Interventions (April 7, 2021), https://www.whitehouse.gov/briefing-room/ statements-releases/2021/04/07/fact-sheet-more- details-on-the-biden-harris-administrations- investments-in-community-violence-interventions/. 52 Federal Bureau of Investigation, FBI Releases 2020 Crime Statistics (September 27, 2021) https:// www.fbi.gov/news/pressrel/press-releases/fbi- releases-2020-crime-statistics. 53 Id. 54 Id. 55 The Educational Fund to Stop Gun Violence, Community Gun Violence, https://efsgv.org/learn/ type-of-gun-violence/community-gun-violence/ (last visited November 9, 2021). 56 Giffords Law Center, Healing Communities in Crisis: Lifesaving Solutions to the Urban Gun Violence Epidemic (March 2016), https://giffords. org/wp-content/uploads/2019/01/Healing- Communities-in-Crisis.pdf. 57 St. Louis, MO Recovery Plan, https:// www.stlouis-mo.gov/government/recovery/covid-19/ arpa/plan/. 58 Los Angeles County, CA Recovery Plan, http:// file.lacounty.gov/SDSInter/bos/supdocs/ 160391.pdf. 59 Office of the White House, National Strategy for the COVID–19 Response and Pandemic Preparedness (Jan. 21, 2021), https:// www.whitehouse.gov/wp-content/uploads/2021/01/ National-Strategy-for-the-COVID-19-Response-and- Pandemic-Preparedness.pdf. 60 In a study of 13 states from October to December 2020, the CDC found that Hispanic or Latino and Native American or Alaska Native individuals were 1.7 times more likely to visit an emergency room for COVID–19 than White individuals, and Black individuals were 1.4 times more likely to do so than White individuals. See Sebastian D. Romano et al., Trends in Racial and Ethnic Disparities in COVID–19 Hospitalizations, by Region—United States, March–December 2020, MMWR Morb Mortal Wkly Rep 2021, 70:560–565 (Apr. 16, 2021), https://www.cdc.gov/mmwr/ volumes/70/wr/mm7015e2.htm?s_cid=mm7015e2_ w. 61 Centers for Disease Control and Prevention, COVID Data Tracker: Trends in COVID–19 Cases and Deaths in the United States, by County-level Population Factors, https://covid.cdc.gov/covid- data-tracker/#pop-factors_totaldeaths (last visited December 7, 2021). 62 The CDC’s Social Vulnerability Index includes fifteen variables measuring social vulnerability, including unemployment, poverty, education levels, single-parent households, disability status, non-English speaking households, crowded housing, and transportation access. Centers for Disease Control and Prevention, COVID Data Tracker: Trends in COVID–19 Cases and Deaths in the United States, by Social Continued workers, improved ventilation systems, and other health and safety measures. The need for public health measures to respond to COVID–19 will continue moving forward. This includes the continuation of vaccination campaigns for the general public, booster doses, and children. This also includes monitoring the spread of COVID–19 variants, understanding the impact of these variants, developing approaches to respond, and monitoring global COVID– 19 trends. Finally, the long-term health impacts of COVID–19 will continue to require a public health response, including medical services for individuals with ‘‘long COVID,’’ and research to understand how COVID–19 impacts future health needs and raises risks for the tens of millions of Americans who have been infected. The COVID–19 pandemic also negatively impacted other areas of public health, particularly mental health and substance use. In January 2021, over 40 percent of American adults reported symptoms of depression or anxiety, up from 11 percent in the first half of 2019.46 The mental health impacts of the pandemic have been particularly acute for adults ages 18 to 24, racial and ethnic minorities, caregivers for adults, and essential workers, with all reporting significantly higher rates of considering suicide.47 The proportion of children’s emergency department visits related to mental health has also risen noticeably.48 Similarly, rates of substance use and overdose deaths have spiked: Preliminary data from the CDC show a nearly 30 percent increase in drug overdose mortality from April 2020 to April 2021, bringing the estimated overdose death toll for a 12-month period over 100,000 for the first time ever.49 The CDC also found that 13 percent of adults started or increased substance use to cope with stress related to COVID–19 and 26 percent reported having symptoms of trauma- and stressor-related disorder (TRSD) related to the pandemic.50 Another public health challenge exacerbated by the pandemic was violent crime and gun violence, which increased during the pandemic and has disproportionately impacted low- income communities.51 According to the Federal Bureau of Investigation (FBI), although the property crime rate fell 8 percent in 2020, the violent crime rate increased 6 percent in 2020 compared to 2019 data.52 In particular, the estimated number of aggravated assault offenses rose 12 percent, while murder and manslaughter increased 30 percent from 2019 to 2020.53 The proportion of homicides committed with firearms rose from 73 percent in 2019 to 76 percent in 2020.54 Exposure to violence can create serious short-term and long-term harmful effects to health and development, and repeated exposure to violence may be connected to negative health outcomes.55 Addressing community violence as a public health issue may help prevent and even reduce additional harm to individuals, households, and communities.56 Many communities are using SLFRF funds to invest in holistic approaches in violence prevention that are rooted in targeted outreach and addressing root causes. For example, the City of St. Louis is planning to invest in expanding a ‘‘community responder’’ model designed to provide clinical help and to divert non-violent calls away from the police department. Additionally, the city will expand access to mental health services, allowing residents to seek support at city recreation centers, libraries, and other public spaces.57 Similarly, Los Angeles County will further invest in its ‘‘Care First, Jails Last’’ program which seeks to replace ‘‘arrest and incarceration’’ responses with health interventions.58 While the pandemic affected communities across the country, it disproportionately impacted some demographic groups and exacerbated health inequities along racial, ethnic, and socioeconomic lines.59 The CDC has found that racial and ethnic minorities are at increased risk for infection, hospitalization, and death from COVID–19, with Hispanic or Latino and Native American or Alaska Native patients at highest risk.60 Similarly, low-income and socially vulnerable communities have seen the most severe health impacts. For example, counties with high poverty rates also have the highest rates of infections and deaths, with 308 deaths per 100,000 compared to the U.S. average of 238 deaths per 100,000, as of December 2021.61 Counties with high social vulnerability, as measured by factors such as poverty and educational attainment, have also fared more poorly than the national average, with 325 deaths per 100,000 as of December 2021.62 Over the course of the VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4352 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations Vulnerability Index, https://covid.cdc.gov/covid- data-tracker/#pop-factors_totaldeaths (last visited December 7, 2021). 63 Centers for Disease Control and Prevention, Risk for COVID–19 Infection, Hospitalization, and Death By Race/Ethnicity, https://www.cdc.gov/ coronavirus/2019-ncov/covid-data/investigations- discovery/hospitalization-death-by-race- ethnicity.html (last visited December 7, 2021). 64 See, e.g., Centers for Disease Control and Prevention, Risk of Severe Illness or Death from COVID–19 (Dec. 10, 2020), https://www.cdc.gov/ coronavirus/2019-ncov/community/health-equity/ racial-ethnic-disparities/disparities-illness.html (last visited December 7, 2021). 65 Milena Almagro et al., Racial Disparities in Frontline Workers and Housing Crowding During COVID–19: Evidence from Geolocation Data (Sept. 22, 2020), NYU Stern School of Business (forthcoming), available at https://papers.ssrn.com/ sol3/papers.cfm?abstract_id=3695249; Grace McCormack et al., Economic Vulnerability of Households with Essential Workers, JAMA 324(4):388–90 (2020), available at https://jamanet work.com/journals/jama/fullarticle/2767630. 66 See, e.g., Joseph G. Courtney et al., Decreases in Young Children Who Received Blood Lead Level Testing During COVID–19—34 Jurisdictions, January–May 2020, Morb. Mort. Wkly. Rep. 70(5):155–61 (Feb. 5, 2021), https://www.cdc.gov/ mmwr/volumes/70/wr/mm7005a2.htm; Emily A. Benfer & Lindsay F. Wiley, Health Justice Strategies to Combat COVID–19: Protecting Vulnerable Communities During a Pandemic, Health Affairs Blog (Mar. 19, 2020), https://www.healthaffairs.org/ do/10.1377/hblog20200319.757883/full/. 67 See, e.g., Centers for Disease Control and Prevention, supra note 62; Benfer & Wiley, supra note 66; Nathaniel M. Lewis et al., Disparities in COVID–19 Incidence, Hospitalizations, and Testing, by Area-Level Deprivation—Utah, March 3–July 9, 2020, Morb. Mortal. Wkly. Rep. 69(38):1369–73 (Sept. 25, 2020), https://www.cdc.gov/mmwr/ volumes/69/wr/mm6938a4.htm. 68 Generally, funding uses eligible under CRF as a response to the direct public health impacts of COVID–19 will continue to be eligible under the ARPA, including those not explicitly listed in the final rule, with the following two exceptions: (1) The standard for eligibility of public health and safety payrolls has been updated (see section Public Sector Capacity and Workforce in General Provisions: Other) and (2) expenses related to the issuance of tax-anticipation notes are no longer an eligible funding use (see section Restrictions on Use: Debt Service). pandemic, Native Americans have experienced more than one and a half times the rate of COVID–19 infections, more than triple the rate of hospitalizations, and more than double the death rate compared to White Americans.63 Low-income and minority communities also exhibit higher rates of pre-existing conditions that may contribute to an increased risk of COVID–19 mortality.64 In addition, individuals living in low-income communities may have had more limited ability to socially distance or to self-isolate when ill, resulting in faster spread of the virus, and were over- represented among essential workers, who face greater risk of exposure.65 Social distancing measures in response to the pandemic may have also exacerbated pre-existing public health challenges. For example, for children living in homes with lead paint, spending substantially more time at home raises the risk of developing elevated blood lead levels, while screenings for elevated blood lead levels declined during the pandemic.66 The combination of these underlying social and health vulnerabilities may have contributed to more severe public health outcomes of the pandemic within these communities, resulting in an exacerbation of pre-existing disparities in health outcomes.67 Summary of the Interim Final Rule Approach to Public Health Summary: As discussed above, the interim final rule provided flexibility for recipients to pursue a wide range of eligible uses to ‘‘respond to’’ the COVID–19 public health emergency. Uses of funds to ‘‘respond to’’ the public health emergency address the SARS- CoV–2 virus itself, support efforts to prevent or decrease spread of the virus, and address other impacts of the pandemic on public health. The interim final rule implemented these provisions by identifying a non-exhaustive list of programs or services that may be funded as responding to COVID–19 (‘‘enumerated eligible uses’’), along with considerations for evaluating other potential uses of funds not explicitly listed. Enumerated eligible uses are discussed below. For guidance on how to determine whether a particular use is allowable, beyond those enumerated, see section Standards: Identifying a Public Health Impact. Enumerated eligible uses under this section built and expanded upon permissible expenditures under the Coronavirus Relief Fund; for clarity, the interim final rule expressly listed as eligible uses the uses permissible under the Coronavirus Relief Fund, with minor exceptions.68 The interim final rule also recognized that the nature of the COVID–19 public health emergency, and responsive policy measures, programs, and services, had changed over time and is expected to continue evolving. The interim final rule categorized enumerated eligible uses to respond to the public health emergency into several categories: (1) COVID–19 mitigation and prevention, (2) medical expenses, (3) behavioral health care, (4) public health and safety staff, (5) expenses to improve the design and execution of health and public health programs, and (6) eligible uses to address disparities in public health outcomes. For each category in turn, this section describes public comments received and Treasury’s responses, as well as comments received proposing additional enumerated eligible uses. Reorganizations and Cross- References: In some cases, enumerated eligible uses included in the interim final rule under responding to the public health emergency have been re- categorized in the organization of the final rule to enhance clarity. For discussion of eligible uses for public health and safety staff and to improve the design and execution of public health programs, please see section Public Sector Capacity and Workforce in General Provisions: Other. For discussion of eligible uses to address disparities in public health outcomes, please see section Assistance to Households in Negative Economic Impacts. Conversely, discussion of eligible assistance to small businesses and nonprofits to respond to public health impacts has been moved from Assistance to Small Businesses and Assistance to Nonprofits in Negative Economic Impacts to this section. This change is consistent with the interim final rule, which provides that appropriate responses to address the public health impacts of COVID–19 may be provided to any type of entity. a. COVID–19 Mitigation and Prevention COVID–19 public health response and mitigation tactics. Recognizing the broad range of services and programming needed to contain COVID–19, the interim final rule provided an extensive list of enumerated eligible uses to prevent and mitigate COVID–19 and made clear that the public health response to the virus is expected to continue to evolve over time, necessitating different uses of funds. Enumerated eligible uses of funds in this category included: Vaccination programs; medical care; testing; contact tracing; support for isolation or quarantine; supports for vulnerable populations to access medical or public health services; public health surveillance (e.g., monitoring case trends, genomic sequencing for variants); enforcement of public health orders; public communication efforts; enhancement to health care capacity, including through alternative care facilities; purchases of personal protective equipment; support for prevention, mitigation, or other services in congregate living facilities (e.g., nursing homes, incarceration settings, homeless shelters, group living facilities) and other key settings like schools; ventilation improvements in congregate settings, health care settings, or other key locations; enhancement of VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4353 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 69 See Centers for Disease Control and Prevention, COVID Data Tracker, https://covid.cdc.gov/covid- data-tracker/#trends_dailycases (last visited December 7, 2021). 70 See Centers for Disease Control and Prevention, COVID–19, https://www.cdc.gov/coronavirus/2019- ncov/index.html (last visited November 8, 2021). 71 See §35.6(b); Coronavirus State and Local Fiscal Recovery Funds, 86 FR at 26786. 72 Centers for Disease Control and Prevention, COVID Data Tracker: COVID–19 Vaccinations in the United States, https://covid.cdc.gov/covid-data- tracker/#vaccinations (last visited October 18, 2021). 73 U.S. Food and Drug Administration, Coronavirus (COVID–19) Update: FDA Takes Additional Actions on the Use of a Booster Dose for COVID–19 Vaccines, https://www.fda.gov/news- events/press-announcements/fda-authorizes-pfizer- biontech-covid-19-vaccine-emergency-use-children- 5-through-11-years-age (last visited November 8, 2021). 74 U.S. Food and Drug Administration, FDA Authorizes Pfizer-BioNTech COVID–19 Vaccine for Emergency Use in Children 5 through 11 Years of Age, https://www.fda.gov/news-events/press- announcements/fda-authorizes-pfizer-biontech- covid-19-vaccine-emergency-use-children-5- through-11-years-age (last visited November 8, 2021). public health data systems; other public health responses; and capital investments in public facilities to meet pandemic operational needs, such as physical plant improvements to public hospitals and health clinics or adaptations to public buildings to implement COVID–19 mitigation tactics. These enumerated uses are consistent with guidance from public health authorities, including the CDC. Public Comment: Many commenters were supportive of expansive enumerated eligible uses for mitigating and preventing COVID–19, noting the wide range of activities that governments may undertake and the continued changing landscape of pandemic response. Some commenters requested that Treasury engage in ongoing consideration of and consultation on evolving public health needs and resulting eligible expenses. Some commenters noted that their jurisdiction does not have an official public health program, for example smaller jurisdictions or those that do not have a health department, and requested clarification on whether their public health expenses would still be eligible in compliance with program rules. Treasury Response: In the final rule, Treasury is maintaining an expansive list of enumerated eligible uses to mitigate and prevent COVID–19, given the wide-ranging activities that governments may take to further these goals, including ‘‘other public health responses.’’ Note that the final rule discusses several of these enumerated uses in more detail below. Treasury is further clarifying that when providing COVID–19 prevention and mitigation services, recipients can identify the impacted population as the general public. Treasury presumes that all enumerated eligible uses for programs and services, including COVID–19 mitigation and prevention programs and services, are reasonably proportional responses to the harm identified unless a response is grossly disproportionate to the type or extent of harm experienced. Note that capital expenditures are not considered ‘‘programs and services’’ and are not presumed to be reasonably proportional responses to an identified harm except as provided in section Capital Expenditures in General Provisions: Other. In other words, recipients can provide any COVID–19 prevention or mitigation service to members of the general public without any further analysis of impacts of the pandemic on those individuals and whether the service is responsive. This approach gives recipient governments an extensive set of eligible uses that can adapt to local needs, as well as evolving response needs and developments in understanding of transmission of COVID–19. Treasury emphasizes how the enumerated eligible uses can adapt to changing circumstances. For example, when the interim final rule was released, national daily COVID–19 cases were at relatively low levels and declining;69 as the Delta variant spread and cases peaked in many areas of the country, particularly those with low vaccination rates, government response needs and tactics evolved, and the SLFRF funds provided the ability to quickly and nimbly adapt to new public health needs. Treasury also notes that funds may be used to support compliance with and implementation of COVID–19 safety requirements, including vaccination requirements, testing programs, or other required practices. Recipient governments do not need to have an official health or public health program in order to utilize these eligible uses; any recipient can pursue these eligible uses, though Treasury recommends consulting with health and public health professionals to support effective implementation. The CDC has provided recommendations and guidelines to help mitigate and prevent COVID–19. The interim final rule and final rule help support recipients in stopping the spread of COVID–19 through these recommendations and guidelines.70 The final rule reflects changing circumstances of COVID–19 and provides a broad range of permissible uses for mitigating and preventing the spread of the disease, in a manner consistent with CDC guidelines and recommendations. The purpose of the SLFRF funds is to mitigate the fiscal effects stemming from the COVID–19 public health emergency, including by supporting efforts to stop the spread of the virus. The interim final rule and final rule implement this objective by, in part, providing that recipients may use SLFRF funds for COVID–19 mitigation and prevention.71 A program or service that imposes conditions on participation in or acceptance of the service that would undermine efforts to stop the spread of COVID–19 or discourage compliance with recommendations and guidelines in CDC guidance for stopping the spread of COVID–19 is not a permissible use of funds. In other words, recipients may not use funds for a program that undermines practices included in the CDC’s guidelines and recommendations for stopping the spread of COVID–19. This includes programs that impose a condition to discourage compliance with practices in line with CDC guidance (e.g., paying off fines to businesses incurred for violation of COVID–19 vaccination or safety requirements), as well as programs that require households, businesses, nonprofits, or other entities not to use practices in line with CDC guidance as a condition of receiving funds (e.g., requiring that businesses abstain from requiring mask use or employee vaccination as a condition of receiving SLFRF funds). Vaccination programs and vaccine incentives. At the time of the interim final rule release, many vaccination programs were using mass vaccination tactics to rapidly reach Americans en masse for first vaccine doses.72 Since that time, the FDA has authorized booster vaccine doses for certain groups and certain vaccines and has also authorized vaccines for youths 73 74 The inclusion of ‘‘vaccination programs’’ as an eligible use allows for adaptation as the needs of programs change or new groups become eligible for different types of vaccinations. Public Comment: Since the release of the interim final rule, many recipient governments have also requested clarification on whether vaccine incentives are a permissible use of funds. Treasury Response: Treasury issued guidance clarifying that ‘‘[vaccine] programs that provide incentives reasonably expected to increase the number of people who choose to get vaccinated, or that motivate people to get vaccinated sooner than they otherwise would have, are an allowable VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4354 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 75 Coronavirus State and Local Fiscal Recovery Funds, Frequently Asked Questions, as of July 19, 2021; https://home.treasury.gov/system/files/136/ SLFRPFAQ.pdf. Note that programs may provide incentives to individuals who have already received a vaccination if the incentive is reasonably expected to increase the number of people who choose to get vaccinated or motivate people to get vaccinated sooner and the costs are reasonably proportional to the expected public health benefit. use of funds so long as such costs are reasonably proportional to the expected public health benefit.’’75 This use of funds remains permissible under the final rule. Capital Expenditures Public Comment: Many commenters requested clarification around the types and scope of permissible capital investments in public facilities to meet pandemic operational needs; ventilation improvements in congregate settings, health care settings, or other key locations; and whether support for prevention and mitigation in congregate facilities could include facilities renovations, improvements, or construction of new facilities, or if the facilities must solely be used for COVID–19 response. Treasury Response: For clarity, Treasury has addressed the eligibility standard for capital expenditures, or investments in property, facilities, or equipment, in one section of this Supplementary Information; see section Capital Expenditures in General Provisions: Other. In recognition of the importance of capital expenditures in the COVID–19 public health response, Treasury enumerates that the following projects are examples of eligible capital expenditures, as long as they meet the standards for capital expenditures in section Capital Expenditures in General Provisions: Other: •Improvements or construction of COVID–19 testing sites and laboratories, and acquisition of related equipment; •Improvements or construction of COVID–19 vaccination sites; •Improvements or construction of medical facilities generally dedicated to COVID–19 treatment and mitigation (e.g., emergency rooms, intensive care units, telemedicine capabilities for COVID–19 related treatment); •Expenses of establishing temporary medical facilities and other measures to increase COVID–19 treatment capacity, including related construction costs; •Acquisition of equipment for COVID–19 prevention and treatment, including ventilators, ambulances, and other medical or emergency services equipment; •Improvements to or construction of emergency operations centers and acquisition of emergency response equipment (e.g., emergency response radio systems); •Installation and improvements of ventilation systems; •Costs of establishing public health data systems, including technology infrastructure; •Adaptations to congregate living facilities, including skilled nursing facilities, other long-term care facilities, incarceration settings, homeless shelters, residential foster care facilities, residential behavioral health treatment, and other group living facilities, as well as public facilities and schools (excluding construction of new facilities for the purpose of mitigating spread of COVID–19 in the facility); and •Mitigation measures in small businesses, nonprofits, and impacted industries (e.g., developing outdoor spaces). Other clarifications on COVID–19 mitigation: Medical care, supports for vulnerable populations, data systems, carceral settings. Based on public comments and questions received from recipients following the interim final rule, Treasury is making several further clarifications on enumerated eligible uses in this category. Public Comment: Several commenters requested clarification on eligible uses of funds for medical care; Treasury addresses those comments in the section Medical Expenses below. Public Comment: Recipients posed questions on the type and scope of activities eligible as ‘‘supports for vulnerable populations to access medical or public health services.’’ Treasury Response: Enumerated eligible uses should be considered in the context of the eligible use category or section where they appear; in this case, ‘‘supports for vulnerable populations to access medical or public health services’’ appears in the section COVID–19 Mitigation and Prevention. As such, these eligible uses should help vulnerable or high-risk populations access services that mitigate COVID–19, for example, transportation assistance to reach vaccination sites, mobile vaccination or testing programs, or on- site vaccination or testing services for homebound individuals, those in group homes, or similar settings. Public Comment: Some commenters asked whether ‘‘enhancement of public health data systems’’ could include investments in software, databases, and other information technology resources that support responses to the COVID–19 public health emergency but also provide benefits for other use cases and long-term capacity of public health departments and systems. Treasury Response: These are permissible uses of funds under the interim final rule and remain eligible under the final rule. Assistance to Businesses and Nonprofits To Implement COVID–19 Mitigation Strategies Background: As detailed above, Treasury received many public comments describing uncertainty about which eligible use category should be used to assess different potential uses of funds. As a result, Treasury has re- categorized some uses of funds in the final rule to provide greater clarity, consistent with the principle that uses of funds should be assessed based on their intended beneficiary. For example, COVID–19 mitigation and prevention serves the general public or specific populations within the public. However, in the interim final rule, assistance to small businesses, nonprofits, and impacted industries to implement COVID–19 mitigation and prevention strategies was categorized in the respective sections within Negative Economic Impacts. The final rule consolidates all COVID–19 mitigation and prevention within Public Health. Public Comment: Treasury has received multiple comments and questions about which eligible use permits the recipient to provide assistance to businesses and nonprofits to address the public health impacts of COVID–19. Treasury Response: In the final rule, these services have been re-categorized under COVID–19 mitigation and prevention to reflect the fact that this assistance responds to public health impacts of the pandemic rather than the negative economic impacts to a small business, nonprofit, or impacted industry. When providing COVID–19 mitigation and prevention services, recipients can identify the impacted entity as small businesses, nonprofits, or businesses in impacted industries in general. As with all enumerated eligible uses, recipients may presume that all COVID–19 mitigation and prevention programs and services are reasonably proportional responses to the harm identified unless a response is grossly disproportionate to the type or extent of harm experienced. Note that capital expenditures are not considered ‘‘programs and services’’ and are not presumed to be reasonably proportional responses to an identified harm except as provided in section Capital Expenditures in General Provisions: Other. In other words, recipients can provide any COVID–19 prevention or mitigation service to small businesses, nonprofits, and businesses in impacted VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4355 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 76 See Centers for Disease Control and Prevention, Participate in Outdoor and Indoor Activities, https://www.cdc.gov/coronavirus/2019-ncov/daily- life-coping/outdoor-activities.html (last visited November 8, 2021). 77 Hotlines or warmlines, crisis intervention, overdose prevention, infectious disease prevention, and services or outreach to promote access to physical or behavioral health primary care and preventative medicine. industries without any further analysis of impacts of the pandemic on those entities and whether the service is responsive. In some cases, this means that an entity not otherwise eligible to receive assistance to respond to negative economic impacts of the pandemic, for example an entity that did not experience a negative economic impact, may still be eligible to receive assistance under this category for COVID–19 mitigation and prevention services. Uses of funds can include loans, grants, or in-kind assistance to small businesses, nonprofits, or other entities to implement COVID–19 prevention or mitigation tactics, such as vaccination; testing; contact tracing programs; physical plant changes to enable greater use of outdoor spaces or ventilation improvements; enhanced cleaning efforts; and barriers or partitions. For example, this would include assistance to a restaurant to establish an outdoor patio, given evidence showing much lower risk of COVID–19 transmission outdoors.76 Uses of funds can also include aid to travel, tourism, hospitality, and other impacted industries to implement COVID–19 mitigation and prevention measures to enable safe reopening, for example, vaccination or testing programs, improvements to ventilation, physical barriers or partitions, signage to facilitate social distancing, provision of masks or personal protective equipment, or consultation with infection prevention professionals to develop safe reopening plans. Recipients providing assistance to small businesses, nonprofits, or impacted industries that includes capital expenditures (i.e., expenditures on property, facilities, or equipment) should also review the section Capital Expenditures in General Provisions: Other, which describes eligibility standards for these expenditures. Recipients providing assistances in the form of loans should review the section Treatment of Loans Made with SLFRF Funds in General Provisions: Other. Recipients should also be aware of the difference between beneficiaries of assistance and subrecipients when working with small businesses, nonprofits, or impacted industries. As noted above, Treasury presumes that the general public, as well as small businesses, nonprofits, and impacted industries in general, has been impacted by the COVID–19 disease itself and is eligible for services that mitigate or prevent COVID–19 spread. As such, a small business, nonprofit, or impacted industry receiving assistance to implement COVID–19 mitigation measures is a beneficiary of assistance (e.g., granting funds to a small business to develop an outdoor patio to reduce transmission). In contrast, if a recipient contracts with, or grants funds to, a small business, nonprofit, or impacted industry to carry out an eligible use for COVID–19 mitigation on behalf of the recipient, the entity is a subrecipient (e.g., contracting with a small business to operate COVID–19 vaccination sites). For further information on distinguishing between beneficiaries and subrecipients, as well as the impacts of the distinction on reporting and other requirements, see section Distinguishing Subrecipients versus Beneficiaries. b. Medical Expenses Background: The interim final rule also included as an enumerated eligible use medical expenses, including medical care and services to address the near-term and potential longer-term impacts of the disease on individuals infected. Public Comment: Some commenters sought clarification on the types of medical expenses eligible and for whom, including whether funds could be used under this category for expanding health insurance coverage (e.g., subsidies for premiums, expanding a group health plan), improvements to healthcare facilities or establishment of new medical facilities, direct costs of medical services, and costs to a self- funded health insurance plan (e.g., a county government health plan) for COVID–19 medical care. Treasury Response: In the final rule, Treasury is maintaining this enumerated eligible use category and clarifying that it covers costs related to medical care provided directly to an individual due to COVID–19 infection (e.g., treatment) or a potential infection (e.g., testing). This can include medical costs to uninsured individuals; deductibles, co- pays, or other costs not covered by insurance; costs for uncompensated care at a health provider; emergency medical response costs; and, for recipients with a self-funded health insurance plan, excess health insurance costs due to COVID–19 medical care. These are medical expenses due to COVID–19 and distinguish this category of eligible uses from other related eligible uses, like COVID–19 mitigation and prevention and health insurance expenses to households, to provide greater clarity for recipients in determining which category of eligible uses they should review to assess a potential use of funds. For discussion of eligibility for programs to expand health insurance coverage, see section Assistance to Households. c. Behavioral Health Care Background: Recognizing that the public health emergency, necessary mitigation measures like social distancing, and the economic downturn have exacerbated mental health and substance use challenges for many Americans, the interim final rule included an enumerated eligible use for mental health treatment, substance use treatment, and other behavioral health services, including a non-exhaustive list of specific services that would be eligible under this category. Public Comment: Many commenters expressed support for the interim final rule’s recognition of behavioral health impacts of the pandemic and eligible uses under this category. Several commenters requested clarification on the types of eligible services under this category, specifically whether both acute and chronic care are included as well as services that often do not directly accept insurance payments, like peer support groups. Some commenters highlighted the importance of cultural competence in providing effective behavioral health services. Some commenters suggested that funding should be available broadly and quickly for this purpose, recommending that funding available for behavioral health not be tied to the amount of revenue loss experienced by the recipient. Treasury Response: In the final rule, Treasury is maintaining this enumerated eligible use category and clarifying that it covers an expansive array of services for prevention, treatment, recovery, and harm reduction for mental health, substance use, and other behavioral health challenges caused or exacerbated by the public health emergency. The specific services listed in the interim final rule also remain eligible.77 Treasury is further clarifying that when providing behavioral health services, recipients can identify the impacted population as the general public and, as with all enumerated eligible uses, presume that all programs and services are reasonably proportional responses to the harm identified unless a response is grossly disproportionate to the type or extent of harm experienced. In contrast, capital expenditures are not VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4356 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 78 However, SLFRF funds may not be used to reimburse a service that was also billed to insurance. 79 In line with the Department of Health and Human Services, Overdose Prevention Strategy, https://www.hhs.gov/overdose-prevention/, and the Office of National Drug Control Policy, Administration’s Statement on Drug Policy Priorities for Year One (April 1, 2021), https:// www.whitehouse.gov/wp-content/uploads/2021/03/ BidenHarris-Statement-of-Drug-Policy-Priorities- April-1.pdf. considered ‘‘programs and services’’ and are not presumed to be reasonably proportional responses to an identified harm except as provided in section Capital Expenditures in General Provisions: Other. In other words, recipients can provide behavioral health services to members of the general public without any further analysis of impacts of the pandemic on those individuals and whether the service is responsive. Recipients may also use this eligible use category to respond to increased rates of behavioral health challenges at a population level or, at an individual level, new behavioral health challenges or exacerbation of pre-existing challenges, including new barriers to accessing treatment. Services that respond to these impacts of the public health emergency may include services across the continuum of care, including both acute and chronic care, such as prevention, outpatient treatment, inpatient treatment, crisis care, diversion programs (e.g., from emergency departments or criminal justice system involvement), outreach to individuals not yet engaged in treatment, harm reduction, and supports for long-term recovery (e.g., peer support or recovery coaching, housing, transportation, employment services). Recipients may also provide services for special populations, for example, enhanced services in schools to address increased rates of behavioral health challenges for youths, mental health first responder or law enforcement- mental health co-responder programs to divert individuals experiencing mental illness from the criminal justice system, or services for pregnant women with substance use disorders or infants born with neonatal abstinence syndrome. Finally, recipients may use funds for programs or services to support equitable access to services and reduce racial, ethnic, or socioeconomic disparities in access to high-quality treatment. Eligible uses of funds may include services typically billable to insurance 78 or services not typically billable to insurance, such as peer support groups, costs for residence in supportive housing or recovery housing, and the 988 National Suicide Prevention Lifeline or other hotline services. Recipients may also use funds in conjunction with other federal grants or programs (see section Program Administration Provisions), though eligible services under SLFRF are not limited to those eligible under existing federal programs. Given the public health emergency’s exacerbation of the ongoing opioid and overdose crisis, Treasury highlights several ways that funds may be used to respond to opioid use disorder and prevent overdose mortality.79 Specifically, eligible uses of funds include programs to expand access to evidence-based treatment like medications to treat opioid use disorder (e.g., direct costs or incentives for emergency departments, prisons, jails, and outpatient providers to offer medications and low-barrier treatment), naloxone distribution, syringe service programs, outreach to individuals in active use, post-overdose follow up programs, programs for diversion from the criminal justice system, and contingency management interventions. Finally, for clarity, Treasury has addressed the eligibility standard for capital expenditures, or investments in property, facilities, or equipment, in one section of this Supplementary Information; see section Capital Expenditures in General Provisions: Other. Examples of capital expenditures related to behavioral health that Treasury recognizes as eligible include behavioral health facilities and equipment (e.g., inpatient or outpatient mental health or substance use treatment facilities, crisis centers, diversion centers), as long as they adhere to the standards detailed in the Capital Expenditures section. d. Preventing and Responding to Violence Background: The interim final rule highlighted that some types of violence had increased during the pandemic and that the ability of victims to access services had decreased, noting as an example the challenges that individuals affected by domestic violence face in accessing services. Accordingly, the interim final rule enumerated as an eligible use, in disproportionately impacted communities, evidence-based community violence intervention programs. Following the release of the interim final rule, Treasury received several recipient questions regarding whether and how funds may be used to respond to an increase in crime, violence, or gun violence in some communities during the pandemic. Treasury released further guidance identifying how enumerated eligible uses and eligible use categories under the interim final rule could support violence reduction efforts, including rehiring public sector staff, behavioral health services, and services to address negative economic impacts of the pandemic that may aid victims of crime. The guidance also identified an expanded set of enumerated eligible uses to address increased gun violence. Public Comment: Several commenters expressed support for this use of funds. Treasury Response: In the final rule, Treasury is maintaining enumerated eligible uses in this area and clarifying how to apply eligibility standards. Throughout the final rule, enumerated eligible uses should respond to an identified impact of the COVID–19 public health emergency in a reasonably proportional manner to the extent and type of harm experienced. Many of the enumerated eligible uses—like behavioral health services, services to improve employment opportunities, and services to address educational disparities in disproportionately impacted communities—that respond to the public health and negative economic impacts of the pandemic may also have benefits for reducing crime or aiding victims of crime. For example, the pandemic exacerbated the impact of domestic violence, sexual assault, and human trafficking; enumerated eligible uses like emergency housing assistance, cash assistance, or assistance with food, childcare, and other needs could be used to support survivors of domestic violence, sexual assault, or human trafficking who experienced public health or economic impacts due to the pandemic. Public Comment: Several commenters expressed support for community violence intervention programs or argued that traditional public safety approaches had negatively impacted the social determinants of health in their communities. Several commenters recommended inclusion of approaches like mental health or substance use diversion programs. Treasury Response: Treasury recognizes the importance of comprehensive approaches to challenges like violence. The final rule includes an enumerated eligible use for community violence intervention programs in all communities, not just the disproportionately impacted communities eligible under the interim final rule. Given the increased rate of violence during the pandemic, Treasury has determined that this enumerated VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4357 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 80 U.S. Bureau of Labor Statistics, All Employees, Total Nonfarm [PAYEMS], retrieved from FRED, Federal Reserve Bank of St. Louis; https:// fred.stlouisfed.org/series/PAYEMS (last visited December 7, 2021). 81 Id. 82 U.S. Bureau of Labor Statistics, Unemployment Rate [UNRATE], retrieved from FRED, Federal Reserve Bank of St. Louis; https://fred. stlouisfed.org/series/UNRATE (last visited December 7, 2021). 83 U.S. Bureau of Labor Statistics, supra note 80. 84 U.S. Bureau of Labor Statistics, supra note 82. 85 U.S. Bureau of Economic Analysis, Real Gross Domestic Product [GDPC1], retrieved from FRED, Federal Reserve Bank of St. Louis, https://fred. stlouisfed.org/series/GDPC1 (last visited December 7, 2021). 86 U.S. Department of the Treasury, Economy Statement by Catherine Wolfram, Acting Assistant Secretary for Economy Policy, for the Treasury Borrowing Advisory Committee (November 1, 2021), available at https://home.treasury.gov/news/ press-releases/jy0453. 87 Yuka Hayashi, IMF Cuts Global Growth Forecast Amid Supply-Chain Disruptions, Pandemic Pressures, Wall Street Journal (October 12, 2021), available at https://www.wsj.com/ articles/imf-cuts-global-growth-forecast-amid- supply-chain-disruptions-warns-of-inflation-risks- 11634043601. 88 U.S. Bureau of Labor Statistics, supra note 80. 89 U.S. Bureau of Labor Statistics, Civilian Labor Force Level [CLF16OV], retrieved from FRED, Federal Reserve Bank of St. Louis, https://fred. stlouisfed.org/series/CLF16OV (last visited December 7, 2021). 90 U.S. Bureau of Labor Statistics, Labor Force Statistics from the Current Population Survey: Employment status of the civilian population by sex and age (December 6, 2021), https://www.bls.gov/ news.release/empsit.t01.htm (last visited December 7, 2021); U.S. Bureau of Labor Statistics, Labor Force Statistics from the Current Population Survey: Employment status of the civilian noninstitutional population by race, Hispanic or Latino ethnicity, sex, and age (December 6, 2021), https://www.bls.gov/web/empsit/cpseea04.htm (last visited December 7, 2021); U.S. Bureau of Labor Statistics, Labor Force Statistics from the Current Population Survey: Employment status of the civilian noninstitutional population 25 years and over by educational attainment (December 6, 2021), https://www.bls.gov/web/empsit/cpseea05.htm (last visited December 7, 2021). 91 Elise Gould & Jori Kandra, Wages grew in 2020 because the bottom fell out of the low-wage labor market, Economic Policy Institute (Feb. 24, 2021), https://files.epi.org/pdf/219418.pdf. See also, Michael Dalton et al., The K-Shaped Recovery: Examining the Diverging Fortunes of Workers in the Recovery from the COVID–19 Pandemic using Business and Household Survey Microdata, U.S. Bureau of Labor Statistics Working Paper Series (July 2021), https://www.bls.gov/osmr/research- papers/2021/pdf/ec210020.pdf. 92 Center on Budget and Policy Priorities, Tracking the COVID–19 Recession’s Effects on Food, Housing, and Employment Hardships, https://www.cbpp.org/research/poverty-and- inequality/tracking-the-covid-19-economys-effects- on-food-housing-and (last visited December 17, 2021). eligible use is responsive to the impacts of the pandemic in all communities. The final rule incorporates guidance issued after the interim final rule on specifically types of services eligible, including: •Evidence-based practices like focused deterrence, street outreach, violence interrupters, and hospital- based violence intervention models, complete with wraparound services such as behavioral therapy, trauma recovery, job training, education, housing and relocation services, and financial assistance; and •Capacity-building efforts at community violence intervention programs like funding more intervention workers, increasing their pay, providing training and professional development for intervention workers, and hiring and training workers to administer the programs. Public Comment: Some commenters sought further clarification on whether some of the enumerated eligible uses are considered responsive to all crime, violent crime, or gun violence. Treasury Response: Enumerated eligible uses that respond to an increase in gun violence may be pursued in communities experiencing an increase in gun violence associated with the pandemic, specifically: (1) Hiring law enforcement officials—even above pre- pandemic levels—or paying overtime where the funds are directly focused on advancing community policing strategies for gun violence, (2) additional enforcement efforts to reduce gun violence exacerbated by the pandemic, including prosecuting gun traffickers, dealers, and other parties contributing to the supply of crime guns, as well as collaborative federal, state, and local efforts to identify and address gun trafficking channels, and (3) investing in technology and equipment to allow law enforcement to more efficiently and effectively respond to the rise in gun violence resulting from the pandemic, for example technology to assist in the identification of guns whose serial numbers have been damaged. 3. Negative Economic Impacts a. Assistance to Households Background While the U.S. economy is now on the path to a strong recovery, the public health emergency, including the necessary measures taken to protect public health, resulted in significant economic and financial hardship for many Americans. As businesses closed, consumers stayed home, schools shifted to remote education, and travel declined precipitously, over 22 million jobs were lost in March and April 2020.80 One year later, in April 2021, the economy still remained over 8 million jobs below its pre-pandemic peak,81 and the unemployment rate hovered around 6 percent.82 In the months since Treasury issued the interim final rule in May 2021, the economy has made large strides in its recovery. The economy gained over 4 million jobs in the seven months from May to November 2021;83 the unemployment rate fell more than 1.5 percentage points to 4.2 percent, which is the lowest rate since February 2020;84 and the size of the nation’s economy surpassed the pre-pandemic peak in the second quarter of 2021.85 While the economy has made immense progress in its recovery since May 2021, the economy has also faced setbacks that illustrate the continued risks to the recovery. As the Delta variant spread across the country this summer and fall, the United States faced another severe wave of cases, deaths, and strain on the healthcare system, which contributed to a slowdown in the pace of recovery in the third quarter.86 Supply chain disruptions have also demonstrated the difficulties of restarting a global economy.87 Moreover, although many Americans have returned to work as of November 2021, the economy remains 3.9 million jobs below its pre-pandemic peak,88 and 2.4 million workers have dropped out of the labor market altogether relative to February 2020.89 Thus, despite much progress, there is a continued need to respond to the pandemic’s economic effects to ensure a full, broad-based, and equitable recovery. Indeed, the pandemic’s economic impacts continue to affect some demographic groups more than others. Rates of unemployment remain particularly severe among workers of color and workers with lower levels of educational attainment; for example, the overall unemployment rate in the United States was 4.2 percent in November 2021, but certain groups saw much higher rates: 6.7 percent for Black workers, 5.2 percent for Hispanic or Latino workers, and 5.7 percent for workers without a high school diploma.90 Job losses have also been particularly steep among low-wage workers, with these workers remaining furthest from recovery as of the end of 2020.91 A severe recession, and its concentrated impact among low-income workers, has amplified food and housing insecurity, with an estimated nearly 20 million adults living in households where there is sometimes or often not enough food to eat and an estimated 12 million adults living in households that were not current on rent.92 While economic effects have been seen across many communities, there are additional disparities by race and income. For example, approximately VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4358 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 93 Michael Karpman, Dulce Gonzalez, Genevieve M. Kenney, Parents Are Struggling to Provide for Their Families during the Pandemic, Urban Institute (May 2020), https://www.urban.org/ research/publication/parents-are-struggling- provide-their-families-during-pandemic?utm_ source=urban_researcher&utm_ medium=email&utm_campaign=covid_ parents&utm_term=lhp. 94 Women have carried a larger share of childcare responsibilities than men during the COVID–19 crisis. See, e.g., Gema Zamarro & Marı´a J. Prados, Gender differences in couples’ division of childcare, work and mental health during COVID– 19, Rev. Econ. Household 19:11–40 (2021), available at https://link.springer.com/article/ 10.1007/s11150-020-09534-7; Titan Alon et al., The Impact of COVID–19 on Gender Equality, National Bureau of Economic Research Working Paper 26947 (April 2020), available at https://www.nber.org/ papers/w26947. 95 U.S. Bureau of Labor Statistics, Labor Force Participation Rate—20 Yrs. & Over, Black or African American Women [LNS11300032], retrieved from FRED, Federal Reserve Bank of St. Louis; https:// fred.stlouisfed.org/series/LNS11300032 (last visited December 7, 2021). 96 U.S. Bureau of Labor Statistics, Labor Force Participation Rate—20 Yrs. & Over, Black or African American Men [LNS11300031], retrieved from FRED, Federal Reserve Bank of St. Louis; https:// fred.stlouisfed.org/series/LNS11300031 (last visited December 7, 2021). 97 U.S. Bureau of Labor Statistics, Labor Force Participation Rate—20 Yrs. & Over, White Women [LNS11300029], retrieved from FRED, Federal Reserve Bank of St. Louis; https://fred.stlouis fed.org/series/LNS11300029 (last visited December 7, 2021). 98 See, e.g., Michael Greenstone & Adam Looney, Unemployment and Earnings Losses: A Look at Long-Term Impacts of the Great Recession on American Workers, Brookings Institution (Nov. 4, 2011), https://www.brookings.edu/blog/jobs/2011/ 11/04/unemployment-and-earnings-losses-a-look- at-long-term-impacts-of-the-great-recession-on- american-workers/. 99 Chi Chi Wu, Solving the Credit Conundrum: Helping Consumers’ Credit Records Impaired by the Foreclosure Crisis and Great Recession, National Consumer Law Center (Dec. 2013), https:// www.nclc.org/images/pdf/credit_reports/report- credit-conundrum-2013.pdf. 100 Irwin Garfinkel, Sara McLanahan, Christopher Wimer, eds., Children of the Great Recession, Russell Sage Foundation (Aug. 2016), available at https://www.russellsage.org/publications/children- great-recession. 101 Kyle J. Casewell and Stephen Zuckerman, Food Insecurity, Housing Hardship, and Medical Care Utilization, Urban Institute (June 2018), available at https://www.urban.org/sites/default/ files/publication/98701/2001896_foodinsecurity_ housinghardship_medicalcareutilization_ finalized.pdf. 102 Housing insecurity is defined as not paying the full amount of rent or mortgage and/or utility bills (gas, oil, or electricity) sometime in the previous 12 months. 103 Housing quality hardship is defined as an affirmative response to one or more questions related to problems with a respondent’s physical dwelling: Pests and/or insects; leaking roof or ceiling; windows that are broken or cannot shut; exposed electrical wires; broken plumbing (toilet, hot water, other); holes in walls, ceiling, or floor; no appliances (refrigerator or stove); and no phone (of any kind). 104 Id. 105 Elise Gould and Melat Kassa. Low-wage, low- hours workers were hit hardest in the COVID–19 recession: The State of Working America 2020 employment report, Economic Policy Institute (May 2021), available at https://www.epi.org/publication/ swa-2020-employment-report/. 106 Id. 107 Id. 108 Id. 109 R. Chetty, J. Friedman, N. Hendren, M. Stepner, & Team, T. O. I., The Economic Impacts of COVID–19: Evidence from a New Public Database Built Using Private Sector Data (No. w27431; p. w27431) (2020), National Bureau of Economic Research. https://doi.org/10.3386/w27431. 110 M. Despard, Michal Grinstein-Weiss, Yung Chun, and Stephen Roll, COVID–19 job and income loss leading to more hunger and financial hardship, Brookings Institute (July 13, 2020), https:// www.brookings.edu/blog/upfront/2020/07/13/ covid-19-job-and-income-loss-leading-to-more- hunger-and-financial-hardship/. 111 N. Panchal, R. Kamal, C. Mun˜ana, & P. Chidambaram, The Implications of COVID–19 for Mental Health and Substance Use, Kaiser Family Foundation (February 10, 2021), https:// half of low-income, Black, and Hispanic parents reported difficulty covering costs related to food, housing, utility, or medical care.93 Over the course of the pandemic, inequities also manifested along gender lines, as schools closed to in-person activities, leaving many working families without childcare during the day.94 Women of color have been hit especially hard: The labor force participation rate for Black women has fallen by 3.6 percentage points 95 during the pandemic as compared to 1.3 percentage points for Black men 96 and 1.7 percentage points for White women.97 As the economy recovers, the effects of the pandemic-related recession may continue to impact households, including a risk of longer-term effects on earnings and economic potential. For example, unemployed workers, especially those who have experienced longer periods of unemployment, earn lower wages over the long term once rehired.98 In addition to the labor market consequences for unemployed workers, recessions can also cause longer-term economic challenges through, among other factors, damaged consumer credit scores 99 and reduced familial and childhood wellbeing.100 These potential long-term economic consequences underscore the continued need for robust policy support. Low- and moderate-income households, those with income levels at or below 300 percent of the federal poverty level (FPL), face particular hardships and challenges. These households report much higher rates of food insecurity and housing hardships than households with higher incomes. For example, households with incomes at or below 300 percent FPL are several times more likely to have reported struggling with food insecurity compared to households with income above 300 percent FPL.101 Similarly, low- and moderate-income households reported being housing insecure 102 at rates more than twice as high as higher- income households, and low- and moderate-income households reported housing quality hardship 103 at rates statistically significantly greater than the rate for higher-income households.104 The economic crisis caused by the pandemic worsened economic outcomes for workers in many low- and moderate-income households. Industries that employed low-wage workers experienced a disproportionate level of job loss. For example, from February 2020 to February 2021, the hospitality and leisure industry lost nearly 3.5 million jobs.105 While the entire industry was impacted, 72 percent of the job losses occurred in the lowest wage service occupations compared to only a 6 percent rate of job loss in the highest wage management and finance jobs.106 Similar trends exist in other heavily impacted industries. In public education, the lowest wage occupations, service and transportation jobs, saw a job loss rate of 20 and 26 percent, respectively.107 During that same time period, the highest wage occupations in public education, management, actually saw jobs increase by 7 percent.108 While many households suffered negative economic outcomes as a result of the COVID–19 pandemic and economic recession, households with low incomes were impacted in disproportionate and exceptional ways. From January 2020 to March 2021, low- wage workers experienced job loss at a rate five times higher than middle-wage workers, and high-wage workers actually experienced an increase in job opportunities.109 Because workers in low-income households were more likely to lose their job or experience reductions in pay, those same households were also more likely to experience economic hardships like trouble paying utility bills, affording rent or mortgage payments, purchasing food, and paying for medical expenses.110 The disproportionate negative impacts the pandemic has had on low-income families extend beyond financial insecurity. For example, low- income families have reported higher levels of social isolation, stress, and other negative mental health outcomes during the pandemic. While over half of all U.S. adults report that their mental health was negatively affected by the pandemic, adults with low incomes reported major negative mental health impacts at a rate nearly twice that of adults with high incomes.111 VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4359 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations www.kff.org/coronavirus-covid-19/issue-brief/the- implications-of-covid-19-for-mental-health-and- substance-use/. 112 For which recipients may presume that any student who did not have access to in-person instruction for a significant period of time was impacted by the pandemic. Summary of Interim Final Rule and Final Rule Structure Summary: The interim final rule provided a non-exhaustive list of enumerated eligible uses to respond to the negative economic impacts of the pandemic through assistance to households, as well as a standard for assessing whether uses of funds beyond those enumerated are eligible. The interim final rule described enumerated eligible uses for assistance to households in several categories: (1) Assistance to unemployed workers, (2) state Unemployment Insurance Trust Funds, (3) assistance to households, and (4) expenses to improve the efficacy of economic relief. Note that the interim final rule posed several questions to the public on enumerated eligible uses for assistance to households; comments on these questions are addressed in the relevant subject matter section below. In addition, in recognition that pre- existing health, economic, and social disparities contributed to disproportionate pandemic impacts in certain communities, the interim final rule also provided a broader list of enumerated eligible uses to respond to the pandemic in disproportionately impacted communities, specifically: (1) Building stronger communities through investments in housing and neighborhoods, (2) addressing educational disparities, and (3) promoting healthy childhood environments. In the interim final rule, under the Public Health section, recipients could also provide services to address health disparities and increase access to health and social services; these eligible uses have been re- organized into the Assistance to Households section to consolidate responses in disproportionately impacted communities and enhance clarity. This section addresses enumerated eligible uses in the final rule to respond to negative economic impacts to households. As a reminder, recipients may presume that a household or population that experienced unemployment, experienced increased food or housing insecurity, or is low or moderate income experienced negative economic impacts resulting from the pandemic, and recipients may provide services to them that respond to these impacts, including these enumerated eligible uses. For guidance on how to determine whether a particular use, beyond those enumerated, is eligible; further detail on which households and communities are presumed eligible for services; and how to identify eligible households and communities beyond those presumed eligible, see section General Provisions: Structure and Standards. Reorganizations and Cross- References: The final rule reorganizes all enumerated eligible uses for impacted and disproportionately impacted households into the section Assistance to Households, with the exception that expenses to improve the efficacy of economic relief has been re- categorized into a different section of the final rule for increased clarity; for discussion of that use category, see section General Provisions: Other. Note that in conducting this reorganization, and based on further analysis and in response to comments, Treasury has determined that several enumerated uses included in the interim final rule for disproportionately impacted communities are directly responsive to negative economic impacts experienced by impacted households. In the final rule, these uses have been moved from ‘‘disproportionately impacted’’ to ‘‘impacted’’ households accordingly, making these services available to both disproportionately impacted and impacted households. These uses include assistance applying for public benefits or services; programs or services that address or mitigate the impacts of the COVID–19 public health emergency on childhood health or welfare, including childcare, early learning services, programs to provide home visits, and services for families involved in the child welfare system and foster youth; programs to address the impacts of lost instructional time for students;112 and programs or services that address housing insecurity, lack of affordable housing, or homelessness. The following activities remain enumerated eligible uses for disproportionately impacted households: Remediation of lead paint or other lead hazards; housing vouchers and assistance relocating to neighborhoods with higher levels of economic opportunity; and programs or services that address educational disparities, including assistance to high- poverty school districts to advance equitable funding across districts and geographies and evidence-based services to address the academic, social, emotional, and mental health needs of students. Enumerated Eligible Uses for Impacted Households The interim final rule included several enumerated eligible uses to provide assistance to households or populations facing negative economic impacts due to COVID–19. Enumerated eligible uses included: Food assistance; rent, mortgage, or utility assistance; counseling and legal aid to prevent eviction or homelessness; emergency assistance for burials, home repairs, weatherization, or other needs; internet access or digital literacy assistance; cash assistance; or job training to address negative economic or public health impacts experienced due to a worker’s occupation or level of training. It also posed a question as to what other types of services or costs Treasury should consider as eligible uses to respond to the negative economic impacts of COVID–19. This section addresses each of these enumerated eligible uses in turn, with the exception of job training, which has been re-categorized for increased clarity to the eligible use for ‘‘assistance to unemployed and underemployed workers.’’ In general, commenters supported inclusion of these enumerated eligible uses to address key economic needs among households due to the pandemic, and Treasury is maintaining these eligible uses in the final rule, in line with commenters’ recommendations. 1. Food assistance. The interim final rule included an enumerated eligible use for food assistance. Some commenters expressed support for this eligible use and emphasized the importance of aid to address food insecurity. Some commenters raised questions as to whether food assistance funds could be used to augment services provided through organizations like food banks, churches, and other food delivery services, or generally be sub- awarded to these organizations. Treasury Response: Treasury is maintaining this enumerated eligible use without change. Recipients may, as was the case under the interim final rule, administer programs through a wide range of entities, including nonprofit and for-profit entities, to carry out eligible uses on behalf of the recipient government (see section Distinguishing Subrecipients versus Beneficiaries). Further, Treasury is clarifying that capital expenditures related to food banks and other facilities primarily dedicated to addressing food insecurity are eligible; recipients seeking to use funds for capital expenditures should refer to the section Capital Expenditures in General VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4360 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 113 See FAQ 2.21. Coronavirus State and Local Fiscal Recovery Funds, Frequently Asked Questions, as of July 19, 2021; https:// home.treasury.gov/system/files/136/SLFRPFAQ.pdf. 114 Jung Hyun Choi, Laurie Goodman, and Daniel Pang, The Pandemic Is Making It Difficult for Mom- and-Pop Landlords to Maintain Their Properties, Urban Institute (July 23, 2021), https:// www.urban.org/urban-wire/pandemic-making-it- difficult-mom-and-pop-landlords-maintain-their- properties. 115 U.S. Energy Information Administration, Residential Energy Consumption Survey (2017), Retrieved from https://www.eia.gov/consumption/ residential/data/2015/hc/php/hc11.1.php. D. Herna´ndez, Understanding ‘energy insecurity’ and why it matters to health, Social Science & Medicine, 167, 1–10 (2016), https://doi.org/ 10.1016/j.socscimed.2016.08.029. 116 Herna´ndez, D. (2016). Understanding ‘energy insecurity’ and why it matters to health. Social Science & Medicine, 167, 1–10. https://doi.org/ 10.1016/j.socscimed.2016.08.029. 117 U.S. Energy Information Administration, Residential Energy Consumption Survey (RECS) https://www.eia.gov/consumption/residential/data/ 2015/hc/php/hc11.1.php. (last visited November 9, 2021) Provisions: Other for additional eligibility standards that apply to uses of funds for capital expenditures. 2. Emergency housing assistance. The interim final rule included an enumerated eligible use for rent, mortgage, or utility assistance and counseling and legal aid to prevent eviction or homelessness. Public Comment: Several commenters supported the inclusion of eviction prevention activities as an eligible use given the high number of households behind on rent and potentially at risk of eviction. Following release of the interim final rule, Treasury had also received requests for elaboration on the types of eligible services in this category. Some commenters also recommended including assistance to households for delinquent property taxes, for example to prevent tax foreclosures on homes, as an enumerated eligible use. Treasury Response: In response to requests for elaboration on the types of eligible services for eviction prevention, Treasury has provided further guidance that these services include ‘‘housing stability services that enable eligible households to maintain or obtain housing, such as housing counseling, fair housing counseling, case management related to housing stability, outreach to households at risk of eviction or promotion of housing support programs, housing related services for survivors of domestic abuse or human trafficking, and specialized services for individuals with disabilities or seniors that support their ability to access or maintain housing,’’ as well as ‘‘legal aid such as legal services or attorney’s fees related to eviction proceedings and maintaining housing stability, court-based eviction prevention or eviction diversion programs, and other legal services that help households maintain or obtain housing.’’113 Treasury also emphasized that recipients may work with court systems, nonprofits, and a wide range of other organizations to implement strategies to support housing stability and prevent evictions. In the final rule, Treasury is maintaining these enumerated eligible uses, including those described in the interim final rule and later guidance, in line with commenters’ recommendations. To enhance clarity, Treasury is also elaborating on some types of services included under this eligible use category; this remains a non-exhaustive list of eligible services. For example, eligible services under this use category include: Rent, rental arrears, utility costs or arrears (e.g., electricity, gas, water and sewer, trash removal, and energy costs, such as fuel oil), reasonable accrued late fees (if not included in rental or utility arrears), mortgage payment assistance, financial assistance to allow a homeowner to reinstate a mortgage or to pay other housing-related costs related to a period of forbearance, delinquency, or default, mortgage principal reduction, facilitating mortgage interest rate reductions, counseling to prevent foreclosure or displacement, relocation expenses following eviction or foreclosure (e.g., rental security deposits, application or screening fees). Treasury is clarifying that assistance to households for delinquent property taxes, for example to prevent tax foreclosures on homes, was permissible under the interim final rule and continues to be so under the final rule. In addition, Treasury is also clarifying that recipients may administer utility assistance or address arrears on behalf of households through direct or bulk payments to utility providers to facilitate utility assistance to multiple consumers at once, so long as the payments offset customer balances and therefore provide assistance to households. This eligible use category also includes emergency assistance for individuals experiencing homelessness, either individual-level assistance (e.g., rapid rehousing services) or assistance for groups of individuals (e.g., master leases of hotels, motels, or similar facilities to expand available shelter). Further, Treasury is clarifying that transitional shelters (e.g., temporary residences for people experiencing homelessness) are eligible capital expenditures. Recipients seeking to use funds for capital expenditures should refer to the section Capital Expenditures in General Provisions: Other for additional eligibility standards that apply to uses of funds for capital expenditures. Note that this enumerated eligible use describes ‘‘emergency housing assistance,’’ or assistance for responses to the immediate or near-term negative economic impacts of the pandemic. The final rule also clarifies and expands the ability of recipients to use SLFRF funds to address the general lack of affordable housing and housing challenges underscored by the pandemic. For discussion of affordable housing eligible uses, including services that primarily increase access to affordable, high- quality housing and support stable housing and homeownership over the long term, see the eligible use for ‘‘promoting long-term housing security: Affordable housing and homelessness.’’ 3. Emergency assistance for pressing needs: Burials, home repairs, weatherization, or other needs. The interim final rule included an enumerated eligible use for emergency assistance for burials, home repairs, weatherization, and other needs; these types of programs may provide emergency assistance for pressing and unavoidable household needs. Treasury did not receive comments on this eligible use and is maintaining it in the final rule. Background on Home Repairs and Weatherization: The economic downturn has meant fewer households had the resources needed to make necessary home repairs and improvements. In May 2021, 28 percent of landlords reported deferring maintenance and 27 percent of tenants reported maintenance requests going unanswered.114 While small and cosmetic repairs can often wait, deferring major repairs, such as plumbing needs, can result in unsafe and unhealthy living environments and, eventually, the need for more expensive repairs and fixes. In addition to repairs, many homes are in need of weatherization. Weatherization assistance helps low- and moderate-income Americans save energy, reduce their utility bills, and keeps them and their homes safe. One in three households is energy insecure,115 meaning they do not have the ability to meet their energy needs.116 Weatherization efforts are particularly important for low- and moderate- income households. Households of color, renters, and households with low or moderate incomes are all more likely to report energy insecurity.117 These VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4361 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 118 A. Drehobl, & L. Ross, Lifting the high energy burden in America’s largest cities: How energy efficiency can improve low income and underserved communities, American Council for an Energy Efficient Economy (2016), https:// www.aceee.org/sites/default/files/publications/ researchreports/u1602.pdf. 119 See, e.g., Nation Telecommunications and Information Administration, More than Half of American Households Used the Internet for Health- Related Activities in 2019, NTIA Data Show (December 7, 2020), https://www.ntia.gov/blog/ 2020/more-half-american-households-used- internet-health-related-activities-2019-ntia-data- show; Nation Telecommunications and Information Administration, Nearly a Third of American Employees Worked Remotely in 2019, NTIA Data Show (September 3, 2020) https://www.ntia.gov/ blog/2020/nearly-third-american-employees- worked-remotely-2019-ntia-data-show; and generally, Nation Telecommunications and Information Administration, Digital Nation Data Explorer (June 10, 2020), https://www.ntia.gov/ data/digital-nation-data-explorer. 120 BroadbandSearch Blog Post, How Do U.S. Internet Costs Compare To The Rest Of The World?, available at https://www.broadbandsearch.net/blog/ internet-costs-compared-worldwide. 121 Pew Research Center, Mobile Technology and Home Broadband 2021 (June 3, 2021), https:// www.pewresearch.org/internet/2021/06/03/mobile- technology-and-home-broadband-2021/. 122 Pew Research Center, 53% of Americans Say the internet Has Been Essential During the COVID– 19 Outbreak (April 30, 2020), https://www.pew research.org/internet/2020/04/30/53-of-americans- say-the-internet-has-been-essential-during-the- covid-19-outbreak/. 123 Id. disparities are partially a result of economic hardship but are also caused by inequitable access to housing with proper insulation, up to date heating, cooling, and ventilation systems, and functioning and up to date lighting and appliances.118 While programs that address the effects of energy hardships, like the Low-Income Home Energy Assistance Program (LIHEAP), are critical, weatherization attempts to address root causes by addressing issues that lead to energy insecurities. 4. Internet access or digital literacy assistance. The interim final rule included an enumerated eligible use for assistance to households for internet access or digital literacy assistance. This enumerated eligible use, which responds to the negative economic impacts of the pandemic on a household by providing assistance that helps them secure internet access or increase their ability to use computers and the internet, is separate from the eligible use category for investments in broadband infrastructure, under Sections 602(c)(1)(D) and 603(c)(1)(D), which is used to build new broadband networks through infrastructure construction or modernization. For discussion of broadband infrastructure investment in the final rule, see section Broadband Infrastructure in Infrastructure. Background: The COVID–19 public health emergency has underscored the importance of universally available, high-speed, reliable, and affordable broadband coverage as millions of Americans rely on the internet to participate in, among other critical activities, school, healthcare, and work. Recognizing the need for such connectivity, SLFRF funds can be used to make necessary investments in broadband infrastructure that increase access over the long term, as well as the necessary supports to purchase internet access or gain digital literacy skills needed to complete activities of daily living during the pandemic. The National Telecommunications and Information Administration (NTIA) highlighted the growing necessity of broadband in daily lives through its analysis of NTIA internet Use Survey data, noting that Americans turn to broadband internet service for every facet of daily life including work, study, and healthcare.119 With increased use of technology for daily activities and the movement by many businesses and schools to operating remotely during the pandemic, broadband has become even more critical for people across the country to carry out their daily lives. However, even in areas where broadband infrastructure exists, broadband access may be out of reach for millions of Americans because it is unaffordable, as the United States has some of the highest broadband prices in the Organisation for Economic Co- operation and Development (OECD).120 According to a 2021 Pew Research Center study, 20 percent of non- broadband users say that the monthly cost of home broadband is the primary reason they do not have broadband at home, and 40 percent say that cost is one reason for their lack of home broadband.121 Further, according to another survey, 22 percent of parents with homebound schoolchildren during the COVID–19 pandemic say that it is very or somewhat likely that their children will have to rely on public wi- fi to finish their schoolwork because there is no reliable internet connection at home; this percentage nearly doubles for lower-income parents, 40 percent of whom noted that their children will have to rely on public wi-fi.122 The same survey showed that 36 percent of lower-income parents with homebound children say their child will not be able to complete their schoolwork because they do not have access to a computer at home.123 Public Comment: Many commenters highlighted the importance of broadband access during the pandemic, including for remote work and education, and argued that affordability presents a major barrier to broadband adoption by households; in other words, many households live in areas that have broadband infrastructure and service available but are unable to purchase service for their household due to the high cost. These commenters argued that broadband must be affordable to be accessible. Commenters proposed several potential responses to affordability concerns. Some commenters recommended that building ‘‘gap networks,’’ or broadband networks built at low cost to provide affordable service in areas where it is lacking, be eligible as assistance to households to respond to the negative economic impacts of the pandemic, even if they do not meet the technical standards for eligibility under the eligible use category of broadband infrastructure investment, especially the required speed standards for new service. These commenters argued that the networks have shown promise as a timely means to expand access to affordable broadband internet during the pandemic, even if they may not provide service speeds needed for more intensive internet uses. Another commenter requested eligible uses include funding cellular towers to decrease costs. One commenter recommended that affordability should be addressed through other programs but not SLFRF given that affordability and availability may require nuanced solutions that would be complex to combine. Treasury Response: The interpretive framework and enumerated eligible uses allow recipients flexibility to address identified pandemic impacts, including through solutions that take into account the particularized issues in their community. Given extensive commenter feedback on the importance of affordability to achieving broadband access, and the centrality of broadband to participating in work, education, healthcare, and other activities during the pandemic, affordability programs are an appropriate eligible use to respond to the negative economic impacts of the pandemic and Treasury is maintaining the enumerated eligible use for assistance to households for internet access and digital literacy programs in the final rule. Building or constructing new broadband networks is an infrastructure investment and is governed by a separate clause in the statute. Treasury has addressed comments on ‘‘gap networks’’ that require infrastructure build-out in the section Broadband Infrastructure in Infrastructure. VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4362 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 124 Amy Finkelstein & Matthew J Notowidigdo, Take-Up and Targeting: Experimental Evidence from SNAP, The Quarterly Journal of Economics, vol 134(3), pages 1505–1556 (2019), https:// www.nber.org/papers/w24652. Public Comment: Some commenters also use the term ‘‘gap networks’’ to refer to equipment installed as part of wi-fi systems, such as routers, repeaters, and access points; this equipment provides consumer access to an existing broadband network and does not require new network build-out or construction. These commenters recommended that Treasury permit, as assistance to households for internet access, investments in public wi-fi networks, free wi-fi in public housing communities, and other equipment that offers internet access to end users by utilizing existing broadband networks. Other commenters recommended that eligible uses in this category include providing devices and equipment necessary to access the internet, like computers and routers, directly to low- income households. Treasury Response: Treasury has determined that these services, which expand internet access without constructing new networks, are an appropriate enumerated eligible use as assistance to households to respond to a negative economic impact, and they are permitted under the final rule. Treasury is clarifying that eligible uses under this category can also include a wide range of programs and services to expand internet access and digital literacy, such as subsidies for the cost of internet service, other programs that support adoption of internet service where available, digital literacy programs, or programs that provide devices and equipment to access the internet (e.g., programs that provide equipment like tablets, computers, or routers) to households. Recipients seeking to use funds for equipment should refer to the section Capital Expenditures in General Provisions: Other for additional eligibility standards that apply to uses of funds for capital expenditures (e.g., equipment, property, and facilities). 5. Cash assistance. The interim final rule included as an enumerated eligible use cash assistance and provided that cash transfers must be ‘‘reasonably proportional’’ to the negative economic impact they address and may not be ‘‘grossly in excess of the amount needed to address’’ the impact. In assessing whether a transfer is reasonably proportional, recipients may ‘‘consider and take guidance from the per person amounts previously provided by the Federal Government in response to the COVID–19 crisis,’’ and transfers ‘‘grossly in excess of such amounts’’ are not eligible. Public Comment: Several commenters expressed support for this eligible use, noting that this is a common policy tool for some governments to support the well-being of households and individuals in their communities. Some commenters requested that Treasury set a specific dollar amount for permissible cash transfers, and Treasury has also received recipient questions on whether specific types of transfers, such as those to a substantial share of the population in the jurisdiction, would be a permissible use of funds. Treasury Response: Treasury is maintaining this enumerated eligible use in the final rule, in line with commenters’ recommendations. Because the final rule is intended to provide flexibility to recipients to respond to the particularized pandemic impacts in their communities, which may vary in type and intensity, setting a specific dollar threshold for eligible cash transfers would fail to recognize the particularized needs of communities and limit recipients’ flexibility to tailor their response to those needs. To provide greater clarity, Treasury is elaborating on the analysis that recipients may undertake to assess the eligibility of specific cash assistance programs or transfers. Cash transfers, like all eligible uses in this category, must respond to the negative economic impacts of the pandemic on a household or class of households. For the reasons discussed above, recipients may presume that low- and moderate-income households (as defined in the final rule), as well as households that experienced unemployment, food insecurity, or housing insecurity, experienced a negative economic impact due to the pandemic. Recipients may also identify other households or classes of households that experienced a negative economic impact of the pandemic and provide cash assistance that is reasonably proportional to, and not grossly in excess of, the amount needed to address the negative economic impact. For example, in the ARPA, Congress authorized Economic Impact Payments to households at certain income levels, identifying and responding to a negative economic impact of the pandemic on these households. Finally, Treasury has reiterated in the final rule that responses to negative economic impacts should be reasonably proportional to the impact that they are intended to address. Uses that bear no relation or are grossly disproportionate to the type or extent of harm experienced would not be eligible uses. Reasonably proportional refers to the scale of the response compared to the scale of the harm. It also refers to the targeting of the response to beneficiaries compared to the amount of harm they experienced; for example, it may not be reasonably proportional for a cash assistance program to provide assistance in a very small amount to a group that experienced severe harm and in a much larger amount to a group that experienced relatively little harm. 6. Survivor’s benefits. The interim final rule included an enumerated eligible use for survivor’s benefits to surviving family members of individuals who have died from COVID–19, including cash assistance to widows, widowers, or dependents. Public Comment: Treasury did not receive any comments on the inclusion of survivor’s benefits as an enumerated use for impacted households in the interim final rule. Treasury Response: This use of funds remains eligible under the final rule. Consistent with the general reorganization noted above, the final rule organizes survivor’s benefits under assistance to households to clarify that households are the intended beneficiaries of survivor’s benefits. 7. Assistance accessing or applying for public benefits or services. Recognizing that eligible households often face barriers to accessing public benefits or services that improve health and economic outcomes, the interim final rule included as an enumerated eligible use in disproportionately impacted communities, public benefits navigators to assist community members with navigating and applying for available federal, state, and local public benefits or services. Treasury also clarified in subsequent guidance after the interim final rule that this eligible use category would include outreach efforts to increase uptake of the Child Tax Credit. Background: The under-enrollment of eligible households in social assistance programs is a well-recognized and persistent challenge. There are many reasons why a household may not be receiving a particular benefit even though they are eligible. For many federal programs, enrollment processes vary from state-to-state. Sometimes, households are simply unaware that they are eligible for a particular benefit.124 For example, despite having one of the highest rates of participation of any benefits program, nearly 20 percent of eligible individuals do not participate in the Supplementary Nutritional Assistance Program VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4363 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 125 United States Department of Agriculture, Trends in Supplemental Nutrition Assistance Program Participation Rates: Fiscal Year 2016 to Fiscal Year 2018 (May 2021), https://fns-prod. azureedge.net/sites/default/files/resource-files/ Trends2016-2018.pdf. 126 Jeremy Barofsky et al., Spreading Fear: The Announcement Of The Public Charge Rule Reduced Enrollment In Child Safety-Net Programs, Health Affairs (October 2020), https://www.health affairs.org/doi/full/10.1377/hlthaff.2020.00763. 127 See, e.g., U.S. Department of the Treasury, By ZIP Code: Number of Children under Age 18 with a Social Security Number Who Are Not Found on a Tax Year 2019 or 2020 Tax Return but who Appear on a Tax Year 2019 Form 1095 and Associated Number of Policy Holders (June 2021), https://home.treasury.gov/system/files/131/ Estimated-Counts-of-Children-Unclaimed-for-CTC- by-ZIP-Code-2019.pdf. 128 Women have carried a larger share of childcare responsibilities than men during the COVID–19 crisis. See, e.g., Gema Zamarro & Mar(´a J. Prados, Gender differences in couples’ division of childcare, work and mental health during COVID– 19, Rev. Econ. Household 19:11–40 (2021), available at https://link.springer.com/article/ 10.1007/s11150-020-09534-7; Titan Alon et al., The Impact of COVID–19 on Gender Equality, National Bureau of Economic Research Working Paper 26947 (April 2020), available at https://www.nber.org/ papers/w26947. 129 See, e.g., Center For The Study Of Child Care Employment (CSCCE), Child Care Sector Jobs: BLS Analysis (November 8, 2021), https://cscce. berkeley.edu/child-care-sector-jobs-bls-analysis/; Emma K. Lee, and Zachary Parolin. The Care Burden during COVID–19: A National Database of Child Care Closures in the United States, Socius (January 2021), doi:10.1177/23780231211032028. 130 Jason Furman, Melissa Schettini Kearney, and Wilson Powell, The Role of Childcare Challenges in the US Jobs Market Recovery During the COVID– 19 Pandemic, NBER Working Paper No. 28934 (June 2021), https://www.nber.org/papers/w28934. 131 U.S. Census Bureau, Phase 3.2 Household Pulse Survey: Table 2. Childcare Arrangements in the Last 4 Weeks for Children Under 5 Years Old, by Selected Characteristics, (Washington: 2021), available at https://www.census.gov/programs- surveys/household-pulse-survey/data.html. 132 Id. 133 N. Kalluri, C. Kelly, & A. Garg, Child Care During the COVID–19 Pandemic: A Bad Situation Made Worse. Pediatrics (2021), https://doi.org/ 10.1542/peds.2020-041525. 134 National Association for the Education of Young Children, Am I Next? Sacrificing to Stay Open, Child Care Providers Face a Bleak Future Without Relief (December 2020), https:// www.naeyc.org/sites/default/files/globally-shared/ downloads/PDF. 135 G. G. Weisenfeld, Impacts of Covid-19 on Preschool Enrollment and Spending, New Brunswick, NJ: National Institute for Early Education Research (2021), https://nieer.org/wp- content/uploads/2021/03/NIEER_Policy_Brief_ Impacts-of-Covid-19on_Preschool_Enrollment_and_ Spending_3_16_21.pdf. 136 Heather Long, ‘The pay is absolute crap’: Child-care workers are quitting rapidly, a red flag for the economy, Washington Post (September 19, 2021), https://www.washingtonpost.com/business/ 2021/09/19/childcare-workers-quit/. 137 Monash University, The emotional toll of COVID–19 among early childhood educators (August 5, 2020) https://lens.monash.edu/@ education/2020/08/05/1381001/the-emotional-toll- of-covid-19-among-early-childhood-educators. 138 Daphna Bassok and Anna Shapiro, Understanding COVID–19-era enrollment drops Continued (SNAP).125 In other cases, policies like public charge and asset testing can discourage otherwise eligible households.126 While the gap between households that need assistance and the number of households participating in public benefit programs has always existed, narrowing that gap and ensuring households receive the support they need is critical in mitigating the negative economic impacts of the pandemic. Public Comment: Treasury has also received feedback from recipients and stakeholders noting the need to increase awareness and uptake of assistance programs, including gaps that remain in enrollment of eligible households in programs to address the negative economic impacts of the pandemic.127 Treasury Response: Treasury has determined that this impact of the pandemic is widely experienced across many jurisdictions and programs or services to increase awareness and uptake of assistance programs would respond to the pandemic’s negative economic impact in all communities. As such, in the final rule, this use is eligible for any impacted household or class of households, not only in disproportionately impacted communities. 8. Promoting healthy childhood environments. The interim final rule included programs and services that promote healthy childhood environments as an enumerated eligible use for disproportionately impacted households. The interim final rule listed three programs or services included under this use: Childcare; programs to provide home visits by health professionals, parent educators, and social service professionals to individuals with young children to provide education and assistance for economic support, health needs, or child development; and services for child welfare-involved families and foster youth to provide support and education on child development, positive parenting, coping skills, or recovery for mental health and substance use. The interim final rule also included an enumerated eligible use for early learning services in disproportionately impacted communities, to address disparities in education. Public Comment: Childcare and Early Learning: Treasury received multiple comments that were supportive of the provision of childcare. Treasury has also received multiple comments and questions indicating that recipients have identified a need for childcare for a broader range of households and communities, for example those that may need childcare in order to return to work, in addition to households and communities disproportionately impacted by the pandemic. Several commenters expressed uncertainty about how childcare facilities should interact with the boundaries of a QCT. Finally, one commenter recommended that pre-K or early learning services encompass care for infants and toddlers, arguing that these types of care are often more expensive or challenging to access for families. Background: Childcare and Early Learning: As daycares and schools closed in-person activities during the pandemic, many working families were left without childcare during the day.128 Although daycare centers and schools have since reopened in many communities, there remains a persistent childcare shortage as childcare employment levels have not fully rebounded since the sharp decline in childcare employment at the beginning of the pandemic.129 As a result, working parents in communities across the country, and more specifically women, may face challenges entering or reentering the labor force.130 Low-income households are also more likely to lose access to quality childcare.131 The widespread closure of childcare centers combined with a lack of access to paid family leave means parents in low-income households are more likely to experience a reduction of income or leave their jobs due to a lack of childcare options.132 Additionally, childcare providers serving primarily low-income families were less likely to remain open during the pandemic because of tighter profit margins and general community financial insecurity, compared to childcare providers serving primarily high-income families.133 134 In addition to disruptions to childcare, early learning services were also significantly impacted by the pandemic, and the disruption of these services had widespread ramifications for learning loss, parental support, and equity. Early learning centers have seen declined enrollment across the board, though there was a larger dip in enrollment for low-income households.135 This lower enrollment coincides with a diminishing workforce, as similarly to childcare, early childhood educators have been leaving the profession due to long hours, low pay,136 and health and safety concerns.137 As a result, children’s school readiness has suffered, leading to potential long-term impacts on life outcomes.138 The impact also extended VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4364 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations among early-grade public school students, Brookings Institution (February 22, 2021), https:// www.brookings.edu/blog/brown-center-chalkboard/ 2021/02/22/understanding-covid-19-era- enrollment-drops-among-early-grade-public-school- students/. 139 Centers for Disease Control and Prevention, Pregnant and Recently Pregnant People, https:// www.cdc.gov/coronavirus/2019-ncov/need-extra- precautions/pregnant-people.html (last visited November 9, 2021). 140 Id. 141 Sarah Javaid, Sarah Barringer, Sarah D Compton, Elizabeth Kaselitz, Maria Muzik, Cheryl A. Moyer, The impact of COVID–19 on prenatal care in the United States: Qualitative analysis from a survey of 2519 pregnant women, Midwifery, Volume 98, 2021, 102991, ISSN 0266–6138, https:// doi.org/10.1016/j.midw.2021.102991. 142 A Basu, HH Kim, R Basaldua, KW Choi, L Charron, et al., A cross-national study of factors associated with women’s perinatal mental health and wellbeing during the COVID–19 pandemic, PLOS ONE 16(4): e0249780, (2021), https://doi.org/ 10.1371/journal.pone.0249780. 143 Amanda Taub, A New Covid-19 Crisis: Domestic Abuse Rises Worldwide, New York Times (April 6, 2020), https://www.nytimes.com/2020/04/ 06/world/coronavirus-domestic-violence.html. 144 Xenia Shih Bion, Efforts to Reduce Black Maternal Mortality Complicated by COVID–19, California Health Care Foundation (April 20, 2020), https://www.chcf.org/blog/efforts-reduce-black- maternal-mortality-complicated-covid-19/. 145 U.S. Department of Health and Human Services, Home Visiting Evidence of Effectiveness, https://homvee.acf.hhs.gov/outcomes/maternal%20 health/In%20Brief. 146 National Conference of State Legislatures, Criminal Justice System Responses to COVID–19 (November 16, 2020), https://www.ncsl.org/ research/civil-and-criminal-justice/criminal-justice- and-covid-19.aspx. 147 John Burton Advocates for Youth, The Cumulative Impact of the Pandemic on Youth Who Have Been in Foster Care or Homeless (May 2020) https://jbay.org/wp-content/uploads/2021/04/JBAY- COVID-19-Impact.pdf. 148 John Kelly, Next Week, Thousands of Foster Youth Will Age Out on the Same Day (September 21, 2021), https://imprintnews.org/subscriber- content/thousands-of-foster-youth-will-age-out-on- the-same-day/59006. 149 Conrad-Hiebner, Aislinn, and Elizabeth Byram, The Temporal Impact of Economic Insecurity on Child Maltreatment: A Systematic Review. Trauma, Violence, & Abuse, vol. 21, no. 1, Jan. 2020, pp. 157–178, doi:10.1177/ 1524838018756122. to parents. Parents, especially mothers, may face challenges reentering or remaining in the workforce if early learning services are unavailable. Treasury Response: Childcare and Early Learning Services: Treasury agrees with commenters’ analysis that challenges accessing or affording childcare have been widespread during the pandemic, affecting many jurisdictions and populations across the country. Disruptions to early care and learning services similarly have had broad impact and likely result in negative impacts for young children and their parents. As such, these enumerated eligible uses are generally responsive to the negative economic impacts of the pandemic in all communities, not just in disproportionately impacted communities. Under the final rule, childcare and early learning services are available to impacted households or classes of households, not just those disproportionately impacted. These eligible uses can include new or expanded services, increasing access to services, efforts to bolster, support, or preserve existing providers and services, and similar activities. Further, Treasury is clarifying that improvements to or new construction of childcare, daycare, and early learning facilities are eligible capital expenditures. Recipients seeking to use funds for capital expenditures should refer to the section Capital Expenditures in General Provisions: Other for additional eligibility standards that apply to uses of funds for capital expenditures. Public Comment: Home Visiting: Treasury has also received questions about whether the provision of home visiting services would be responsive to the health and mental health needs of impacted new mothers, citing the positive mental health impacts shown on the mother as well as improved outcomes for children. Background: Home Visiting: Pregnant and recently pregnant individuals are at an increased risk for serious illness from COVID–19.139 Furthermore, pregnant individuals with COVID–19 are more likely to experience preterm birth (delivering the baby earlier than 37 weeks).140 In addition to heightened health risks from COVID–19, pregnant individuals may have experienced significant changes to their prenatal care during the pandemic 141 or may also have experienced increased mental health challenges, including high levels of depression, anxiety, loneliness, and post-traumatic stress during the pandemic.142 Home visiting services provided to families, particularly new mothers and newborns, feature regular home visits from trained nurses, social workers, and/or counselors who provide health care, mental health resources, positive parenting support, support in making personal health decisions, and awareness of other potentially helpful services. These functions have become even more essential at mitigating negative factors associated with the pandemic. Home visits give professionals a chance to flag potential domestic violence, which has risen worldwide over the course of the pandemic.143 Racial health disparities can also be driven down by home visits. For example, Black women are more likely to avoid hospitals during the pandemic, and home visitors can help either assuage concerns around hospitals or give effective advice for alternative methods of childbirth.144 Given the disproportionate effect of the pandemic on people of color, home visits are an essential equity tool that tackle major negative effects of the pandemic. These are just a few selections from the evidence that suggests many home visiting models can have a positive effect on maternal physical and mental health.145 Treasury Response: Home Visiting: Given the widespread impact of COVID–19 on pregnant and recently pregnant individuals, Treasury is re- categorizing home visiting services as an eligible use for impacted communities, not just disproportionately impacted communities. Under the final rule, these eligible uses are available to impacted households or classes of households. Public Comment: Child Welfare: While the interim final rule noted that certain types of assistance, particularly around child development and parenting, were eligible for child welfare-involved families, Treasury has received some recipient questions asking whether financial, educational, housing, or other supports and services are eligible uses for foster youth, including those aging out of the system, and child welfare-involved families. Other commenters asked about whether funding for kinship care would be eligible. Background: Child Welfare: The COVID–19 pandemic placed meaningful strain on the child welfare and foster care system. Court hearings were delayed,146 essential mental health care was shifted to a virtual environment, and attendance and performance in school among foster children dropped sharply.147 Additionally, there was a nationwide rise of new children entering the foster care system and many states placed temporary moratoria on children aging out of the foster care system.148 As these temporary moratoria expire, additional support will be needed to assist children exiting the system. Additionally, financial and material hardship are causal factors in the increase of new children entering the foster care system, whether through loss of a caregiver, domestic violence,149 or other associated costs of the pandemic. Therefore, support to decrease these hardships will support families and increase positive outcomes for youth VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4365 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 150 Verlenden JV, Pampati S, Rasberry CN, et al. Association of Children’s Mode of School Instruction with Child and Parent Experiences and Well-Being During the COVID–19 Pandemic— COVID Experiences Survey, United States, October 8–November 13, 2020. MMWR Morb Mortal Wkly Rep 2021;70:369–376. DOI: http://dx.doi.org/ 10.15585/mmwr.mm7011a1external icon. 151 U.S. Department of Education, Strategies for Using American Rescue Plan Funding to Address the Impact of Lost Instructional Time, August 2021. Retrieved from https://www2.ed.gov/documents/ coronavirus/lost-instructional-time.pdf. 152 Consumer Financial Protection Bureau, Housing insecurity and the COVID–19 pandemic Continued and families that may otherwise become involved in the child welfare system. Treasury Response: In the final rule, Treasury is clarifying that services to foster youth, including those aging out of the system, and child welfare- involved families may encompass a wide array of financial, educational, child development, or health supports, or other supports necessary, including supports for kinship care. 9. Addressing the impacts of lost instructional time. Public Comment: The interim final rule included an enumerated eligible use to address educational disparities in disproportionately impacted communities, recognizing that underserved students have been more severely impacted by the pandemic and including responsive services for early learning, enhance funding to high- poverty districts, and providing evidence-based services to address the academic, social, emotional, and mental health needs of students. Some commenters expressed concerns that learning loss or the negative impacts of lost instructional time due to school closures or remote education during the pandemic had affected a significant share of students in grades kindergarten through twelve (K–12), including students who may not fall within a disproportionally impacted group. Background: The COVID–19 pandemic resulted in the widespread closure of schools across the nation. While many schools and districts reopened to in-person instruction or implemented remote learning, the shift was not immediate or without consequence. Children who received virtual only or combined remote and in- person instruction were more likely to report experiencing negative mental- and physical health outcomes than children who received in-person instruction.150 Treasury Response: Under the final rule, addressing the impact of lost instructional time and/or learning loss is an enumerated eligible use for impacted households. When providing services to address lost instructional time, recipients may presume that any K–12 student who lost access to in- person instruction for a significant period of time has been impacted by the pandemic and is thus eligible for responsive services. Interventions or services that address the impact of lost instructional time may include offering high-quality tutoring and other extended learning opportunities, providing differentiated instruction, implementing activities to meet the comprehensive needs of students, expanding and improving language access for parents and families, providing information and assistance to parents and families on how they can effectively support students, including in a distance learning environment, improving student engagement in distance education, and administering and using high-quality assessments to assess students’ academic progress, among others. In designing services under this eligible use, recipients may wish to reference guidance from the Department of Education on strategies for addressing lost instructional time.151 The final rule also maintains a separate enumerated eligible use for addressing educational disparities in disproportionately impacted communities. This eligible use includes services to address disparities in educational outcomes that predate the pandemic and amplified its impact on underserved students; these include, for example, enhanced funding to high- poverty districts and providing evidence-based services to address the academic, social, emotional, and mental health needs of students. Finally, as described in the section Public Health, recipients can provide a broad range of behavioral health services, including services for children and youth in schools, to respond to the impacts of the pandemic on mental health and other behavioral health issues. When providing behavioral health services, recipients may presume that the general public was impacted by the pandemic and provide behavioral health services to members of the general public, including children and youth in schools, without any further analysis of impacts of the pandemic on those individuals and whether the service is responsive. 10. Promoting long-term housing security: affordable housing and homelessness. Under the interim final rule, recipients may use SLFRF funds to provide a set of housing services to communities that have been disproportionately impacted by the pandemic. Specifically, the interim final rule provided that programs or services that address housing insecurity, lack of affordable housing, or homelessness, were responsive to the negative economic impacts of the pandemic when provided to disproportionately impacted households and communities. The enumerated uses included supportive housing or other programs or services to improve access to stable, affordable housing among individuals who are homeless and development of affordable housing to increase supply of affordable and high-quality living units. Many recipients have already announced plans to use SLFRF funds for affordable housing interventions in all of these categories. Treasury received many comments asking for additional clarity or flexibility in these uses. As detailed below, based on multiple public comments and questions and Treasury’s subsequent analysis, Treasury has determined that supportive housing or other programs or services to improve access to stable, affordable housing among individuals who are homeless, and the development of affordable housing to increase supply of affordable and high-quality living units are responsive to the needs of impacted populations, not only disproportionately impacted populations. This final rule reflects this clarification and builds on the objectives stated in the interim final rule to improve access to stable, affordable housing, including through interventions that increase the supply of affordable and high-quality living units, improve housing security, and support durable and sustainable homeownership. Finally, note that ‘‘emergency housing assistance,’’ or assistance for responses to the immediate negative economic impacts of the pandemic through services like financial assistance for rental arrears or mortgage payments, is also an eligible use category for assistance to households under the final rule; see the eligible use for ‘‘emergency housing assistance’’ above. The provision of housing vouchers and assistance relocating to neighborhoods with higher levels of economic opportunity remains an eligible use under assistance to disproportionately impacted households; for discussion, see the eligible use for ‘‘housing vouchers and assistance relocating’’ below. Background: Affordable Housing: It is clear that the ongoing pandemic and resulting economic crisis are having a profound, long-term negative effect on the pre-existing affordable housing crisis facing low-income households.152 VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4366 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations (March 2020), https://files.consumerfinance.gov/f/ documents/cfpb_Housing_insecurity_and_the_ COVID-19_pandemic.pdf. 153 Joint Center For Housing Studies Of Harvard University, The State of the Nation’s Housing (June 2021), https://www.jchs.harvard.edu/sites/default/ files/reports/files/Harvard_JCHS_State_Nations_ Housing_2021.pdf. 154 Davin Reed and Eileen Divringi, Household Rental Debt During COVID–19: Update for 2021, Federal Reserve Bank of Philadelphia (2020), available at: https://www.philadelphiafed.org/ community-development/housing-and- neighborhoods/household-rental-debt-during-covid- 19-update-for-2021. Further, some research suggests that liquidity may be a more important predictor of default than other factors, including income or equity. See Trading Equity for Liquidity (June 2019), available at https://www.jpmorganchase. com/content/dam/jpmc/jpmorgan-chase-and-co/ institute/pdf/institute-trading-equity-for- liquidity.pdf. The combination of a large number of higher-income households who have weathered the pandemic without significant income losses, low interest rates, and housing supply constraints exacerbated by the pandemic, have driven a sharp increase in the sale price of homes.153 Meanwhile, many low- income renters and homeowners are struggling with lost employment and income and are behind on their housing payments.154 Public Comment: Affordable Housing Outside of Low-Income Geographies: A major theme in comments was that affordable housing interventions, especially development of affordable housing, should be allowed outside of QCTs, as concentrating the supply of affordable housing in low-income geographies can have the effect of increasing both concentrated poverty and racial and economic segregation, while locking lower-income households in need of housing support out of high- opportunity neighborhoods with access to employment and amenities. Treasury Response: Affordable Housing Outside Low-Income Geographies: As previously stated, affordable housing is not confined to low-income geographies under the interim final rule. As discussed elsewhere, the interim final rule presumed that QCTs, as well as communities served by Tribal governments, were disproportionately impacted for administrative convenience, but recipients may identify other populations, households, or geographic areas with disparate impacts of COVID–19 and provide affordable housing services to them. For example, under the interim final rule, a city could determine that its low- income residents faced disproportionate impacts of COVID–19 and develop affordable housing targeted to these households. Such a scenario could include, for example, affordable projects in higher-income neighborhoods that would allow residents to live closer to jobs and well-resourced schools. Additionally, as noted above, Treasury is finalizing the rule with some changes to the treatment of affordable housing development designed to clarify that permanent supportive housing or other programs or services to improve access to stable, affordable housing among individuals who are homeless, and the development of affordable housing to increase supply of affordable and high-quality living units, are responsive to individuals and households that were impacted by the pandemic in addition to those that were disproportionately impacted. This shift is in line with commenters’ recommendations and consistent with the facts described above, which demonstrate that lack of supply of affordable housing units contributed to the pandemic’s impact on housing insecurity and unsustainable housing cost burdens and that these impacts were experienced broadly across the country. Public Comment: Eligible Activities: Many commenters asked for clarity on what types of activities (e.g., land acquisition, construction, pre- construction costs, operating costs, etc.) are eligible uses of SLFRF, and what affordability criteria must be applied to affordable housing development. Commenters encouraged Treasury to allow the full array of affordable housing activities, including particular requests for broad flexibility for Tribal communities, and to specify that ‘‘development’’ should include construction, preservation, rehabilitation, and operation. Other commenters requested clarification about permissible program administration approaches for affordable housing, such as contracting methods and distribution of funds. Some commenters asked that Treasury require SLFRF funds to be focused on the lowest-income households, who suffer the most severe rent burdens and risks of housing instability, and whose housing situation has left them particularly vulnerable to COVID–19. For example, one commenter argued that SLFRF funds should only be used to support affordable housing for households making 50 percent of AMI or less and that recipients should be required to set aside significant portions of any developments for renters making 30 percent of AMI or less and persons with physical and sensory disabilities. Other commenters requested a more flexible approach to affordable housing definitions. Treasury Response: Eligible Activities: The final rule clarifies eligibility of affordable housing development for recipients; these uses were eligible under the interim final rule, but Treasury is providing further guidance to enhance clarity and respond to recipient and commenter questions. As with all interventions to address the negative economic impacts of the pandemic, affordable housing projects must be responsive and proportional to the harm identified. This test may be met by affordable housing development projects—which may involve large expenditures and capital investments— if the developments increase the supply of long-term affordable housing for low- income households. While there may be less costly (or non-capital) alternatives to affordable housing development, a comprehensive response to the widespread housing challenges underscored by the pandemic will require the production of additional affordable homes, and targeted affordable housing development is a cost-effective and proportional response to this need. For purposes of this test, Treasury will presume that any projects that would be eligible for funding under either the National Housing Trust Fund (HTF) or the Home Investment Partnerships Program (HOME) are eligible uses of SLFRF funds. Note that these programs use different income limits than the definition of low- and moderate-income adopted by Treasury. Given the severity of the affordable housing shortage, and the ways in which the pandemic has exacerbated the need for affordable, high-quality dwelling units, Treasury has determined that the households served by these federal housing programs have been impacted by the pandemic and its negative economic impacts and that development of affordable housing consistent with these programs is a related and reasonably proportional response to those impacts. Additionally, affordable housing projects provided by a Tribal government are eligible uses of SLFRF if they would be eligible for funding under the Indian Housing Block Grant program, the Indian Community Development Block Grant program, or the Bureau of Indian Affairs Housing Improvement Program. Alignment with these programs, which define ‘‘affordable housing’’ in a manner consistent with a proportionate response to the affordable housing challenges faced by low- and moderate- income households as a result of the negative economic impacts of the pandemic, is intended to give recipients comfort and clarity as they design a VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4367 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 155 Stefan Pichler, Katherine Wen, and Nicolas R. Ziebarth, COVID–19 Emergency Sick Leave Has Helped Flatten The Curve In The United States: Study examines the impact of emergency sick leave on the spread of COVID–19, Health Affairs 39, no. 12 (2020): 2197–2204, https://www.health affairs.org/doi/10.1377/hlthaff.2020.00863. 156 Scott Brown et al., Employee and Worksite Perspectives of the Family and Medical Leave Act: Results from the 2018 Surveys, Abt Associates (July 2020), https://www.dol.gov/sites/dolgov/files/ OASP/evaluation/pdf/WHD_FMLA2018Survey Results_FinalReport_Aug2020.pdf. 157 Id. 158 Ann P. Bartel et al., Racial and ethnic disparities in access to and use of paid family and medical leave: evidence from four nationally representative datasets, U.S. Bureau of Labor Statistics (BLS) (January 2019), https://www.bls.gov/ opub/mlr/2019/article/racial-and-ethnic- disparities-in-access-to-and-use-of-paid-family- andmedical-leave.htm. Continued wide variety of affordable housing interventions, including production, rehabilitation, and preservation of affordable rental housing and, in some cases, affordable homeownership units. These programs allow the financing of a wide range of affordable housing activities and set clear eligibility criteria that many recipients are already familiar with. Finally, to further support sustainable and durable homeownership, recipients may consider offering down payment assistance, such as through contributions to a homeowner’s equity at origination or that establish a post- closing, mortgage reserve account on behalf of the borrower that may be utilized to make a missed or partial mortgage payment at any point during the life of the loan (e.g., if the borrower faces financial stress). Homeownership assistance that would be eligible under the Community Development Block Grant (at 24 CFR 507.201(n)) is also an eligible use of SLFRF funds. Public Comment: Permanent Supportive Housing: Treasury has received comments encouraging the use of SLFRF funds for permanent supportive housing. This is an eligible use under the interim final rule: Both the development of affordable housing (including operating subsidies) and wraparound services such as behavioral health services, employment services, and other supportive services, are eligible responses to the public health crisis or its negative economic impacts. Treasury Response: The final rule maintains the eligibility of permanent supportive housing as an enumerated use. Treasury is also clarifying that other affordable housing developments targeted to specialized populations are also eligible, for example recovery housing for individuals in recovery from substance use. Public Comment: Operating Expenses: Commenters specifically asked that Treasury allow the use of SLFRF funds for operating expenses of affordable housing units, as operating subsidies are typically required to reach extremely low-income households, whose affordable rents may be lower than the ongoing cost of operating their unit. Treasury Response: Operating expenses for eligible affordable housing were an eligible use of funds under the interim final rule and the final rule maintains this treatment. This may include capitalized operating reserves. Rehabilitation and repair of public housing will also be considered an eligible use of SLFRF funds. Public Comment: Affordable Housing Loans and Revolving Loan Funds: Some commenters requested that loans with maturities beyond the period of performance or revolving loan funds that revolve beyond the period of performance be eligible uses of SLFRF funds if used for affordable housing. Some commenters pointed out that for- profit developers of low-income housing through the Low-Income Housing Tax Credit (LIHTC) may be deterred from accepting grants to bridge funding gaps in current LIHTC deals by the treatment of grants to for-profit entities in the calculation of eligible basis for the LIHTC. Treasury Response: The final rule does not change the treatment of loans from the interim final rule. For more details see section Treatment of Loans in Program Administration Provisions. Similarly, the final rule does not change the treatment of grants to support affordable housing development, including developments supported by the LIHTC: such grants are an eligible use of funds. Additional enumerated eligible uses for assistance to impacted households. As noted above, the interim final rule posed a question on what other types of services or costs Treasury should consider as eligible uses to respond to the negative economic impacts of COVID–19. In response, commenters proposed a wide variety of additional recommended enumerated eligible uses to assist households, ranging from general categories of services (e.g., legal and social services) to services that respond to needs widely experienced across the country (e.g., access to and affordability of health insurance) to services that are most applicable to the particularized needs of certain populations or geographic areas of the United States (e.g., senior citizens, SNAP recipients, immigrants, formerly- incarcerated individuals, responding to environmental issues in certain geographic regions). Other commenters generally requested a high degree of flexibility to respond to the particular needs of their communities. Treasury Response: Given the large number and diversity of SLFRF recipients, Treasury’s approach to assistance to households in the final rule aims to clarify additional enumerated eligible uses that respond to negative economic impacts of the pandemic experienced widely in many jurisdictions across the country, making it clear and simple for recipients to pursue these enumerated eligible uses under the final rule. In the final rule, Treasury is clarifying several additional uses, which generally respond to pandemic impacts experienced broadly across jurisdictions and populations, are eligible under the interim final rule as assistance to households and continue to be so under the final rule, as outlined below. 11. Paid sick, medical, or family leave. Public Comment: Some commenters argued that the pandemic increased the need for paid sick or medical leave, as staying home when ill is recommended by the CDC to prevent spread of the virus but lack of access to paid sick leave often prevents workers from staying home. Other commenters recommended paid family leave as an eligible use, arguing that shortages in access to childcare or home health assistance, as well as school closures, may increase the need for family members to serve as caretakers. Background: The COVID–19 pandemic highlighted the importance of paid leave as well as the number of workers who do not have access to paid sick and/or family leave. When workers have access to paid leave, they are less likely to report to work sick, and therefore less likely to spread illnesses in the workplace: One study demonstrates that the emergency sick leave provision of the Families First Coronavirus Response Act (FFCRA) reduced the spread of COVID–19.155 The lack of paid leave exacerbates financial hardships experienced as a result of the public health emergency. A 2018 survey by the Department of Labor found that two-thirds of employees that took unpaid or partial-paid leave experienced financial hardship.156 Furthermore, because the Family and Medical Leave Act (FMLA) excludes small employers, part-time workers, and workers who have been with their employer for less than a year, 44 percent of workers do not have access to even unpaid leave.157 Workers of color and workers with lower incomes are less likely to have access to paid leave.158 159 VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4368 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 159 U.S. Bureau of Labor Statistics, Employee Benefits in the United States (March 2019), https:// www.bls.gov/ncs/ebs/benefits/2019/ownership/ civilian/table31a.pdf. 160 Maya Rossin-Slater et al., Local exposure to school shootings and youth antidepressant use, Proceedings of the National Academy of Sciences, vol 117(38), pages 23484–23489 (2020), https:// www.pnas.org/content/117/38/23484; Ariel Marek Pihl and Gaetano Basso, Did California Paid Family Leave Impact Infant Health?, Journal of Policy Analysis and Management, https://onlinelibrary. wiley.com/doi/abs/10.1002/pam.2210. 161 J.C. Jacobs, A. Laporte, C.H. Van Houtven, P.C. Coyte, Caregiving intensity and retirement status in Canada. Social Science & Medicine, 102, 74–82 (2014), https://www.sciencedirect.com/science/ article/abs/pii/S0277953613006631. 162 E. Lightfoot, R.P. Moone, Caregiving in times of uncertainty: Helping adult children of aging parents find support during the COVID–19 outbreak, Journal of Gerontological Social Work, 63(6–7), 542–552 (2020), https://www.tandfon line.com/doi/abs/10.1080/01634372.2020.1769793. 163 Note: ‘‘Caregiving intensity’’ is defined as the amount and type of care provided by informal caregivers; ‘‘Caregiving burden’’ is defined as the impacts on physical and mental health, and health- related quality of life of informal caregivers. 164 SA Cohen, ZJ Kunicki, MM Drohan, ML Greaney, Exploring Changes in Caregiver Burden and Caregiving Intensity due to COVID–19, Gerontology and Geriatric Medicine (January 2021), doi:10.1177/2333721421999279. 165 Id. 166 Jennifer Tolbert et al., Key Facts about the Uninsured Population, Kaiser Family Foundation (November 6, 2020), https://www.kff.org/uninsured/ issue-brief/key-facts-about-the-uninsured- population/. 167 Joshua Aarons et. al., As the COVID–19 Recession Extended into the Summer of 2020, More Than 3 Million Adults Lost Employer-Sponsored Health Insurance Coverage and 2 Million Became Uninsured, Urban Institute (September 18, 2020), https://www.urban.org/research/publication/covid- 19-recession-extended-summer-2020-more-3- million-adults-lost-employer-sponsored-health- insurance-coverage-and-2-million-became- uninsured. 168 Centers for Medicare and Medicaid Services, Medicaid and CHIP Enrollment Trends Snapshot through September 2020 (Washington: 2021), available at https://www.medicaid.gov/sites/ default/files/2021-01/september-medicaid-chip- enrollment-trend-snapshot.pdf. 169 Centers for Medicare and Medicaid Services, 2021 Federal Health Insurance Exchange Weekly Enrollment Snapshot: Final Snapshot (January 12, 2021) available at https://www.cms.gov/newsroom/ fact-sheets/2021-federal-health-insurance- exchange-weekly-enrollment-snapshot-final- snapshot. 170 Sara R. Collins, Munira Z. Gunja, and Gabriella N. Aboulafia, U.S. Health Insurance Coverage in 2020: A Looming Crisis in Affordability (New York: Commonwealth Fund, 2020), available at https://www.commonwealthfund.org/ publications/issue-briefs/2020/aug/looming-crisis- health-coverage-2020-biennial. 171 Id. 172 Federal Deposit Insurance Corporation, FDIC National Survey of Unbanked and Underbanked Households (2015), https://www.fdic.gov/household survey/2015/2015execsumm.pdf. 173 Federal Deposit Insurance Corporation, How America Banks: Household Use of Banking and Financial Services 2019 FDIC Survey, https:// www.fdic.gov/analysis/household-survey/ 2019report.pdf. For workers that are also caregivers for children, seniors, or other family members, there may be a similar need for—and benefits of—paid family leave. For example, some workers may have struggled during the pandemic to balance caring for children, as schools and daycares closed, and working. For new parents, paid parental leave results in fewer infant hospitalizations, lowering parental stress, increasing parental involvement, and improving the overall health of parent and child.160 COVID–19 has also increased the levels of ‘‘caregiving intensity’’161 and ‘‘caregiving burden’’162 for those providing care to seniors or older family members.163 164 When surveyed, more than half of caregivers reported that COVID–19 increased both the amount of caregiving responsibilities they had as well as the negative physical and mental impacts their caregiving responsibilities had on themselves.165 Treasury Response: Treasury agrees that these constitute impacts of the pandemic, and accordingly, under the final rule, creating, expanding, or financially supporting paid sick, medical, or family leave programs is an enumerated eligible use of funds to respond to the negative economic impacts of the pandemic. 12. Health insurance. Public Comment: Several commenters recommended that uses of funds to expand access to health insurance be enumerated eligible uses; commenters believed that the heightened risk of illness or hospitalization due to COVID– 19 had increased the negative economic impacts of lacking health insurance. Background: In 2019, prior to the pandemic, it was estimated that 11 percent of nonelderly adults lacked health insurance.166 By mid-2020, job loss had resulted in an estimated 3.3 million people losing their employer sponsored insurance, resulting in an additional 2 million uninsured adults.167 Participation in Medicaid, the Children’s Health Insurance Program (CHIP), and the Affordable Care Act (ACA) marketplace played an important role in minimizing the number of people who completely lost health insurance during the early phases of the pandemic; Medicaid and CHIP enrollment increased by 9 percent from February to September 2020 168 and 8.3 million people enrolled in insurance through the ACA marketplace.169 Although the ACA, CHIP, and Medicaid have significantly reduced the number of uninsured Americans through the pandemic and the economic downturn, adequate coverage and affordability still remains an issue for many. In 2020, 21 percent of working- age adults were inadequately insured, meaning even if they had insurance, they incurred a significant amount of out-of-pocket costs.170 Additionally, 37 percent of adults reported struggling with medical bills or medical debt and 71 percent of adults who did not purchase insurance cited affordability as the main factor.171 Treasury Response: Treasury agrees that loss of health insurance, increased financial risk from lacking health insurance, or excessive out-of-pocket healthcare costs constitute negative economic impacts of the pandemic. Under the final rule, programs or services to expand access to health insurance coverage are an enumerated eligible use as assistance to households, for example, subsidies for health insurance premiums or expansion of a recipient’s health insurance plan to cover additional employees who currently lack coverage. 13. Services for the unbanked and underbanked. Public Comment: One commenter expressed support for the inclusion of services to increase banking access as an allowable expense under SLFRF. The commenter recommended that states be encouraged to offer opportunities for consumers to open safe and affordable accounts capable of receiving direct payments. The commenter emphasized that allowing unbanked and underbanked households to receive funds securely through no-fee, direct deposit will help connect or reconnect consumers to the mainstream financial system. Background: Banking inequities can make it difficult for unbanked or underbanked households to access housing, jobs, and other important economic opportunities. Being unbanked or underbanked can also make it challenging for households to apply for and receive financial assistance, including services like pandemic emergency housing assistance. Safe, affordable, and accessible financial services play a critical role in assisting households in the United States in managing income volatility and cash flow shortages.172 Currently, over 5 percent of families, or 7 million households are ‘‘unbanked,’’ meaning they do not have a bank account.173 Low-income households, non-white households, and households with individuals with disabilities were even more likely to be unbanked. In 2019, 16 percent of Native American households, 14 percent of Black households, and 12 percent of Hispanic households were unbanked, compared to 2.5 percent of white households. Additionally, VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4369 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 174 Board of the Governors of the Federal Reserve System, Report on the Economic Well-Being of U.S. Households in 2018–May 2019, https://www.federal reserve.gov/publications/2019-economic-well-being- of-us-households-in-2018-banking-and-credit.htm. 175 Zaheer Allam, The Forceful Reevaluation of Cash-Based Transactions by COVID–19 and Its Opportunities to Transition to Cashless Systems in Digital Urban Networks. Surveying the Covid-19 Pandemic and its Implications (2020): 107–117. doi:10.1016/B978–0–12–824313–8.00008–5. 176 Bureau of Labor Statistics, Labor Force Statistics from the Current Population Survey: Concepts and Definitions, https://www.bls.gov/cps/ definitions.htm (last visited November 9, 2021). 177 Id. underbanked households—those that have a bank account but rely on alternative financial services, such as money orders, payday loans, and check cashing services— account for 16 percent of all households in the United States.174 As a result of the COVID–19 pandemic, new social distancing protocols have, in some instances, made it more difficult to perform financial transactions with paper instruments, like banknotes, coinage, paper checks, or money orders. Households constrained to these payment methods may face challenges receiving government assistance. Additionally, businesses have transitioned to cashless payments systems to promote contactless payments.175 As a result, unbanked individuals may face additional challenges conducting financial transactions. Treasury Response: Recognizing these challenges, Treasury is clarifying that recipients may use SLFRF funds to provide financial services that facilitate the delivery of federal, state, or local benefits (e.g., Child Tax Credit, Earned Income Tax Credit, tax refunds, or emergency housing or food assistance funds). The following includes a non- exhaustive list of uses to provide financial services to unbanked and underbanked households: •Provide low or no cost financial services, including in conjunction with administration of benefits, such as pre- paid debit cards, e.g., via Economic Impact Payment or General Purpose Reloadable pre-paid cards or for the development of public banking infrastructure that can support benefit delivery. •Provide transitional services to facilitate long-term access to banking and financial services. •Provide financial literacy programs and conduct community outreach and deploy engagement resources to increase awareness about low-cost, no- overdraft fee accounts, pilot new strategies and approaches that help overcome barriers to banking access and support the gathering and sharing of information in ways that improve equity, such as community meetings, partnerships with community-based organizations, online surveys, focus groups, human-centered design activities, and other community engagement activities. Assistance to Unemployed and Underemployed Workers The interim final rule included assistance to unemployed workers as an enumerated eligible use, including ‘‘services like job training to accelerate rehiring of unemployed workers.’’ Treasury provided further guidance, based on recipient questions after the interim final rule, that eligible uses under this section also include ‘‘other efforts to accelerate rehiring and thus reduce unemployment, such as childcare assistance, assistance with transportation to and from a jobsite or interview, and incentives for newly employed workers[,]’’ as well as assistance to unemployed workers seeking to start small businesses. Finally, further guidance also provided that ‘‘public jobs programs, subsidized employment, combined education and on-the-job training programs, or job training to accelerate rehiring or address negative economic or public health impacts experienced due to a worker’s occupation or level of training’’ are all enumerated eligible uses as assistance to unemployed or underemployed workers. The interim final rule defined eligible beneficiaries of assistance as ‘‘individuals who want and are available for work, including those who have looked for work sometime in the past 12 months or who are employed part time but who want and are available for full-time work.’’ This definition is based on definitions used by the Bureau of Labor Statistics to define individuals currently unemployed, as well as persons marginally attached to the labor force and working part-time for economic reasons.176 The latter two classifications are types of labor underutilization, or ‘‘underemployed’’ workers.177 Finally, the interim final rule specified that assistance to unemployed workers included both workers who lost their job during the pandemic and resulting recession and workers unemployed when the pandemic began who saw further deterioration of their economic prospects due to the pandemic. Public Comment: Commenters generally supported the inclusion of this enumerated eligible use. One commenter recommended including assistance for underemployed workers who took jobs due to the pandemic that did not fully utilize their skillset or did not provide the hours, wages, or job quality desired. Treasury has also received recipient questions on whether job fairs or grants to businesses to hire underserved workers are eligible uses under this category. Another commenter recommended flexibility in eligible workforce development programs, arguing that rural areas may face particular challenges. Treasury Response: Treasury is maintaining this eligible use in the final rule, including the enumerated eligible services in the interim final rule and subsequent guidance. Treasury is also confirming that job fairs or grants to businesses to hire underserved workers are eligible uses under this section. Treasury is also enumerating that job and workforce training centers are eligible capital expenditures, so long as they adhere to the standards and presumptions detailed in the section Capital Expenditures in General Provisions: Other. The final rule maintains the definition of eligible beneficiaries, which is aligned with the Bureau of Labor Statistics’ definitions of unemployed workers and other labor underutilization, using a common, widely known definition that incorporates a broad group of individuals both unemployed or whose skills are otherwise underutilized in the labor market. In addition, recognizing that the pandemic has generated broad workforce disruption, in the final rule, Treasury is making clear that recipients may provide job training or other enumerated types of assistance to individuals that are currently employed but are seeking to move to a job that provides better opportunities for economic advancement, such as higher wages or more opportunities for career advancement. Recipient Unemployment Insurance Trust Funds and Related Expenses Under the interim final rule, a recipient may use funds to make deposits into its account of the Unemployment Trust Fund established under section 904 of the Social Security Act (42 U.S.C. 1104) up to the level needed to restore the pre-pandemic balance of such account as of January 27, 2020 or to pay back advances received under Title XII of the Social Security Act (42 U.S.C. 1321) for the payment of benefits between January 27, 2020 and May 17, 2021. These costs support the solvency of the unemployment insurance system and, ultimately, unemployment insurance benefits provided to unemployed VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4370 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 178 Note that, while the economic harm being addressed accrued before March 3, 2021, the cost incurred to address the harm occurs after March 3, 2021 and provides assistance to unemployed workers, an eligible use of SLFRF funds. 179 See, e.g., U.S. Department of the Treasury, More Information on the Conclusion of the Public Comment Period and the Interim Final Rule on the Coronavirus State and Local Fiscal Recovery Funds, https://home.treasury.gov/system/files/136/IFR- Explainer.pdf. workers during the pandemic.178 The interim final rule also posed the question of what, if any, conditions should be considered to ensure that funds used under this eligible use category repair economic impacts of the pandemic and strengthen unemployment insurance systems. Public Comment: Inclusion as an Eligible Use and Conditions: Commenters expressed mixed perspectives on this eligible use category. Some commenters supported its inclusion, arguing that unemployment insurance systems have faced significant costs to support unemployed workers during the pandemic and that this constitutes a negative economic impact that SLFRF funds should be able to address. Other commenters opposed this eligible use category, arguing that funds used under this category may not ultimately support unemployed workers. Some commenters noted that unemployment insurance taxes on businesses automatically increase when trust fund balances are low and suggested that permitting the deposit of funds into unemployment insurance trust funds prevents a tax increase on businesses, some of which may not have faced negative economic impacts from the pandemic, rather than providing assistance to unemployed workers. Other comments suggested that deposits are better thought of as savings for future needs than assistance to unemployed workers in the near term. Responding to the interim final rule’s question, several commenters suggested that, if Treasury maintains this eligible use, the final rule should require detailed reporting on funds used under this category or place conditions on this category to increase the likelihood that funds ultimately support unemployed workers. For example, some commenters suggested that recipients that deposit SLFRF funds into their trust fund should be barred from cutting unemployment insurance benefits for workers during the period of performance or from erecting new barriers to accessing benefits (e.g., through the application process and ongoing requirements to receive benefits). One commenter, noting that unemployment insurance benefits often provide low rates of wage replacement and do not cover some types of unemployed workers, argued that recipients should not be permitted to deposit funds into the trust fund unless the recipient concurrently expands benefits. Finally, one commenter suggested a cap on the amount of funds that can be used for this purpose. Treasury Response: Inclusion as an Eligible Use and Conditions: In the final rule, Treasury is maintaining the inclusion of this eligible use category. Because unemployment insurance trust funds directly fund benefits to unemployed workers, maintaining the solvency of the trust fund is critical to the continued provision of assistance to unemployed workers. Further, funds deposited into the trust fund must be used as assistance to unemployed workers, an eligible use of SLFRF funds. Finally, while, in the absence of the SLFRF, trust fund deposits would likely be funded through increases on employer payroll taxes, the eligibility of uses of SLFRF funds does not depend on how obligations would otherwise be satisfied if the SLFRF were not available for this use. While deposits to unemployment insurance trust funds generally serve as assistance to unemployed workers, recipients that make deposits but also cut unemployment insurance benefits to workers substantially decrease the likelihood that the deposited funds will assist unemployed workers. In other words, SLFRF funds deposited into an unemployment insurance trust fund generally serve as assistance to unemployed workers, unless recipients take policy actions that substantially decrease the extent to which SLFRF funds would flow to unemployed workers. As such, through December 31, 2024, recipients that deposit SLFRF funds into an unemployment insurance trust fund or use SLFRF funds to repay principal on Title XII advances, may not take action to reduce benefits available to unemployed workers by changing the computation method governing regular unemployment compensation in a way that results in a reduction of average weekly benefit amounts or the number of weeks of benefits payable (i.e., the maximum benefit entitlement). Finally, until the final rule becomes effective on April 1, 2022, the interim final rule remains binding and effective.179 These requirements were not in effect under the interim final rule and do not apply to funds used (i.e., obligated or expended) under the interim final rule while it is in effect. In addition, recognizing that some recipients have taken significant steps toward making a trust fund deposit or repaying principal on Title XII advances under the interim final rule, such as the legislative appropriation of funds for this purpose, even if a formal obligation has not occurred, Treasury will exercise enforcement discretion to not pursue violations of this final rule provision (i.e., the requirement not to reduce benefits) for recipients that have appropriated funds for this purpose prior to the date of adoption of the final rule consistent with the laws and procedures in their jurisdiction. Recipients should refer to Treasury’s Statement Regarding Compliance with the Coronavirus State and Local Fiscal Recovery Funds Interim Final Rule and Final Rule, which provides additional detail on these issues. Public Comment and Treasury Response: Technical Corrections and Amendments: Following the interim final rule, Treasury received recipient questions on whether paying interest on advances received under Title XII of the Social Security Act (42 U.S.C. 1321) is an eligible use of SLFRF funds; Treasury is clarifying that such use is permissible, consistent with Treasury’s treatment of the eligibility of interest on Title XII advances under the Coronavirus Relief Fund. Treasury is further clarifying that recipients may only use SLFRF funds for contributions to unemployment insurance trust funds and repayment of the principal amount due on advances received under Title XII of the Social Security Act up to an amount equal to (i) the difference between the balance in the recipient’s unemployment insurance trust fund as of January 27, 2020 and the balance of such account as of May 17, 2021, plus (ii) the principal amount outstanding as of May 17, 2021 on any advances received under Title XII of the Social Security Act between January 27, 2020 and May 17, 2021. Further, recipients may use SLFRF funds for the payment of any interest due on such Title XII advances. In other words, excluding interest due on Title XII advances, the magnitude of the decrease of the balance in the unemployment insurance trust fund plus the principal outstanding on any Title XII borrowings made from the beginning of the public health emergency to the date of publication of the SLFRF interim final rule sets a cap on the amount of SLFRF funds a recipient may use for trust fund contributions and repayment of principal on Title XII advances. Further, a recipient that deposits SLFRF funds into its unemployment insurance trust fund to fully restore the pre-pandemic balance may not draw down that VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4371 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 180 U.S. Department of Health and Human Services, COVID–19 and Economic Opportunity: Inequities in the Employment Crisis, April 2021. Retrieved from https://aspe.hhs.gov/sites/default/ files/migrated_legacy_files//199901/covid- economic-equity-brief.pdf. 181 Adelle Simmons et al., Health disparities by race and ethnicity during the COVID–19 pandemic: Current evidence and policy approaches. U.S. Department of Health and Human Services https:// aspe.hhs.gov/sites/default/files/migrated_legacy_ files//199516/covid-equity-issue-brief.pdf. 182 Perry, Brea L., Brian Aronson, and Bernice A. Pescosolido, Pandemic precarity: COVID–19 is exposing and exacerbating inequalities in the American heartland, National Academy of Sciences (Febuary 2021), https://www.pnas.org/content/118/ 8/e2020685118. 183 Id. 184 Jesse Bennet & Rakesh Kochhar, Two Recessions, Two Recoveries, Pew Research Center (December 13, 2019), https://www.pewresearch.org/ social-trends/2019/12/13/two-recessions-two- recoveries-2/. 185 Darrick Hamilton et al., Building an Equitable Recovery: The role of Race, Labor Markets, and Education, The New School’s Institute on Race and Political Economy (February 2021). 186 Adhikari S, Pantaleo NP, Feldman JM, Ogedegbe O, Thorpe L, Troxel AB. Assessment of Community-Level Disparities in Coronavirus Disease 2019 (COVID–19) Infections and Deaths in Large US Metropolitan Areas. JAMA Netw Open. 2020;3(7):e2016938. doi:10.1001/ jamanetworkopen.2020.16938. balance and deposit more SLFRF funds, back up to the pre-pandemic balance. Enumerated Eligible Uses for Disproportionately Impacted Households Background The COVID–19 pandemic has had disproportionally negative impacts on many households and communities that were already experiencing inequality related to race, gender, age, or income before the pandemic. People of color, low-income workers, and women disproportionately lost their jobs during the COVID–19 pandemic and experienced disproportionate rates of negative health outcomes.180 181 These disproportionate negative impacts experienced by systemically underserved communities are not novel to the COVID–19 pandemic and the economic downturn. Research shows that historically underserved communities that are experiencing economic and social disparities typically experience disproportionate impacts of economic downturns and natural disasters.182 This pattern held true for the effects of COVID–19 and the economic downturn: Historically undeserved groups experienced amplified negative impacts, further widening inequality.183 Many communities facing systemic barriers had not yet recovered from the impact of the Great Recession before experiencing the impacts of COVID–19 and the economic downturn. For example, in 2009, at the end of the Great Recession, households without a high school diploma had an average annual income of $32,300 (measured in 2018 dollars). By 2018, nine years into the economic recovery, those same households saw their average income increase by $600. During that same time period, households with a bachelor’s degree saw an increase in their average household income of $6,100 (measured in 2018 dollars).184 The impact pre-existing inequalities have on a household or community’s ability to recover is intersectional. Research shows that pre-existing racial and gender disparities exacerbated the disproportionate economic and health impact COVID–19 and the economic downturn had on workers of color, and specifically, women of color.185 Another study found that during the first six months of the pandemic counties that were both high-poverty and majority non-white experienced COVID–19 infection rates eight times higher than high-poverty, majority white counties.186 Many residents in these communities are still coping with the negative health and economic impacts. Summary of the Interim Final Rule and Final Rule Structure As described previously, the interim final rule provided a broader list of enumerated eligible uses to respond to the pandemic in disproportionately impacted communities, in recognition that pre-existing health, economic, and social disparities contributed to disproportionate pandemic impacts in certain communities and that addressing the root causes of those disparities constitutes responding to the public health and negative economic impacts of the pandemic. The interim final rule described eligible uses in disproportionately impacted communities in four categories, spread across public health and negative economic impacts: (1) Addressing disparities in public health outcomes, (2) building stronger communities through investments in housing and neighborhoods, (3) addressing educational disparities, and (4) promoting healthy childhood environments. As described above, Treasury has moved eligible uses related to community violence intervention, assistance accessing or applying to public benefits and services, affordable housing development, healthy childhood environments, and addressing lost instructional time in K– 12 schools into the category ‘‘assistance to impacted households,’’ recognizing that these pandemic impacts were widely shared across the country. This section discusses enumerated eligible uses to address health disparities, to build stronger communities through investments in neighborhoods, to address educational disparities, to provide rental assistance vouchers or assistance relocating to areas of greater economic opportunity, and additional eligible uses to respond to negative economic impacts in disproportionately impacted communities. While many of these services impact both health and economic outcomes, Treasury has consolidated them into a single section for simplicity and clarity and to reflect the intertwined nature of these issues. As a reminder, recipients can presume these uses are eligible when provided in a QCT, to families and individuals living in QCTs, by Tribal or territorial governments, or to low- income households or communities. As provided in section Standards: Designating Other Disproportionately Impacted Classes, recipients can also provide these services to other populations, households, or geographic areas disproportionately impacted by the pandemic. Recipients may also identify additional disproportionate impacts of the pandemic and design an appropriate response to address that harm. For details on eligibility standards and presumed eligible populations, see section General Provisions: Structure and Standards. Enumerated Eligible Uses for Disproportionately Impacted Households 1. Addressing health disparities. Public Comment: General: In general, commenters supported eligible uses to address health disparities and support health equity; several commenters highlighted the disparities faced by communities of color and low-income populations, as well as the importance of community engagement in developing effective programs to serve disproportionately impacted communities. Many commenters recommended additional enumerated eligible uses to address health disparities; these are discussed further below in this section. Treasury Response: In line with commenters’ recommendations, the final rule maintains several enumerated eligible uses to address health disparities, specifically: a. Community health workers. Treasury received few comments on community health workers, though one VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4372 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 187 See, e.g., Centers for Disease Control and Prevention, Community Health Worker (CHW) Toolkit, https://www.cdc.gov/dhdsp/pubs/toolkits/ chw-toolkit.htm (last visited November 9, 2021). 188 Environmental Protection Agency, 40 CFR 141.80(c)(1), https://www.ecfr.gov/current/title-40/ chapter-I/subchapter-D/part-141/subpart-I/section- 141.80. 189 See, e.g., Opportunity Insights, Creating Moves To Opportunity (August 2019), https:// opportunityinsights.org/policy/cmto/. 190 U.S. Department of Health and Human Services, Neighborhood and Built Environment, https://health.gov/healthypeople/objectives-and- data/browse-objectives/neighborhood-and-built- environment#cit1 (last visited November 9, 2021). 191 Social determinants of health are ‘‘the conditions in the places where people live, learn, work, and play that affect a wide range of health risks and outcomes.’’ Centers for Disease Control and Prevention, About Social Determinants of Health (SDOH), https://www.cdc.gov/social determinants/about.html (last visited November 9, 2021). 192 In public health, this is referred to as ‘‘built environment,’’ or the man-made physical aspects of a community (e.g., homes, buildings, streets, open spaces, and infrastructure). requested further clarification on their role.187 Treasury is maintaining this eligible use in the final rule. b. Remediation of lead paint or other lead hazards. The interim final rule included remediation of lead paint or other lead hazards as an enumerated eligible use to address health disparities. Public Comment: Treasury received several comments asking for clarification on the eligibility of a particular use that would indirectly address lead pollution. For example, a commenter requested the ability to fund remedial actions, such as filtration and plumbing procedures to help address lead pollution. One commenter requested that private wells be eligible for funding to address contamination with substances such as lead. Other commenters requested that Treasury allow replacement of lead pipes as an eligible use of funds. Treasury Response: Recipients may make a broad range of water infrastructure investments under section 602(c)(1)(d) and 603(c)(1)(d), which can include lead service line replacement and other activities to identify and remediate lead in water. These uses are discussed in greater detail in section Water and Sewer Infrastructure of this Supplemental Information. Treasury has further determined that several of the services identified by commenters are appropriate responses to address health disparities in disproportionately impacted households. These services were eligible under the interim final rule and continue to be so under the final rule. These services include remediation to address lead-based public health risk factors, outside of lead in water, including evaluation and remediation of lead paint, dust, or soil hazards; testing for blood lead levels; public outreach and education; and emergency protection measures, like bottled water and water filters, in areas with an action level exceedance for lead in water in accordance with the Environmental Protection Agency’s Lead and Copper Rule.188 Further, Treasury had determined that certain capital expenditures, including improvements to existing facilities to remediate lead contaminants (e.g., removal of lead paint), are eligible responses, although this does not include construction of new facilities for the purpose of lead remediation. Recipients should make sure that all capital expenditures adhere to the standards and presumptions detailed in section Capital Expenditures in General Provisions: Other. c. Medical facilities. Treasury received a few comments from recipients seeking to use SLFRF funds to build new medical facilities, such as hospitals or public health clinics, to serve disproportionately impacted communities. Given the central role of access to high-quality medical care in reducing health disparities and addressing the root causes that led to disproportionate impact COVID–19 health impacts in certain communities, the final rule recognizes that medical equipment and facilities designed to address disparities in public health outcomes are eligible capital expenditures. This includes primary care clinics, hospitals, or integrations of health services into other settings. Recipients should make sure that all capital expenditures adhere to the standards and presumptions detailed in section Capital Expenditures in General Provisions: Other. 2. Housing vouchers and assistance relocating. In addition to other housing services, the interim final rule permitted a variety of rental assistance approaches to support low-income households in securing stable, long-term housing, including housing vouchers, residential counseling, or housing navigation assistance to facilitate household moves to neighborhoods with high levels of economic opportunity and mobility for low-income residents. Examples could include SLFRF-funded analogues to Section 8 Housing Choice vouchers; other kinds of rent subsidies, including shallow subsidies; and programs to help residents move to areas with higher levels of economic mobility.189 Treasury did not receive public comments on these enumerated eligible uses. Treasury Response: Treasury maintains the eligibility of vouchers and relocation assistance in the final rule. 3. Building strong, healthy communities through investments in neighborhoods. While the interim final rule included a category of enumerated eligible uses for ‘‘building stronger communities through investments in housing and neighborhoods,’’ the examples of services provided generally focused on housing uses. In response to questions following release of the interim final rule, Treasury issued further guidance clarifying that ‘‘investments in parks, public plazas, and other public outdoor recreation spaces may be responsive to the needs of disproportionately impacted communities by promoting healthier living environments.’’ Public Comment: General: A significant theme across many public comments was the importance of neighborhood environment to health and economic outcomes and the potential connections between residence in an underserved neighborhood and disproportionate impacts from the pandemic. Many commenters highlighted the connection between neighborhoods and health outcomes, including citing public health research linking neighborhood traits to health outcomes. For example, the CDC states that ‘‘neighborhoods people live in have a major impact on their health and well-being.’’190 As such, CDC identifies ‘‘neighborhoods and built environment’’ as one of five key social determinants of health 191 and includes ‘‘creat[ing] neighborhoods and environments that promote health and safety’’ as one of the agency’s goals for social determinants of health outcomes. a. Neighborhood features that promote improved health and safety outcomes. Public Comment: Commenters argued that neighborhoods impact physical health outcomes in several ways. First, some commenters reasoned that the physical environment and amenities in a community 192 influence a person’s level of physical activity, with features like parks, recreation facilities, and safe sidewalks promoting increased physical activity that improves health outcomes. Conversely, commenters argued that a lack of these features in a neighborhood could dampen physical activity and contribute to health conditions like obesity that are risk factors for more severe COVID–19 health outcomes. Second, some commenters also suggested that access to healthy food in a neighborhood impacts health outcomes. These commenters reasoned VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4373 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 193 J Beaulac, E Kristjansson, S Cummins, A systematic review of food deserts, 1966–2007, Prev Chronic Dis 2009;6(3):A105, http://www.cdc.gov/ pcd/issues/2009/jul/08_0163.htm. 194 See, e.g., Yijun Zhang et al. The Association between Green Space and Adolescents’ Mental Well-Being: A Systematic Review. International journal of environmental research and public health vol. 17,18 6640 (Sep. 11 2020), doi:10.3390/ ijerph17186640; EC South, BC Hohl, MC Kondo, JM MacDonald, CC Branas, Effect of Greening Vacant Land on Mental Health of Community-Dwelling Adults: A Cluster Randomized Trial, JAMA Netw Open. 2018;1(3):e180298 (2018), available at: doi:10.1001/jamanetworkopen.2018.0298. 195 See, e.g., Yanqing Xu, Cong Fu, Eugene Kennedy, Shanhe Jiang, Samuel Owusu-Agyemang, The impact of street lights on spatial-temporal patterns of crime in Detroit, Michigan, Cities, Volume 79, Pages 45–52, ISSN 0264–2751 (2018), https://doi.org/10.1016/j.cities.2018.02.021. 196 A. Chalfin, B. Hansen, J. Lerner et al., Reducing Crime Through Environmental Design: Evidence from a Randomized Experiment of Street Lighting in New York City, Journal of Quantitative Criminology (2021), https://doi.org/10.1007/s10940- 020-09490-6. 197 See, e.g., American Public Health Association, Improving Health and Wellness through Access to Nature (November 5, 2013), https://www.apha.org/ policies-and-advocacy/public-health-policy- statements/policy-database/2014/07/08/09/18/ improving-health-and-wellness-through-access-to- nature. 198 LR Larson et al., Urban Park Use During the COVID–19 Pandemic: Are Socially Vulnerable Communities Disproportionately Impacted?, Front. Sustain. Cities 3:710243 (2021), https://doi.org/ 10.3389/frsc.2021.710243. 199 JP Despre´s, Severe COVID–19 outcomes—the role of physical activity. Nat Rev Endocrinol 17, 451–452 (2021). https://doi.org/10.1038/s41574- 021-00521-1. 200 Caroline George and Adie Tomer, Beyond ‘food deserts’: America needs a new approach to mapping food, Brookings Institution (August 17, 2021), https://www.brookings.edu/research/beyond- food-deserts-america-needs-a-new-approach-to- mapping-food-insecurity/. 201 However, Treasury cautions recipients that general infrastructure development, including street or road construction, remains a generally ineligible use of funds under the final rule. Sidewalks and pedestrian safety should be the predominant component of uses of funds in this category. While projects may include ancillary construction needed to execute the predominant component, a project that predominantly involves street construction or repair to benefit vehicular traffic would be ineligible. that lacking adequate access to affordable, healthy food or living in a ‘‘food desert’’ may contribute to disparities in diet that influence health outcomes, including contributing to pre- existing conditions that increased risk for severe COVID–19 outcomes. These commenters cited public health research finding ‘‘clear evidence for disparities in food access in the United States by income and race.’’193 Some commenters also suggested that neighborhood environment is connected to other public health outcomes, like mental health and public safety. For example, some research suggests that living in neighborhoods with green space and tree cover correlates with improved mental health outcomes.194 Finally, some commenters argued that activities like installing streetlights, greening or cleanup of public spaces or land, and other efforts to revitalize public spaces would support improved public safety.195 196 These commenters recommended that Treasury include as an enumerated eligible use in disproportionately impacted communities projects to develop neighborhood features that promote improved health and safety outcomes, such as parks, green spaces, recreational facilities, sidewalks, pedestrian safety features like crosswalks, projects that increase access to healthy foods, streetlights, neighborhood cleanup, and other projects to revitalize public spaces. Background: Investments in neighborhood features, including parks, recreation facilities, sidewalks, and healthy food access, can work to improve physical and mental health outcomes. Allowing people access to nature, including parks, has been connected to decreased levels of mortality and illness and increased well-being.197 Urban park use during the COVID–19 pandemic may have declined among lower-income individuals.198 Encouraging physical activity can also play a role in health outcomes, as a sedentary lifestyle is a risk factor for chronic diseases and more severe COVID–19 outcomes.199 Parks, recreation facilities, and sidewalks can promote healthier living environments by allowing for safe and socially distanced recreation during the COVID– 19 pandemic. Additionally, food insecurity rates, which are higher among lower-income households and households of color, doubled among all households and tripled among households with children during the onset of COVID–19 from February 2020 to May 2020.200 Improving healthy food access supports public health, particularly among lower- income households and households of color that face disproportionate outcomes. Treasury Response: Treasury recognizes the connection between neighborhood built environment and physical health outcomes as discussed in the research and analysis provided by commenters, including risk factors that may have contributed to disproportionate COVID–19 health impacts in low-income communities. The final rule also recognizes that the public health impacts of the pandemic are broader than just the COVID–19 disease itself and include substantial impacts on mental health and public safety challenges like rates of violent crime, which are correlated with a neighborhood’s built environment and features. As such, neighborhood features that promote improved health and safety outcomes respond to the pre- existing disparities that contributed to COVID–19’s disproportionate impacts on low-income communities. The final rule includes enumerated eligible uses in disproportionately impacted communities for developing neighborhood features that promote improved health and safety outcomes, such as parks, green spaces, recreational facilities, sidewalks, pedestrian safety features like crosswalks,201 projects that increase access to healthy foods, streetlights, neighborhood cleanup, and other projects to revitalize public spaces. Recipients seeking to use funds for capital expenditures should refer to the section Capital Expenditures in General Provisions: Other, which describes additional eligibility standards that apply to uses of funds for capital expenditures. b. Vacant or abandoned properties. As discussed above, the interim final rule included enumerated eligible uses for building stronger communities through investments in housing and neighborhoods in disproportionately impacted communities. The interim final rule also posed a question of whether other potential uses in this category, specifically ‘‘rehabilitation of blighted properties or demolition of abandoned or vacant properties,’’ address the public health or economic impacts of the pandemic. Public Comment: Several commenters argued that programs or services to address vacant or abandoned property would respond to the public health and negative economic impacts of the pandemic in disproportionately impacted communities. Some commenters cited research suggesting that living near such property is correlated with worse physical health and mental health outcomes, noted that such properties pose an environmental hazard, or argued that such properties present a barrier to economic recovery. These commenters suggested that renovation or demolition of vacant or abandoned property could benefit community health and raise property values. Other commenters recommended that Treasury include an enumerated eligible use for the operation of land banks that redevelop or renew vacant properties and land. Treasury Response: As noted throughout the final rule, the pandemic underscored the importance of safe, affordable housing and healthy VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4374 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 202 A state or locality may use its existing classifications of what is considered vacant or abandoned property under state law and local ordinances, as well as any corresponding processes for demolition, for these eligible uses. A recipient without a definition of vacant or abandoned property may refer to definitions used in the Department of Housing and Urban Development’s Neighborhood Stabilization Program (available at the citations below); however, recipients should be aware that other federal, state, or local requirements may apply such as compliance with the Uniform Relocation Act (see U.S. Department of Housing and Urban Development, Real Estate Acquisition and Relocation Overview in HUD Programs, https:// www.hudexchange.info/programs/relocation/ overview/#overview-of-the-ura (last visited November 9, 2021) and other state and local requirements like condemnation and code enforcement. U.S. Department of Housing and Urban Development, What is the definition of vacant properties as referenced in NSP Eligible Use E—Redevelop Demolished or Vacant Properties? (October 2012), https://www.hudexchange.info/ faqs/programs/neighborhood-stabilization-program- nsp/redevelopment/what-is-the-definition-of- vacant-properties-as-referenced-in-nsp-eligible/. U.S. Department of Housing and Urban Development, What are the definitions of abandoned and foreclosed? (October 2012), https:// www.hudexchange.info/faqs/programs/ neighborhood-stabilization-program-nsp/program- requirements/eligible-activitiesuses/what-are-the- definitions-of-abandoned-and-foreclosed/. 203 For analysis of vacancy rates considered low or high, see, e.g., page 12 of Alan Mallach, The Empty House Next Door, Lincoln Institute (May 2018), https://www.lincolninst.edu/publications/ policy-focus-reports/empty-house-next-door# :∼:text=%E2%80%9CAlan%20Mallach%20is%20 the%20sage,through%20data%20and%20 model%20 practices. Recipients may determine the appropriate geographic unit for which to analyze vacancy rates (e.g., county, census tract) based on their circumstances. As needed, recipients may refer to the Current Population Survey/Housing Vacancy Survey data series on Housing Vacancies and Homeownership as one data source to assess vacancy rates. See https://www.census.gov/housing/ hvs/index.html. Other data sources include the American Community Survey five-year estimates, for smaller geographic areas, or tabulations by the Department of Housing and Urban Development based on United States Postal Service Vacancy Data. See, respectively, https://data.census.gov/cedsci/ table?q=DP04&tid=ACSDP5Y2019.DP04& hidePreview=true or https://www.huduser.gov/ portal/datasets/usps.html. 204 See U.S. Environmental Protection Agency, Large-Scale Residential Demolition, https:// www.epa.gov/large-scale-residential-demolition (last visited November 9, 2021) for a primer on requirements that may apply. neighborhood environments to public health and economic outcomes. Treasury agrees with commenters that high rates of vacant or abandoned properties in a neighborhood may exacerbate public health disparities, for example through environmental contaminants that contribute to poor health outcomes or by contributing to higher rates of crime. As such, certain services for vacant or abandoned properties are eligible to address the public health and negative economic impacts of the pandemic on disproportionately impacted households or communities. Eligible activities include: •Rehabilitation, renovation, maintenance, or costs to secure vacant or abandoned properties to reduce their negative impact •Costs associated with acquiring and securing legal title of vacant or abandoned properties and other costs to position the property for current or future productive use •Removal and remediation of environmental contaminants or hazards from vacant or abandoned properties, when conducted in compliance with applicable environmental laws or regulations •Demolition or deconstruction of vacant or abandoned buildings (including residential, commercial, or industrial buildings) paired with greening or other lot improvement as part of a strategy for neighborhood revitalization •Greening or cleanup of vacant lots, as well as other efforts to make vacant lots safer for the surrounding community •Conversion of vacant or abandoned properties to affordable housing •Inspection fees and other administrative costs incurred to ensure compliance with applicable environmental laws and regulations for demolition, greening, or other remediation activities Vacant or abandoned properties are generally those that have been unoccupied for an extended period of time or have no active owner.202 Such properties may be in significant disrepair (e.g., major structural defects; lack of weather tight conditions; or lack of useable plumbing, kitchen facilities, electricity, or heating infrastructure (not to include utilities currently out of service or disconnected but able to be reconnected and used)), or may be declared unfit for inhabitants by a government authority. As noted above, demolition and greening (or other structure or lot remediation) of vacant or abandoned properties, including residential, commercial, or industrial buildings, is an eligible use of funds. Treasury encourages recipients to undertake these activities as part of a strategy for neighborhood revitalization and to consider how the cleared property will be used to benefit the disproportionately impacted community. Activities under this eligible use should benefit current residents and businesses, who experienced the pandemic’s impact on the community. Treasury encourages recipients to be aware of potential impacts of demolition of vacant or abandoned residential properties. Demolition activities that exacerbate the pandemic’s impact on housing insecurity or lack of affordable housing are not eligible uses of funds. This risk is generally more acute in jurisdictions with low or reasonable vacancy rates and less acute in jurisdictions with high or hyper- vacancy.203 Treasury presumes that demolition of vacant or abandoned residential properties that results in a net reduction in occupiable housing units for low- and moderate-income individuals in an area where the availability of such housing is lower than the need for such housing would exacerbate the impacts of the pandemic on disproportionately impacted communities and that use of SLFRF funds for such activities would therefore be ineligible. This includes activities that convert occupiable housing units for low- and moderate- income individuals into housing units unaffordable to current residents in the community. Recipients may assess whether units are ‘‘occupiable’’ and what the housing need is for a given area taking into account vacancy rates (as described above), local housing market conditions (including conditions for different types of housing like multi- family or single-family), and applicable law and housing codes as to what units are occupiable. Recipients should also take all reasonable steps to minimize the displacement of persons due to activities under this eligible use category, especially the displacement of low-income households or longtime residents. Recipients engaging in these activities and other construction activities with SLFRF funds should be mindful of the provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, 42 U.S.C. 4601, and the Department of Transportation’s implementing regulations, 49 CFR part 24, that apply to projects funded with federal financial assistance, such as SLFRF funds. Recipients should also be aware of federal, state, and local laws and regulations, outside of SLFRF program requirements, that apply to this activity. Recipients must comply with the applicable requirements of the Uniform Guidance regarding procurement, contracting, and conflicts of interest and must follow the applicable laws and regulations in their jurisdictions. Recipients must also comply with all federal, state, and local public health and environmental laws or regulations that apply to activities under this eligible use category,204 for example, requirements around the VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4375 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations handling and disposal of asbestos- containing materials, lead paint, and other harmful materials may apply, as well as environmental standards for any backfill materials used at demolition sites. Treasury encourages recipients to consult and apply best practices from the Environmental Protection Agency as well. Recipients must evaluate each subrecipient’s risk of noncompliance with federal statutes, regulations, and the terms and conditions of the subaward related to safely and properly conducting activities under this eligible use. This may include checking for any past violations recorded by state or local environmental, workplace safety, licensing, and procurement agencies, as well as regular reviews for suspensions, debarments, or stop work orders. Recipients must establish rigorous oversight and internal controls processes to monitor compliance with any applicable requirements, including compliance by subrecipients. 4. Addressing educational disparities. The interim final rule included an enumerated eligible use for addressing educational disparities in disproportionately impacted communities and outlined some enumerated eligible services under this use. These enumerated uses included early learning services, assistance to high-poverty school districts to advance equitable funding across districts and geographies, and educational and evidence-based services to address the academic, social, emotional, and mental health needs of students. Addressing the many dimensions of resource equity— including equitable and adequate school funding; access to a well-rounded education; well-prepared, effective, and diverse educators and staff; and integrated support services—can also begin to mitigate the impact of COVID– 19 on schools and students and can close long-standing gaps in educational opportunity. As discussed above, in the final rule, early learning services and addressing the impacts of lost instructional time for K–12 students are enumerated eligible uses for impacted communities, not just disproportionately impacted communities. Public Comment: Treasury received some comments in this category. Generally, commenters expressed agreement with the elements of the interim final rule regarding use of funds for addressing educational disparities. Some commenters had questions about whether a few specific uses of funds qualified under this category. For example, commenters inquired about whether the funds could be used for behavioral health in a school setting or cultural language classes. Treasury Response: Treasury is maintaining these enumerated eligible uses in the final rule, which are now organized under the heading of ‘‘services to address educational disparities.’’ Treasury reiterates that these uses include addressing educational disparities exacerbated by COVID–19, including but not limited to: increasing resources for high-poverty school districts, educational services like tutoring or afterschool programs, summer education and enrichment programs, and supports for students’ social, emotional, and mental health needs. This also includes responses aimed at addressing the many dimensions of resource equity— including equitable and adequate school funding; access to a well-rounded education; well-prepared, effective, and diverse educators and staff; and integrated support services—in order to close long-standing gaps in educational opportunity. Further, Treasury is clarifying that improvements or new construction of schools and other educational facilities or equipment are eligible capital expenditures for disproportionately impacted communities. Recipients seeking to use funds for capital expenditures should refer to the section Capital Expenditures in General Provisions: Other for additional eligibility standards that apply to uses of funds for capital expenditures. Treasury notes that services to promote healthy childhood environments, including childcare, early learning services, and home visiting programs that serve infants and toddlers, is a separate category of enumerated eligible uses for households impacted by the pandemic (see eligible uses for ‘‘promoting healthy childhood environments’’). Similarly, education services to address the impact of lost instructional time during the pandemic are a separate eligible use category for households impacted by the pandemic; when providing these services, recipients may presume that any K–12 student who lost access to in-person instruction for a significant period of time has been impacted by the pandemic and is thus eligible for responsive services (see eligible uses for ‘‘addressing the impact of lost instructional time’’). Proposed Additional Enumerated Eligible Uses Not Incorporated The interim final rule posed a question on what other types of services or costs Treasury should consider as eligible uses to respond to the disproportionate public health or negative economic impacts of COVID– 19 on low-income populations and communities. In response, commenters proposed a wide variety of additional recommended enumerated eligible uses to assist disproportionately impacted households, ranging from general categories of services (e.g., long-term investments to remediate long-term disparities) to highly specific examples of services (e.g., a specific type of healthcare equipment). As discussed above, Treasury is including several additional categories of enumerated eligible uses in the final rule in response to public comments. Given the large number and diversity of SLFRF recipients, Treasury’s approach to assistance to households in disproportionately impacted communities in the final rule aims to provide enumerated eligible uses that respond to disproportionate impacts of the pandemic experienced widely in many jurisdictions across the country and are intended to simplify and clarify these enumerated eligible uses. At the same time, Treasury recognizes that the impacts of the pandemic vary over time, by jurisdiction, and by population; as such, the final rule provides flexibility for recipients to identify additional disproportionate impacts to additional households or classes of households and pursue programs and services that respond to those disproportionate impacts. In the final rule, Treasury has not chosen to include as enumerated uses all uses proposed by commenters; given the significant range, and in some cases highly specific nature, of the proposed uses Treasury was not able to assess that the proposed uses would respond to disproportionate impacts experienced in many jurisdictions across the country, supporting an enumerated eligible use available to all recipients presumptively. However, the final rule continues to provide a framework to allow recipients to identify and respond to additional disproportionate impacts (for details, see section General Provisions: Structure and Standards). Some types of proposed additional enumerated eligible uses for assistance to households in disproportionately impacted communities were recommended by several commenters: •Capital expenditures. Many commenters recommended that capital expenditures on many different types of public and private facilities be enumerated eligible uses. For clarity, Treasury has addressed all comments on the eligibility of capital expenditures on property, facilities, or equipment in one VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4376 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 205 Board of Governors of the Federal Reserve System, Monetary Policy Report (June 12, 2020), https://www.federalreserve.gov/monetarypolicy/ 2020-06-mpr-summary.htm. 206 U.S. Small Business Administration, Office of Advocacy, Small Businesses Generate 44 Percent of U.S. Economic Activity (Jan. 30, 2019), https:// advocacy.sba.gov/2019/01/30/small-businesses- generate-44-percent-of-u-s-economic-activity/. 207 Joseph R. Biden, Remarks by President Biden on Helping Small Businesses (Feb. 22, 2021), https://www.whitehouse.gov/briefing-room/ speechesremarks/2021/02/22/remarks-by-president- bidenon-helping-small-businesses/. 208 Daniel Wilmoth, U.S. Small Business Administration Office of Advocacy, The Effects of the COVID–19 Pandemic on Small Businesses, Issue Brief No. 16 (Mar. 2021), available at https:// cdn.advocacy.sba.gov/wp-content/uploads/2021/ 03/02112318/COVID-19-Impact-On-Small- Business.pdf. 209 U.S. Census Bureau, Small Business Pulse Survey, https://portal.census.gov/pulse/data/ (last visited December 7, 2021). 210 Olivia S. Kim et al., Revenue Collapses and the Consumption of Small Business Owners in the Early Stages of the COVID–19 Pandemic (Nov. 2020), https://www.nber.org/papers/w28151. 211 See, e.g., Board of Governors of the Federal Reserve System, Report to Congress on the Availability of Credit to Small Businesses (Sept. 2017), available at https://www.federalreserve.gov/ publications/2017-september-availability-of-credit- to-small-businesses.htm. 212 Alexander W. Bartik et al., The Impact of COVID–19 on small business outcomes and expectations, PNAS 117(30): 17656–66 (July 28, 2020), available at https://www.pnas.org/content/ 117/30/17656. 213 Robert Fairlie, The impact of COVID–19 on small business owners: Evidence from the first 3months after widespread social-distancing restrictions, Journal of economics & management strategy (August 27, 2020), https://doi.org/10.1111/ jems.12400. 214 U.S. Small Business Administration, The Effects of the COVID–19 Pandemic on Small Businesses (March 2021), https://cdn.advocacy. sba.gov/wp-content/uploads/2021/03/02112318/ COVID-19-Impact-On-Small-Business.pdf. 215 Robert Fairlie, supra note 213. 216 Federal Reserve Bank of Atlanta. 2019. Small Business Credit Survey 2019 Report on Minority- Owned Firms. December. fedsmallbusiness.org/ survey/2019/report-on-minority-owned-firms. 217 Ding, Lei, and Alvaro Sanchez. 2020. What Small Businesses Will Be Impacted by COVID–19? Federal Reserve Bank of Philadelphia. philadelphiafed.org/covid-19/covid-19-equity-in- recovery/what-small-businesses-will-be-impacted. 218 Lucas Misera, An Uphill Battle: COVID–19’s Outsized Toll on Minority-Owned Firms, Federal Reserve Bank of Cleveland (October 8, 2020), https://www.clevelandfed.org/newsroom-and- events/publications/community-development- briefs/db-20201008-misera-report.aspx. 219 Robert Fairlie, A. Robb, D. Robinson, Black and White: Access to Capital among Minority- Owned Startups, NBER Working Paper 28154 (November 2020), https://www.nber.org/papers/ w28154. section (see section Capital Expenditures in General Provisions: Other). •Equity funds. Several commenters recommended that Treasury permit SLFRF funds to be deposited into an equity fund to support long-term racial and economic equity investments. The eligibility of such use would depend on the specific structure and uses of funds. Under the statute, SLFRF funds can only support costs incurred until December 31, 2024; see section Timeline for Use of SLFRF Funds in Program Administration Provisions. Further, recipients may calculate the cost incurred with respect to investments in revolving loan funds based on the methodology described in section Treatment of Loans in Program Administration Provisions. Projects funded by a revolving loan fund using SLFRF funds would also need to be eligible uses of SLFRF funds. •Environmental quality and climate resilience. Several commenters recommended eligible uses to enhance environmental quality, remediate pollution, promote recycling or composting, or increase energy efficiency or electrical grid resilience. Whether these projects respond to the disproportionate impacts of the pandemic on certain communities would depend on the specific issue they address and its nexus to the public health and economic impacts of the pandemic. b. Assistance to Small Businesses Background The pandemic has severely impacted many businesses, with small businesses hit especially hard. Small businesses make up nearly half of U.S. private- sector employment 205 and play a key role in supporting the overall economic recovery as they are responsible for two- thirds of net new jobs.206 Since the beginning of the pandemic, however, 400,000 small businesses have closed, with many more at risk.207 Sectors with a large share of small business employment have been among those with the most drastic drops in employment.208 The negative outlook for small businesses has continued: As of November 2021, approximately 66 percent of small businesses reported that the pandemic has had a moderate or large negative effect on their business, and over a third expect that it will take over 6 months for their business to return to their normal level of operations.209 This negative outlook is likely the result of many small businesses having faced periods of closure and having seen declining revenues as customers stayed home.210 In general, small businesses can face greater hurdles in accessing credit,211 and many small businesses were already financially fragile at the outset of the pandemic.212 While businesses everywhere faced significant challenges during the pandemic, minority-owned and very small businesses have faced additional obstacles. Between February and April 2020, the number of actively self- employed Black business owners decreased by 41 percent.213 During that same time period, Asian and Latino business owners decreased by 26 and 32 percent, respectively, compared to a 17 percent decrease in white business owners.214 Female business owners also saw significant impacts, with businesses owned by women falling by 25 percent.215 Many of the disparities in how minority business owners experienced the pandemic are rooted in systemic issues present even before the pandemic. For example, before the economic downturn, only 12 percent of Black-owned businesses and 19 percent of Hispanic-owned businesses had annual earnings of over $1 million compared to 31 percent of white-owned businesses.216 Minority-owned businesses were also overrepresented in industries hit hardest by the economic downturn (e.g., services, transportation and warehousing, healthcare and social assistance, administrative and support and waste management, and accommodation and food services).217 Approximately 22 percent of all minority-owned business fell into the hardest hit industries compared to 13 percent of nonminority-owned businesses.218 Although disparities in annual revenue are not a direct indication of a business’s ability to weather an economic downturn, they do highlight other disparities that make it more challenging for these businesses to survive the effects of the pandemic. Black-owned startups, for example, face larger challenges in raising capital, including securing business loans.219 Summary of the Interim Final Rule and Final Rule Structure Summary of Interim Final Rule: As discussed above, small businesses faced significant challenges in covering payroll, mortgages or rent, and other operating costs as a result of the public health emergency and measures taken to contain the spread of the virus. Under Sections 602(c)(1)(A) and 603(c)(1)(A), recipients may ‘‘respond to the public health emergency or its negative economic impacts,’’ by, among other things, providing ‘‘assistance to . . . small businesses.’’ Accordingly, the interim final rule allowed recipients to provide assistance to small businesses to address the negative economic impacts faced by those businesses. A VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4377 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations ‘‘small business’’ is defined as a business concern or other organization that: (1) Has no more than 500 employees or, if applicable, the size standard in number of employees established by the Administrator of the Small Business Administration for the industry in which the business concern or organization operates; and (2) Is a small business concern as defined in section 3 of the Small Business Act (15 U.S.C. 632). Specifically, the interim final rule provided that recipients may provide assistance to small businesses to adopt safer operating procedures, weather periods of closure, or mitigate financial hardship resulting from the COVID–19 public health emergency, including: •Loans or grants to mitigate financial hardship such as declines in revenues or impacts of periods of business closure; •Loans, grants, or in-kind assistance to implement COVID–19 prevention or mitigation tactics; and •Technical assistance, counseling, or other services to assist with business planning needs. The interim final rule further provided that recipients may consider additional criteria to target assistance to businesses in need, including small businesses. Such criteria may include businesses facing financial insecurity, substantial declines in gross receipts (e.g., comparable to measures used to assess eligibility for the Paycheck Protection Program), or other economic harm due to the pandemic, as well as businesses with less capacity to weather financial hardship, such as the smallest businesses, those with less access to credit, or those serving underserved communities. The interim final rule also indicated that recipients should consider local economic conditions and business data when establishing such criteria. Finally, the interim final rule posed a question on whether there are other services or costs that Treasury should consider as eligible uses to respond to the disproportionate impacts of COVID–19 on low-income populations and communities. Final Rule Structure: Consistent with the interim final rule approach, the final rule provides a non-exhaustive list of enumerated eligible uses for assistance to small businesses that are impacted or disproportionately impacted by the pandemic. Further, within Assistance to Small Business, a recipient may also identify a negative economic impact experienced by small businesses and design and implement a response to that negative economic impact, beyond the uses specifically enumerated in the final rule, according to the standard described in the section Standards: Identifying a Negative Economic Impact. A recipient may also identify small businesses that have been disproportionately impacted by the public health emergency and design and implement a program that responds to the source of that disproportionate impact. Consistent with other eligible use categories to respond to the public health and economic impacts of the pandemic, recipients may identify and serve small businesses that experienced a negative economic impact or disproportionate impact due to the pandemic, as described in the section Standards for Identifying Other Eligible Populations. For example, to identify impacted small businesses, a recipient may consider whether the small businesses faced challenges in covering payroll, mortgage or rent, or other operating costs as a result of the public health emergency and measures taken to contain the spread of the virus. In order to ease administrative burden, the final rule presumes that small businesses operating in QCTs, small businesses operated by Tribal governments or on Tribal Lands, and small businesses operating in the U.S. territories were disproportionately impacted by the pandemic. Reorganizations and Cross- References: As detailed above, Treasury has re-categorized some uses of funds in the final rule to provide greater clarity. For discussion of assistance to small businesses and impacted industries to implement COVID–19 mitigation and prevention strategies, see section COVID–19 Mitigation and Prevention in Public Health. Small Businesses Eligible for Assistance Public Comment: Treasury received many comments about the general benefits or drawbacks of use of SLFRF funds to provide assistance to small businesses. Some commenters suggested that SLFRF funds should be available to assist all small businesses, rather than only businesses that experienced direct negative economic impacts due to the public health emergency. Other commenters argued that aid to small businesses should be narrowed in the final rule, asserting that SLFRF funds should instead focus on assistance to households or building public sector capacity. Treasury also received comments requesting clarification of the types of small businesses eligible for assistance. For example, some commenters requested clarification about whether microbusinesses were included in the definition of small business. Comments also suggested that self-employed individuals and Tribal enterprises be classified as small businesses, respectively. Commenters argued that these types of small businesses are more common among low-income and minority businessowners and serve as important institutions in underserved communities. Finally, some commenters suggested that Treasury permit broader enumerated eligible uses to assist small businesses in disproportionately impacted communities and generally strengthen economic growth in these communities. These commenters recommended that Treasury presume small businesses operating in QCTs are disproportionately impacted and eligible for broader enumerated uses. Treasury Response: As discussed in the section Designating a Negative Economic Impact, in the final rule, recipients must identify an economic harm caused or exacerbated by the pandemic on a small business or class of small businesses to provide services that respond. As discussed above, programs or services in this category must respond to a harm experienced by a small business or class of small businesses as a result of the public health emergency. To identify impacted small businesses and necessary response measures, recipients may consider impacts such as lost revenue or increased costs, challenges covering payroll, rent or mortgage, or other operating costs, the capacity of a small business to weather financial hardships, and general financial insecurity resulting from the public health emergency. Recognizing the difficulties faced by small businesses in certain communities, the final rule presumes that small businesses operating in QCTs, small businesses operated by Tribal governments or on Tribal Lands, and small businesses operating in the U.S. territories were disproportionately impacted by the pandemic. This presumption parallels the final rule’s approach to assistance to households, reflecting the more severe pandemic impacts in underserved communities and creating a parallel structure across different categories of eligible uses to make the structure simpler for recipients to understand and navigate. Treasury notes that recipients may also designate a class of small businesses that experienced a negative economic impact or disproportionate negative economic impact (e.g., microbusinesses, small businesses in certain economic sectors), design an intervention to fit the impact, and VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4378 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 220 In regard to counting employees, businesses owned and controlled by a Tribal government are not considered affiliates of the Tribal government and are not considered affiliates of other businesses owned by the Tribal government because of their common ownership by the Tribal government or common management, as described in 13 CFR 121.103(b)(2). This definition is consistent with the Small Business Administration (SBA) HUBZone definition of a ‘‘small business concern’’ relating to Tribal governments as well as how Tribal enterprises are defined for the State Small Business Credit Initiative (SSBCI). document that the individual entity is a member of the class. Additional information about this framework is included in the section General Provisions: Structure and Standards. Further, Treasury is maintaining the interim final rule definition of ‘‘small business,’’ which used the Small Business Administration’s (SBA) definition of fewer than 500 employees, or per the standard for that industry, as defined by SBA. This definition includes businesses with very few employees, self-employed individuals, and Tribally owned businesses.220 Finally, Treasury notes that recipients may award SLFRF funds to many different types of organizations, including small businesses, to function as a subrecipient in carrying out eligible uses of funds on behalf of a recipient government. In this case, a small business need not have experienced a negative economic impact in order to serve as a subrecipient. See section Distinguishing Subrecipients versus Beneficiaries for more detailed discussion of interactions with subrecipients, in contrast to beneficiaries of assistance. Enumerated Eligible Uses for Assistance to Small Businesses Public Comment: Treasury received comments requesting clarification of the types of assistance available to small businesses. For example, one commenter suggested that outdoor dining be an eligible use for SLFRF funds as assistance to small businesses. Other commenters asked for clarification about how SLFRF funds could be used to support new businesses and start-ups. Several commenters requested clarification of whether and how recipients may provide services to business districts or downtown areas, particularly those that exist in whole or in part within a QCT, and requested reduced documentation of the specific negative economic impact for the businesses operating within those areas. These commenters argued in favor of allowing redevelopment or other support, including capital investments, in business districts that were negatively impacted by COVID–19. Several commenters also argued that funds should be available to support and grow microbusinesses, or businesses with five or fewer employees, which are more likely to be owned by women and people of color. Treasury Response: In the final rule, Treasury is maintaining and clarifying the enumerated eligible uses of funds for assistance to small businesses that are impacted or disproportionately impacted by the pandemic. Impacted small businesses. Specifically, Treasury is maintaining enumerated eligible uses from the interim final rule for assistance to impacted small businesses. These include but are not limited to: •Loans or grants to mitigate financial hardship such as declines in revenues or impacts of periods of business closure, for example by supporting payroll and benefits costs, costs to retain employees, mortgage, rent, or utilities costs, and other operating costs; •Loans, grants, or in-kind assistance to implement COVID–19 prevention or mitigation tactics (see section Public Health for details on these eligible uses); and •Technical assistance, counseling, or other services to assist with business planning needs. Treasury acknowledges a range of potential circumstances in which assisting small businesses could be responsive to the negative economic impacts of COVID–19, including for small businesses startups and microbusinesses and individuals seeking to start small or microbusinesses. For example: •As noted above, a recipient could assist small business startups or microbusinesses with additional costs associated with COVID–19 mitigation tactics; see section Public Health for details on these eligible uses. •A recipient could identify and respond to a negative economic impact of COVID–19 on new small business startups or microbusinesses; for example, if small business startups or microbusinesses in a locality faced greater difficulty accessing credit than prior to the pandemic or faced increased costs to starting the business due to the pandemic or if particular small businesses or microbusinesses had lost expected startup capital due to the pandemic. •The interim final rule also discussed, and the final rule maintains, eligible uses that provide support for individuals who have experienced a negative economic impact from the COVID–19 public health emergency, including uses that provide job training for unemployed individuals. These initiatives also may support small business start-ups, microbusinesses, and individuals seeking to start small or microbusinesses. Disproportionately impacted small businesses. Additionally, Treasury agrees with commenters that disproportionately impacted small businesses may benefit from additional assistance to address the sources of that disparate impact. As such, the final rule provides a broader set of enumerated eligible uses for disproportionately impacted small businesses and/or small businesses in disproportionately impacted business districts. Recipients may use SLFRF funds to assist these businesses with certain capital investments, such as rehabilitation of commercial properties, storefront improvements, and fac¸ade improvements. Recipients may also provide disproportionately impacted microbusinesses additional support to operate the business, including financial, childcare, and transportation supports. Recipients could also provide technical assistance, business incubators, and grants for start-ups or expansion costs for disproportionately impacted small businesses. Note that some of these types of assistance are similar to those eligible to respond to small businesses that experienced a negative economic impact (‘‘impacted’’ small businesses). However, because the final rule presumes that some small businesses were disproportionately impacted, these enumerated eligible uses can be provided to those businesses without any specific assessment of whether they individually experienced negative economic impacts or disproportionate impacts due to the pandemic. Cross-References: Recipients providing assistance to small businesses for capital expenditures (i.e., expenditures on property, facilities, or equipment) should also review the section Capital Expenditures in General Provisions: Other, which describes eligibility standards that apply to capital expenditures. Recipients should also note that services to address vacant or abandoned commercial or industrial properties are addressed in section Vacant or Abandoned Properties in Assistance to Households. Loans to Small Businesses Public Comment: Treasury received many comments requesting clarification on using SLFRF funds to establish funds that provide loans to small businesses. For example, commenters sought clarification of how eligible use VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4379 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 221 See, e.g., Federal Reserve Bank of San Francisco, Impacts of COVID–19 on Nonprofits in the Western United States (May 2020), https:// www.frbsf.org/community-development/files/ impact-of-covid. 222 Philanthropy and COVID–19: Measuring one year of giving, Candid and the Center for Disaster Philanthropy. (2021), https://www.issuelab.org/ resources/38039/38039.pdf. 223 Id. 224 Elizabeth T. Boris et al., Nonprofit Trends and Impacts 2021, Urban Institute (October 7, 2021), https://www.urban.org/research/publication/ nonprofit-trends-and-impacts-2021/view/full_ report. 225 Id. 226 Chelsea Newhouse, COVID–19 JOBS UPDATE, NOVEMBER 2021: Nonprofits add just 5,000 jobs in November, Center for Civil Society Studies at Johns Hopkins University (December 10, 2021), http:// ccss.jhu.edu/november-2021-jobs/. 227 Elizabeth T. Boris et al. supra note 224 at p. 38. 228 §35.3 Definitions. 229 The ARPA also states under ‘‘Transfer Authority’’ that a Recipient may transfer funds to a private nonprofit organization such as those defined in paragraph (17) of section 401 of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11360(17). See 602 & 603(c)(3) of the Social Security Act. See section Transfers of Funds for additional information on other types of entities, including other forms of nonprofits, that may receive transfers. 230 While not stated specifically in the interim final rule, the Department does not require or have a preference as to the payment structure for recipients that transfer funds to subrecipients (e.g., advance payments, reimbursement basis, etc.). Ultimately, recipients must comply with the eligible use requirements and any other applicable laws or requirements and are responsible for the actions of their subrecipients or beneficiaries. requirements and applicable dates for SLFRF funds would apply to third party organizations (like economic development organizations) who receive SLFRF funds in order to establish a loan fund. In addition, commenters requested clarification on what requirements apply to loan programs with available funds remaining after December 31, 2024. Treasury Response: SLFRF funds may be used to make loans, including to small businesses, provided that the loan is an eligible use, and the cost of the loan is tracked and reported in accordance with Treasury’s Compliance and Reporting Guidance. Funds that are unobligated after December 31, 2024 must be returned to Treasury. See section Treatment of Loans for more information about using SLFRF funds for loan programs. c. Assistance to Nonprofits Background: Nonprofits have faced significant challenges because of the pandemic, including increased demand for services and changing operational needs.221 Prior to the pandemic, the median U.S. nonprofit reported that it had six months of cash on hand.222 This varied by sector, however, with some sectors like disaster relief organizations reporting a median of 17 months cash on hand, and others, like mental health and crisis intervention organizations reporting only three months.223 Evidence suggests that the pandemic has damaged the financial health of nonprofits, with small nonprofits, which tend to rely more heavily on donations than large nonprofits, reporting relatively larger declines in donations — 42 percent versus 29 percent, respectively.224 Among nonprofits that collect fees for services, the median revenue amount collected from such fees fell by 30 percent from 2019 to 2020, with arts organization experiencing a 50 percent decline.225 Nonprofits also experienced significant job losses. While employment in the nonprofit sector has recovered from its low point in 2020, as of November 2021, the sector remained 485,000 jobs below its pre-pandemic level.226 In addition, some nonprofits may have experienced declines in volunteer staffing during the pandemic.227 At the same time, nonprofits provide a host of services for their communities, including helping Americans weather the multitude of challenges presented by the pandemic. The ARPA and the interim final rule recognized this dichotomy—nonprofits as entities that have themselves been negatively impacted by the pandemic and as entities that provide services that respond to the public health and negative economic impacts of the pandemic on households and others —by creating two roles for nonprofits. First, under Sections 602(c)(1)(A) and 603(c)(1)(A), recipients may ‘‘respond to the public health emergency or its negative economic impacts,’’ by, among other activities, providing ‘‘assistance to . . . nonprofits.’’ The interim final rule defined assistance to nonprofits to include ‘‘loans, grants, in-kind assistance, technical assistance or other services, that responds to the negative economic impacts of the COVID–19 public health emergency,’’ and ‘‘nonprofit’’ to mean a tax-exempt organization under Section 501(c)(3) of the U.S. Internal Revenue Code.228 Second, as discussed above, ARPA and the interim final rule provided that nonprofit organizations may also receive funds as subrecipients of a recipient government (i.e., a government that received SLFRF funds); subrecipients carry out an eligible use of SLFRF funds on behalf of a recipient government (e.g., a recipient government that would like to provide food assistance to impacted households may grant funds to a nonprofit organization to carry out that eligible use). Recipients generally have wide latitude to award funds to many types of organizations, including nonprofit or for-profit organizations, as subrecipients to carry out eligible uses of funds on their behalf. For further information on distinguishing between beneficiaries and subrecipients, as well as the impacts of the distinction on reporting and other requirements, see section Transfers of Funds and section Distinguishing Subrecipients versus Beneficiaries under the Public Health and Negative Economic Impacts eligible use category.229 Reorganization and Cross-References: Under the interim final rule, assistance to disproportionately impacted communities was a separate, stand- alone category. The final rule reorganizes the disproportionate impact analysis within the sections Assistance to Households, Assistance to Small Business, and Assistance to Nonprofits to better articulate how recipients can serve disproportionately impacted beneficiaries in each of those categories. As detailed above in the Public Health subsection, in response to public comments describing uncertainty on which eligible use category should be used to assess different potential uses of funds, Treasury has re-categorized some uses of funds in the final rule to provide greater clarity. For discussion of assistance to nonprofits to implement COVID–19 mitigation and prevention strategies, see section COVID–19 Mitigation and Prevention in Public Health. Recipients providing assistance via nonprofits involving capital expenditures (i.e., expenditures on property, facilities, or equipment) should also review the section Capital Expenditures in General Provisions: Other, which describes eligibility standards for these expenditures. Recipients providing assistances in the form of loans should review the section Treatment of Loans. Public Comment: Eligible Assistance to Impacted and Disproportionately Impacted Nonprofits: A few commenters asked Treasury to be more explicit in the final rule that recipients may use funds to provide relief directly to nonprofit organizations and to explain how nonprofits might qualify themselves for assistance and what expenses SLFRF funds may be used to cover.230 Commenters requested that Treasury note that the pandemic is VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4380 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 231 Note, this response is meant to clarify the difference between nonprofits as beneficiaries and nonprofits as subrecipients. It is not meant to limit the types of relationships that a recipient may enter into with a nonprofit as permitted under the Uniform Guidance. 232 See sections 602(c)(3) and 603(c)(3) of the Social Security Act. See also Section 401 of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11360(17), which defines a ‘‘private nonprofit organization.’’ leading to a changing financial landscape for nonprofits. Treasury Response: Eligible Assistance to Impacted and Disproportionately Impacted Nonprofits: The interim final rule provided for, and the final rule maintains, the ability for recipients to provide direct assistance to nonprofits that experienced public health or negative economic impacts of the pandemic. Specifically, recipients may provide direct assistance to nonprofits if the nonprofit has experienced a public health or negative economic impact as a result of the pandemic. For example, if a nonprofit organization experienced impacts like decreased revenues or increased costs (e.g., through reduced contributions or uncompensated increases in service need), and a recipient provides funds to address that impact, then it is providing direct assistance to the nonprofit as a beneficiary under Subsection (c)(1) of Sections 602 and 603. Direct assistance may take the form of loans, grants, in- kind assistance, technical assistance, or other services that respond to the negative economic impacts of the COVID–19 public health emergency. A recipient may identify a negative economic impact experienced by a nonprofit, or class of nonprofits, and design and implement a response to that negative economic impact, see section Standards: Designating a Negative Economic Impact. The final rule provides a non-exhaustive list of enumerated eligible uses for assistance to nonprofits that are impacted or disproportionately impacted by the pandemic. A recipient may also identify a class of nonprofits that have been disproportionately impacted by the public health emergency and design and implement a program that responds to the source of that disproportionate impact. For example, a recipient may determine that nonprofits offering after- school programs within its jurisdiction were disproportionately impacted by the pandemic due to the previous in- person, indoors nature of the work and the nonprofits’ reliance on fees received for services (e.g., attendance fees). The recipient might then design an intervention to assist those nonprofits in adapting their programming (e.g., to outdoor or online venues), their revenue structure (e.g., adapting the fee for service structure or developing expertise in digital donation campaigns), or both. Additional information about this framework is included in General Provisions: Structure and Standards. In order to ease administrative burden, the final rule presumes that nonprofits operating in QCTs, operated by Tribal governments or on Tribal Lands, or operating in the U.S. territories were disproportionately impacted by the pandemic. To summarize, a recipient may determine that certain nonprofits were impacted by the pandemic or were disproportionately impacted by the pandemic and provide responsive services. Public Comment: Beneficiaries and Subrecipients: As noted elsewhere in this final rule, Treasury received multiple comments expressing uncertainty on how to categorize a particular activity in the eligible use categories. For instance, some commenters requested that recipients be able to use SLFRF funds for certain expenses incurred by nonprofits (e.g., unemployment charges) as a response to a public health or negative economic impact to that nonprofit; others asked if nonprofits providing certain services (e.g., social services) made them eligible for direct assistance. Commenters also requested that Treasury acknowledge that engagement directly with nonprofit organizations in low-income communities and communities of color may allow the recipient to better assess economic harms in these areas. Treasury Response: Beneficiaries and Subrecipients: Treasury recognizes that many nonprofits play important roles in their communities, and some may have experienced public health or negative economic impacts during the pandemic. As such, under the interim final rule and the final rule, nonprofits may be impacted by the pandemic and receive assistance as a beneficiary, as described above, and/or be a subrecipient providing services on behalf of a recipient.231 Specifically, the interim final rule also allowed for, and the final rule maintains, the ability for the recipient to transfer, e.g., via grant or contract, funds to nonprofit entities to carry out an eligible use on behalf of the recipient. Treasury notes that recipients may award SLFRF funds to many different types of organizations to carry out eligible uses of funds and serve beneficiaries on behalf of a recipient government (e.g., assisting in a vaccination campaign, operating a job training program, developing affordable housing). When a recipient provides funds to an organization to carry out eligible uses of funds and serve beneficiaries, the organization becomes a subrecipient. In this case, a nonprofit need not have experienced a negative economic impact in order to serve as a subrecipient. In the context of SLFRF, nonprofits of all types may be subrecipients. Treasury is not restricting the types of nonprofits that can operate as subrecipients, rather allowing recipients to decide what form best meets the needs of their community. Therefore, a ‘‘nonprofit’’ that is acting as subrecipient could include, but is not limited to, a nonprofit as that term is defined in paragraph (17) of section 401 of the McKinney-Vento Homeless Assistance.232 See section Distinguishing Subrecipients versus Beneficiaries for further information. Additional guidance on determining subrecipient status may be found in the Uniform Guidance.233 Recipients may transfer funds to subrecipients in several ways, including advance payments and on a reimbursement basis. Ultimately, recipients must comply with the eligible use requirements and any other applicable laws or requirements and are responsible for the actions of their subrecipients or beneficiaries. As part of accepting the Award Terms and Conditions for SLFRF, each recipient agreed to maintain a conflict- of-interest policy consistent with 2 CFR 200.318(c) that is applicable to all activities funded with the SLFRF award. Pursuant to this requirement, decisions concerning SLFRF funds must be free of undisclosed personal or organizational conflicts of interest, both in fact and in appearance. Recipients may avoid conflicts of interest in providing assistance to nonprofits or making subrecipient awards by, inter alia, making aid available to nonprofits on generally applicable terms or utilizing a competitive grant process, respectively. A recipient may not use control over SLFRF funds for their own private gain. Furthermore, no employee, officer, or agent may participate in the selection, award, or administration of a contract supported by a federal award if he or she has a real or apparent conflict of interest. Public Comment: Definition of Nonprofit: Treasury also received several requests to expand the definition of nonprofits so that other tax-exempt entities (e.g., 501(c)(7)s, 501(c)(9)s, 501(c)(19)s, nonprofits with ‘‘historical VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4381 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 234 §35.3 Definitions. 235 Treasury considered expanding the definition of nonprofit to include 501(c)(6) organizations, as Congress later did in the Coronavirus Response and Consolidated Appropriations Act of 2021, but ultimately decided to retain the original CARES Act definition. To the extent impacted by the pandemic, 501(c)(6) organizations may be eligible to receive funds to support eligible uses that align with their overall purpose (e.g., tourism promotion in aid of an impacted industry). 236 Coronavirus State and Local Fiscal Recovery Funds, 86 FR at 26795. 237 For a definition of ‘‘Tribal development districts,’’ please see FAQ 2.9 at the following: Coronavirus State and Local Fiscal Recovery Funds, Frequently Asked Questions, as of July 19, 2021; https://home.treasury.gov/system/files/136/ SLFRPFAQ.pdf. significance’’) could be eligible for direct assistance as beneficiaries. Treasury Response: Definition of Nonprofit: The final rule expands the definition of nonprofits to mean 501(c)(3) organizations and 501(c)(19) organizations.234 The 501(c)(3) classification includes a wide range of organizations with varying charitable or public service-oriented goals (e.g., housing, food assistance, job training). As discussed above, these nonprofit organizations often experienced hardship due to increased needs for services combined with decreased donations and other sources of funding. In response to comments, Treasury has expanded the definition of nonprofit to include 501(c)(19) organizations, which includes veterans’ organizations, to provide recipients more flexibility and in alignment with the definition of nonprofit adopted by the CARES Act, wherein 501(c)(3)s and 501(c)(19)s were eligible for assistance.235 Public Comment: Reporting Requirements: One commenter asked Treasury to clarify if nonprofits that receive direct assistance as beneficiaries are required to comply with guidelines and reporting requirements. Treasury Response: Reporting Requirements: Nonprofits that receive direct assistance as beneficiaries are not subrecipients under SLFRF and are therefore not required to comply with SLFRF reporting requirements. However, the recipient must comply with SLFRF reporting requirements, which would require reporting obligations and expenditures for assistance to nonprofits. The recipient may also choose to establish other forms of reporting or accountability as a part of the recipient’s direct assistance program. A nonprofit entity that receives a transfer from a recipient is a subrecipient. Per the Uniform Guidance, subrecipients must adhere to the same requirements as recipients. Therefore, a nonprofit subrecipient may only receive funds to carry out an eligible use of SLFRF funds and must comply with any reporting and compliance requirements. Note that recipients are ultimately responsible for reporting information to Treasury and must collect any necessary information from their subrecipients to complete required reporting. d. Aid to Impacted Industries The interim final rule allowed for ‘‘aid to tourism, travel, and hospitality, and other impacted industries’’ that responds to the negative economic impacts of the COVID–19 public health emergency. In designating other impacted industries, Treasury specified that recipients should consider the ‘‘extent of the economic impact as compared to tourism, travel, and hospitality’’ and ‘‘whether impacts were due to the COVID–19 pandemic, as opposed to longer-term economic or industrial trends unrelated to the pandemic.’’236 Treasury identified declines in employment and revenue as possible metrics to compare the economic impact on a particular industry relative to the tourism, travel, and hospitality industries. Treasury further provided that aid should be limited to businesses, attractions, business districts, and Tribal development districts 237 that were operating prior to the pandemic and affected by required closures and other efforts to contain the pandemic. Examples of eligible aid include assistance to implement COVID–19 mitigation and infection prevention measures, aid to support safe reopening of businesses in these industries, as well as aid for a planned expansion or upgrade of tourism, travel, and hospitality facilities delayed due to the pandemic. The interim final rule and Treasury’s subsequent Compliance and Reporting Guidance also required governments to publicly report assistance provided to private-sector businesses under this eligible use and maintain records of their assessments to facilitate transparency and accountability. Reorganization and Cross-References: As detailed above, Treasury has re- categorized some uses of funds in the final rule to provide greater clarity. In the interim final rule, aid to impacted industries to implement COVID–19 mitigation and prevention strategies was categorized under Aid to Impacted Industries; the final rule addresses these items under the section COVID–19 Mitigation and Prevention in Public Health. Recipients should also be aware of the difference between beneficiaries of assistance and subrecipients when working with impacted industries; for further information, see section Distinguishing Subrecipients versus Beneficiaries. Designating an Impacted Industry Public Comment: Many commenters requested greater clarity on how to designate ‘‘other impacted industries’’ within their jurisdiction. Commenters requested greater specificity as to the metrics used to measure impact, with some suggesting metrics such as the change in the size of an industry’s workforce due to the pandemic, as well as consideration of whether and why employees are choosing to return to work at slower rates in certain industries. One commenter asked if this meant nearly every industry was ‘‘disproportionately impacted.’’ Some commenters encouraged Treasury to focus on industries most negatively impacted by the pandemic, including disallowing across-the-board business subsidies to businesses that were not negatively impacted by the pandemic and saw revenue or profit growth. Other commenters asked for flexibility for recipients to determine impacted industries based on their local knowledge of the economic landscape. Treasury Response: The final rule maintains the interim final rule’s approach of allowing recipients to designate impacted industries outside the travel, tourism, and hospitality industries, and, in response to comments, provides greater clarity as to how recipients may designate such impacted industries. Sections 602(c)(1)(A) and 603(c)(1)(A) recognize that the tourism, travel, and hospitality industries are severely negatively impacted by the pandemic. Under the final rule, recipients may provide eligible aid (described in further detail herein) to the tourism, travel, and hospitality industries. Treasury considers Tribal development districts, which are commercial centers for Tribal hospitality, gaming, tourism, and entertainment and can include Tribal enterprises, as part of the tourism, travel, and hospitality industries that have been severely hit by the pandemic. Therefore, Treasury reaffirms that Tribal development districts are considered impacted industries and recipients may provide eligible aid to them. To identify other industries comparably impacted to the tourism, travel, and hospitality industries, recipients should undertake a two-step process: Identifying an industry and determining whether that industry is comparably impacted. VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4382 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 238 Once an industry is designated as impacted, aid should be generally broadly available to businesses in the industry that qualify. Recipients should document how they defined the scope of their industry and how they determined that the industry was impacted. For states and territories, this includes documenting their justification for defining a constituent industry with greater geographic precision than state or territory-wide. 239 National Leisure & Hospitality supersector employment data can be found on the U.S. Bureau of Labor Statistics website: U.S. Bureau of Labor Statistics, Leisure and Hospitality, https:// www.bls.gov/iag/tgs/iag70.htm (last visited December 7, 2021). First, recipients should identify an industry to be assessed. In identifying this industry, the final rule provides recipients the flexibility to define its substantive or geographic scope.238 Recipients may identify a broad sector that encompasses a number of sub- industries, or they may identify a specific sub-industry to be assessed. For example, a recipient may identify ‘‘personal care services’’ as an industry, or they may identify a more specific category within the ‘‘personal care services’’ industry (e.g., barber shops) as an industry. In defining the industry, Treasury encourages recipients to define narrow and discrete industries eligible for aid. Recipients are not required to follow, but may consider following, industry classifications under the North American Industry Classification System (NAICS). Treasury notes that the larger and more diverse the sector, the more difficult it may be to demonstrate that the larger and less specific sector is negatively impacted in the same way given the scale and diversity of businesses within it. State or territory recipients may also define a constituent industry with greater geographic precision than state or territory-wide. For example, a state may identify a particular industry in a certain region of the state that was negatively impacted by the pandemic, even if the same industry in the rest of the state did not see a meaningful negative economic impact from the pandemic. State recipients oversee large and diverse industries, sometimes with differences in economic activity between geographic regions. Allowing greater geographic precision allows recipients to target aid to those that need it most, ensuring that state averages do not conceal hard-hit areas in their state. Second, to determine whether the industry is ‘‘impacted,’’ recipients should compare the negative economic impacts of the public health emergency on the identified industry to the impacts observed on the travel, tourism, and hospitality industries. 1. Simplified test. An industry is presumed to be impacted if the industry experienced employment loss of at least 8 percent. Specifically, a recipient should compare the percent change in the number of employees of the recipient’s identified industry and the national Leisure & Hospitality sector in the three months before the pandemic’s most severe impacts began (a straight three- month average of seasonally-adjusted employment data from December 2019, January 2020, and February 2020) with the latest data as of the final rule release (a straight three-month average of seasonally-adjusted employment data from September 2021, October 2021, and November 2021).239 The national Leisure & Hospitality sector largely represents the national travel, tourism, and hospitality industries enumerated in the statute. According to the Bureau of Labor Statistics, employment has fallen by approximately 8 percent for the national Leisure & Hospitality sector when comparing the most recent three- month period available as of the date of adoption of the final rule to the three- month period immediately before the public health emergency. Therefore, if the identified industry has suffered an employment loss of at least 8 percent, the final rule presumes the industry to be an ‘‘impacted industry.’’ For parity and simplicity, smaller recipients without employment data that measure industries in their specific jurisdiction may use data available for a broader unit of government for this calculation (e.g., a county may use data from the state in which it is located; a city may use data for the county, if available, or state in which it is located) solely for purposes of determining whether a particular industry is an impacted industry. 2. If simplified test is not met. If an industry does not satisfy the test above or data are unavailable, the recipient may still designate the industry as impacted by demonstrating the following: a. The recipient can show that the totality of relevant major economic indicators demonstrate that the industry is experiencing comparable or worse economic impacts as the national tourism, travel, and hospitality industries at the time of the publication of the final rule, and that the impacts were generally due to the COVID–19 public health emergency. Example economic indicators include gross output, GDP, net profits, employment levels, and projected time to restore employment back to pre-pandemic levels. Recipients may rely on available economic data, government research publications, research from academic sources, and other quantitative sources for this determination. If quantitative data is unavailable, the recipient can rely on qualitative data to show that the industry is experiencing comparable or worse economic impacts as the national tourism, travel, and hospitality industries, and the impacts were generally due to the COVID–19 public health emergency. Recipients may rely on sources like community interviews, surveys, and research from relevant state and local government agencies. As the public health emergency and economic recovery evolves, recipients should assess how industry impacts shift over time. Impacted industries may recover in a short period of time and no longer face a negative economic impact; in those circumstances, the recipient should ensure that the extent and length of aid is reasonably proportional to the negative economic impact that is experienced, as detailed further below and in section General Provisions: Structure and Standards. Recipients may add to their list of impacted industries by showing that the negative economic impacts to the industry at the time of the designation are comparable to the negative economic impacts to the national tourism, travel, and hospitality sectors as of the date of the final rule adoption, as detailed herein. Eligible Aid Public Comment: Commenters asked for further clarification as to the definition of eligible aid to an impacted industry, with many requesting that a broad range of aid be eligible. Examples of aid that recipients asked to be considered eligible include aid to businesses to cover COVID–19 mitigation costs and planned renovations or improvements to tourism, travel, and hospitality facilities, as well as marketing and in- kind incentives to attract visitors. Commenters also asked about the eligibility of aid to broadly cover losses incurred by facilities such as convention centers and hotels due to the pandemic’s economic impact. Commenters also asked for further clarification about the requirements related to private-sector reporting. Further, some commenters asked for clarification about eligible aid to impacted industries owned and operated by Tribal governments, including for Tribal construction projects that have been delayed due to the pandemic’s economic impacts, and for deference to Tribal determinations of negative economic impacts. VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4383 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 240 As part of accepting the Award Terms and Conditions for SLFRF, each recipient agreed to maintain a conflict-of-interest policy consistent with 2 CFR 200.318(c) that is applicable to all activities funded with the SLFRF award. Pursuant to this policy, decisions concerning SLFRF must be free of undisclosed personal or organizational conflicts of interest, both in fact and in appearance. Recipients may avoid conflicts of interest in awarding aid to impacted industries by, inter alia, making aid available to businesses in the industry on generally applicable terms or utilizing a competitive grant process. A recipient may not use control over SLFRF for their own private gain. Furthermore, no employee, officer, or agent may participate in the selection, award, or administration of a contract supported by a federal award if he or she has a real or apparent conflict of interest. Treasury Response: In response to commenters’ requests for clarification on eligible aid, the final rule requires that aid to impacted industries, including to Tribal development districts, be designed to address the harm experienced by the impacted industry. First, recipients should identify a negative economic impact, i.e., an economic harm, that is experienced by businesses in the impacted industry. Second, recipients should select a response that is designed to address the identified economic harm resulting from or exacerbated by the public health emergency. Responses must also be related and reasonably proportional to the extent and type of harm experienced; uses that bear no relation or are grossly disproportionate to the type or extent of harm experienced would not be eligible uses. Recipients should consider the further discussion of this standard provided in the sections Standards: Designating a Public Health Impact and Standards: Designating a Negative Economic Impact. These responses may take the form of direct spending by recipients to promote an industry or support for businesses within an ‘‘impacted’’ industry that experienced a negative economic impact (e.g., through a grant program). Examples of eligible responses include: •Aid to mitigate financial hardship due to declines in revenue or profits by supporting payroll costs and compensation of returning employees for lost pay and benefits during the COVID–19 pandemic, as well as support of operations and maintenance of existing equipment and facilities, such as rent, leases, and utilities; •Aid for technical assistance, counseling, and other services to assist with business planning needs; and •Aid to implement COVID–19 mitigation and infection prevention measures, such as vaccination or testing programs, is broadly eligible for many types of entities, including travel, tourism, hospitality, and other impacted industries. Recipients providing aid to impacted industries for COVID–19 public health measures should review the section Assistance to Businesses to Implement COVID–19 Strategies in Public Health, which describes types of eligible uses of funds in this category. To address the identified harms, responses (e.g., aid through a grant program) should be generally broadly available to all businesses within the impacted industry to avoid the risk of self-dealing, preferential treatment, and conflicts of interest.240 Treasury encourages recipients to design aid programs such that funds are first used for operational expenses that are generally recognized as ordinary and necessary for the recipient’s operation, such as payroll, before being used on other types of costs. As noted in the section General Standards: Structure and Standards, uses of funds that do not respond to the negative economic impacts of the pandemic, such as excessive compensation to employees, is ineligible. The final rule maintains the interim final rule’s requirement that aid may only be considered responsive to the negative economic impacts of the pandemic if it supports businesses, attractions, and Tribal development districts operating prior to the pandemic and affected by required closures and other efforts to contain the pandemic. Further, to facilitate transparency and accountability, the final rule maintains the interim final rule’s requirement that recipients publicly report assistance provided to private-sector businesses under this eligible use, including tourism, travel, hospitality, and other impacted industries, and its connection to negative economic impacts of the public health emergency. Recipients also should maintain records to support their assessment of how businesses receiving assistance were affected by the negative economic impacts of the public health emergency and how the aid provided responds to these impacts. Recipients providing aid to impacted industries for capital expenditures (i.e., expenditures on property, facilities, or equipment), including Tribal governments providing aid to Tribal development districts, should also review the section Capital Expenditures in General Provisions: Other, which describes eligibility standards that are applicable to these expenditures, depending on the type of aid. Recipients providing assistance in the form of loans should review the section Treatment of Loans in Program Administration Provisions. 4. General Provisions: Other As noted above, the final rule consolidates into a General Provisions section several types of uses of funds; in the interim final rule, the eligibility of these uses of funds was discussed within specific categories of eligible uses for public health and negative economic impacts. Treasury anticipates that this re-organization will enhance recipient clarity in assessing eligible uses of funds. These General Provisions apply across all uses of funds under public health and negative economic impacts. Specifically, this section considers eligible uses for: •Public Sector Capacity and Workforce, which includes several separate and non-mutually exclusive categories articulated in the interim final rule: public health and safety staff; rehiring state, local, and Tribal government staff; expenses for administering COVID–19 response programs; expenses to improve the efficacy of public health or economic relief programs; and administrative expenses caused or exacerbated by the pandemic. Treasury recognizes that these are closely related and frequently overlapping categories. The final rule treats them as a single purpose, supporting public sector capacity, and provides coordinated guidance on the standards and presumptions that apply to them. •Capital Expenditures, which was addressed only under Public Health in the interim final rule. The final rule moves this expense to General Provisions and provides more clarity on the eligibility of capital expenditures across all aspects of the public health and negative economic impacts eligible use category. •Distinguishing Subrecipients versus Beneficiaries, which describes the differences between these two categories. Recipient governments responding to the public health and negative economic impacts of the pandemic may provide assistance to beneficiaries or execute an eligible use of funds through a subrecipient; some types of entities (e.g., nonprofits) could fit into either category depending on the specific purpose of the use of funds. •Uses Outside the Scope of this Category, which addresses uses of funds that are ineligible or generally ineligible under this eligible use category in the interim final rule. These uses of funds remain ineligible under the final rule, but Treasury has re-categorized where they are addressed, as described below. VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4384 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 241 In general, if an employee’s wages and salaries are an eligible use of SLFRF funds, recipients may treat the employee’s covered benefits as an eligible use of SLFRF funds. For purposes of SLFRF funds, covered benefits include costs of all types of leave (vacation, family-related, sick, military, bereavement, sabbatical, jury duty), employee insurance (health, life, dental, vision), retirement (pensions, 401(k)), unemployment benefit plans (federal and state), workers compensation insurance, and Federal Insurance Contributions Act (FICA) taxes (which includes Social Security and Medicare taxes). As described further in the section Deposits into Pension Funds in Restrictions on Use, that limitation on use does not apply to pension contributions that are part of regular payroll contributions for employees whose wages and salaries are an eligible use of SLFRF funds. 242 Note that the interim final rule adapted prior guidance issued for CRF that described these four categories of employees; however, when listing the specific occupations or types of employees in each of these categories, the guidance collapses health care and public health into one category titled ‘‘public health.’’ Therefore, the presumption described around public health employees also covers health care employees. 243 Note that this category encompasses both public health and health care employees; both are treated as public health employees for the purposes of this eligible use category. This section also addresses enumerated eligible uses proposed by commenters that Treasury has not incorporated into the final rule. Recipients should also note that the Office of Management and Budget’s (OMB) Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (commonly called the ‘‘Uniform Guidance’’) generally applies to SLFRF. a. Public Sector Capacity and Workforce Public Safety, Public Health, and Human Services Staff Summary of Interim Final Rule: Under the interim final rule, funds may be used for payroll and covered benefits 241 for public safety, public health, health care, human services, and similar employees 242 of a recipient government, for the portion of the employee’s time that is spent responding to COVID–19. For administrative convenience, the recipient may consider public health and safety employees to be entirely devoted to responding to COVID–19, and therefore their full payroll and covered benefits eligible to be covered, if the employee, or his or her operating unit or division, is ‘‘primarily dedicated’’ to responding to COVID–19, meaning that more than half of the employee, unit, or division’s time is dedicated to responding to COVID–19. Recipients may consider other presumptions for assessing the extent to which an employee, division, or operating unit is responding to COVID– 19. Recipients must periodically reassess their determination and maintain records to support their assessment, such as payroll records, attestations from supervisors or staff, or regular work product or correspondence; recipients need not track staff hours. The interim final rule also posed a question on how long recipients should be able to use funds for staff responding to COVID–19 and what other measures or presumptions might Treasury consider to assess the extent to which public sector staff are engaged in COVID–19 response in an easily administrable manner. Treasury also provided further guidance on the types of employees covered by this category of eligible use, specifically: ‘‘Public safety employees would include police officers (including state police officers), sheriffs and deputy sheriffs, firefighters, emergency medical responders, correctional and detention officers, and those who directly support such employees such as dispatchers and supervisory personnel. Public health employees 243 would include employees involved in providing medical and other health services to patients and supervisory personnel, including medical staff assigned to schools, prisons, and other such institutions, and other support services essential for patient care (e.g., laboratory technicians, medical examiner, or morgue staff) as well as employees of public health departments directly engaged in matters related to public health and related supervisory personnel. Human services staff include employees providing or administering social services; public benefits; child welfare services; and child, elder, or family care, as well as others.’’ Public Comment: Measuring Time Spent on COVID–19 Response: Treasury received public comments on several components of this eligible use category. Many commenters argued that it poses an administrative burden to identify the extent to which staff are responding to COVID–19 and to maintain records to support that assessment. Largely citing administrative burden in assessing eligibility, several commenters recommended revisions to the administrative convenience that the full payroll and covered benefits for public health and safety staff ‘‘primarily dedicated’’ to responding to COVID–19 may be paid with SLFRF funds. Some commenters recommended presuming that all public health and safety staff are primarily dedicated to COVID–19 response, while others proposed that public health and safety workers who primarily serve QCTs or low- and moderate-income areas be presumed to be primarily dedicated to COVID–19 response, given the disproportionate impacts of the pandemic in those communities. Similarly, Tribal communities recommended that their public health staff be presumed eligible due to the disproportionate impact of the pandemic on their communities. Some commenters proposed that they be able to use the administrative convenience for staff outside of public health and safety that are responding to COVID–19 (i.e., to be able to pay the full payroll and covered benefits for any staff ‘‘primarily dedicated’’ to COVID– 19 response). Treasury Response: In the final rule, Treasury is maintaining the approach in the interim final rule, including elaborations issued in further guidance, but providing additional clarification on its application, including methods to apply the approach to minimize administrative burden. Treasury notes that recipients may assess the extent to which staff are dedicated to responding to COVID–19 through a variety of means, including establishing presumptions or assessing public health and safety staff at the division or operating unit level. For example, a recipient could consider the amount of time spent by employees in its public health department’s epidemiology division in responding to COVID–19 and, if a majority of its employees are dedicated to responding to COVID–19, determine that the entire division is primarily dedicated to responding to COVID–19. Treasury also clarifies that recipients may use reasonable estimates to establish administrable presumptions; for example, a recipient could estimate, based on discussions with staff, the general share of time that employees in a specific role or type of position spend on COVID–19 related tasks and apply that share of time to all employees in that position. Recipients are generally required to be able to support uses of SLFRF funds as eligible, including, in this instance, maintenance of records to support an assessment that public health and safety staff are primarily dedicated to responding to COVID–19. As noted above, recipients may use reasonable estimates to implement this provision. Recipients should maintain records on how they developed these estimates and need not track staff hours. Treasury notes that records retained can include payroll records (e.g., the number and type of staff in various positions), attestations from supervisors or staff (e.g., self-attestation of share of time spent on COVID–19), or regular work product or correspondence (e.g., calendars, email correspondence, documents, and other electronic VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4385 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations records). Treasury anticipates that these types of records are generally retained in many government settings; recipients should also consult the Award Terms and Conditions for SLFRF funds for requirements on length of record retention. For example, a recipient could establish a reasonable presumption about the share of time that an employee, division, or operating unit is responding to COVID–19 and simply retain those employees’ electronic records as a record to support their assessment. Public Comment: Public Health and Safety Staff Primarily Dedicated to COVID–19 Response: Some commenters recommended expanding the administrative convenience for public health and safety staff primarily dedicated to COVID–19 response to further types of staff, to all public health and safety staff, or to public health and safety staff serving underserved areas. Treasury Response: The interim final rule recognized that COVID–19 response continues to require substantial staff resources and provides an administrative convenience to make it relatively simpler to identify the eligibility of the types of workers— public health and safety workers— generally most involved in COVID–19 response. At the same time, many public health and safety workers perform roles unrelated to COVID–19; coverage of all roles would be overbroad compared to the workers responding to COVID–19 in actuality. For this reason, the final rule maintains the interim final rule’s approach to permitting SLFRF funds to be used for public health and safety staff primarily dedicated to responding to COVID–19. Finally, to the extent that a greater proportion of public health and safety staff time is needed to respond to COVID–19 in disproportionately impacted communities, the ‘‘primarily dedicated’’ approach recognizes this increased need. Public Comment: Eligible Types of COVID–19 Response: Some public commenters also sought further clarification on how to identify eligible types of ‘‘COVID–19 response.’’ For example, commenters requested clarification on delineating COVID–19 response from general public health response and defining COVID–19 response for public safety employees. Treasury Response: Treasury is clarifying that ‘‘responding to’’ COVID– 19 entails work needed to respond to the public health or negative economic impacts of the pandemic, apart from the typical pre-pandemic job duties or workload of an employee in a comparable role, if one existed. For example, responding to COVID–19 for a public safety worker may entail working in an emergency operations center to coordinate pandemic-related supply distribution, responding to an increased volume of 911 calls, or implementing COVID–19 prevention and mitigation protocols in a carceral setting. Public Comment: Eligible Employees: Some commenters requested clarification on the types of eligible employees or expansion of eligible employees to include additional types of staff, including in behavioral health; administrative, management, or financial management positions; social services; morgue staff; and nonprofit staff supporting projects to undertake eligible uses of funds under SLFRF. Treasury Response: Treasury provided further guidance on eligible types of employees following the interim final rule, which expressly included social services and morgue staff, and incorporates that guidance into the final rule. In addition, Treasury is clarifying that public health ‘‘employees involved in providing medical and other health services to patients and supervisory personnel’’ includes behavioral health services as well as physical health services. Treasury also is clarifying that this provision only addresses employees of the recipient government responding to COVID–19. For discussion of eligible expenses to administer SLFRF, including eligible costs for subrecipients performing eligible activities on behalf of a recipient government, see section Administrative Expenses in Program Administration Provisions. Finally, Treasury is clarifying that indirect costs for administrative, management, and financial management personnel to support public health and safety staff responding to COVID–19 are not permissible under this provision, given the relatively greater challenge of differentiating the marginal increase in staff time and workload due to pandemic response for indirect versus direct costs. Public Comment: Time Period: Finally, some commenters made recommendations on the time period during which this eligible use should be available. Some commenters recommended eligibility begin before March 3, 2021, the period when Treasury’s interim final rule permitted recipients to begin to incur costs using SLFRF funds; for discussion of this topic, see section Timeline for Use of SLFRF Funds in Program Administration Provisions. As noted above, Treasury also posed a question in the interim final rule asking for how long Treasury should maintain the administrative convenience that SLFRF funds may be used for the full payroll and covered benefits of public health and safety staff primarily dedicated to COVID–19 response. Several commenters recommended that Treasury maintain this approach throughout the program or through December 31, 2024. Other commenters requested clarification on whether eligibility for this use of funds was tied to the length of the state of emergency or whether a jurisdiction has an active state of emergency. Treasury Response: In the final rule, Treasury is clarifying that recipients will be permitted to fund the full payroll and covered benefits of public health and safety staff primarily dedicated to COVID–19 response throughout the period of performance for the SLFRF program, though recipients should periodically reassess their determination of primarily dedicated staff, including as the public health emergency and response evolves. Government Employment and Rehiring Public Sector Staff The interim final rule permitted use of funds for costs associated with rehiring state, local, and Tribal government staff in order to bolster the government’s ability to effectively administer services. Specifically, recipients may pay for payroll, covered benefits, and other costs associated with the recipient increasing the number of its employees up to the pre-pandemic baseline, or the number of employees that the recipient government employed on January 27, 2020. Public Comment: Many commenters requested greater flexibility and additional clarification on the provision’s requirements, including the pre-pandemic baseline and re-hiring process. Some commenters requested that the final rule allow for hiring above the pre-pandemic baseline given historic underinvestment in the public sector workforce. Commenters suggested a number of adjustments to the pre- pandemic baseline, including adjusting based on population or revenue growth, while some recommended allowing recipients to set their own hiring levels. Others requested clarification on the definition of the baseline and the re- hiring process, including whether the pre-pandemic baseline referred to budgeted or filled positions and whether new hires had to fill the same roles as the previous hires. Commenters also asked whether recipients need to show if the reduction in number of employees was due to the pandemic in order to qualify for funding and requested that workers dedicated to VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4386 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 244 Recipients may determine that a portion of an FTE’s time is dedicated to responding to the COVID–19 public health emergency. Further, for administrative convenience, the recipient may consider public health and safety FTEs to be entirely devoted to mitigating or responding to the COVID–19 public health emergency if the FTE, or his or her operating unit of division, is primarily dedicated to responding to the COVID–19 public health emergency. Recipients may also consider other presumptions for assessing the extent to which an FTE, division, or operating unit is engaged in activities that respond to the COVID–19 public health emergency, provided that the recipient reassesses periodically and maintains records to support its assessment, such as payroll records, attestations from supervisors or staff, or regular work product or correspondence demonstrating work on the COVID–19 response. COVID–19 response be exempted from the calculation of number of employees. Many commenters also requested an expanded set of eligible uses beyond restoring their workforce up to the pre- pandemic baseline. Commenters requested that funding be able to be used to avoid layoffs, provide back pay, retain employees through pay increases and other retention programs, or reimburse salaries and benefits already paid. Some commenters also requested clarification as to whether recipients can fund re-hired positions through the period of performance and on the definition of payroll and benefits. Other commenters requested preferential hiring for workers laid off, a strong commitment to equity, and a requirement that funds would not be used to pay for contract or temporary replacement workers during a labor dispute. Treasury Response: The final rule allows for an expanded set of eligible uses to restore and support public sector employment. Eligible uses include hiring up to a pre-pandemic baseline that is adjusted for historic underinvestment in the public sector, providing additional funds for employees who experienced pay cuts or were furloughed, avoiding layoffs, providing worker retention incentives, and paying for ancillary administrative costs related to hiring. Restoring pre-pandemic employment. In response to comments and recognizing underinvestment in public sector employment, the final rule expands the ability to use SLFRF funds to restore pre-pandemic employment. Treasury is also clarifying how, and the extent to which, recipients may use SLFRF funds to rehire public employees. The final rule provides two options to restore pre-pandemic employment, depending on recipient’s needs. Under the first and simpler option, recipients may use SLFRF funds to rehire staff for pre-pandemic positions that were unfilled or were eliminated due the pandemic without undergoing further analysis. Under the second option, the final rule provides recipients an option to hire above the pre-pandemic baseline, by adjusting the pre-pandemic baseline for historical growth in public sector employment over time, as well as flexibility on roles for hire. Recipients may choose between these options but cannot use both. To pursue the first option, recipients may use SLFRF funds to hire employees for the same positions that existed on January 27, 2020 but that were unfilled or eliminated as of March 3, 2021, without undergoing further analysis. For these employees, recipients may use SLFRF funds for payroll and covered benefit costs that are obligated by December 31, 2024 and expended by December 31, 2026, consistent with the Uniform Guidance’s Cost Principles at 2 CFR part 200 Subpart E. This option provides administrative simplicity for recipients that would simply like to restore pre-pandemic positions and would not like to hire above the pre- pandemic baseline. To pursue the second option, recipients should undergo the analysis provided below. In short, this option allows recipients to pay for payroll and covered benefits associated with the recipient increasing its number of budgeted full-time equivalent employees (FTEs) up to 7.5 percent above its pre-pandemic employment baseline, which adjusts for the continued underinvestment in state and local governments since the Great Recession. State and local government employment as a share of population in 2019 remained considerably below its share prior to the Great Recession in 2007, which presented major risks to recipients mounting a response to the COVID–19 public health emergency. The adjustment factor of 7.5 percent results from estimating how much larger 2019 state and local government employment would have needed to be for the share of state and local government employment to population in 2019 to have been back at its 2007 level and is intended to correct for this gap. Recipients should complete the steps described below. Recipients may choose whether to conduct this analysis on a government-wide basis or for an individual department, agency, or authority. •Step One: Identify the recipient’s budgeted FTE level on January 27, 2020. This includes all budgeted positions, filled and unfilled. This is called the pre-pandemic baseline. •Step Two: Multiply the pre- pandemic baseline by 1.075 (that is, 1 + adjustment factor). This is called the adjusted pre-pandemic baseline. •Step Three: Identify the recipient’s budgeted FTE level on March 3, 2021, which is the beginning of the period of performance for SLFRF funds. Recipients may, but are not required to, exclude FTEs dedicated to responding to the COVID–19 public health emergency.244 This is called the actual number of FTEs. •Step Four: Subtract the actual number of FTEs from the adjusted pre- pandemic baseline to calculate the number of FTEs that can be hired and covered by SLFRF funds. Recipients may use SLFRF funds to cover payroll and covered benefit costs obligated by December 31, 2024, and expended by December 31, 2026, up to the number of FTEs calculated in Step Four, consistent with the Uniform Guidance’s Cost Principles at 2 CFR part 200 Subpart E. Recipients may only use SLFRF funds for additional FTEs hired over the March 3, 2021 level of budgeted FTEs (i.e., the actual number of FTEs); note again that recipients may choose whether to conduct the analysis of FTEs that can be covered by SLFRF funds on a government-wide basis or for an individual department, agency, or authority. These FTEs must have begun their employment on or after March 3, 2021, which is the beginning of the period of performance. For administrative convenience, recipients do not need to demonstrate that the reduction in number of FTEs was due to the COVID– 19 pandemic, as Treasury assumes the vast majority of employment reductions during this time were due to pandemic fiscal pressures on state and local budgets. Recipients do not need to hire for the same roles that existed pre- pandemic. For illustration, consider a hypothetical recipient with 1,000 budgeted FTEs on January 27, 2020 (950 filled FTE positions and 50 unfilled FTE positions). The recipient’s pre- pandemic baseline is 1000 FTEs; its adjusted pre-pandemic baseline is 1,000 * 1.075 = 1075 FTEs. Now, assume that on March 3, 2021, the recipient had 800 budgeted FTEs in total (795 filled FTE positions and 5 unfilled FTE positions), with 50 FTEs primarily dedicated to responding to the COVID–19 public health emergency. The recipient would have the option of using either 800 FTEs or 750 FTEs as its actual number of FTEs for the calculation; assuming it chooses the lower number, it would be able to fund up to 325 FTEs with SLFRF funds (that is, 1,075¥750 = 325 FTEs). VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4387 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 245 As part of accepting the Award Terms and Conditions for SLFRF, each recipient agreed to maintain a conflict-of-interest policy consistent with 2 CFR 200.318(c)112 that is applicable to all activities funded with the SLFRF award. Pursuant to this policy, decisions concerning SLFRF must be free of undisclosed personal or organizational conflicts of interest, both in fact and in appearance. A recipient may not use control over SLFRF for their own private gain. Furthermore, no employee, officer, or agent may participate in the selection, award, or administration of a contract supported by a federal award if he or she has a real or apparent conflict of interest. Specifically, the recipient would be able to use SLFRF to fund payroll and covered benefits for up to 325 FTEs that begin their employment on or after March 3, 2021, for costs obligated by December 31, 2024, and expended by December 31, 2026, consistent with the Uniform Guidance’s Cost Principles, as long as SLFRF funds are used for additional FTEs hired over the recipient’s 750 FTE level (which is its March 3, 2021 budgeted FTE level). In hiring new employees, the final rule encourages recipients to ensure a diverse workforce. The final rule also prohibits recipients from using funds to temporarily fill positions during a labor dispute, as this would not constitute responding to the public health or negative economic impacts of the pandemic. Further, recipients must ensure that its hiring practices do not violate conflict-of-interest policies.245 Total compensation for a hired employee that is substantially in excess of typical compensation for employees of their experience and tenure within the recipient’s government, without a corresponding business case, may indicate a potential conflict-of-interest in fact or appearance. Providing additional funding for employees who experienced pay cuts and furloughs. In recognition of the economic hardship caused by pay cuts and furloughs, additional funds may be provided to employees who experienced pay cuts or were furloughed since the onset of the pandemic on January 27, 2020. Recipients must be able to substantiate that the pay cut or furlough was substantially due to the public health emergency or its negative economic impacts (e.g., fiscal pressures on state and local budgets) and should document their assessment. As a reminder, this additional funding must be reasonably proportional to the negative economic impact of the pay cut or furlough on the employee, which would include taking into account unemployment insurance (UI) benefits that a furloughed employee may have received during the furloughed period. Treasury presumes that additional funds beyond the difference in pay had the employee not received a pay cut or been furloughed would not be reasonably proportional. Recipients may also provide premium pay to certain employees, as detailed further in section Premium Pay. Avoiding layoffs. Funds may be used to maintain current compensation levels, with adjustments for inflation, in order to prevent layoffs that would otherwise be necessary. Recipients must be able to substantiate that layoffs were likely in the absence of SLFRF funds and would be substantially due to the public health emergency or its negative economic impacts (e.g., fiscal pressures on state and local budgets) and should document their assessment. Retaining workers. Funds may be used to provide worker retention incentives, which are designed to persuade employees to remain with the employer as compared to other employment options. Recipients must be able to substantiate that the employees were likely to leave employment in the absence of the retention incentive and should document their assessment. For example, a recipient may determine that a retention bonus is necessary based on the presence of an alternative employment offer for an employee. All worker retention incentives must be narrowly tailored to need and should not exceed incentives traditionally offered by the recipient or compensation that alternative employers may offer to compete for the employees. Further, because retention incentives are intended to provide additional incentive to remain with the employer, they must be entirely additive to an employee’s regular rate of wages and other remuneration and may not be used to reduce or substitute for an employee’s normal earnings. Treasury will presume that retention incentives that are less than 25 percent of the rate of base pay for an individual employee or 10 percent for a group or category of employees are reasonably proportional to the need to retain employees, as long as the other requirements are met. Ancillary administrative costs. Funds may be used to pay for ancillary administrative costs associated with administering SLFRF-funded hiring and retention programs detailed above, including costs to publish job postings, review applications, and onboard and train new hires. For additional information on administrative expenses, see section Administrative Expenses in Program Administration Provisions. Effective Service Delivery: Administrative Expenses The interim final rule provided that funds could be used for: ‘‘Expenses to improve efficacy of public health or economic relief programs: Administrative costs associated with the recipient’s COVID–19 public health emergency assistance programs, including services responding to the COVID–19 public health emergency or its negative economic impacts, that are not federally funded.’’ In the final rule, Treasury is clarifying that there are several categories of eligible administrative expenses. First, recipients may use funds for administrative costs to improve the efficacy of public health or economic relief programs through tools like program evaluation, data analysis, and targeted consumer outreach (see section Effective Service Delivery: Program Evaluation, Data, and Outreach). Second, recipients may use funds for administrative costs associated with programs to respond to the public health emergency and its negative economic impacts, including programs that are not funded by SLFRF or not federally funded. In other words, Treasury recognizes that responding to the public health and economic impacts of the pandemic requires many programs and activities, some of which are not funded by SLFRF. Executing these programs effectively is a component of responding to the public health and negative economic impacts of the pandemic. Finally, recipients may use funds for direct and indirect administrative costs for administering the SLFRF program and projects funded by the SLFRF program. See section Administrative Expenses in Program Administration Provisions for details on this eligible use category. Effective Service Delivery: Program Evaluation, Data, and Outreach The Supplementary Information of the interim final rule provided that state, local and Tribal governments may use SLFRF funds to improve the design and execution of programs responding to the COVID–19 pandemic and to improve the efficacy of programs addressing negative economic impacts. The interim final rule included high- level guidance about how SLFRF funds could be used in this eligible use category, including the use of targeted consumer outreach, improvements to data or technology infrastructure, impact evaluations, and data analysis. Since the publication of the interim final rule, Treasury has also released VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4388 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 246 Results for America, Invest in What Works State Standard of Excellence (August 2020), https:// 2020state.results4america.org/2020_State- Standard-of-Excellence.pdf. 247 Learning Agendas are systematic plans to identify, prioritize, answer important questions about programs and policies using analytic techniques that are appropriate to the type of question asked. For more information on learning agendas, please see OMB Memorandum M–19–23, available at: https://www.whitehouse.gov/wp- content/uploads/2019/07/M-19-23.pdf and OMB Memorandum M–21–27, available at: https:// www.whitehouse.gov/wp-content/uploads/2021/06/ M-21-27.pdf. 248 Evidence Clearinghouses are databases of research in particular program areas. Frequently these Clearinghouses identify evidence-based programs, the strength of the evidence for those programs, and provide contextual or supporting information in easy to understand formats. Many federal departments have developed rigorous and helpful Clearinghouses that cover a wide range of uses enumerated in this final rule as well as other programs that may be responsive to public health or negative economic impacts of the pandemic. For more information on Clearinghouses, please see the Compliance and Reporting Guidance: U.S. Department of the Treasury, Recipient Compliance and Reporting Responsibilities, as of November 5, 2021; https://home.treasury.gov/policy-issues/ coronavirus/assistance-for-state-local-and-tribal- governments/state-and-local-fiscal-recovery-funds/ recipient-compliance-and-reporting-responsibilities. 249 See FAQ 2.19. Coronavirus State and Local Fiscal Recovery Funds, Frequently Asked Questions, as of July 19, 2021; https:// home.treasury.gov/system/files/136/SLFRPFAQ.pdf. In the case of courts specifically, this includes ‘‘implementing COVID–19 safety measures to facilitate court operations, hiring additional court staff or attorneys to increase speed of case supplementary information on data analysis, evidence building, and program evaluation in the Compliance and Reporting Guidance. Public Comment: Treasury received positive comments about the opportunity to invest in data and technology upgrades with SLFRF funds. For example, one commenter noted that investing in technology for better connectivity, coupled with software and hardware upgrades, will allow the workforce to be more productive. Treasury also received comments seeking clarification on using funds for investments in data and technology, including whether upgrading government websites to improve community outreach and investing in technologies that support social distancing were eligible uses. Treasury Response: Governments with high capacity to use data and evidence to administer programs are more likely to be responsive to the needs of their community, more transparent about their community impact, and more resilient to emergencies such as the pandemic and its economic impacts.246 Treasury recognizes that collecting high-quality data and developing community-driven, evidence-based programs requires resources to hire and build the capacity of staff, adopt new processes and systems, and use new technology and tools in order to effectively develop, execute, and evaluate programs. As such, Treasury is clarifying that recipients may use SLFRF funds toward the following non-exhaustive list of uses to address the data, evidence, and program administration needs of recipients. Additional information may be provided in the Compliance and Reporting Guidance. •Program evaluation and evidence resources to support building and using evidence to improve outcomes, including development of Learning Agendas 247 to support strategic evidence building, selection of evidence-based interventions, and program evaluations including impact evaluations (randomized control trials and quasi-experimental designs) as well as rapid-cycle evaluations, process or implementation evaluations, outcome evaluations, and cost-benefit analyses. Recipients are encouraged to undertake rigorous program evaluations when practicable, assess the impact of their programs by beneficiary demographics (including race, ethnicity, gender, income, and other relevant factors), and engage with community stakeholders (including intended beneficiaries) when developing Learning Agendas and designing evaluations to ensure that programmatic, cultural, linguistic, and historical nuances are accurately and respectfully addressed. Recipients are also encouraged to use relevant evidence Clearinghouses,248 among other sources, to assess the level of evidence for their interventions and identify evidence-based models that could be applied in their jurisdiction (meaning models with strong or moderate evidence; see Compliance and Reporting Guidance for details on these terms). •Data analysis resources to gather, assess, and use data for effective policy- making and real-time tracking of program performance to support effective implementation of SLFRF- funded programs and programs that respond to the public health emergency and its negative economic impacts, or which households, small businesses, or impacted industries are accessing during the pandemic that are funded by other sources. These resources include but are not limited to data gathering, data cleaning, data analysis, data infrastructure, data management, data sharing, data transparency, performance management, outcomes-based budgeting, outcomes-based procurement, and other data needs. Treasury encourages the disaggregation of data to identify disparate program impacts and the use of cross- jurisdictional data sharing to better measure and implement government programs. •Technology infrastructure resources to improve access to and the user- experience of government information technology systems, including upgrades to hardware and software as well as improvements to public-facing websites or to data management systems, to increase public access and improve public delivery of government programs and services (including in the judicial, legislative, or executive branches). •Community outreach and engagement resources to support the gathering and sharing of information in ways that improve equity and effective implementation of SLFRF-funded programs and programs that respond to the public health emergency and its negative economic impacts, or which households, small businesses, or impacted industries are accessing during the pandemic that are funded by other sources. These methods include but are not limited to community meetings, online surveys, focus groups, human-centered design activities, behavioral science techniques, and other community engagement tools. •Capacity building resources to support using data and evidence in designing, executing, and evaluating programs, including hiring public sector staff, contractors, academics, consultants, and others with expertise in evaluation, data, technology, and community engagement as well as technical assistance support for public sector staff, staff of subrecipients, and community partners to support effective implementation of SLFRF-funded programs and programs that respond to the public health emergency and its negative economic impacts, or which households, small businesses, or impacted industries are accessing during the pandemic that are funded by other sources. Administrative Needs Caused or Exacerbated by the Pandemic As described in guidance and the interim final rule, SLFRF funds may be used to address administrative needs of recipient governments that were caused or exacerbated by the pandemic. Guidance following the interim final rule included several examples of this, for example, uses of funds to address backlogs resulting from pandemic- related shutdowns (e.g., backlogs in court systems).249 This also includes VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4389 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations resolution, and other expenses to expedite case resolution are eligible uses.’’ using funds for increased repair or maintenance needs to respond to significantly greater use of public facilities during the pandemic (e.g., increased use of parks resulting in damage or increased need for maintenance). Some commenters expressed support for the ability to use funds for these purposes. Treasury is maintaining these enumerated eligible uses in the final rule and clarifying that capital expenditures such as technology infrastructure to adapt government operations to the pandemic (e.g., video- conferencing software, improvements to case management systems or data sharing resources), reduce government backlogs, or meet increased maintenance needs are eligible. b. Capital Expenditures The interim final rule expressly permitted use of funds for a limited number of capital expenditures that mostly pertained to COVID–19 prevention and mitigation. These included capital investments in public facilities to meet pandemic operational needs, such as physical plant improvements to public hospitals and health clinics; adaptations to public buildings to implement COVID–19 mitigation tactics; ventilation improvements in congregate settings, health care settings, or other key locations; assistance to small businesses and nonprofits and aid to impacted industries to implement COVID–19 prevention or mitigation tactics, such as physical plant changes to enable social distancing. For disproportionately impacted populations and communities, the interim final rule also expressly permitted development of affordable housing to increase the supply of affordable and high-quality living units. Public Comment: Many commenters supported the interim final rule’s allowance of capital expenditures in facilities to meet pandemic operational needs but requested that the final rule explicitly allow for a broader range of capital expenditures. Commenters expressed an interest in investing in equipment, real property, and facilities that they argued will yield lasting benefits beyond the SLFRF period of performance. Some commenters stated that the approach in the interim final rule limited the vast majority of capital expenditures to governments that experienced revenue loss under Sections 602(c)(1)(C) and 603(c)(1)(C) and that this approach may prevent some governments from fully meeting the needs of their residents. A few commenters argued that Treasury should limit use of funds on capital expenditures not related to addressing a direct pandemic harm, such as general economic development or workforce development, and some expressed support for generally limiting capital expenditures to those that address the needs of low-income communities and communities of color. Many commenters requested that capital expenditures related to direct COVID–19 public health response be included as enumerated eligible uses. The requested types of expenditures include improvements and construction of hospitals and health clinics (including behavioral health clinics), as well as other health-related infrastructure improvements, such as improvements to medical equipment or public health information technology. These commenters stated that investments in health and public health systems are vital to ensuring critical infrastructure necessary to respond to continued impacts of COVID–19 or to address disparities in health, due to lack of access to health care, that contributed to disproportionate impacts of COVID– 19 on some communities. Further, some commenters requested that construction or improvements of emergency management and public safety facilities be deemed eligible, citing that some of these sites serve as remote vaccination sites or are otherwise crucial to the pandemic public health response. Commenters also requested use of funds for capital expenditures that support community needs apart from health care, such as new construction or improvements to schools, affordable housing (beyond presumed disproportionately impacted communities), childcare facilities, and community centers; some suggested that all types of projects permissible under the Community Development Block Grant Program should be eligible both for policy and administrability reasons. Further, some commenters also asked for clarification as to whether parks and recreational facilities are eligible if built in certain disproportionately impacted areas, as well as public transportation infrastructure. Finally, some commenters also requested use of funds for capital expenditures in government administration buildings, such as public courthouses, as well as technology infrastructure that would allow for remote delivery of public benefits. Others also asked about whether funds could be used to renovate vacant business district buildings or commercial spaces to spur economic recovery. Treasury Response: Capital expenditures, in certain cases, can be appropriate responses to the public health and economic impacts of the pandemic, in addition to programs and services. Like other eligible uses of SLFRF funds in this category, capital expenditures should be a related and reasonably proportional response to a public health or negative economic impact of the pandemic. The final rule clarifies and expands how SLFRF funds may be used for certain capital expenditures, including criteria and documentation requirements specified in this section, as applicable. Treasury provides presumptions and guidelines for capital expenditures that are enumerated earlier in sections Public Health, Negative Economic Impacts, and General Provisions: Other under the Public Health and Negative Economic Impact eligible use category (‘‘enumerated projects’’), along with capital expenditures beyond those enumerated by Treasury. In addition to satisfying the two-part framework in Standards: Designating a Public Health Impact and Standards: Designating a Negative Economic Impact for identifying and designing a response to a pandemic harm, Treasury will require projects with total expected capital expenditure costs of $1 million or greater to undergo additional analysis to justify their capital expenditure. Increased reporting requirements will be required for projects that are larger in size, as well as projects that are not enumerated as eligible by Treasury, with certain exceptions for Tribal governments discussed below. Smaller projects with total expected capital expenditures below $1 million will not be required to undergo additional analysis to justify their capital expenditure, as such projects will be presumed to be reasonably proportional, provided that they are responding to a harm caused or exacerbated by the public health emergency. These standards and documentation requirements are designed to minimize administrative burden while also ensuring that projects are reasonably proportional and supporting Treasury’s risk-based approach to overall program management and monitoring. This section provides (1) an overview of general standards governing capital expenditures; (2) presumptions on capital expenditures, which help guide recipients in determining whether the expenditure meets the standards and the associated documentation requirements; and (3) additional standards and requirements that may apply. VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4390 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 250 See 25 U.S.C. 5108. Overview of General Standards In considering whether a capital expenditure would be eligible under the public health and negative economic impacts eligible use category, recipients must satisfy the requirements for all uses under the public health and negative economic impacts eligible use category, including identifying an impact or harm and designing a response that addresses or responds to the identified impact or harm. Responses must be reasonably designed to benefit the individual or class that experienced the impact or harm and must be related and reasonably proportional to the extent and type of impact or harm. Recipients should consult further details on this standard provided in the sections Standards: Designating a Public Health Impact and Standards: Designating a Negative Economic Impact under General Provisions: Structure and Standards. In addition to the framework described above, for projects with total expected capital expenditures of $1 million or greater, recipients must complete and meet the substantive requirements of a Written Justification for their capital expenditure, except for Tribal governments as discussed below. This Written Justification helps clarify the application of this interpretive framework to capital expenditures, while recognizing that the needs of communities differ. In particular, this justification reflects the fact that the time required for a large construction project may make capital expenditures less responsive to pandemic-related needs relative to other types of responses. In addition, as discussed in section Timeline for Use of SLFRF Funds of this Supplemental Information, SLFRF funds must be obligated by December 31, 2024 and expended by December 31, 2026. Capital expenditures may involve long lead-times, and the Written Justification may support recipients in analyzing proposed capital expenditures to confirm that they conform to the obligation and expenditure timing requirements. Further, such large projects may be less likely to be reasonably proportional to the harm identified. For example, construction of a new, larger public facility for the purpose of increasing the ability to socially distance generally would not be considered a reasonably proportional response compared to other less time- and resource-intensive options that may be available and would be equally or more effective. Other solutions, such as improvements in ventilation, could be made more quickly and are typically more cost effective than construction of a new, larger facility. The needs of communities differ, and recipients are responsible for identifying uses of SLFRF funds that best respond to these needs. The Written Justification recognizes this while also establishing consistent documentation and reporting to support monitoring and compliance with the ARPA and final rule. Finally, the Written Justification also reflects the fact that infrastructure projects are generally not within scope of this eligible use category. See section Uses Outside the Scope of this Category in General Provisions: Other. As noted above, Tribal governments are not required to complete the Written Justification for projects with total capital expenditures of $1 million or greater. Tribal governments generally have limited administrative capacity due to their small size and corresponding limited ability to supplement staffing for short-term programs. In addition, Tribal governments are already subject to unique considerations that require additional administrative processes and administrative burden for Tribal government decision making, including capital expenditures. Tribal governments generally are subject to a jurisdictionally complex sets of rules and regulations in the case of improvements to land for which the title is held in trust by the United States for a Tribe (Tribal Trust Lands).250 This includes the requirement in certain circumstances to seek the input or approval of one or more federal agencies such the Department of the Interior, which holds fee title of Tribal Trust Lands. As a result of their limited administrative capacity and unique and complex rules and regulations applicable to Tribal governments operating on Tribal Trust Lands, Tribal governments would experience significant and redundant administrative burden by also being required to complete a Written Justification for applicable capital expenditures. While Tribal governments are not required to complete the Written Justification for applicable capital expenditures, the associated substantive requirements continue to apply, including the requirement that a capital expenditure must be reasonably designed to benefit the individual or class that experienced the identified impact or harm and must be related and reasonably proportional to the extent and type of impact or harm. Note that, as a general matter, Treasury may also request further information on SLFRF expenditures and projects, including capital expenditures, as part of the regular SLFRF reporting and compliance process, including to assess their eligibility under the final rule. The Written Justification should (1) describe the harm or need to be addressed; (2) explain why a capital expenditure is appropriate to address the harm or need; and (3) compare the proposed capital expenditure against alternative capital expenditures that could be made. The information required for the Written Justification reflects the framework applicable to all uses under the public health and negative economic impacts eligible use category, providing justification for the reasonable design, relatedness, and reasonable proportionality of the capital expenditure in response to the harm or impact identified. 1. Description of harm or need to be addressed: Recipients should provide a description of the specific harm or need to be addressed, and why the harm was exacerbated or caused by the public health emergency. When appropriate, recipients may provide quantitative information on the extent and type of the harm, such as the number of individuals or entities affected. 2. Explanation of why a capital expenditure is appropriate: Recipients should provide an independent assessment demonstrating why a capital expenditure is appropriate to address the specified harm or need. This should include an explanation of why existing capital equipment, property, or facilities would be inadequate to addressing the harm or need and why policy changes or additional funding to pertinent programs or services would be insufficient without the corresponding capital expenditures. Recipients are not required to demonstrate that the harm or need would be irremediable but for the additional capital expenditure; rather, they may show that other interventions would be inefficient, costly, or otherwise not reasonably designed to remedy the harm without additional capital expenditure. 3. Comparison of the proposed capital expenditure against alternative capital expenditures: Recipients should provide an objective comparison of the proposed capital expenditure against at least two alternative capital expenditures and demonstrate why their proposed capital expenditure is superior to alternative capital expenditures that could be made. Specifically, recipients should assess the proposed capital expenditure against at least two alternative types or sizes of capital expenditures that are potentially effective and reasonably VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4391 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 251 See, e.g., ‘‘Economic Perspectives on Incarceration and the Criminal Justice System,’’ Council of Economic Advisers (April 2016), pg. 36– 43. 252 For instance, the CDC has published detailed recommendations for nursing homes, long-term care facilities, and correctional and detention facilities, on infection prevention and control. Many of these recommendations are relatively low cost, such as proper use of PPE. In addition, increasing vaccination rates among nursing home staff is among the most important ways to decrease the spread of the disease. Centers for Disease Control and Prevention, Interim Infection Prevention and Control Recommendations to Prevent SARS–CoV– 2 Spread in Nursing Homes (September 10, 2021), https://www.cdc.gov/coronavirus/2019-ncov/hcp/ long-term-care.html#anchor_1631030153017. 253 For instance, researchers have found no consistent positive relationship between building sports facilities and local economic development. As Siegfried and Zimbalist (2000, 103) write in a review of the literature, ‘‘independent work on the economic impact of stadiums and arenas has uniformly found that there is no statistically significant positive correlation between sports facility construction and economic development.’’ John Siegfried and Andrew Zimbalist, The Economics of Sports Facilities and Their Communities, Journal of Economic Perspectives 14, no. 3 (Summer 2000): 95–114, https:// www.aeaweb.org/articles?id=10.1257/jep.14.3.95. feasible. Where relevant, recipients should compare the proposal against the alternative of improving existing capital assets already owned or leasing other capital assets. Recipients should use quantitative data when available, although they are encouraged to supplement with qualitative information and narrative description. Recipients that complete analyses with minimal or no quantitative data should provide an explanation for doing so. In determining whether their proposed capital expenditure is superior to alternative capital expenditures, recipients should consider the following factors against each selected alternative. a. A comparison of the effectiveness of the capital expenditures in addressing the harm identified. Recipients should generally consider the effectiveness of the capital expenditures in addressing the harm over the useful life of the capital asset and may consider metrics such as the number of impacted or disproportionately impacted individuals or entities served, when such individuals or entities are estimated to be served, the relative time horizons of the project, and consideration of any uncertainties or risks involved with the capital expenditure. b. A comparison of the expected total cost of the capital expenditures. Recipients should consider the expected total cost of the capital expenditure required to construct, purchase, install, or improve the capital assets intended to address the public health or negative economic impact of the public health emergency. Recipients should include pre-development costs in their calculation and may choose to include information on ongoing operational costs, although this information is not required. Recipients should balance the effectiveness and costs of the proposed capital expenditure against alternatives and demonstrate that their proposed capital expenditure is superior. Further, recipients should choose the most cost- effective option unless it substantively reduces the effectiveness of the capital investment in addressing the harm identified. As an example, a recipient considering building a new diagnostic testing laboratory to enhance COVID–19 testing capacity may consider whether existing laboratories sufficiently meet demand for COVID–19 testing, considering the demand for test results (along with their turnaround time) as well as the impact of current testing availability on the spread of COVID–19. Recipients may also consider other public health impacts of the level of diagnostic testing capacity, for example if insufficient capacity has decreased testing for other health conditions. The recipient may consider alternatives such as expanding existing laboratories or building a laboratory of a different size. In comparing the effectiveness of the capital expenditures, examples of factors that the recipient may consider include when the facilities will become operational and for how long; the daily throughput of COVID–19 tests; and the effect on minimizing delays in test results on the populations that such tests will serve. In comparing costs, the recipient may compare the total expected cost of the new laboratory (including costs of acquisition of real property, construction of the laboratory, and purchase of any necessary equipment needed to operationalize the lab), against the expected costs of expanding existing laboratories (whether by replacing current equipment with higher throughout devices or physically expanding space to accommodate additional capacity) or building a new laboratory of a different size, including by leasing property. As a reminder, recipients should only consider alternatives that are potentially effective and reasonably feasible. Because, in all cases, uses of SLFRF funds to respond to public health and negative economic impacts of the pandemic must be related and reasonably proportional to a harm caused or exacerbated by the pandemic, some capital expenditures may not eligible. For example, constructing a new correctional facility would generally not be a proportional response to an increase in the rate of certain crimes or overall crime as most correctional facilities have historically accommodated fluctuations in occupancy.251 In addition, construction of new congregate facilities, which would generally be expected to involve expenditures greater than $1 million, would generally not be a proportional response to mitigate or prevent COVID– 19, because such construction is generally expected to be more costly than alternative approaches or capital expenditures that may be equally or more effective in decreasing spread of the disease.252 These alternatives include personal protective equipment, ventilation improvements, utilizing excess capacity in other facilities or wings, or temporary facility capacity expansions. Large capital expenditures intended for general economic development or to aid the travel, tourism, and hospitality industries—such as convention centers and stadiums—are, on balance, generally not reasonably proportional to addressing the negative economic impacts of the pandemic, as the efficacy of a large capital expenditure intended for general economic development in remedying pandemic harms may be very limited compared to its cost.253 Presumptions on Capital Expenditures For administrative convenience, the final rule provides presumptions on whether a Written Justification is required—and required to be submitted to Treasury through reporting—based on the type and size of the capital expenditure, as detailed in the table below. As discussed above, Tribal governments are not required to complete the Written Justification for applicable capital expenditures, but the associated substantive requirements continue to apply, including the requirement that a capital expenditure must be reasonably designed to benefit the individual or class that experienced the identified impact or harm and must be related and reasonably proportional to the extent and type of impact or harm. VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4392 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 254 Whether or not a Written Justification is required, recipients should still determine that the response is related and reasonably proportional to the public health emergency and its negative economic impacts. Treasury recognizes that enumerated eligible uses are ‘‘related’’ to the public health emergency and its negative economic impacts and presumed to be reasonably proportional, except recipients pursuing projects with expected total capital expenditures equal to or greater than $1 million should still independently determine that the expenditures are a reasonably proportional response. Enumerated projects with total expected capital expenditures under $1 million receive a safe harbor and deemed to meet the related and reasonably proportional standard. 255 Whether or not a Written Justification is required, recipients should still determine that the response is related and reasonably proportional to the public health emergency and its negative economic impacts. Treasury presumes that projects with total expected capital expenditures under $1 million are reasonably proportional in size to responding to the public health emergency and its negative economic impacts; however, recipients should determine that the response otherwise meets the requirements of the standard, including that the response is related to the public health emergency and its negative economic impacts. If a project has total expected cap- ital expenditures of and the use is enumerated by Treasury as eligible, then 254 and the use is beyond those enumerated by Treas- ury as eligible, then 255 Less than $1 million ........................ No Written Justification required ............................... No Written Justification required. Greater than or equal to $1 million, but less than $10 million. Written Justification required but recipients are not required to submit as part of regular reporting to Treasury. Written Justification required and recipients must submit as part of regular reporting to Treasury. $10 million or more ......................... Written Justification required and recipients must submit as part of regular reporting to Treasury. In selecting these thresholds, Treasury recognized that capital expenditures vary widely in size and therefore would benefit from tiered treatment to implement eligibility standards while minimizing administrative burden, especially for smaller projects. For example, Treasury selected $1 million as a threshold for whether a recipient needs to complete a Written Justification as well as a threshold under which capital expenditures would be presumed reasonably proportional. Treasury estimates that $1 million would encapsulate the costs of a significant portion of equipment or small renovations. These types of smaller projects are often a necessary and reasonably proportional part of a response to the public health emergency; therefore, the $1 million threshold provides a simplified pathway to complete smaller projects more likely to meet the eligibility standard. At the same time, Treasury selected $10 million as the threshold for more intensive reporting requirements, estimating that projects larger than $10 million would likely constitute significant improvements or construction of mid- or large-sized facilities. As discussed above, given their scale and longer time to completion, these types of larger projects may be less likely to be reasonably proportional responses. The $10 million threshold also generally aligns with thresholds in other parts of the SLFRF program, such as for enhanced reporting on labor practices. Expenditures from closely related activities directed toward a common purpose are considered part of the scope of one project. These expenditures can include capital expenditures, as well as expenditures on related programs, services, or other interventions. A project includes expenditures that are interdependent (e.g., acquisition of land, construction of the school on the land, and purchase of school equipment), or are of the same or similar type and would be utilized for a common purpose (e.g., acquisition of a fleet of ambulances that would be used for COVID–19 emergency response). Recipients must not segment a larger project into smaller projects in order to evade review. A recipient undertaking a set of identical or similar projects (e.g., development of a number of new affordable housing complexes across the recipient jurisdiction) may complete one Written Justification comprehensively addressing the entire set of projects. Projects Enumerated as Eligible by Treasury Under the public health and negative economic impacts eligible use category, the final rule provides a non-exclusive list of eligible uses of funding for projects that respond to the public health emergency or its negative economic impacts. Treasury has determined that these enumerated projects are related to the public health emergency and its negative economic impacts; however, recipients (other than Tribal governments) undertaking these projects with total expected capital expenditures of $1 million or greater must still complete and meet the substantive requirements of a Written Justification as part of their demonstration that the project is a related and reasonably proportional response to the harm identified. •Projects with total expected capital expenditures of under $1 million: Treasury provides a safe harbor for projects with total expected capital expenditures of less than $1 million and will not require recipients to complete, submit, or meet the substantive requirements of a Written Justification for the capital expenditure. In essence, recipients may pursue an enumerated project with total expected capital expenditures of under $1 million without having to undergo additional assessments to meet SLFRF requirements. •Projects with total expected capital expenditures of at least $1 million but under $10 million: Recipients should complete a Written Justification for the capital expenditure and make an independent assessment of whether their proposed capital expenditure meets the substantive requirements of the Written Justification. Recipients will not be required to submit the Written Justification as part of regular reporting to Treasury but should keep documentation for their records. •Projects with total expected capital expenditures of at least $10 million: Similar to the above, recipients should complete a Written Justification of the capital expenditure and make an independent assessment of whether their proposed capital expenditure meets the substantive requirements of the Written Justification. Further, recipients will be asked to submit the Written Justification as part of regular reporting to Treasury. Similar to other parts of the SLFRF program, such as on reporting on labor practices, Treasury recognizes that projects with expected total capital expenditures of at least $10 million may be less likely to meet eligibility requirements and therefore requires recipients to provide an enhanced level of information to Treasury. Projects Beyond Those Enumerated as Eligible by Treasury As with all uses, recipients that undertake capital expenditures beyond those enumerated as eligible by Treasury must meet the two-part framework under Standards: Designating a Public Health Impact and Standards: Designating a Negative Economic Impact under General Provisions: Structure and Standards, VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4393 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations including the requirement that responses are related and reasonably proportional to the harm or impact identified. As part of that assessment, these recipients may also be asked to complete a Written Justification. Recipients (other than Tribal governments) are subject to the following presumptions for the Written Justification of the capital expenditure, based on the total expected capital expenditures of the project: •Projects with total expected capital expenditures of under $1 million: Treasury provides a safe harbor for unenumerated projects with total expected capital expenditures of under $1 million and will not require recipients to complete, submit, or meet the substantive requirements of a Written Justification of the capital expenditure. Recipients should still make a determination as to whether the capital expenditure is part of a response that is related and reasonably proportional to the public health emergency or its negative economic impacts. •Projects with total expected capital expenditures of $1 million or over: Recipients should complete a Written Justification of the capital expenditure and make an independent assessment that their proposed capital expenditure meets the substantive requirements of the Written Justification. Further, recipients will be asked to submit the Written Justification as part of regular reporting to Treasury. Treasury employs a risk-based approach to overall program management and monitoring, which may result in heightened scrutiny on larger projects. Accordingly, recipients pursuing projects with larger capital expenditures should complete more detailed analyses for their Written Justification, commensurate with the scale of the project. Additional Provisions, Standards, and Definitions Strong Labor Standards in Construction Treasury encourages recipients to carry out projects in ways that produce high-quality work, avert disruptive and costly delays, and promote efficiency. Treasury encourages recipients to use strong labor standards, including project labor agreements (PLAs) and community benefits agreements that offer wages at or above the prevailing rate and include local hire provisions. Treasury also recommends that recipients prioritize in their procurement decisions employers who can demonstrate that their workforce meets high safety and training standards (e.g., professional certification, licensure, and/or robust in-house training), that hire local workers and/or workers from historically underserved communities, and who directly employ their workforce or have policies and practices in place to ensure contractors and subcontractors meet high labor standards. Treasury further encourages recipients to prioritize employers (including contractors and subcontractors) without recent violations of federal and state labor and employment laws. Treasury believes that such practices will promote effective and efficient delivery of high-quality projects and support the economic recovery through strong employment opportunities for workers. Such practices will reduce likelihood of potential project challenges like work stoppages or safety accidents, while ensuring a reliable supply of skilled labor and minimizing disruptions, such as those associated with labor disputes or workplace injuries. That will, in turn, promote on- time and on-budget delivery. Furthermore, among other requirements contained in 2 CFR 200, Appendix II, all contracts made by a recipient or subrecipient in excess of $100,000 with respect to a capital expenditure that involve employment of mechanics or laborers must include a provision for compliance with certain provisions of the Contract Work Hours and Safety Standards Act, 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR part 5). Treasury will seek information from recipients on their workforce plans and practices related to capital expenditures undertaken under the public health and negative economic impacts eligible use category with SLFRF funds. This reporting will support transparency and competition by enhancing available information on the services being provided. Environmental, Uniform Guidance, and Other Generally Applicable Requirements Treasury cautions that, as is the case with all projects using SLFRF funds, all projects must comply with applicable federal, state, and local law. In the case of capital expenditures in particular, this includes environmental and permitting laws and regulations. Likewise, as with all capital expenditure projects using the SLFRF funds, projects must be completed in a manner that is technically sound, meaning that it must meet design and construction methods and use materials that are approved, codified, recognized, fall under standard or acceptable levels of practice, or otherwise are determined to be generally acceptable by the design and construction industry. Further, as with all other uses of funds under the SLFRF program, the Uniform Guidance at 2 CFR part 200 applies to capital expenditures unless stated otherwise. Importantly, this includes 2 CFR part 200 Subpart D on post-federal award requirements, including property standards pertaining to insurance coverage, real property, and equipment; procurement standards; sub-recipient monitoring and management; and record retention and access. Definitions Treasury adopts several definitions from the Uniform Guidance at 2 CFR 200.1 under this section, including for capital expenditures, capital assets, equipment, and supplies. Per the Uniform Guidance, the term ‘‘capital expenditures’’ means ‘‘expenditures to acquire capital assets or expenditures to make additions, improvements, modifications, replacements, rearrangements, reinstallations, renovations, or alterations to capital assets that materially increase their value or useful life.’’ The term ‘‘capital assets’’ means ‘‘tangible or intangible assets used in operations having a useful life of more than one year which are capitalized in accordance with [Generally Accepted Accounting Principles].’’ Capital assets include lands, facilities, equipment, and intellectual property. Equipment means ‘‘tangible personal property (including information technology systems) having a useful life of more than one year and a per-unit acquisition cost which equals or exceeds the lesser of the capitalization level established by the non-Federal entity for financial statement purposes, or $5,000.’’ Supplies, which means all tangible personal property other than those included as ‘‘equipment,’’ are not considered capital expenditures. Recipients may also use SLFRF funds for pre-project development costs that are tied to or reasonably expected to lead to an eligible capital expenditure. For example, pre-project costs associated with planning and engineering for an eligible project are considered an eligible use of funds. c. Distinguishing Subrecipients Versus Beneficiaries Under the interim final rule, state, local, and Tribal governments that receive a federal award directly from a federal awarding agency, such as Treasury, are designated as ‘‘recipients,’’ VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4394 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 256 In this context, a pass-through entity means a recipient of SLFRF funds. and state, local, and Tribal governments are authorized to transfer funds to other entities, including private entities like nonprofits. The interim final rule stated that, ‘‘[a] transferee receiving a transfer from a recipient under sections 602(c)(3) and 603(c)(3) will be a subrecipient. Subrecipients are entities that receive a subaward from a recipient to carry out a program or project on behalf of the recipient with the recipient’s Federal award funding.’’ For funds transferred to a subrecipient, the interim final rule noted that ‘‘[r]ecipients continue to be responsible for monitoring and overseeing the subrecipient’s use of SLFRF funds and other activities related to the award to ensure that the subrecipient complies with the statutory and regulatory requirements and the terms and conditions of the award. Recipients also remain responsible for reporting to Treasury on their subrecipients’ use of payments from the SLFRF funds for the duration of the award.’’ Public Comment: Treasury received many comments requesting clarification about which entities qualify as subrecipients and are, in turn, subject to subrecipient monitoring and reporting requirements. For example, commenters sought clarification about whether a nonprofit that received a grant to provide services under a program to carry out an enumerated eligible use would qualify as a subrecipient and be subject to subrecipient monitoring and reporting requirements. Similarly, commenters also wondered if a nonprofit that received a grant in recognition of experiencing a negative economic impact of the public health emergency would also be a subrecipient and subject to subrecipient reporting requirements. Treasury Response: Treasury is clarifying the distinction between a subrecipient and beneficiary in the final rule. The Uniform Guidance definitions for subaward and subrecipient inform Treasury’s distinction between subrecipients and beneficiaries. First, per 2 CFR 200.1 of Uniform Guidance ‘‘[s]ubaward means an award provided by a pass-through entity 256 to a subrecipient for the subrecipient to carry out part of a Federal award received by the pass-through entity. It does not include payments to a contractor or payments to an individual that is a beneficiary of a Federal program. A subaward may be provided through any form of legal agreement, including an agreement that the pass- through entity considers a contract.’’ Further, 2 CFR 200.1 of the Uniform Guidance defines a subrecipient, in that ‘‘[s]ubrecipient means an entity, usually but not limited to non-Federal entities, that receives a subaward from a pass- through entity to carry out part of a Federal award; but does not include an individual that is a beneficiary of such award. A subrecipient may also be a recipient of other Federal awards directly from a Federal awarding agency.’’ Treasury is aligning the definition of subrecipient in the final rule with the definition of subrecipient in the Uniform Guidance. Treasury is maintaining the monitoring and subrecipient reporting requirements outlined in the final rule. Per 2 CFR 200.101 (b)(2) of the Uniform Guidance, the terms and conditions of federal awards flow down to subawards to subrecipients. Therefore, non-federal entities, as defined in the Uniform Guidance, must comply with the applicable requirements in the Uniform Guidance regardless of whether the non- federal entity is a recipient or subrecipient of a federal award. This includes requirements such as the treatment of eligible uses of funds, procurement, and reporting requirements. The Uniform Guidance definitions for both subaward and subrecipient specify that payments to individuals or entities that are direct beneficiaries of a federal award are not considered subrecipients. The final rule adopts this definition of a beneficiary and outlines that households, communities, small businesses, nonprofits, and impacted industries are all potential beneficiaries of projects carried out with SLFRF funds. Beneficiaries are not subject to the requirements placed on subrecipients in the Uniform Guidance, including audit pursuant to the Single Audit Act and 2 CFR part 200, subpart F or subrecipient reporting requirements. The distinction between a subrecipient and a beneficiary, therefore, is contingent upon the rationale for why a recipient is providing funds to the individual or entity. If the recipient is providing funds to the individual or entity for the purpose of carrying out a SLFRF program or project on behalf of the recipient, the individual or entity is acting as a subrecipient. Acting as a subrecipient, the individual or entity is subject to subrecipient monitoring and reporting requirements. Conversely, if the recipient is providing funds to the individual or entity for the purpose of directly benefitting the individual or entity as a result of experiencing a public health impact or negative economic impact of the pandemic, the individual or entity is acting as a beneficiary. Acting as a beneficiary, the individual or entity is not subject to subrecipient monitoring and reporting requirements. d. Uses Outside the Scope of This Category Summary of the Interim Final Rule and Final Rule Structure In the interim final rule, Treasury noted that certain uses of funds are not permissible under the eligible use category of responding to the public health and negative economic impacts of the pandemic. In the final rule, these uses remain impermissible, but Treasury has re-categorized where they are addressed to increase clarity. Specifically, the interim final rule provided that the following uses of funds are not eligible under this eligible use category: Contributions to rainy day funds, financial reserves, or similar funds; payment of interest or principal on outstanding debt instruments; fees or issuance costs associated with the issuance of new debt; and satisfaction of any obligation arising under or pursuant to a settlement agreement, judgment, consent decree, or judicially confirmed debt restructuring plan in a judicial, administrative, or regulatory proceeding, except to the extent the judgment or settlement requires the provision of services that would respond to the COVID–19 public health emergency. These uses of funds remain ineligible under the final rule; Treasury has re-categorized these issues to the section Restrictions on Use, which describes restrictions that apply to all eligible use categories, to clarify that these uses are not eligible under any eligible use category of SLFRF. Treasury responds to public comments on this issue in the section Restrictions on Use. As noted above, the interim final rule also posed several questions on what other types of services or costs Treasury should consider as eligible uses to respond to the public health and negative economic impacts of COVID– 19, including in disproportionately impacted communities. In this section, Treasury addresses proposed uses of funds suggested by commenters that Treasury has not included as enumerated eligible uses of funds in this eligible use category. General Eligible Uses Public Comment: Commenters proposed a wide variety of additional recommended enumerated eligible uses VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4395 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations in all sections of the public health and negative economic impacts eligible use category, including in impacted and disproportionately impacted communities. The proposed additional uses included general categories of services (e.g., legal and social services, long-term investments to remediate long-term disparities, response to natural disasters). Other suggested uses of funds respond to needs widely experienced across the country (e.g., access to and affordability of health insurance). Finally, other suggested uses of funds were highly specific (e.g., healthcare equipment for a specific health condition, fire hydrants, weather alert systems) or most applicable to the particularized needs to certain populations or geographic areas of the United States (e.g., senior citizens, immigrants, formerly incarcerated individuals, responding to environmental issues in certain geographic regions). Other commenters generally requested a high degree of flexibility to respond to the particular needs of their communities. Treasury Response: Given the large number and diversity of SLFRF recipients, Treasury has aimed to include as enumerated eligible uses programs, services, and capital expenditures that respond to public health and negative economic impacts of the pandemic experienced widely in many jurisdictions across the country, making it clear and simple for recipients to pursue these enumerated eligible uses under the final rule. This provides enumerated eligible uses that many recipients may want to pursue, while including uses that are responsive to the pandemic’s impacts across the diverse range of SLFRF recipients. In the final rule, Treasury has clarified several additional uses that generally respond to pandemic impacts experienced broadly across jurisdictions and populations. Treasury has not chosen to include as enumerated uses all uses proposed by commenters; given the significant range, and in some cases highly specific nature, of the proposed uses Treasury was not able to assess that the proposed uses would respond to negative economic impacts experienced generally across the country, supporting an enumerated eligible use available to all recipients presumptively. However, Treasury emphasizes that the enumerated eligible uses are non- exhaustive and that other uses, beyond those enumerated, are eligible. Treasury recognizes that the impacts of the pandemic vary over time, by jurisdiction, and by population; as such, the final rule provides flexibility for recipients to identify other public health or negative economic impacts to additional households, small businesses, or nonprofits, including classes of these entities, and pursue programs and services that respond to those impacts. Treasury also notes that some populations are presumed to be impacted or disproportionately impacted by the pandemic, and thus eligible for responsive services; these presumed eligible populations may encompass many individuals in the specific populations for whom commenters recommended services. For details on these issues, see section General Provisions: Structure and Standards. Infrastructure, Community Development, and General Economic Development Some potential additions to enumerated eligible uses were also recommended by several commenters each but are not included as enumerated eligible uses in the final rule. Public Comment: Infrastructure: In the interim final rule, Treasury noted that a ‘‘general infrastructure project, for example, typically would not be included [in this eligible use category] unless the project responded to a specific pandemic public health need.’’ Numerous commenters requested that Treasury permit investments in infrastructure as a response to the public health and negative economic impacts of the pandemic. While these comments most commonly recommended that constructing and maintaining roads and surface transportation infrastructure be eligible, the proposed uses for infrastructure ranged widely and included parking lots, bridges, traffic management infrastructure, solid waste disposal facilities, and utility infrastructure (outside of water, sewer, and broadband). Many commenters argued that infrastructure development and maintenance is a pressing need in their communities and that their communities had less need for water, sewer, and broadband infrastructure or other eligible uses to respond to the public health and negative economic impacts of the pandemic. Other commenters argued that these uses would stimulate the economy, attract businesses, or allow for tourist movement; these commenters argued that, by generally supporting a stronger economy or facilitating conditions that are more conducive to business activity and tourism, these uses respond to the negative economic impacts of the pandemic. Treasury Response: In the final rule, Treasury is maintaining the approach under the interim final rule that general infrastructure projects, including roads, streets, and surface transportation infrastructure, would generally not be eligible, unless the project responded to a specific pandemic public health need or a specific negative economic impact. The ARPA expressly includes infrastructure if it is ‘‘necessary’’ and in water, sewer, or broadband, suggesting that the statute contemplates only those types of infrastructure. Further, responding to the public health and negative economic impacts of the pandemic requires identifying whether, and the extent to which, there has been a harm that resulted from the COVID– 19 public health emergency and whether, and the extent to which, the use would respond or address this harm. Uses of funds intended to generally grow the economy and therefore enhance opportunities for workers and businesses would not be an eligible use, because such assistance is not reasonably designed to impact individuals or classes that have been identified as having experienced a negative economic impact. In other words, there is not a reasonable connection between the assistance provided and an impact on the beneficiaries. Such an activity would be attenuated from and thus not reasonably designed to benefit the households that experienced the negative economic impact. Note, however, that Treasury has clarified that capital expenditures that are related and reasonably proportional to responding to the public health and economic impacts of the pandemic are eligible uses of funds, in addition to programs and services; for details on eligibility criteria for capital expenditures, see section Capital Expenditures in General Provisions: Other. Public Comment: Community Development Block Grant: Several commenters recommended that Treasury enumerate as eligible uses those eligible under the Department of Housing and Urban Development’s Community Development Block Grant (CDBG) or the Housing and Community Development Act of 1974, which established the CDBG program. Commenters requested that these uses be eligible either to respond to the negative economic impacts of the pandemic, or in the alternate the disproportionate negative economic impacts of the pandemic in certain communities. Under the CDBG program, recipient governments may undertake a wide range of community and economic VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4396 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 257 See, e.g., Matthew D. Mitchell et al., The Economics of a Targeted Economic Development Subsidy (Arlington, VA: Mercatus Center at George Mason University, 2019), 5, available at https:// www.mercatus.org/publications/government- spending/economics-targeted-economic- development-subsidy; Timothy J. Bartik, Who Benefits from Economic Development Incentives? How Incentive Effects on Local Incomes and the Income Distribution Vary with Different Assumptions about Incentive Policy and the Local Economy (Upjohn Institute Technical Report No. 13–034, W.E. Upjohn Institute for Employment Research, March 1, 2018), available at: https:// research.upjohn.org/up_technicalreports/34/; Cailin Slattery and Owen Zidar, Evaluating State and Local Business Tax Incentives, Journal of Economic Perspectives 34, no. 2 (2020): 90–118, available at: https://www.aeaweb.org/articles?id=10.1257/ jep.34.2.90; Kenneth Thomas, The State of State and Local Subsidies to Business (Mercatus Policy Brief, Mercatus Center at George Mason University, Arlington, VA, October 2019), available at: https:// www.mercatus.org/system/files/thomas_-_policy_ brief_-_the_state_of_state_and_local_subsidies_to_ business_-_v1.pdf; Dennis Coates, Growth Effects of Sports Franchises, Stadiums, and Arenas: 15 Years Later (Mercatus Working Paper, Mercatus Center at George Mason University, Arlington, VA, September 2015), available at: https:// www.mercatus.org/system/files/Coates-Sports- Franchises.pdf; Dennis Coates and Brad R. Humphreys, Do Economists Reach a Conclusion on Subsidies for Sports Franchises, Stadiums, and Mega-Events?, Econ Journal Watch 5, no. 3 (2008): 294–315, available at: https://econjwatch.org/ articles/do-economists-reach-a-conclusion-on- subsidies-for-sports-franchises-stadiums-and-mega- events; Matthew D. Mitchell, Daniel Sutter, and Scott Eastman, The Political Economy of Targeted Economic Development Incentives, Review of Regional Studies 48, no. 1 (2018): 1–9, available at: https://www.mercatus.org/publications/corporate- welfare/political-economy-targeted-economic- development-incentives. development services and projects. Commenters reasoned that many state and local governments are familiar with this program, and that aligning to its eligible uses may help recipients easily understand and pursue eligible projects. Commenters also noted that Treasury had chosen to align with existing federal programs in other eligible use categories, namely water infrastructure, in the interim final rule. Treasury Response: In the final rule, Treasury is not including all categories of projects permissible under CDBG as enumerated eligible uses to respond to the public health and negative economic impacts of the pandemic. Because CDBG permits such a broad range of activities, including services to individual households, communities, small businesses, general economic development activities, and capital expenditures, Treasury determined that it was more appropriate to assess the underlying types of projects eligible within CDBG and whether each type of project responds to the negative economic impacts of the pandemic. In other words, Treasury considered whether various types of community and economic development projects respond to the impacts of the pandemic in different communities and circumstances. In the final rule, Treasury addresses the eligibility of these various types of projects in each relevant eligible use category within public health and negative economic impacts under SLFRF, including assistance for impacted households, disproportionately impacted households, disproportionately impacted small businesses, and capital expenditures. Public Comment: General Economic Development: Treasury provided guidance following the interim final rule that general economic development or workforce development would generally not be eligible as it does not respond to a negative economic impact of the COVID–19 public health emergency. Some commenters recommended that Treasury expand enumerated eligible uses to include general economic development activities, beyond those that respond to negative economic impacts of the pandemic, such as creating an economic development strategy for the jurisdiction’s overall economic growth, creating a general workforce development strategy, or providing funds to businesses that did not experience negative economic impacts to carry out economic development activities or to incentivize the addition or retention of jobs. Commenters supportive of assistance to businesses for general economic development activities argued that subsidies to businesses increase job growth and that, in some cases, assistance to companies that excelled during the public health emergency would help create more job opportunities for workers or expand the jurisdiction’s tax base and produce funds to support government services. In contrast, other commenters argued that academic research consistently finds that economic development subsidies have a negligible, or even negative, economic effect, citing research findings to this effect.257 Treasury Response: In the final rule, Treasury maintains the interim final rule’s approach that general economic development or workforce development, meaning activities that do not respond to negative economic impacts of the pandemic and rather seek to more generally enhance the jurisdiction’s business climate, would generally not be eligible under this eligible use category. As noted above, to identify an eligible use of funds under this category, a recipient must identify a beneficiary or class of beneficiaries that experienced a harm or impact due to the pandemic, and eligible uses of funds must be reasonably designed to respond to the harm, benefit the beneficiaries that experienced it, and be related and reasonably proportional to that harm or impact. As noted above, recipients should analyze eligible uses based on the beneficiary of the assistance, and recipients may not provide assistance to small businesses or impacted industries that did not experience a negative economic impact. Provision of assistance to a business that did not experience a negative economic impact, under the theory that such assistance would generally grow the economy and therefore enhance opportunities for workers, would not be an eligible use, because such assistance is not reasonably designed to impact individuals or classes that have been identified as having experienced a negative economic impact. In other words, there is not a reasonable connection between the assistance provided and an impact on the beneficiaries. Such an activity would be attenuated from and thus not reasonably designed to benefit the households that experienced the negative economic impact. Research cited by some commenters finding that business subsidies have limited or negative economic impact also suggests that such a response may not be reasonably designed to benefit households and other entities impacted by the pandemic. Similarly, planning activities for an economic development or workforce strategy regarding general future economic growth do not provide a program, service, or capital expenditure that responds to negative economic impacts of the pandemic. However, Treasury notes that the final rule includes as enumerated eligible uses many types of assistance that respond to negative economic impacts of the pandemic and may produce economic development benefits. For example, see sections Assistance to Unemployed Workers, Assistance to Small Businesses, and Capital Expenditures. B. Premium Pay Background and Summary of the Interim Final Rule Sections 602(c)(1)(B) and 603(c)(1)(B) of the Social Security Act, as added by the ARPA, provide that SLFRF funds may be used ‘‘to respond to workers performing essential work during the COVID–19 public health emergency by providing premium pay to eligible workers of the . . . government that are performing such essential work, or by providing grants to eligible employers VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4397 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 258 See U.S. Department of Labor, Hazard Pay, https://www.dol.gov/general/topic/wages/ hazardpay (last visited October 18, 2021). 259 Economic Policy Institute, Only 30% of those working outside their home are receiving hazard pay (June 16, 2020), https://www.epi.org/press/only- 30-of-those-working-outside-their-home-are- receiving-hazard-pay-black-and-hispanic-workers- are-most-concerned-about-bringing-the- coronavirus-home/. 260 McCormack, supra note 65. 261 Id. 262 See H.R. 6800, 116th Cong. (2020). 263 Note that the sectors defined in the interim final rule already include all state, local, and Tribal government employees. that have eligible workers who perform essential work.’’ Premium pay is designed to compensate workers that, by virtue of their employment, were forced to take on additional burdens and make great personal sacrifices as a result of the COVID–19 pandemic. Premium pay can be thought of as hazard pay by another name.258 During the public health emergency, employers’ policies on COVID–19- related premium pay or hazard pay have varied widely, with many essential workers not yet compensated for the heightened risks they have faced and continue to face.259 Many of these workers earn lower wages on average and live in socioeconomically underserved communities as compared to the general population.260 A recent study found that 25 percent of essential workers were estimated to have low household income, with 13 percent in high-risk households.261 The low pay of many essential workers makes them less able to cope with the financial consequences of the pandemic or their work-related health risks. As Americans return to work and governments relax certain rules, essential workers will continue to bear the brunt of the risk of maintaining the ongoing operation of vital facilities and services. The added health risk to essential workers is one prominent way in which the pandemic has amplified pre-existing socioeconomic inequities. Premium pay is designed to address the disparity between the critical services provided by and the risks taken by essential workers and the relatively low compensation they tend to receive. The interim final rule established a three-part framework for recipients seeking to use SLFRF funds for premium pay. First, to receive premium pay one must be an eligible worker. Second, an eligible worker must also perform essential work. Finally, premium pay must respond to workers performing essential work during the COVID–19 public health emergency. Most of the comments received by Treasury pertaining to premium pay related to these three requirements. Comments also addressed the definition of premium pay generally and posed questions regarding premium pay program structuring. This section responds to the comments by addressing the three requirements in turn, then the overall definition of premium pay and, finally, program structure. Eligible Workers The ARPA defines ‘‘eligible workers’’ as ‘‘those workers needed to maintain continuity of operations of essential critical infrastructure sectors and additional sectors as each . . . [government] may designate as critical to protect the health and wellbeing of [its] residents.’’ The interim final rule supplemented this definition by identifying a list of ‘‘essential critical infrastructure sectors’’ whose workers are eligible workers, based on the list of sectors in the HEROES Act, a bill introduced in the House of Representatives in 2020 that would have provided premium pay to essential workers.262 In addition to the critical infrastructure sectors defined in the interim final rule, the chief executive (or equivalent) of a recipient government may designate additional non-public 263 sectors as critical so long as doing so is necessary to protecting the health and wellbeing of the residents of such jurisdiction. Public Comment: Treasury received multiple comments on the definition of ‘‘eligible worker’’ included in the interim final rule. Many commenters agreed with the definition of eligible worker adopted by Treasury. Other commenters sought clarification about or changes to the definition of eligible worker, including the definition of eligible sectors, the inclusion of government workers in the definition of eligible workers, and the process for designating additional non-public sectors as eligible. Some commenters asked Treasury to change how it identifies eligible sectors, including suggestions to add to or subtract from the list of eligible sectors. For example, some commenters asked Treasury to consider using Bureau of Labor Statistics (BLS)-Standard Occupational Classifications to identify specific sectors or occupations, in contrast to the approach taken in the interim final rule, which included a mixture of economic sectors, industries, and occupations. Many commenters asked Treasury to explicitly clarify that a particular industry or occupation is covered by the definition of ‘‘essential critical infrastructure sector.’’ Some of these commenters represented public employees, e.g., employees of facilities and public works; public utilities; courthouse employees; police, fire, and emergency medical services; and waste and wastewater services. Others were a mixture of public and private sector employees, e.g., coroners and medical examiners; transportation infrastructure (specifically electric vehicle infrastructure and supply equipment); electric utilities, natural gas, and steam supply; and grocery employees. Other commenters requested that Treasury prohibit certain occupations currently included in the eligible workers definition (e.g., police and corrections officers) from receiving premium pay for performance of regular duties. Commenters also asked Treasury to clarify which government workers are included in the definition of eligible workers. The interim final rule included as an essential critical infrastructure sector, ‘‘any work performed by an employee of a State, local, or Tribal government.’’ Some commenters requested that Treasury adopt a definition of eligible worker that includes all employees of the recipient government; however, all public employees of state, local, and Tribal governments are already included in the interim final rule definition of ‘‘eligible worker.’’ Commenters asked whether this includes governments that did not receive SLFRF funds (i.e., ‘‘non recipient governments’’). Many commenters from Tribal governments requested that the definition of eligible worker, which includes ‘‘any work performed by an employee of a . . . Tribal government,’’ also include an employee of a ‘‘Tribal enterprise’’ to remove uncertainty regarding which employees are included. Finally, commenters made suggestions for the process by which the chief executive (or equivalent) of a recipient government may designate additional non-public sectors as critical. Commenters asked that Treasury adopt a requirement that Treasury must approve or deny any additional non- public sector identified by the chief executive of a recipient government prior to implementation of the recipient’s program. Some commenters asked Treasury to clarify whether their chief executive (or equivalent) could designate particular, and in some cases all, employees of the recipient government as eligible for premium pay. Treasury Response: In the final rule, Treasury will preserve the definition of ‘‘eligible worker’’ as it was defined in the interim final rule with minor modifications to clarify that all public VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4398 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 264 See, e.g., sources such as Bureau of Labor Statistics, Occupational Outlook Handbook, which provide information on which professions or occupations are typically included in interpretations of a sector, https:// www.bls.gov/ooh/. 265 Public sector workers are ‘‘eligible workers’’ under the interim final rule and final rule. employees of recipient governments are already included in the interim final rule definition of ‘‘eligible worker.’’ A more specific eligibility system (e.g., linking eligibility to specific occupational or industry codes) would have provided more certainty but would have been much more rigid. In contrast, the current definition is flexible enough to give recipients the ability to tailor their premium pay programs to meet their needs while ensuring that programs focus on sectors where workers were forced to shoulder substantial risk as a result of the COVID–19 pandemic. Furthermore, the critical infrastructure sectors defined in the interim final rule already include many of the occupations that commenters requested be added. For example, Treasury received many comments from public workers asking to be included in the definition of ‘‘eligible worker’’ even though these workers already fall within the scope of ‘‘any work performed by an employee of a State, local, or Tribal government.’’ Treasury has clarified in the final rule that the chief executive’s discretion to designate additional sectors as critical relates only to ‘‘non-public’’ sectors, since all public employees of recipient governments are already included in the definition of ‘‘eligible worker.’’ While all such public employees are ‘‘eligible workers’’ and the chief executive (or equivalent) of a recipient government may designate additional non-public sectors as critical, in order to receive premium pay, these workers must still meet the other premium pay requirements (e.g., performing essential work). Treasury recognizes that the list of ‘‘essential critical infrastructure sectors’’ includes both occupations and sectors. Recipients, if uncertain which occupations are included in a critical infrastructure sector, may consult government occupational classifications if helpful but are not required to do so.264 Furthermore, a recipient government does not need to submit to Treasury for approval its designation of a sector as essential critical infrastructure; rather, Treasury will defer to the reasonable interpretation of the recipient government and the discretion of the recipient’s chief executive in making such designations. If a recipient is unsure if a non-public sector is covered by the definition in the final rule,265 the chief executive (or equivalent) of a recipient government may also identify the non-public sector as critical so long as the chief executive deems the non-public sector necessary to protecting the health and wellbeing of residents. Treasury has, where possible, clarified the definition of ‘‘essential critical infrastructure sectors.’’ For instance, Treasury has clarified in the final rule that work performed by an employee of a Tribal government includes an employee of a Tribal enterprise and discussed in this Supplementary Information how a recipient may qualify other non-public sectors as essential critical infrastructure. Essential Work The interim final rule defined ‘‘essential work’’ as work that (1) is not performed while teleworking from a residence and (2) involves either (i) regular, in-person interactions with patients, the public, or coworkers of the individual that is performing the work or (ii) regular physical handling of items that were handled by, or are to be handled by, patients, the public, or coworkers of the individual that is performing the work. Treasury adopted this definition of essential work to ensure that premium pay is targeted to workers that faced or face heightened risks due to the character of their work during a pandemic. Public Comment: Some commenters found the definition unclear and asked Treasury to clarify what constitutes ‘‘essential work.’’ Others disagreed with the essential work test altogether, arguing that it forces recipients to distinguish between essential and non- essential employees, which may be difficult to do. Accordingly, these commenters asked Treasury to allow recipients to determine which workers qualify as essential. Treasury also received several requests that specific occupations be explicitly deemed essential, including all public employees, veterinarians, election administrators, detention staff and sheriff’s deputies, and employees of utilities, such as electric power, natural gas, steam supply, water supply, and sewage removal. Several commenters requested that Treasury not distinguish between remote and in-person work or amend the standard so that employees providing essential services would still be eligible even if they worked remotely. Finally, a few commenters requested clarification as to the definition of ‘‘regular’’ in-person interactions and whether Treasury could clarify which job functions merit more (or less) premium pay. Treasury Response: Treasury is maintaining the definition of ‘‘essential work’’ in the final rule without modification. The test adopted in the interim final rule was designed to compensate workers facing disproportionate risk due to the pandemic. COVID–19 is transmitted through person-to-person interactions, and therefore, workers with regular in- person interactions are the primary group facing increased health risks. Although COVID–19 is not transmitted primarily by people handling items, such work may present increased risk in certain cases, and the final rule maintains the interim final rule’s inclusion of such work in order to give recipient governments the flexibility to include workers performing such work as they determine appropriate. Changing the test as some commenters suggested, e.g., by eliminating the in-person work requirement or allowing recipients to designate which employees are essential, even if not working in person, would no longer focus the program on workers taking on additional health risks and instead allow premium pay to be awarded to individuals who experienced relatively little risk of exposure to COVID–19. To maintain flexibility, Treasury is not defining the term ‘‘regular’’ with regard to in-person interactions, allowing recipients to develop programs based on the specific workforce to be served and local circumstances. Generally speaking, however, recipients are encouraged to consider an eligible worker’s risk of exposure in designing premium pay programs. Respond To As required by the ARPA, the interim final rule required that premium pay programs ‘‘respond to’’ eligible workers performing essential work during the COVID–19 public health emergency. Premium pay responds to eligible workers performing essential work if it prioritizes low- and moderate-income persons, given the significant share of essential workers that are low- and moderate-income and may be least able to bear added costs associated with illness. The level of the award limit—up to $13 per hour not to exceed $25,000 in aggregate—in the ARPA supports this reasoning. Accordingly, the interim final rule required written justification for how premium pay to certain higher-income workers responds to eligible workers performing essential work: If a recipient VerDate Sep<11>2014 20:28 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4399 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 266 See generally 29 U.S.C. 207(a); U.S. Department of Labor, Overtime Pay Requirements of the FLSA (Fact Sheet No. 23), https://www.dol.gov/ agencies/whd/fact-sheets/23-flsa-overtime-pay. 267 Department of Labor, Overtime Pay, https:// www.dol.gov/agencies/whd/overtime; see also 29 U.S.C. 207. 268 Among workers that report working overtime, roughly 41–44 percent of workers earn above $50,000 per year, which is slightly less than the national average annual wage for all employees according to the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics, available at https://www.bls.gov/oes/. See also U.S. Census Bureau, Basic Monthly CPS, January 2019 through December 2019, available at https:// www.census.gov/data/datasets/time-series/demo/ cps/cps-basic.html. Notes: Annual earnings reflect weekly wages multiplied by 52. Usual weekly earnings are computed by BLS to include earnings from work such as tips, overtime, regular wages, etc., but not non-labor sources of income such as government transfers and capital gains. Pre- overtime earnings are computed by taking the difference of usual weekly earnings and earnings from overtime last week and multiplying by 52. Note, some sources multiply weekly earnings by 50 instead of 52 to account for unpaid time off and holidays, so these figures may be slightly larger than those reported elsewhere. Either assumption may overestimate earnings if workers do not work year-round. (or grantee) uses SLFRF funds to provide premium pay to an employee and the pay or grant would increase a worker’s total pay above 150 percent of their residing state or county’s average annual wage for all occupations, as defined by the BLS Occupational Employment and Wage Statistics, whichever is higher, on an annual basis, then the recipient must provide, whether for themselves or on behalf of a grantee, written justification to Treasury detailing how the award responds to eligible workers performing essential work. Public Comment: Treasury received numerous comments on the wage threshold and the written justification requirement. Several commenters supported the threshold as a way to encourage recipients to target premium pay to lower-income, eligible workers. Some commenters even asked Treasury to make the wage threshold a firm restriction, above which an eligible worker could not receive premium pay. Others agreed with the threshold but also requested flexibility to use existing worker classifications as an administratively simple way to identify workers for whom premium pay would be responsive. For instance, a few commenters asked Treasury to allow recipients or grantees to presume that premium pay ‘‘responds to’’ eligible workers performing essential work when it is provided to employees who are not exempt from the Fair Labor Standards Act (FLSA) overtime provisions—a test that employers are routinely required to apply.266 In contrast, several commenters disagreed with the threshold and the requirement for written justification. A few commenters thought the threshold was too low to capture employees in certain critical infrastructure sectors (e.g., public safety, waste collection) and that it did not sufficiently account for the variance in economic need across different geographic areas and family structures. Some smaller communities argued that the threshold was difficult to calculate and apply. Other commenters proposed revisions for how the threshold is calculated. For instance, a few commenters asked Treasury to consider using alternative earnings measures such as median income. Similarly, another commenter asked Treasury to consider the incomes of workers with different levels of seniority in developing any income thresholds for permitting or reporting on premium pay. Finally, there was also some uncertainty as to the threshold and the requirement for written justification. Some commenters interpreted the threshold as a hard cap on who was eligible for premium pay, which is not the case. Relatedly, some commenters also requested further guidance on what recipients should include in the written justification submitted to the Secretary. Treasury Response: The final rule makes some modifications to the determination of when premium pay ‘‘responds to’’ eligible workers performing essential work during the public health emergency. Under the interim final rule, premium pay was responsive if either the workers’ pay was below a wage threshold or, if the pay was above a wage threshold, the recipient submitted written justification to Treasury explaining how the premium pay was responsive. The final rule retains these two means of establishing premium pay in response to workers performing essential work and adds an additional means of demonstrating that premium pay is responsive. Under the final rule, a recipient may also show that premium pay is responsive by demonstrating that the eligible worker receiving premium pay is not exempt from the FLSA overtime provisions.267 This change will expand the number of workers eligible to receive premium pay 268 and does not require recipients to provide written justification to Treasury regarding the workers who are not exempt from the FLSA overtime provisions, making the program easier to administer for recipients. Incorporating this change further simplifies application of the final rule for recipients because Treasury understands that most employers, public and private, are familiar with and are routinely required to apply the FLSA. With this addition, the final rule provides that premium pay is responsive to eligible workers performing essential work during the public health emergency if each eligible worker who receives premium pay falls into one of three categories: (1) The worker’s pay is below the wage threshold, (2) the worker is not exempt from the FLSA overtime provisions, or (3) the recipient has submitted a written justification to Treasury. The final rule makes it clear that written justification to Treasury is not necessary with respect to eligible workers whose pay is less than the wage threshold. Nor is written justification necessary with respect to eligible workers who are not exempt from the FLSA overtime provisions. The written justification is only necessary if the worker’s pay (with or without the premium) exceeds the threshold, and the worker is exempt from the FLSA overtime provisions. The final rule also clarifies that a worker’s pay exceeds the threshold if either the premium pay increases the worker’s total pay above the wage threshold or the worker’s total pay was already above the threshold, before receiving premium pay. Treasury has also updated the final rule to clarify that written justification means a brief, written narrative justification of how the premium pay or grant is responsive to workers performing essential work during the public health emergency. This could include a description of the essential workers’ duties, health or financial risks faced due to COVID–19, and why the recipient determined that the premium pay was responsive despite the workers’ higher income. Recipients should refer to SLFRF program reporting guidance, user guides, and other documentation for further guidance on the form and content of the written justification. Treasury anticipates that recipients will easily be able to satisfy the justification requirement for front-line workers, like nurses and hospital staff. Definition of Premium Pay The statute defines premium pay as ‘‘an amount of up to $13 per hour ..., in addition to wages or remuneration the eligible worker otherwise receives, for all work performed by the eligible worker during the COVID–19 public health emergency. Such amount may not exceed $25,000 with respect to any single eligible worker.’’ The interim VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4400 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 269 See 29 U.S.C. 207(a) (‘‘[A]t a rate not less than one and one-half times the regular rate at which he is employed.’’). 270 All recipients are required to comply with otherwise applicable laws, including any wage and hour requirements in the Fair Labor Standards Act. See generally, Department of Labor, Wages and the Fair Labor Standards Act, https://www.dol.gov/ agencies/whd/flsa. 271 In the second quarter of 2020, quarterly state and local tax revenues as reported by the U.S. Census Bureau fell 19 percent compared to the second quarter of 2019; U.S. Census Bureau, Quarterly Summary of State and Local Tax Revenue, https://www.census.gov/programs- surveys/qtax.html. 272 National Association of State Budget Officers, Fiscal Survey of the States (Fall 2020), available at https://higherlogicdownload.s3.amazonaws.com/ NASBO/9d2d2db1-c943-4f1b-b750-0fca152d64c2/ UploadedImages/Fiscal%20Survey/NASBO_Fall_ 2020_Fiscal_Survey_of_States_S.pdf. 273 National League of Cities, City Fiscal Conditions (2020), available at https://www.nlc.org/ wp-content/uploads/2020/08/City_Fiscal_ Conditions_2020_FINAL.pdf. 274 Surveys conducted by the Center for Indian Country Development at the Federal Reserve Bank of Minneapolis in March, April, and September 2020. Elijah Moreno & Heather Sobrepena, Tribal entities remain resilient as COVID–19 batters their finances, Federal Reserve Bank of Minneapolis (Nov. 10, 2020), https://www.minneapolisfed.org/ article/2020/tribal-entities-remain-resilient-as- covid-19-batters-their-finances. final rule incorporated this definition and emphasized that premium pay should be in addition to compensation typically received. Public Comment: Several submitted comments related to the definition of ‘‘premium pay.’’ Several commenters asked Treasury to clarify certain aspects of the interim final rule and statutory definition of premium pay. For instance, a few commenters asked whether the $25,000 limit applies to the annual amount of premium pay received or the aggregate amount of premium pay received over the period of performance. A few commenters requested flexibility as to how premium pay may be awarded, including flexibility to make monthly or quarterly payments or lump sum payments. Finally, commenters requested additional clarification as to how premium pay should be calculated. For instance, a commenter asked how to calculate the amount of and account for overtime pay and other incentive pay.269 Treasury Response: Treasury has clarified some of these issues in the final rule. For example, Treasury has clarified in the final rule that the $25,000 per employee limit is for the entire period of performance, not an annual cap. Further, recipients have discretion with respect to the way in which premium pay is awarded to eligible workers (e.g., monthly, quarterly, lump sum), provided that the total premium pay awarded to any eligible worker does not exceed $13 per hour or $25,000 over the period of performance. Finally, a recipient may award premium pay to an eligible worker in addition to the overtime pay already earned by the eligible worker but in no instance may the portion of the compensation funded with SLFRF funds exceed $13 per hour, even if strict time-and-a-half calculation requires more.270 To the extent that an employer is required under the FLSA to make payments to an eligible worker in excess of $13 per hour or $25,000 in the aggregate over the period of performance, the employer must use a source of funding other than the SLFRF funds to satisfy those obligations. Program Structure Public Comment: Several commenters also requested elaboration on eligible types of employees and permissible structures for awarding premium pay. A few commenters asked if premium pay could be awarded to volunteers or those in irregular and non-hourly or salaried employment positions. Similarly, various commenters asked if part-time workers were eligible for premium pay. Some commenters asked Treasury to provide more detail on when premium pay may be paid retroactively or if a government could reimburse its general fund for hazard pay already paid before the start of the period of performance. Treasury Response: Treasury has also made clear in the final rule that a recipient may award premium pay to non-hourly or salaried workers as well as part-time workers. Premium pay may not, however, be awarded to volunteers. If a recipient is interested in compensating volunteers with SLFRF funds, then it must do so consistent with the requirements set forth in other eligible use categories; for example, see section Public Sector Capacity and Workforce in Public Health and Negative Economic Impacts. Under the final rule, recipients may award premium pay retroactively; however, SLFRF funds may not be used to reimburse a recipient or eligible employer grantee for premium pay or hazard pay already received by the employee. To make retroactive premium payments funded with SLFRF funds, a recipient or eligible employer grantee must make a new cash outlay for the premium payments and the payments must be in addition to any wages or remuneration the eligible worker already received, subject to the other requirements and limitations set forth in the ARPA and this final rule. Finally, as part of accepting the Award Terms and Conditions for SLFRF, each recipient agreed to maintain a conflict-of-interest policy consistent with 2 CFR 200.318(c) that is applicable to all activities funded with the SLFRF award. This award term requires recipients and subrecipients to report to Treasury or the pass-through agency, as appropriate, any potential conflict of interest related to the award funds per 2 CFR 200.112. Pursuant to this policy, decisions concerning SLFRF funds must be free of undisclosed personal or organizational conflicts of interest, both in fact and in appearance. Consistent with this policy, elected officials are prohibited from using their official position and control over SLFRF funds for their own private gain. This policy also prohibits, among other things, elected officials from steering funds to projects in which they have a financial interest or using funds to pay themselves premium pay. C. Revenue Loss Background Sections 602(c)(1)(C) and 603(c)(1)(C) of the Social Security Act provide that SLFRF funds may be used ‘‘for the provision of government services to the extent of the reduction in revenue of such . . . government due to the COVID–19 public health emergency relative to revenues collected in the most recent full fiscal year of the . . . government prior to the emergency.’’ This provision allows recipients experiencing budget shortfalls to use payments from the SLFRF funds to avoid cuts to government services and, thus, enables state, local, and Tribal governments to continue to provide valuable services and ensures that fiscal austerity measures do not hamper the broader economic recovery. State and local government budgets experienced stress in fiscal year 2020 as delayed tax filings and pandemic- related business closures caused revenues to decline sharply.271 Twenty- two state governments took actions to close budget gaps in fiscal year 2020 272 and nearly 80 percent of cities reported being less able to meet the fiscal needs of their communities relative to fiscal year 2019.273 Surveys of Tribal governments and Tribal enterprises conducted in 2020 found majorities of respondents reporting substantial cost increases and revenue decreases, with Tribal governments reporting reductions in health care, housing, social services, and economic development activities as a result of reduced revenues.274 The economic recovery, aided by the broad distribution of COVID–19 vaccines and the deployment of federal stimulus, has led to a strong rebound in total state and local government revenue and is contributing to a brighter fiscal VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4401 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 275 Analysis of Quarterly Summary of State and Local Tax Revenue, U.S. Census Bureau, supra note 271. 276 National League of Cities, City Fiscal Conditions (2021), available at https://www.nlc.org/ wp-content/uploads/2021/10/2021-City-Fiscal- Conditions-Report-2021.pdf. 277 Center for Indian Country Development and Federal Reserve Bank of Minneapolis, One Year Into COVID–19, Pandemic’s Negative Effects Persist in Indian Country (May 2021), available at https:// www.minneapolisfed.org/article/2021/one-year- into-covid-19-pandemics-negative-effects-persist-in- indian-country. 278 See, e.g., Nora Fitzpatrick et al., Fiscal Drag from the State and Local Sector?, Liberty Street Economics Blog, Federal Reserve Bank of New York (June 27, 2012), https://libertystreeteconomics. newyorkfed.org/2012/06/fiscal-drag-from-the-state- and-local-sector.html; Jiri Jonas, Great Recession and Fiscal Squeeze at U.S. Subnational Government Level, IMF Working Paper 12/184, (July 2012), available at https://www.imf.org/external/pubs/ft/ wp/2012/wp12184.pdf; Gordon, supra note 16. 279 State and local government general revenue from own sources, adjusted for inflation using the Bureau of Economic Analysis’ implicit price deflator for GDP. U.S. Census Bureau, Annual Survey of State Government Finances and U.S. Bureau of Economic Analysis, National Income and Product Accounts, https://www.census.gov/ programs-surveys/gov-finances.html. 280 U.S. Bureau of Labor Statistics, All Employees, State Government [CES9092000001] and All Employees, Local Government [CES9093000001], retrieved from FRED, Federal Reserve Bank of St. Louis, https://fred.stlouisfed.org/series/ CES9092000001 and https://fred.stlouisfed.org/ series/CES9093000001. 281 Pew Research, State and Local Government Job Growth Lags as Economy Recovers (September 2021), available at https://www.pewtrusts.org/en/ research-and-analysis/articles/2021/09/14/state- and-local-government-job-growth-lags-as-economy- recovers. 282 At the time the interim final rule was published, the average annual growth across all state and local government ‘‘General Revenue from Own Sources’’ in the most recent three years of available data (2015–2018) was 4.1%, which was presented as one option for the growth adjustment. Since the interim final rule was published, 2019 data has been made available, which increases this rate to 5.2%. The final rule updates the percentage to 5.2%, as shown in Step 2. 283 As explained below, in the final rule, recipients must adjust actual revenue amounts based on certain tax policy changes. outlook for most jurisdictions as compared to the earlier months of the public health emergency. For the fiscal year ending June 30, 2021, total state and local government tax revenues increased 21 percent relative to the same period in 2020, reflecting the combined impact of the modified tax filing deadline in 2020 and an improving economy.275 However, despite a stable budget situation overall, many governments face uncertainty as the COVID–19 pandemic continues to impact commuting patterns, hospitality and tourism, and other drivers of jurisdictions’ economies. Thirty-five percent of cities still report being less able to meet financial needs than in fiscal year 2020,276 and over half of surveyed Tribal governments and Tribal enterprises reported losing at least 40 percent of their revenue since the start of the pandemic.277 Budget challenges persist as governments work to mitigate and contain COVID–19 and help citizens weather the economic downturn. State, local, and Tribal government budgets affect the broader economic recovery. During the period following the 2007–2009 recession, state and local government budget pressures led to fiscal austerity that was a significant drag on the overall economic recovery.278 Inflation-adjusted state and local government revenue did not return to the previous peak until 2013,279 while employment in the sector returned to the previous peak in August 2019, nearly a decade later.280 Just months after recouping losses from the previous downturn, the COVID–19 pandemic caused state and local government employment to contract again, but this time more sharply: By May 2020, state and local government payrolls fell 7.7 percent compared to February 2020. Despite improvement, non-federal public sector job growth continues to lag behind the rest of the U.S. labor market recovery.281 Summary of Interim Final Rule As stated above, the Social Security Act provides that SLFRF funds may be used ‘‘for the provision of government services to the extent of the reduction in revenue of such . . . government due to the COVID–19 public health emergency relative to revenues collected in the most recent full fiscal year of the . . . government prior to the emergency.’’ The interim final rule provided a formula for calculating revenue loss through a four-step process: •Step 1: Identify revenues collected in the most recent full fiscal year prior to the public health emergency (i.e., last full fiscal year before January 27, 2020), called the base year revenue. •Step 2: Estimate counterfactual revenue, which is the amount of revenue the recipient would have expected in the absence of the downturn caused by the pandemic. The counterfactual revenue is equal to base year revenue * [(1 + growth adjustment) ∧ (n/12)], where n is the number of months elapsed since the end of the base year to the calculation date, and growth adjustment is the greater of the average annual growth rate across all State and Local Government ‘‘General Revenue from Own Sources’’ in the most recent three years prior to the emergency, 5.2 percent, or the recipient’s average annual revenue growth in the three full fiscal years prior to the COVID–19 public health emergency.282 This approach to the growth rate provides recipients with the option to use a standardized growth adjustment when calculating the counterfactual revenue trend and thus minimizes administrative burden, while not disadvantaging recipients with revenue growth that exceeded the national average prior to the COVID–19 public health emergency by permitting these recipients to use their own revenue growth rate over the preceding three years. •Step 3: Identify actual revenue,283 which equals revenues collected over the twelve months immediately preceding the calculation date. •Step 4: The extent of the reduction in revenue is equal to counterfactual revenue less actual revenue. If actual revenue exceeds counterfactual revenue, the extent of the reduction in revenue is set to zero for that calculation date. For illustration, consider a hypothetical recipient with base year revenue equal to 100 (Step 1) that ends on June 30, 2019. In Step 2, the hypothetical recipient finds that the average annual growth across all state and local government ‘‘General Revenue from Own Sources’’ in the most recent three years of available data, 5.2 percent, is greater than the recipient’s average annual revenue growth in the three full fiscal years prior to the public health emergency. In this illustration, n (months elapsed) and counterfactual revenue would be equal to: As of: 12/31/2020 12/31/2021 12/31/2022 12/31/2023 n (months elapsed) .......................................................................................... 18 30 42 54 Counterfactual revenue:.................................................................................. 107.9 113.5 119.4 125.6 VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4402 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations The figure below illustrates the reduction in revenue for the hypothetical recipient calculated in accordance with the methodology. Finally, as explained in greater detail below, the clear meaning of the statutory phrase ‘‘due to the COVID–19 public health emergency’’ is that it is referring to revenue reductions caused by the public health emergency. As such, it does not include revenue reduced for reasons other than the public health emergency. Treasury in the interim final rule presumed that any reduction in revenue relative to the counterfactual estimate would be considered revenue lost due to the pandemic and thereby relieved recipients of the administrative burden of determining the extent to which reduction in revenue was due to the public health emergency. The calculation methodology in the interim final rule implicitly assumed that recipients did not suffer a loss in revenue due to the public health emergency if they did not experience a reduction in aggregate revenue compared to the counterfactual estimate. The interim final rule invited comments on whether Treasury should revise its presumption to ‘‘take into account other factors, including actions taken by the recipient as well as the expiration of the COVID–19 public health emergency, in determining whether to presume that revenue losses are ‘due to’ the COVID–19 public health emergency.’’ Treasury received a substantial number of comments on the revenue loss provisions set forth in the interim final rule. These comments largely pertained to the following topics: The overall methodology for calculating revenue loss; the definition of ‘‘revenue’’; whether revenue should be aggregated or calculated on some alternative basis (e.g., source-by-source or fund-by-fund); the appropriate calculation dates (i.e., fiscal year or calendar year); the presumption that all revenue loss is due to the pandemic; the base year; and the definition of ‘‘government services.’’ Overall Methodology for Calculating Revenue Loss As noted above, the interim final rule provided a formula for recipients to calculate revenue loss by comparing actual revenues received during a given time-period with a counterfactual amount of revenue based on revenues in the base year and an adjustment for expected growth in revenue each year. Public Comment: Treasury received many public comments on the overall methodology for calculating revenue loss. Some recipients, including smaller governments, have expressed concern regarding the burden associated with the calculation of revenue loss, particularly the burden involved in calculating the amount of general revenue, given that the definition of general revenue in the interim final rule does not always align with the definition of revenue already calculated by recipients for other purposes, and requested clarifications regarding a number of components, including the definition of revenue. Commenters also asked for clarification on the relationship between revenue loss calculations across different calculation dates. Other commenters argued that the revenue loss formula does not precisely capture the nuances of local revenues or their particular situation. For example, some commenters stated that requiring that revenues be aggregated fails to capture decreases in revenue sources that cannot easily be made up for with other revenue sources. Treasury Response: In the final rule, Treasury is largely maintaining the revenue loss formula as set forth in the interim final rule. To address comments that the formula for calculating revenue loss was difficult to apply, Treasury is including an option for recipients to use a standard allowance for revenue loss. Specifically, in the final rule, recipients will be permitted to elect a fixed amount of loss that can then be used to fund government services. This fixed VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00066 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 ER27JA22.000</GPH>lotter on DSK11XQN23PROD with RULES2140 •Actual Revenue •Extent of reduction in revenue 130 •Base year revenue 120 ..... counterfactual revenue 110 100 90 80 Jun-19 Dec-20 Dec-21 Dec-22 Dec-23 4403 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 284 Because the Census Bureau’s state and local government tax revenue data is reported on a quarterly frequency, fiscal base year end dates of March 31, June 30, September 30, and December 31 were used in this assessment. 285 Annual Survey of State and Local Government Finances (2019). 286 This is the range of averages that Treasury calculated by varying the aforementioned assumptions. 287 See, e.g., Government Accountability Office, State and Local Governments: Fiscal Conditions During the COVID–19 Pandemic in Selected States (July 2021) (noting that ‘‘[s]tate and local government revenues partly depend on the overall economy, and actions to stem the spread of the virus drastically reduced economic activity.’’); Board of Governors of the Federal Reserve System, Monetary Policy Report (July 9, 2021) (noting that the pandemic ‘‘pushed down state and local government tax collections’’ and that while some of the drag is ‘‘abating’’ state and local ‘‘government payrolls . . . have only edged up from their lows at the onset of the pandemic’’). 288 Local government tax revenue data in the Census Bureau’s Quarterly Summary of State and Local Tax Revenue, supra note 271, is provided on an aggregated basis. 289 The Department also released guidance clarifying how a recipient may determine whether a particular entity is ‘‘part of the recipient’s government.’’ See FAQ 3.14. Coronavirus State and Local Fiscal Recovery Funds, Frequently Asked Questions, as of July 19, 2021; https://home. treasury.gov/system/files/136/SLFRPFAQ.pdf. amount, referred to as the ‘‘standard allowance,’’ is set at up to $10 million total for the entire period of performance not to exceed the recipient’s SLFRF award amount. Although Treasury anticipates that this standard allowance will be most helpful to smaller local governments and Tribal governments, any recipient can use this standard allowance instead of calculating revenue loss pursuant to the formula above, so long as recipients employ a consistent methodology across the period of performance (i.e., choose either the standard allowance or the regular formula). Treasury intends to amend its reporting forms to provide a mechanism for recipients to make a one- time, irrevocable election to utilize either the revenue loss formula or the standard allowance. The $10 million level is based on average revenue loss across state and local governments, taking into consideration potential variation in revenue types and losses and continued uncertainty faced by many recipients regarding revenue shortfalls. To calculate this estimate, Treasury applied a variation of the final rule’s revenue loss calculation on available aggregate state and local government tax revenue data as reported by the Census Bureau for the first calculation date of December 31, 2020. This estimate accounts for expected variation across recipient experiences and reflects the fact that the final rule revenue loss calculation provides recipients several options for specific aspects (e.g., calendar year or fiscal year basis; use of average state and local revenue growth rate or specific local rate). Treasury compared actual calendar year 2020 tax revenues, in aggregate for all state and local governments, to several counterfactual trends that vary based on the end date of the fiscal base year.284 Treasury also assessed counterfactual trends using different revenue growth rates (e.g., the three-year average growth rates of total state and local government general revenue for both fiscal years ending in 2016–2018 and fiscal years ending in 2017–2019; the three-year average growth rates of total state and local government tax revenues for fiscal years ending in 2017–2019; and the one- year growth rate for total state and local government tax revenue in the last full fiscal year before the public health emergency). To account for the fact that the initial estimate, based on tax revenue, only includes a subset of recipient aggregate general revenue, Treasury applied a scaling factor to recognize that tax revenues generally make up just over half of general revenue collected by state and local governments (i.e., Treasury scaled up its estimate based on tax revenue to produce an estimate for total general revenue).285 The resulting calculation was then extrapolated over the four-year period of performance and divided by a population of interest to arrive at an average loss estimate. As noted above, Treasury estimated a range of scenarios to account for different values of the variables that would impact average losses. For example, the end date of the fiscal base year and growth rate of counterfactual revenue impact the overall estimate of revenue loss. In addition, this estimate takes into consideration the limitations in the available data. The governments covered by the Census Bureau’s survey do not entirely align with SLFRF recipients. The Census Bureau’s figures are based on 50 state governments, all local government property tax collectors and local government non-property tax imposers, representing at a minimum the more than 38,000 ‘‘General Purpose Governments’’ defined by Census. However, there are only roughly 32,000 recipients of SLFRF funds. Thus, Treasury considered the difference between the number and type of entities in the Census Bureau data and the SLFRF recipients. Based on this methodology, Treasury estimates that average revenue loss (determined by comparing the counterfactual revenue to actual revenue) may range from $0 to $11.7 million per recipient over the period of performance.286 Treasury settled on a point estimate toward the upper end of the range of potential averages, in part, to account for significant variation in the experiences of recipient governments: Some recipients likely experienced losses at the upper end of this range of potential averages. A point estimate toward the upper end of the range errs toward ensuring more recipients’ experiences are covered and increases the utility of the standard allowance for SLFRF recipients. Specifically, the program includes a very large number of recipients with relatively smaller awards; these recipients have tended to describe having greater difficulty completing the regular revenue loss calculation. Thus, selecting a point estimate toward the higher end of the expected range not only increases the likelihood that the standard allowance will reflect the experience of a larger number of SLFRF recipients but is more responsive to the comments of those with smaller awards. In addition, using a point estimate toward the upper end of the range accounts for the difficulty and uncertainty in predicting revenue losses years into the future, throughout the period of performance.287 Finally, Treasury selected a single allowance level, as opposed to varying levels, to further the goals of simplicity, flexibility, and administrability. Furthermore, data limitations make it difficult to distinguish between types of local governments.288 General Revenue The interim final rule adopted a definition of ‘‘general revenue’’ based largely on the components reported under ‘‘General Revenue from Own Sources’’ in the Census Bureau’s Annual Survey of State and Local Government Finances. Under the interim final rule, general revenue included revenue collected by a recipient and generated from its underlying economy, and it would capture a range of different types of tax revenues, as well as other types of revenue that are available to support government services.289 Specifically, revenue under the interim final rule included money that is received from tax revenue, current charges, and miscellaneous general revenues and excluded refunds and other correcting transactions, proceeds from issuance of debt or the sale of investments, agency or private trust transactions, revenue from utilities, social insurance trust revenues, and intergovernmental VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00067 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4404 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 290 The interim final rule stated that ‘‘general revenue’’ and ‘‘tax revenue’’ excludes refunds and other correcting transactions. Instead of ‘‘excluding’’ refunds and other correcting transactions, the Census Bureau methodology upon which those definitions are based provides that general revenue and tax revenue are determined ‘‘net of’’ refunds and other correcting transactions. The use of ‘‘excluding’’ in the interim final rule is substantively the same as the Census Bureau methodology. However, to be consistent with the terminology used by the Census Bureau, the final rule uses ‘‘net of’’ instead of ‘‘excluding.’’ Current charges are defined as ‘‘charges imposed for providing current services or for the sale of products in connection with general government activities.’’ It includes revenues such as public education institution, public hospital, and toll revenues. Miscellaneous general revenue comprises of all other general revenue of governments from their own sources (i.e., other than utility and insurance trust revenue), including rents, royalties, lottery proceeds, and fines. 291 The interim final rule excluded governmental transfers from the Federal Government, but it did not exclude intergovernmental transfers from other governmental units for purposes of the revenue loss provisions. 292 U.S. Energy Information Administration, Annual Electric Utility Data (October 2021), available at https://www.eia.gov/electricity/sales_ revenue_price/. 293 FAQ 3.14 provides further guidance on how to determine what entities constitute a government for purposes of calculating revenue loss. See Coronavirus State and Local Fiscal Recovery Funds, Frequently Asked Questions, as of July 19, 2021; https://home.treasury.gov/system/files/136/ SLFRPFAQ.pdf. transfers from the federal government, including transfers made pursuant to section 9901 of the ARPA.290 In the case of Tribal governments, it also included revenue from Tribal business enterprises. Public Comment: Many commenters asked Treasury to include certain items in the definition of ‘‘general revenue.’’ For instance, several commenters that operate their own utilities asked that revenue from utilities be included, arguing that declines in utility revenue directly affect contributions to their general funds. Many of these commenters noted that moratoriums on utility shutoffs and a decline in collections have resulted in significant budgetary pressures. Some commenters also asked for the exclusion of certain intergovernmental transfers in the definition of general revenue, including transfers of shared revenue from the state.291 Other commenters asked for the inclusion of certain transfers from the federal government, including fees paid for services and grants that are, in effect, paid for the provision of services. Treasury also received multiple requests to include revenue from Tribal enterprises in the definition of ‘‘general revenue’’ and that ‘‘Tribal enterprise’’ be defined broadly. Others asked for the ability to choose whether to include revenue from Tribal enterprises. Finally, some commenters requested that the definition of general revenue exclude certain sources of revenue, such as revenue sources that do not support a general fund (i.e., revenue sources that are restricted in use). Commenters also asked that general revenue exclude revenue from special assessments, settlements that make the recipient whole for past expenditures, and one- time revenues such as revenue from the sale of property. Treasury Response: In the final rule, Treasury has maintained the definition of ‘‘general revenue’’ from the interim final rule with two exceptions. Treasury has adjusted the definition to allow recipients that operate utilities that are part of their own government to choose whether to include revenue from these utilities in their revenue loss calculation. This change responds to comments from recipients indicating that revenue from utilities is used to fund other government services and that utility revenues have declined on aggregate.292 This approach is consistent with other eligible uses, which recognize decreased ability of many households to make utility payments; see section Assistance to Households, which identifies utility assistance as an enumerated eligible use of funds, including through direct or bulk payments to utilities for consumer assistance. Furthermore, for utilities or other entities (e.g., certain service districts) that are not part of the recipient government, a transfer from the utility to the recipient constitutes an intergovernmental transfer and therefore is included in the definition of ‘‘general revenue.’’293 Treasury has also added liquor store revenue to the definition of general revenue. The Supplemental Information to the interim final rule stated that the definition of tax revenue would include liquor store revenue, but the text of the rule did not include it. Accordingly, in the final rule, Treasury is clarifying that revenue includes liquor store revenue. However, Treasury believes revenue from government-owned liquor stores is better classified as general revenue than it is as tax revenue, so the final rule includes it as part of general revenue. In response to requests that the definition of general revenue exclude revenue from special assessments, settlements that make the recipient whole for past expenditures, and one- time revenues such as revenue from the sale of property, Treasury is maintaining its position in the final rule that such revenue is included in general revenue. While such revenues may be less predictable than other sources of revenue (e.g., property taxes), these are not uncommon sources of revenue for recipients, and their inclusion provides a more complete view of the financial health of a recipient government and is consistent with the Census Bureau methodology. Treasury is also maintaining the exclusion of all payments from the federal government (including payments for services) from general revenue in order to avoid substantial dilution of the definition of revenue, particularly in light of extraordinary fiscal support provided during the pandemic. Treasury is maintaining the inclusion of intergovernmental transfers other than from the federal government for the reasons provided in the Supplemental Information to the interim final rule; to do otherwise would be to significantly distort the revenue calculations for local governments that regularly receive revenue sharing payments, for example, from their state governments. Treasury is also maintaining the approach that ‘‘general revenue’’ includes revenue from Tribal enterprises. This approach recognizes that these enterprises often form the revenue base for Tribal governments’ budgets. To ease the burden on recipients and account for anomalous variations in revenue, as mentioned above, Treasury has incorporated a ‘‘standard allowance’’ option into the final rule. A recipient may choose to use the standard allowance, which under the final rule is set at up to $10 million, not to exceed the recipient’s SLFRF award amount, as an alternative to calculating revenue loss according to the formula described above. This addition will promote administrative efficiency and simplify the revenue loss calculation for the vast majority of recipients. Treasury intends to amend its reporting forms to provide a mechanism for recipients to elect to utilize either the revenue loss formula or the standard allowance, in addition to other changes made as part of the final rule. Aggregate Revenue Loss Calculation Under the interim final rule, revenue loss was calculated based on aggregate revenues and therefore loss in one type of revenue could be offset by gains in another. The amount of SLFRF funds available to provide government services was based on overall net revenue loss. In the Supplementary Information to the interim final rule, Treasury asked commenters to discuss the advantages and disadvantages of, and any potential concerns with, this approach, including circumstances in which it could be necessary or VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00068 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4405 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations appropriate to calculate the reduction in revenue by source. Public Comment: Treasury received many comments stating that revenue loss should be calculated on a source- by-source basis. Some commenters argued that a source-by-source approach would be administratively simpler. Other commenters argued that calculating revenue loss source-by- source would better reflect the impact of the COVID–19 pandemic on their ability to fund government services because revenue gains in one source cannot always be used to make up for losses in another. For similar reasons, other commenters asked that revenue loss be calculated on a fund basis. Treasury Response: Treasury considered alternative methods (e.g., source-by-source, fund-by-fund) but ultimately determined to maintain the calculation of revenue loss in the aggregate. The pandemic has had different effects on recipients (and their revenues), and Treasury recognized that one particular type of revenue or one particular source may have experienced a greater amount of loss for some recipients. However, the statute refers only to ‘‘the reduction in revenue of such State, local government, or Tribal government.’’ The statute is thus clear that Treasury is to refer to the aggregate revenue reduction of the recipient due to the public health emergency. Further, this provision is designed to address declines in the recipients’ overall ability to pay for governmental services, and calculating revenue loss on an aggregate basis provides a more accurate representation of the effect of the pandemic on overall revenues and the fiscal health of the recipient. In many circumstances, recipient governments have flexibility to use revenues from an array of sources and offset declines in some sources with gains in others. While the details and configuration of this flexibility vary widely across recipient governments, calculating revenue loss on a source-by-source or fund-by-fund basis would not capture how recipient governments balance their budgets in the regular course of business. Accordingly, the final rule maintains the requirement that revenue loss is to be calculated on an aggregate basis. Calculation Dates Public Comment: Under the interim final rule, recipients calculate revenue loss as of the end of the calendar year. Treasury received many comments requesting that recipients be permitted to calculate revenue loss as of the end of their fiscal year. Commenters argued that doing so would be simpler and less burdensome on recipients and that financial data as of the end of the fiscal year is audited and therefore more reliable. Commenters also argued that recipients’ fiscal years are structured around the timing of major revenue sources, and that the Census Bureau uses fiscal years in its Annual Survey. Treasury also received comments about the use of multiple calculation dates. Several Tribal governments stated that they would not see ongoing revenue losses due to the COVID–19 public health emergency and asked to be able to determine revenue loss as of the first calculation date. Several commenters asked whether revenue loss is determined independently for each year, so that a gain in one year does not offset a loss in another, or whether revenue loss is cumulative from the beginning of the pandemic. Treasury Response: In the final rule, Treasury has made adjustments to give recipients more flexibility with respect to calculation dates and to clarify certain elements. Specifically, the final rule provides recipients the option to choose whether to calculate revenue loss on a fiscal year or calendar year basis, though they must choose a consistent basis for loss calculations throughout the period of performance. Treasury has also clarified in the final rule that revenue loss is calculated separately for each year such that the calculation of revenue lost in one year does not affect the calculation of revenue lost in prior or future years. Presumption That Revenue Loss Is Due to the Pandemic As stated above, sections 602(c)(1)(C) and 603(c)(1)(C) of the Social Security Act provide that SLFRF funds may be used ‘‘for the provision of government services to the extent of the reduction in revenue of such . . . government due to the COVID–19 public health emergency relative to revenues collected in the most recent full fiscal year of the . . . government prior to the emergency.’’ As discussed in the interim final rule, although revenue may decline for reasons unrelated to COVID–19, in order to minimize the administrative burden on recipients in calculating revenue loss and take into consideration the devastating effects of the COVID–19 public health emergency, any reduction in revenue relative to the counterfactual estimate was presumed in the interim final rule to be considered revenue lost due to the pandemic. Treasury stated in the Supplementary Information to the interim final rule that it was considering when, if ever, during the period of performance it would be appropriate to reevaluate the presumption that all losses are attributable to the public health emergency. Treasury also sought comment on whether to take into account other factors, including actions taken by the recipient as well as the expiration of the COVID–19 public health emergency, in determining whether to presume that revenue losses are ‘‘due to’’ the COVID–19 public health emergency. Public Comment: Treasury received many comments in support of the presumption, as well as some opposed. Some commenters argued that the presumption eases the administrative burden on recipients because, without it, it would be difficult to identify which losses are attributable to the COVID–19 public health emergency. Many commenters also argued that Treasury should maintain the presumption because recipients are likely to experience losses due to the public health emergency even after the end of the public health emergency. Treasury also received comments asking that it adjust any revenue loss calculation to account for tax changes enacted by the recipient. In particular, some commenters noted that some recipients had increased taxes in order to meet additional demands for government services or to address declines in revenue due to the pandemic. These tax increases have in some cases offset some or all of the actual revenue loss attributable to the public health emergency. Because the interim final rule calculates revenue loss by reference to actual revenue collected, commenters argued that the calculation of revenue loss ‘‘due to’’ the public health emergency needs to take into consideration the effects of tax increases by deducting the effect of these tax increases from actual revenue collected. Treasury Response: In the final rule, Treasury has maintained the presumption that a reduction in a recipient’s revenue is due to the public health emergency with certain adjustments to respond to comments and to better account for revenue loss ‘‘due to the COVID–19 public health emergency.’’ The final rule makes adjustments to the presumption to take into account certain government actions to change tax policy. In particular, Treasury is adjusting the presumption to account for changes to tax policy by providing that changes in revenue that are caused by tax increases or decreases adopted after the issuance of the final rule will not be treated as due to the public health emergency. VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00069 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4406 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 294 See also sections 602(a)(1) and 603(a) of the Social Security Act (appropriating the funds for payment to recipients in order to ‘‘mitigate the fiscal effects stemming from the public health emergency’’). 295 U.S. Postal Service v. Postal Regulatory Comm’n, 640 F.3d 1263 (D.C. Cir. 2011); see Kimber v. Thiokol Corp., 196 F.3d 1092, 1100 (10th Cir. 1999); Adams v. Director, OWCP, 886 F.2d 818, 821 (6th Cir. 1989). 296 Treasury considered whether to also eliminate the presumption with respect to losses resulting from other changes in policy, such as decreases in user fees or fines. However, the effects of these changes are more minor overall and would be more challenging to accurately identify and quantify, so the administrability benefit of the presumption for recipients outweighs whatever distortion there might be as a result of not reflecting such changes. 297 See generally, National Association of State Budget Officers, Budget Processes in the States, (2021), available at https://higherlogicdownload. s3.amazonaws.com/NASBO/9d2d2db1-c943-4f1b- b750-0fca152d64c2/UploadedImages/Budget%20 Processess/NASBO_2021_Budget_Processes_in_the_ States_S.pdf. Presumption of Revenue Loss ‘‘Due To’’ the Pandemic In enacting sections 602(c)(1)(C) and 603(c)(1)(C) of the Social Security Act, Congress provided that a state, local government, or Tribal government could use funds to ‘‘cover costs . . . for the provision of government services,’’ but only ‘‘to the extent of the reduction in revenue . . . due to the COVID–19 public health emergency relative to revenues collected in the most recent full fiscal year . . . prior to the emergency.’’ In doing so, Congress recognized that the pandemic was causing significant disruption to economic activity and sought to minimize the impact of associated revenue losses on the ability of the recipient to provide government services when such services were needed most.294 The text of the statute itself reinforces this important context: The law specifically limits funds to cover revenue losses that both are ‘‘due to the COVID–19 public health emergency’’ and could impact ‘‘the provision of government services.’’ Courts have recognized that the phrase ‘‘due to’’ can refer to various causal standards.295 Here, in the context of Congress’s addressing economic disruptions caused by the COVID–19 pandemic that could impact both revenues and government services, the key consideration is whether a revenue loss experienced by the recipient resulted from the exogenous impacts of the public health emergency (and were thus ‘‘due to’’ the pandemic) or instead from the recipient’s own discretionary actions (and, in this context, were not ‘‘due to’’ the pandemic). Reductions in revenue due to the public health emergency does not cover revenue reductions that resulted from a recipient’s own discretionary actions. In the interim final rule, Treasury included a presumption that all revenue loss is due to the pandemic in order to minimize the administrative burden on recipients discussed above and take into consideration the devastating effects of the COVID–19 public health emergency. Based on comments, Treasury believes that the reasons for the presumption continue to be valid and has determined to maintain the presumption in the final rule with certain modifications. In particular, at this point in the course of the pandemic, with the fiscal pressure on state and local governments having been significantly reduced, it is appropriate for Treasury to reassess aspects of this presumption. As discussed below, the final rule requires recipients to exclude the value of tax policy changes adopted after January 6, 2022. Recipients of the SLFRF range from states to the smallest local governments. At the time that the interim final rule was adopted, it was important for recipients to be able to calculate with ease and certainty their amount of revenue loss so that they could begin deploying these funds to continue to maintain essential government services. To this end, the presumption in the interim final rule provided a relatively simple formula for all recipients to use, but the exigent need for recipients to immediately deploy funds for the provision of government services has decreased and the benefit of the presumption in reducing administrative burden is less relevant for those governments that are not likely to avail themselves of the standard allowance described above. Consistent with these considerations, the final rule requires recipients to exclude revenue loss due to tax changes adopted after January 6, 2022. Eliminating revenue loss due to tax changes from the presumption is appropriate given the significance of tax revenue as a portion of all revenue for state and local governments, the direct impact of tax policy decisions on revenue collected, and the relative ease with which recipients can isolate the estimated effect of a tax change on revenue.296 Most state budgeting processes require a ‘‘budget score,’’ often developed through a consensus process with executive and legislative branch experts,297 and Treasury expects that larger localities, those most likely to utilize the revenue loss formula rather than the standard allowance, also regularly use revenue or budget estimates when considering changes to tax policies. As such, in many cases, recipients already prepare estimates of the impact of tax changes on revenue, and as discussed below, Treasury will generally permit recipients to rely on such estimates in adjusting their revenue loss calculations. Reductions in revenue that are not attributable to tax changes would continue to be subject to the presumption. A requirement that recipients evaluate the revenue effect of changes in discretionary policy actions other than tax changes would be more difficult for recipients than evaluating the changes attributable to tax changes given that state and local governments do not generally prepare estimates of the revenue effects of other actions. Finally, as noted above, taxes are the single largest source of revenue for state and local government recipients in the aggregate. Revisions to Presumption To Address Tax Reductions For these reasons, Treasury is providing in the final rule that changes in general revenue that are caused by tax cuts adopted after the date of adoption of the final rule (January 6, 2022) will not be treated as due to the public health emergency, and the estimated fiscal impact of such tax cuts must be added to the calculation of ‘‘actual revenue’’ for purposes of calculation dates that occur on or after April 1, 2022. Tax cuts include final legislative or regulatory action or a new or changed administrative interpretation that reduces any tax (by providing for a reduction in a rate, a rebate, a deduction, a credit, or otherwise) or delays the imposition of any tax or tax increase and that the recipient assesses has had the effect of reducing tax revenue relative to current law. This includes the phase-in or taking effect of any statute or rule if the phase-in or taking effect was not prescribed prior to the issuance of the final rule. In assessing whether a tax change has had the effect of reducing tax revenue, recipients may either calculate the actual effect on revenue or rely on estimates prepared at the time the tax change was adopted. More specifically, recipients may rely on information typically prepared in the course of developing the budget (e.g., expected revenues) and/or considering tax changes (e.g., budget scores, revenue notes) to determine the amount of revenue that would have been collected in the absence of the tax cut, as long as those estimates are based on reasonable assumptions and do not use dynamic methodologies that incorporate the projected effects of macroeconomic growth, given that macroeconomic VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00070 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4407 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 298 The final rule does not permit recipients to reflect the effects of other changes in policy, such as increases in fees adopted after adoption of the final rule. Treasury understands that the main beneficiaries of such a change would be those recipients that will benefit from the standard allowance provided for in the final rule and that for other recipients the administrative burden on recipients needed to calculate these adjustments would outweigh the benefit of having a somewhat larger amount of funds available for government services. 299 The final rule also addresses the possibility that some recipients may have fiscal years ending during the period between January 6, 2022 and April 1, 2022; such recipients’ election to reflect tax changes from prior periods would also apply to changes during this period with respect to the calculation date in this period. growth is accounted for in the counterfactual growth assumptions. Recipients that choose to calculate the actual effect of a tax change on revenue must similarly base their calculations on reasonable estimates that do not use dynamic methodologies. Recipients should apply this adjustment in determining their actual revenue totals at Step 3 in the revenue loss calculation described above. Revisions to Presumption To Address Tax Increases As noted above, the calculation methodology in the interim final rule implicitly assumed that recipients did not experience a reduction in revenue due to the public health emergency if they did not experience a reduction in aggregate revenue relative to the counterfactual estimate. Treasury recognizes that some recipients may have experienced a reduction in revenue due to the public health emergency that was offset by other revenue, particularly in the case of increases to tax revenue resulting from a tax increase. The final rule requires recipients that increased taxes to deduct the amount of increases to revenue attributable to such tax increase. This change is also consistent with the incorporation in the interim final rule and final rule of a counterfactual growth rate, which effectively permits recipients to count revenue losses due to the public health emergency that are offset by increased tax revenue resulting from organic growth. For these reasons, Treasury is providing in the final rule that recipients must subtract from their calculation of actual revenue the effect of tax increases adopted after the date of adoption of this final rule (January 6, 2022) for purposes of calculation dates that occur on or after April 1, 2022. This change and the change to the final rule described above treat tax changes in a consistent manner: In the case of reduction in revenue resulting from a tax cut, a recipient must add the amount of that reduction to its calculation of actual revenue, and in the case of an increase in revenue resulting from a tax increase, a recipient must subtract the amount of additional revenue collected as a result of the tax increase from its calculation of actual revenue.298 As is the case with tax cuts, discussed above, tax increases that must be reflected in the calculation of revenue include final legislative or regulatory action or a new or changed administrative interpretation that increases any tax and that the recipient assesses has had the effect of increasing tax revenue relative to current law. In assessing whether a tax change has had the effect of increasing tax revenue, recipients may either calculate the actual effect on revenue or rely on estimates prepared at the time the tax change was adopted. Recipients may rely on information typically prepared in the course of developing the budget (e.g., expected revenues) and/or considering tax changes (e.g., budget scores, revenue notes) to determine the amount of revenue that was collected as a result of the tax increase as long as those estimates are based on reasonable assumptions and do not use dynamic methodologies that incorporate the projected effects of macroeconomic growth, given that macroeconomic growth is accounted for in the counterfactual growth assumptions. Recipients that choose to calculate the actual effect of a tax change on revenue must similarly base their calculations on reasonable estimates that do not use dynamic methodologies. Recipients should apply this adjustment in determining their actual revenue totals at Step 3 in the revenue loss calculation described above. Previously Adopted Tax Changes As discussed above, the final rule will not require recipients to reflect the revenue effects of tax increases or decreases adopted prior to the adoption of the final rule. Recipients that adopted a tax change in a previous period will not be required to recalculate the amount of revenue loss as of prior calculation dates or to reflect the fiscal impacts of such tax changes in calculation dates after the effective date of the final rule. However, the final rule will permit recipients to elect to reflect the revenue effects of their tax changes adopted between the beginning of the public health emergency and the adoption of the final rule.299 If a recipient elects to do so, it must do so with respect to all of its tax changes adopted between the beginning of the public health emergency and the adoption of the final rule. Treasury intends to revise its reporting requirements to permit recipients to amend their previously reported calculation periods to reflect such changes. Determination of the Base Year Under the ARPA and interim final rule, SLFRF funds may be used ‘‘for the provision of government services to the extent of the reduction in revenue . . . relative to revenues collected in the most recent full fiscal year’’ of the recipient. Therefore, the base year for the revenue loss calculation is the most recent full fiscal year prior to the COVID–19 public health emergency. Public Comment: Treasury received multiple comments asking for flexibility in determining base year revenues. For instance, some commenters asked to use a different base year than the ‘‘most recent full fiscal year’’ prior to the pandemic for calculating revenue loss; others asked to be able to average prior years. Commenters stated that, for various reasons, revenue was artificially low in the last full fiscal year prior to the public health emergency, and, therefore, using revenue in that year as the base year did not accurately reflect expected revenue in a normal year. For example, several Tribes stated that unforeseeable weather events resulted in forced closure of casinos which, in turn, artificially deflated revenues in the base year. Other commenters indicated that one-time anomalies in the timing of tax collection in that year artificially pushed revenue into the following fiscal year. Similarly, a few commenters noted that tax changes that took effect in the middle of the base year may artificially skew the size of the revenue loss experienced by the recipient government. Treasury Response: Treasury understands that recipients may have experienced events in the base year that led to lower or higher revenues than what they otherwise would have collected. The ARPA provides that revenue loss is to be determined with respect to revenue in the most recent full fiscal year prior to the pandemic, and therefore the final rule maintains its incorporation of the statutory definition. In calculating revenue loss, recipients may use data on a cash, accrual, or modified accrual basis, provided that recipients are consistent in their choice of methodology throughout the covered period, which might help recipients adjust to certain delays in revenue receipt. Both the standard allowance and elements of the formula (e.g., VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00071 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4408 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 300 Pay-go infrastructure funding refers to the practice of funding capital projects with cash-on- hand from taxes, fees, grants, and other sources, rather than with borrowed sums. counterfactual growth rate) incorporate generous assumptions to give recipients flexibility and to account for variation among recipients’ experiences during the pandemic. Government Services The SUPPLEMENTAL INFORMATION to the interim final rule provided a non- exhaustive list of examples of services that are government services. The interim final rule also discussed why neither payment of debt service nor replenishing financial reserves constitutes government services, as these expenditures do not provide services but relate to the financing of such services. Similarly, government services under the interim final rule did not include satisfaction of any obligation arising under or pursuant to a settlement agreement, judgment, consent decree, or judicially confirmed debt restructuring in a judicial, administrative, or regulatory proceeding, unless the judgment or settlement required the provision of government services. Public Comment: Treasury received several comments requesting further clarification regarding the scope of government services, including asking for either a specific definition of government services or that a specific use be expressly deemed to be a government service. Some commenters disagreed with the exclusions from government services in the interim final rule. For instance, many of the comments Treasury received suggested that replenishing reserve funds and at least certain types of debt service should be treated as providing governmental services. Some commenters also suggested that a recipient should be able to use funds for costs incurred before March 3, 2021. Other commenters asked Treasury to maintain the prohibition on using the funds to pay debt service. Treasury Response: Treasury continues to believe that the lists of activities that either are or are not providing government services are accurate but is clarifying here that, generally speaking, services provided by the recipient governments are ‘‘government services’’ under the interim final rule and final rule, unless Treasury has stated otherwise. Government services include, but are not limited to, maintenance or pay-go funded building 300 of infrastructure, including roads; modernization of cybersecurity, including hardware, software, and protection of critical infrastructure; health services; environmental remediation; school or educational services; and the provision of police, fire, and other public safety services. The aforementioned list of government services is not exclusive. However, recipients should be mindful that other restrictions may apply, including those articulated in the section Restrictions on Use. In the final rule, Treasury is maintaining the limitations on government services included in the interim final rule and has addressed and responded to public commenters on these issues in the section Restrictions on Use. D. Investments in Water, Sewer, and Broadband Infrastructure Summary of Interim Final Rule Under the ARPA, recipients may use funds to make necessary investments in water, sewer, and broadband infrastructure. The interim final rule provided recipients with the ability to use funds for a broad array of uses within these categories. The interim final rule discussed two general provisions that apply across all water, sewer, and broadband infrastructure investments. First, the interim final rule addressed the meaning of ‘‘necessary’’ investments as meaning those designed to provide an adequate minimum level of service and unlikely to be made using private sources of funds. Second, the interim final rule encouraged recipients to use strong labor standards in water, sewer, and broadband projects, as discussed below. Necessary Investments The statute limits investments to those that are necessary. As discussed in more detail below, Treasury determined that the types of water and sewer projects that were authorized under the interim final rule by reference to existing Environmental Protection Agency (EPA) programs would in all cases be necessary investments given the conditions applicable to such EPA programs. Similarly, the interim final rule’s definition of eligible broadband projects as those designed to provide a certain standard of service to those households and businesses with limited existing service was based on the statutory requirement that investments in water, sewer, and broadband must be ‘‘necessary.’’ As discussed further below, Treasury has expanded the scope of what is an eligible water and sewer infrastructure project to include additional uses. In particular, the final rule permits use of SLFRF funds for certain dam and reservoir restoration projects and certain drinking water projects to support population growth. The nature of these additional uses is such that additional factors must be considered in determining whether one of these additional uses is a necessary project. In addition, Treasury recognizes that there may be a need for improvements to broadband beyond those households and businesses with limited existing service as defined in the interim final rule. Treasury has replaced this specific requirement based on an understanding that broadband investments may be necessary for a broader set of reasons. Given this expansion of what is considered in scope as a water, sewer, or broadband infrastructure project, the final rule provides a further elaboration of Treasury’s understanding of the conditions under which an infrastructure project will be considered to be a necessary investment. Treasury considers a necessary investment in infrastructure to be one that is (1) responsive to an identified need to achieve or maintain an adequate minimum level of service, which may include a reasonable projection of increased need, whether due to population growth or otherwise and (2) a cost-effective means for meeting that need, taking into account available alternatives. In addition, given that drinking water is a resource that is subject to depletion, in the case of investments in infrastructure that supply drinking water in order to meet projected population growth, the project must be projected to be sustainable over its estimated useful life. Not included in the list of criteria above is the requirement in the interim final rule that the project be unlikely to be made using private sources of funds. Given that it may be difficult to assess in a particular case what the probability of private investment in a project would be, Treasury has eliminated this standard from the meaning of necessary but still encourages recipients to prioritize projects that would provide the greatest public benefit in their respective jurisdictions. Strong Labor Standards in Water, Sewer, and Broadband Construction As stated in the Supplementary Information to the interim final rule, Treasury encourages recipients to carry out investments in water, sewer, or broadband infrastructure in ways that produce high-quality infrastructure, avert disruptive and costly delays, and VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00072 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4409 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 301 Treasury received several comments related to its encouragement of certain wage and labor standards in the Supplementary Information to the interim final rule. Some commenters opposed this encouragement, arguing that even encouragement and reference to PLAs and prevailing wage laws could lead to confusion or make it more likely that recipients would apply labor standards in ways that would discourage competition and raise project costs. Conversely, some commenters supported the encouragement of the use of certain standards, including giving preference to employers that meet certain employment standards (e.g., those that maintain high safety and training standards) because it would support the goal of completing water, sewer, and broadband projects efficiently and safely. As in the interim final rule, this encouragement does not impose a legally binding restriction on recipients. 302 See U.S. Department of the Treasury, Compliance and Reporting Guidance, 21 (June 24, 2021), https://home.treasury.gov/system/files/136/ SLFRF-Compliance-and-Reporting-Guidance.pdf. promote efficiency.301 Treasury encourages recipients to use strong labor standards, including project labor agreements (PLAs) and community benefits agreements that offer wages at or above the prevailing rate and include local hire provisions. Treasury also recommends that recipients prioritize in their procurement decisions employers who can demonstrate that their workforce meets high safety and training standards (e.g., professional certification, licensure, and/or robust in- house training), that hire local workers and/or workers from historically underserved communities, and who directly employ their workforce or have policies and practices in place to ensure contractors and subcontractors meet high labor standards. Treasury further encourages recipients to prioritize employers (including contractors and subcontractors) without recent violations of federal and state labor and employment laws. Treasury believes that such practices will promote effective and efficient delivery of high-quality infrastructure projects and support the economic recovery through strong employment opportunities for workers. Such practices will also reduce the likelihood of potential project challenges like work stoppages or safety accidents, while ensuring a reliable supply of skilled labor and minimizing disruptions, such as those associated with labor disputes or workplace injuries. That will, in turn, promote on-time and on-budget delivery. Furthermore, among other requirements contained in 2 CFR 200, Appendix II, all contracts made by a recipient or subrecipient in excess of $100,000 with respect to water, sewer, or broadband infrastructure project that involve employment of mechanics or laborers must include a provision for compliance with certain provisions of the Contract Work Hours and Safety Standards Act, 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR part 5). Treasury will continue to seek information from recipients on their workforce plans and water, sewer, and broadband projects undertaken with SLFRF funds. This reporting will support transparency and competition by enhancing available information on the services being provided. Since publication of the interim final rule, Treasury has provided recipients with additional guidance and instructions on the reporting requirements.302 Environmental and Other Generally Applicable Requirements Treasury cautions that, as is the case with all projects engaged in using the SLFRF funds, all projects must comply with applicable federal, state, and local law. In the case of infrastructure projects in particular, this includes environmental and permitting laws and regulations. Likewise, as with all capital expenditure projects using SLFRF funds, projects must be undertaken and completed in a manner that is technically sound, meaning that they must meet design and construction methods and use materials that are approved, codified, recognized, fall under standard or acceptable levels of practice, or otherwise are determined to be generally acceptable by the design and construction industry. 1. Water and Sewer Infrastructure Sections 602(c)(1)(D) and Section 603(c)(1)(D) of the Social Security Act provide that recipients may use the SLFRF funds ‘‘to make necessary investments in water [and] sewer . . . infrastructure.’’ The interim final rule permitted a broad range of necessary investments in projects that improve access to clean drinking water and improve wastewater and stormwater infrastructure systems. As discussed below, after review of comments received on the interim final rule, Treasury has made changes in the final rule to expand the scope of eligible water and sewer projects. Summary of Interim Final Rule and Final Rule Structure Background: In the interim final rule, Treasury aligned eligible uses of the SLFRF with the wide range of types or categories of projects that would be eligible to receive financial assistance through the Clean Water State Revolving Fund (CWSRF) or Drinking Water State Revolving Fund (DWSRF) administered by the Environmental Protection Agency (EPA). By referring to these existing programs, with which many recipients are already familiar, Treasury intended to provide flexibility to recipients to respond to the needs of their communities while facilitating recipients’ identification of eligible projects. Furthermore, by aligning SLFRF eligible uses with these existing programs, Treasury could ensure that projects using the SLFRF are limited to ‘‘necessary investments.’’ Public Comment: Treasury received many comments responding to the water and sewer infrastructure provisions of the interim final rule from state, local, and Tribal governments, industry trade associations, public interest groups, private individuals, and other interested parties. Commenters requested that Treasury provide a wider set of eligible uses for water and sewer infrastructure beyond those uses articulated by the DWSRF and CWSRF, suggesting that Treasury expand the definition of necessary water and sewer infrastructure. Treasury Response: In response to commenters, Treasury is expanding the eligible use categories for water and sewer infrastructure, discussed in further detail below. Because the interim final rule aligned the definition of necessary water and sewer infrastructure with the eligible uses included in the DWSRF and CWSRF, Treasury is reflecting in the final rule a revised standard for determining a necessary water and sewer infrastructure investment for eligible water and sewer uses beyond those uses that are eligible under the DWSRF and CWSRF. Interpretation of Necessary Investments and Water and Sewer Infrastructure Necessary Investments: As discussed above, Treasury considers an investment in infrastructure to be necessary if it is (1) responsive to an identified need to achieve or maintain an adequate minimum level of service, which for some eligible project categories may include a reasonable projection of increased need, whether due to population growth or otherwise and (2) a cost-effective means for meeting that need, taking into account available alternatives. In addition, in the case of investments in drinking water service infrastructure to supply drinking water to satisfy a projected increase in population, the project must also be projected to be sustainable over its estimated useful life. As detailed further below, DWSRF and CWSRF eligible projects continue to be presumed to be necessary investments under the final VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00073 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4410 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 303 See 40 CFR 35.3520(b)(2)(vi). 304 In such cases, either the projects are presumptively cost-effective (e.g., lead projects would always be considered cost-effective given the costs imposed by lead poisoning) or a cost- effectiveness test is less relevant given the lack of available alternatives or the relatively low cost of the project. 305 In many jurisdictions, stormwater flows into the sewer system rather than into a separate stormwater system. The separate inclusion of ‘‘water’’ and ‘‘sewer’’ infrastructure also makes clear that ‘‘water’’ in this context cannot refer to all uses relevant to water. Given that sewer systems carry wastewater (and often stormwater), if water infrastructure were to refer to all water-related infrastructure in this context, it would make the inclusion of sewer infrastructure redundant. rule, with the exception of projects for the rehabilitation of dams and reservoirs, which the EPA has permitted in certain circumstances under the DWSRF and, as discussed below, are addressed separately in the final rule. In evaluating whether a project would respond to a need to achieve or maintain an adequate minimum level of service, a recipient should consider whether it would meet the needs of the population to be served and would satisfy applicable standards. For example, a drinking water project must be sized such that it provides an adequate volume of water to households and other customers and must meet applicable standards for drinking water quality under the Safe Drinking Water Act (SDWA). Similarly, a centralized wastewater treatment project should be designed to manage updated estimated flow rates and comply with Clean Water Act requirements. These requirements are already reflected in the eligibility criteria of the DWSRF and CWSRF, respectively. In evaluating whether a project is a cost-effective means of providing the water or sewer service, the recipient should consider the need for the project, the costs and benefits of the project compared to alternatives, and the effectiveness of the project in meeting the identified need. Recipients are not required to conduct a full cost-benefit analysis; however, they should consider and analyze relevant factors. For example, a recipient may not use funds to pursue a costly dam rehabilitation to provide drinking water to a community if it could provide the same service with a significantly smaller investment by drawing water from another available reservoir, assuming that doing so would meet the other requirements of the final rule. As detailed further below, recipients are only required to assess cost-effectiveness of projects for the creation of new drinking water systems, dam and reservoir rehabilitation projects, or projects for the extension of drinking water service to meet population growth needs. Certain DWSRF eligibilities are already subject to a cost-effectiveness test. Specifically, projects that create new drinking water systems must be a cost-effective solution to addressing the identified problem.303 The EPA also imposes a cost-effectiveness condition on dam and reservoir rehabilitation projects undertaken pursuant to its class deviation from the DWSRF rule. These projects are particularly expensive and, unlike in the case of other types of eligible projects, there are often available alternatives to conducting these projects. Projects for the extension of drinking water service to meet population growth needs are also often particularly expensive, and there are often different ways to meet the needs of expanding populations. Treasury will accordingly require that recipients engage in a cost-effectiveness analysis when engaging in projects for the creation of new drinking water systems, dam and reservoir rehabilitation projects, or projects for the extension of drinking water service to meet population growth needs. Other types of eligible water or sewer projects will not be subject to this cost-effectiveness test, including lead line replacement and lead remediation.304 In the case of projects that expand drinking water service infrastructure to satisfy a projected increase in population, the project must also be sustainable, meaning that the project can continue providing the adequate minimum level of service for its estimated useful life, taking into account projected impacts of changes to the climate and other expected demands on the source of water. For example, a reservoir rehabilitation project may not be pursued if the reservoir will no longer be able to provide an adequate source of drinking water before the end of the estimated useful life of the improvements to the reservoir. In areas currently impacted by drought or where drought conditions are expected to be more frequent or more severe in the future, sources of drinking water may be diminished more quickly than in prior periods. In considering how much of a source of water will be available in the future for the drinking water project, a recipient must consider that a source of water may be drawn upon or otherwise used for other current and expected uses, including use by fish and other wildlife. The final rule applies this sustainability condition to projects that expand drinking water service infrastructure to satisfy a projected increase in population but not to other drinking water projects. When a new source of water is required to remedy an existing threat to public health, as in the case of source projects eligible under the DWSRF, sustainability should be a consideration, but in some cases, the need to replace a contaminated source may mean that a less sustainable choice may be made. When faced with such an issue, such as in the case of a contaminated well system, a project to replace the contaminated source can be said to be ‘‘necessary’’ even if the replaced source is not sustainable over the long term. Expediency may dictate that a shorter-term solution is pursued if it is cost-effective and will prevent health issues while a longer-term solution can be found. In contrast, an expansion to accommodate population growth cannot be said to be necessary if it is not sustainable over its estimated useful life. Not included in the list of criteria above is the requirement in the interim final rule that the project be unlikely to be made using private sources of funds. Given that it may be difficult to assess in a particular case what the probability of private investment in a project would be, Treasury has eliminated this standard from the meaning of necessary but nevertheless encourages recipients to apply funds to projects that would provide the greatest public benefit. Water and Sewer Infrastructure: As stated above, Congress provided that SLFRF funds are available for ‘‘necessary water, sewer, and broadband infrastructure.’’ Treasury interprets the reference to water and sewer uses consistent with the inclusion of broadband uses. Water, sewer, and broadband infrastructure all involve the provision of essential services to residents, businesses, and other consumers. As the pandemic has made clear, access to broadband has itself become essential for individuals and businesses to participate in education, commerce, work, and civic matters and to receive health care and social services. Water and sewer services provided broadly to the public as essential services include the provision of drinking water and the removal, management, and treatment of wastewater and stormwater.305 Although governments are engaged in other infrastructure related to water, including irrigation projects, transportation projects, and recreation projects, such projects go beyond the scope of what is provided to all residents as an essential service. Provision of drinking water and removal, management, and treatment of VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00074 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4411 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 306 In addition, Treasury interprets the eligible uses of SLFRF funds against the background of the Coronavirus Relief Fund (CRF), for which the SLFRF funds are, in part, a successor. CRF recipients expressed great interest in using the CRF to pursue water infrastructure projects, including provision of drinking water and internal plumbing on Tribal lands and in Alaskan villages, and broadband projects throughout the country; Treasury permitted these projects given the connection to the public health emergency (see Coronavirus Relief Fund for States, Tribal Governments, and Certain Eligible Local Governments, 86 FR 4182, 4190, 4192 (Jan. 15, 2021), but the short deadline for use of funds made it difficult to use CRF funds in this way. Congress’ inclusion of the water, sewer, and broadband clause in the ARPA, along with the SLFRF funds’ longer eligible use date, is responsive to this unmet need. As discussed below, Congress in the Infrastructure Investment and Jobs Act amended sections 602(c) and 603(c) of the Social Security Act to add a new paragraph as sections 602(c)(4) and 603(c)(5), respectively, providing that SLFRF funds may be used to meet non-federal matching requirements of any authorized Bureau of Reclamation project. This authority was added as a separately enumerated eligible use regardless of whether the underlying project would be an eligible use of SLFRF funds under the water and sewer infrastructure eligible use category. 307 See, e.g., section 502 of the Federal Water Pollution Control Act (33 U.S.C. 1362), defining ‘‘green infrastructure’’ as ‘‘the range of measures that use plant or soil systems, permeable pavement or other permeable surfaces or substrates, stormwater harvest and reuse, or landscaping to store, infiltrate, or evapotranspirate stormwater and reduce flows to sewer systems or to surface waters.’’ 308 Specifically, this would include desalination projects that decrease the burden on aquifers where there is causal relationship between aquifer withdrawals and saltwater intrusion if the projects implement a nonpoint source pollution Continued wastewater and stormwater are the typical responsibilities of ‘‘water and sewer’’ authorities throughout the country, and there is a tremendous need for improvements to the ability of state, local, and Tribal governments to provide such services, including to address the consequences of deferred maintenance and additional resiliency needed to adapt to changes to the climate.306 Although the meaning of water and sewer infrastructure for purposes of sections 602(c)(1)(D) and 603(c)(1)(D) of the Social Security Act does not include all water-related uses, Treasury has made clear in this final rule that investments to infrastructure include a wide variety of projects. Treasury interprets the word ‘‘infrastructure’’ in this context broadly to mean the underlying framework or system for achieving the given public purpose, whether it be provision of drinking water or management of wastewater or stormwater.307 As discussed below, this can include not just storm drains and culverts for the management of stormwater, for example, but also bioretention basins and rain barrels implemented across a watershed, including on both public and private property, that together reduce the amount of runoff that needs to be managed by traditional infrastructure. Further, Treasury understands that investments in infrastructure include improvements that increase the capacity of existing infrastructure and extend the useful life of existing infrastructure. Accordingly, water and sewer infrastructure investment projects include those that conserve water, thereby reducing pressure on infrastructure for the provision of drinking water, and that recycle wastewater and stormwater, thereby reducing pressure on the infrastructure for treating and managing wastewater and stormwater. As with other infrastructure projects and capital expenditure projects that are permitted as responses to the public health emergency and its negative economic impacts, costs for planning and design and associated pre-project costs are eligible uses of SLFRF funds. Costs for the acquisition of land are also eligible, but only if needed for the purposes of locating eligible project components. Recipients should ensure that they have the technical, financial, and managerial capability to ensure compliance with the requirements of the SDWA, or that the assistance will ensure compliance and the owners or operators of the systems will undertake feasible and appropriate changes in operations to ensure compliance over the long-term. Drinking Water State Revolving Fund and Clean Water State Revolving Fund Background: As stated above, in the interim final rule, Treasury included eligible uses of the DWSRF and the CWSRF as eligible uses of the SLFRF in the water and sewer infrastructure category. By providing that projects eligible under the DWSRF and the CWSRF are also eligible uses of SLFRF funds, the interim final rule permitted a broad range of projects that improve drinking water infrastructure, such as building or upgrading facilities and transmission, distribution, and storage systems, including replacement of lead service lines. With respect to clean water and wastewater infrastructure, the interim final rule provided that recipients may use SLFRF funds to construct publicly owned treatment infrastructure, manage and treat stormwater or subsurface drainage water, and facilitate water reuse, among other uses. Consistent with the DWSRF and the CWSRF, the interim final rule provided that SLFRF funds may be used for cybersecurity needs to protect water or sewer infrastructure, such as developing effective cybersecurity practices and measures at drinking water systems and publicly owned treatment works. Use of DWSRF and CWSRF to Support Climate Change Adaptations. Many of the types of projects eligible under either the DWSRF or CWSRF also support efforts to address climate change. For example, by taking steps to manage potential sources of pollution and preventing these sources from reaching sources of drinking water, projects eligible under the DWSRF and CWSRF may reduce energy required to treat drinking water. Similarly, projects eligible under the DWSRF and CWSRF include measures to conserve and reuse water, for example through projects to reuse or recycle wastewater, stormwater, or subsurface drainage water. Treasury encourages recipients to consider green infrastructure investments and projects to improve resilience to the effects of climate change. For example, more frequent and extreme precipitation events combined with construction and development trends have led to increased instances of stormwater runoff, water pollution, and flooding. Green infrastructure projects that support stormwater system resiliency could include bioretention basins that provide water storage and filtration benefits, and green streets, where vegetation, soil, and engineered systems are combined to direct and filter rainwater from impervious surfaces. In cases of a natural disaster, recipients may also use SLFRF funds for water infrastructure to provide relief, such as interconnecting water systems or rehabilitating existing wells during an extended drought. Public Comment: Many commenters expressed support for the interim final rule’s alignment of the use of funds for water and sewer infrastructure under the SLFRF with the project categories provided through the EPA’s DWSRF and CWSRF programs. Many commenters also provided recommendations about the specific types of water infrastructure projects that should be eligible under the final rule. In many of these cases, commenters recommended that Treasury include project types that are already eligible under the DWSRF and CWSRF and thus eligible under the interim final rule and final rule. For example, several commenters requested that aquifer recharge projects, or other groundwater protection and restoration projects, be included as eligible uses of SLFRF when certain aquifer recharge projects that (1) implement a nonpoint source pollution management program 308 or (2) constitute reuse of VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00075 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4412 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations management program under section 319 of the Clean Water Act. This could include projects in which desalinated seawater is injected into the aquifer to mitigate or prevent salt water intrusion, as well as projects in which brackish water is removed from an aquifer, desalinated, and returned to the aquifer. 309 See 42 U.S.C. 300j–12(a)(2)(B) (limiting financial assistance used by a public water system to expenditures (including expenditures for planning, design, siting, and associated preconstruction activities, or for replacing or rehabilitating aging treatment, storage, or distribution facilities of public water systems, but not including monitoring, operation, and maintenance expenditures of a type or category which the Administrator of the EPA has determined, through guidance, will facilitate compliance with national primary drinking water regulations applicable to the system under 42 U.S.C. 300g–1 or otherwise significantly further the health protection objectives of the SWDA); See also 40 CFR 35.3520(b). 310 See 40 CFR 35.3520(d)(1). 311 See id at §35.3520(e)(2)–(4). 312 33 U.S.C. 1383(c). 313 33 U.S.C. 1292. 314 33 U.S.C. 1329. 315 33 U.S.C. 1330. wastewater, stormwater, or subsurface drainage water are in fact eligible uses under the CWSRF. Furthermore, under the DWSRF, eligible projects include certain aquifer storage and recovery systems for water storage. Treasury Response: Eligible projects articulated in the DWSRF and CWSRF continue to be eligible uses of SLFRF funds under the final rule. Recognizing that recipients have faced challenges interpreting eligible use categories under the interim final rule or cross- referencing EPA program materials to interpret eligible project types, Treasury is including in this Supplementary Information additional information on the types of projects eligible under the DWSRF and CWSRF. Treasury emphasizes that this further clarification does not represent a change in eligibility. Treasury encourages recipients to reference EPA handbooks for the DWSRF and CWSRF, which provide further information and detail about the types of projects eligible under those programs and thus under the final rule. Eligible projects under the DWSRF. Eligibilities under the DWSRF, the interim final rule, and the final rule include projects that address present or prevent future violations of health-based drinking water standards. These include projects needed to maintain compliance with existing national primary drinking water regulations for contaminants with acute and chronic health effects. Projects to replace aging infrastructure are also eligible uses if they are needed to maintain compliance or further the public health protection objectives of section 1452 of the SDWA.309 The following project categories are eligible under the DWSRF, were eligible under the interim final rule, and continue to be eligible under the final rule: (i) Treatment projects, including installation or upgrade of facilities to improve the quality of drinking water to comply with primary or secondary standards and point of entry or central treatment under section 1401(4)(B)(i)(III) of the SDWA. (ii) Transmission and distribution projects, including installation or replacement of transmission and distribution pipes to improve water pressure to safe levels or to prevent contamination caused by leaks or breaks in the pipes. (iii) Source projects, including rehabilitation of wells or development of eligible sources to replace contaminated sources. (iv) Storage projects, including installation or upgrade of eligible storage facilities, including finished water reservoirs, to prevent microbiological contaminants from entering a public water system. (v) Consolidation projects, including projects needed to consolidate water supplies where, for example, a supply has become contaminated or a system is unable to maintain compliance for technical, financial, or managerial reasons. (vi) Creation of new systems, including those that, upon completion, will create a community water system to address existing public health problems with serious risks caused by unsafe drinking water provided by individual wells or surface water sources. Eligible projects are also those that create a new regional community water system by consolidating existing systems that have technical, financial, or managerial difficulties. Projects to address existing public health problems associated with individual wells or surface water sources must be limited in scope to the specific geographic area affected by contamination. Projects that create new regional community water systems by consolidating existing systems must be limited in scope to the service area of the systems being consolidated. Ineligible projects under the DWSRF. Federally-owned public water systems and for-profit noncommunity water systems are not eligible to receive DWSRF funds and therefore SLFRF funds.310 The acquisition of water rights, laboratory fees for routine compliance monitoring, and operation and maintenance expenses are not costs associated with investments in infrastructure and thus would not be eligible under the final rule. 311 Projects needed primarily to serve future population growth are also ineligible under the DWSRF; the treatment of such projects under the final rule is discussed separately below under ‘‘Expansion of Drinking Water Service.’’ Projects eligible under the DWSRF must be sized only to accommodate a reasonable amount of population growth expected to occur over the useful life of the project. Eligible projects under the CWSRF. The final rule continues to allow the use of SLFRF funds for projects eligible under the CWSRF, consistent with the interim final rule. Under the CWSRF, a project must meet the criteria of one of the following CWSRF eligibilities to be eligible for assistance. Section 603(c) of the Clean Water Act (CWA)312 provides that the CWSRF can provide assistance: (i) to any municipality, intermunicipal, interstate, or state agency for construction of publicly owned treatment works (as defined in section 212 of the CWA);313 (ii) for the implementation of a management program established under section 319 of the CWA;314 (iii) for the development and implementation of a conservation and management plan under section 320 of the CWA;315 (iv) for the construction, repair, or replacement of decentralized wastewater treatment systems that treat municipal wastewater or domestic sewage. Eligible projects include, but are not limited to, the construction of new decentralized systems (e.g., individual onsite systems and cluster systems), as well as the upgrade, repair, or replacement of existing systems. (v) for measures to manage, reduce, treat, or recapture stormwater or subsurface drainage water. Publicly and privately owned, permitted and unpermitted projects that manage, reduce, treat, or recapture stormwater or subsurface drainage water are eligible. For example, projects that are specifically required by a Municipal Separate Storm Sewer System (MS4) permit are eligible, regardless of ownership. Projects may include, but are not limited to green roofs, bioretention basins, roadside plantings, porous pavement, and rainwater harvesting. (vi) to any municipality, intermunicipal, interstate, or state agency for measures to reduce the demand for publicly owned treatment works capacity through water conservation, efficiency, or reuse. Eligible projects include, but are not limited to, the installation, replacement, or upgrade of water meters; plumbing fixture retrofits or replacement; and gray water recycling. Water audits and water conservation plans are also eligible. VerDate Sep<11>2014 20:28 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00076 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4413 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 316 33 U.S.C. 1274. Equipment to reuse effluent (e.g., gray water, condensate, and wastewater effluent reuse systems) is eligible. (vii) for the development and implementation of watershed projects meeting the criteria set forth in section 122 of the CWA.316 Projects that develop or implement a watershed pilot project related to at least one of the six areas identified in section 122 of the CWA are eligible: Watershed management of wet weather discharges, stormwater best management practices, watershed partnerships, integrated water resource planning, municipality- wide stormwater management planning, or increased resilience of treatment works. (viii) to any municipality, intermunicipal, interstate, or state agency for measures to reduce the energy consumption needs for publicly owned treatment works. Projects may include, but are not limited to, the installation of energy efficient lighting, HVAC, process equipment, and electronic equipment and systems at publicly owned treatment works. Planning activities, such as energy audits and optimization studies are also eligible. (ix) for reusing or recycling wastewater, stormwater, or subsurface drainage water. Projects involving the reuse or recycling of wastewater, stormwater, or subsurface drainage water are eligible. This includes, as part of a reuse project, the purchase and installation of treatment equipment sufficient to meet reuse standards. Other eligible projects include, but are not limited to, distribution systems to support effluent reuse, including piping the effluent on the property of a private consumer, recharge transmission lines, injection wells, and equipment to reuse effluent (e.g., gray water, condensate, and wastewater effluent reuse systems). (x) for measures to increase the security of publicly owned treatment works. Security measures for publicly owned treatment works might include, but are not limited to, vulnerability assessments, contingency/emergency response plans, fencing, security cameras/lighting, motion detectors, redundancy (systems and power), secure chemical and fuel storage, laboratory equipment, securing large sanitary sewers, and tamper-proof manholes. The CWSRF cannot fund operations and maintenance activities. Therefore, maintaining a human presence (i.e., security guards) and monitoring activities are not eligible. Other Clarifications of DSWRF and CWSRF Eligible Project Categories Public Comment: Several commenters requested that Treasury provide clarification of the requirements associated with use of SLFRF funds for necessary investments in water and sewer infrastructure. Treasury Response: After release of the interim final rule, Treasury clarified in further guidance that, while recipients must ensure that water and sewer infrastructure projects pursued are eligible under the final rule, recipients are not required to obtain project pre-approval from Treasury or any other federal agency when using SLFRF funds for necessary water and sewer infrastructure projects unless otherwise required by federal law. For projects that are being pursued under the eligibility categories provided through the DWSRF or CWSRF programs, project eligibilities are based on federal project categories and definitions for the programs and not on each state’s eligibility or definitions. While reference in the final rule to the DWSRF, CWSRF, or other federal water programs is provided to assist recipients in understanding the types of water and sewer infrastructure projects eligible to be funded with SLFRF, recipients do not need to apply for funding from the applicable state programs or through any federal water program. Similarly, besides eligible project categories, the final rule does not incorporate other program requirements or guidance that attach to the DWSRF, CWSRF, or other federal water programs. However, as noted above, recipients should be aware of other federal or state laws or regulations that may apply to construction projects or water and sewer projects, independent of SLFRF funding conditions, and that may require pre- approval from another federal or state agency. Expanded Eligible Uses for Water and Sewer Infrastructure Summary Public Comment: Many commenters requested broader flexibility in the use of SLFRF funds for water and sewer infrastructure projects that are not eligible under the DWSRF and CWSRF. These commenters argued that localities are best situated to identify the highest- need water and sewer projects in their communities. Several Tribal government commenters noted that Tribes have different water and sewer infrastructure needs than states and localities and that additional flexibility in the use of funds would lift current barriers to improving infrastructure on Tribal lands. To achieve additional flexibility, commenters suggested a range of options for broadening the eligible use of SLFRF funds for necessary water and sewer infrastructure. For example, several commenters suggested Treasury broaden the eligibilities provided under the interim final rule to include project types eligible under other federal water and sewer programs. Treasury Response: Treasury agrees that additional flexibility for use of SLFRF funds is warranted and is providing expanded eligibilities as described below, several of which address specific areas of need outlined by Tribal and rural communities. As discussed below, Treasury has incorporated into the final rule projects that are eligible under certain programs established by the EPA under the Water Infrastructure Improvements for the Nation Act (WIIN Act). Other water- related grant programs cited by commenters include projects that are otherwise already covered by the final rule, for example because they are covered as eligible under the DWSRF or the CWSRF, or projects that are ineligible under the final rule because they are beyond the scope of the meaning of water and sewer projects for purposes of ARPA. To minimize the need for recipients of SLFRF funds to cross reference eligibilities across multiple federal programs, which may exacerbate current challenges to understanding eligibility under SLFRF, Treasury is providing detailed information related to expanded eligibilities within the text of this SUPPLEMENTARY INFORMATION for the final rule. Stormwater Infrastructure Public Comment: Several commenters requested that additional stormwater infrastructure projects be included as eligible uses of SLFRF funds under the final rule. Commenters suggested that culvert repair and resizing and replacement of storm sewers is necessary to address increased rainfall brought about by a changing climate. Other commenters noted that rural communities that do not manage their own sewer systems may rely on this type of water infrastructure. Treasury Response: The CWSRF includes a broad range of stormwater infrastructure projects, and as such these projects were eligible under the interim final rule and continue to be eligible under the final rule. These projects include gray infrastructure projects, such as traditional pipe, storage, and treatment systems. Projects VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00077 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4414 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 317 The White House, Updated Fact Sheet: Bipartisan Infrastructure Investment and Jobs Act (August 2, 2021), https://www.whitehouse.gov/ briefing-room/statements-releases/2021/08/02/ updated-fact-sheet-bipartisan-infrastructure- investment-and-jobs-act/. 318 See EPA Science Advisory Board, Evaluation of the Effectiveness of Partial Lead Service Line Replacements, (September 2011), https:// www.epa.gov/sdwa/science-advisory-board- evaluation-effectiveness-partial-lead-service-line- replacements (advising against partial lead service line replacement). 319 Environmental Protection Agency, supra note 188. 320 Environmental Protection Agency, National Primary Drinking Water Regulations: Lead and Copper Rule Revisions, 86 FR 4198. 40 CFR 141.84, and preamble at 4215, January 15, 2021, https:// www.federalregister.gov/d/2020-28691; scheduled to become effective December 16, 2021, Environmental Protection Agency, 86 FR 31939, https://www.federalregister.gov/d/2021-12600. 321 Eligible uses of funds include those eligible under the Small, Underserved, and Disadvantaged Communities Grant (Section 2104), Reduction in Lead Exposure via Drinking Water Grant Program (Section 2105) and Lead Testing in School and Child Care Program Drinking Water Grant Program (Section 2107). 322 Such testing and remediation programs would be an eligible use of SLFRF funds given that they that manage, reduce, treat, or recapture stormwater or subsurface drainage water are also eligible, including real-time control systems for combined sewer overflow management, and sediment control. Culvert infrastructure projects are eligible under the CWSRF if they (1) implement a nonpoint source management plan, (2) implement National Estuary Program Comprehensive Conservation and Management Plan, or (3) implement a stormwater management plan with the goal of providing a water quality benefit. Stormwater projects under the CWSRF also encompass a number of eligible green infrastructure categories, such as green roofs, green streets, and green walls, rainwater harvesting collection, storage, management, and distribution systems, real-time control systems for harvested rainwater, infiltration basins, constructed wetlands, including surface flow and subsurface flow (e.g., gravel) wetlands, bioretention/bioswales (e.g., bioretention basins, tree boxes), permeable pavement, wetland, riparian, or shoreline creation, protection, and restoration, establishment or restoration of urban tree canopy, and replacement of gray infrastructure with green infrastructure including purchase and demolition costs. In addition to the eligible uses under the CWSRF, Treasury is expanding the eligible uses under the final rule to include stormwater system infrastructure projects regardless of whether there is an expected water quality benefit from the project. Treasury anticipates that this eligible use will allow recipients to manage increased volumes of stormwater as a result of changes to the climate. For example, the final rule now permits the use of SLFRF funds for the repair, replacement, or removal of culverts or other road-stream crossing infrastructure to the extent the purpose of the project is to manage stormwater. In addition, Treasury understands that the repair, replacement, or removal of culverts may necessitate the repair or upgrade of roads. As noted in guidance issued after the interim final rule, recipients may use SLFRF funds for road repairs and upgrades that interact directly with an eligible stormwater infrastructure project. All stormwater infrastructure projects undertaken should incorporate updated design features and current best practices. Private Wells and Septic Systems Public Comment: Several commenters requested that the scope of eligible projects be expanded to allow for the expenditure of SLFRF funds on private wells or septic systems. Commenters noted that wells may be contaminated with dangerous substances, including arsenic, lead, radon, and PFAS (per- and polyfluoroalkyl). Commenters also suggested that, because rural and underserved communities are often reliant on these infrastructure types for their drinking water or wastewater needs, lack of appropriate funding to maintain these systems could present health and safety issues that disproportionately affect certain communities. Treasury Response: Consistent with the CWSRF, the installation, repair, or replacement of private septic units continues to be an eligible use of SLFRF funds under the final rule. For example, eligible projects include those that address groundwater contamination resulting from faulty septic units and those that would connect failing septic systems to centralized wastewater treatment. Consistent with the DWSRF, connecting homes served by a private well to a public water system is an eligible use of SLFRF funds. In addition, Treasury has provided in the final rule that recipients may use SLFRF funds for an expanded set of infrastructure projects that improve access to and provision of safe drinking water for individuals served by residential wells. Eligible projects under this category include rehabilitation of private wells, testing initiatives to identify contaminants in wells, and treatment activities and remediation strategies that address contamination. Remediating Lead in Water Public Comment: Several commenters emphasized the need to fully remediate lead contamination, especially in structures that serve the public or populations like children that are particularly vulnerable to the effects of lead exposure, such as schools and daycares. Many American households and an estimated 400,000 schools and childcare centers currently lack safe drinking water.317 Treasury Response: The replacement of lead service lines, up to premise plumbing, is an eligible use under the DWSRF and continues to be an eligible use of SLFRF funds. Such projects are eligible regardless of the pipe material of the replacement lines and ownership of the property on which the service line is located. Lead service line replacement projects can serve households, schools, or any other entities. Given the lifelong impacts of lead exposure for children and the widespread prevalence of lead service lines, Treasury encourages recipients to consider projects to replace lead service lines. In addition, Treasury is providing in the final rule that for lead service line replacement projects, recipients must replace the full length of the service line, and not just a partial portion of the service line. Some water utilities, when replacing service lines, will only replace the ‘‘public portion’’ of the service line and physically slice through the lead service line at the public/private line. This action can result in elevated drinking water lead levels for some period of time after replacement, suggesting the potential for harm, rather than benefit during that time period.318 Requiring replacement of the full length of the service line is also consistent with the requirements of the EPA’s Lead and Copper Rule Revisions for water systems that have an action level exceedance for lead 319 and certain other water systems.320 Treasury is expanding eligible uses of SLFRF funds to include infrastructure projects eligible under EPA grant programs authorized by the WIIN Act.321 Eligible projects under these programs include the installation or re- optimization of corrosion control treatment, replacing lead service lines, replacing galvanized pipes downstream of a lead service line (other than lead pipes within a home as discussed below), and maintaining an inventory of the drinking water system’s service lines. Water quality testing, compliance monitoring, and remediation activities in schools and other childcare facilities, as well as activities necessary to respond to a contaminant, are eligible uses of SLFRF funds.322 Remediation VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00078 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4415 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations would help a recipient determine whether an infrastructure project, such as a lead line replacement, is necessary. In contrast, as mentioned above, the costs of continual testing that is part of a drinking water or wastewater facilities’ operating costs would not be considered part of an infrastructure project. 323 See EPA, Approval of Class Exception from the Regulatory Prohibitions on the Use of Drinking Water State Revolving Fund for Rehabilitation of Dams and Reservoirs (July 14, 2021), available at https://www.epa.gov/system/files/documents/2021- 07/dwsrf-class-deviation-dam-reservoir-rehab-2021_ 0.pdf. 324 As noted in the EPA’s class deviation, examples of dam rehabilitation projects include spillway reconstruction or repair; dam resurfacing, patching, or other structural repairs, including minimal height increases if needed to maintain the structural integrity of the dam; grouting for seepage control or liquefaction remediation (e.g., epoxy resin, asphalt, or rock); repair or replacement of drainage systems; and seismic stability efforts (e.g., anchors). Examples of reservoir rehabilitation projects include sedimentation dredging and reservoir lining. activities such as replacement of faucets, internal plumbing, and fixtures in schools and childcare facilities are also an eligible use of SLFRF funds. Consistent with the EPA programs, replacement of lead pipes within a home is not eligible under the final rule because the vast majority of lead contamination cases can be solved by replacing lead service lines (including on public and private property) and faucets and fixtures themselves. As such, replacement of lead pipes within a home would not be considered a cost- effective means for achieving the desired level of service and thus would not be a ‘‘necessary’’ investment. The provision of bottled water is also not an eligible use of SLFRF funds under this eligible use category, as it is not an investment in infrastructure. However, bottled water in areas with an action level exceedance for lead in water may be an eligible use of SLFRF funds under a separate eligible use category for ‘‘remediation of lead paint and other lead hazards;’’ see Assistance to Households in Public Health and Negative Economic Impacts. Water filtration systems are eligible under the EPA grant programs and the final rule as long as they are installed as a permanent part of a facility’s system and not intended for temporary use. Conducting remediation, follow-up monitoring, and conducting public education and outreach about the availability of infrastructure programs, such as water testing and fixture replacement programs funded with SLFRF funds or otherwise, are also eligible projects. Finally, recipients should note that ‘‘remediation of lead paint and other lead hazards’’ is a separate eligible use category and a broader range of programs and services may be eligible under that section, including investments that are not infrastructure; see the eligible use for ‘‘remediation of lead paint and other lead hazards’’ in section Assistance to Households in Public Health and Negative Economic Impacts. Dams and Reservoirs Public Comment: Many commenters requested that Treasury broaden eligibilities to include dams and reservoirs, infrastructure that commenters noted may in its current state be unsafe and could put surrounding communities at risk. Some commenters argued that dams and reservoirs play an important role in providing municipal water supply and water to irrigate farmland, including in areas impacted by recent droughts. Other commenters noted that a large number of dams are currently classified as high-hazard structures, the failure of which would have severe consequences for public safety and the local environment. With respect to reservoirs, commenters articulated that changing climate conditions have necessitated upgrades to reservoir infrastructure to ensure existing facilities can meet the local water needs of a community. Commenters noted that communities facing drought may also need to adjust or enhance reservoirs to maintain adequate water supply. In contrast, several commenters suggested that infrastructure projects related to dams and reservoirs should not be considered eligible uses of SLFRF funds. These commenters noted that alternate sources of funding exist for dam and reservoir projects and that dams and reservoir infrastructure could result in negative impacts to Tribal communities and negative environmental impacts, including harm to wildlife habitats. Treasury Response: Treasury understands that many dams and reservoirs in need of rehabilitation are dams and reservoirs whose primary purpose is to provide drinking water. As discussed above, SLFRF funds are available for projects related to the provision of drinking water. Moreover, since issuance of the interim final rule, the EPA has adopted a class deviation from the DWSRF regulations that permits such dam and reservoir rehabilitation projects in certain circumstances.323 In approving this class deviation, the EPA recognized that many dams used for drinking water are aging and deteriorating and pose a public health risk to communities; that current dam conditions do not meet state safety standards; and that reservoir capacity has diminished and requires dredging to meet drinking water needs of the existing population. Treasury’s final rule provides that funds may be used for rehabilitation of dams and reservoirs if the primary purpose of the dam or reservoir is for drinking water supply and the rehabilitation project is necessary for continued provision of drinking water supply. In considering whether a dam or reservoir project is necessary for the provision of drinking water supply, a recipient may take into consideration future population growth in certain circumstances, as discussed under ‘‘Expansion of Drinking Water Service Infrastructure’’ below, but the project must in any case be designed to support no more than a reasonable level of projected increased need. The recipient must also determine that the project is cost-effective, i.e., that there are not significantly superior alternatives that are available, taking into consideration the relative costs and benefits of the project as compared to those alternatives. This change to the final rule would permit a wide variety of projects.324 The limitation in the final rule to rehabilitation of existing dams and reservoirs reflects the scope of the EPA class deviation referenced above and Treasury’s understanding of the significant need for investments in rehabilitation to address deterioration of dams and the diminished capacity of reservoirs. Further, Treasury expects that in many cases it would be considerably more difficult to demonstrate that construction of a new dam or reservoir would be necessary for the purpose of the provision of drinking water than is the case for rehabilitation of dams and reservoirs already serving that purpose for a particular population, particularly given opportunities to meet drinking water needs through water reuse and conversation efforts. For these reasons, and given that the relatively short period of availability of the funds makes new dam and reservoir construction with these funds less likely, Treasury has limited the scope of the final rule to dam and reservoir rehabilitation projects. As discussed above, Treasury has determined that ARPA does not authorize the use of SLFRF funds for uses other than the provision of drinking water and the management of wastewater and storm water. As such, the final rule does not include infrastructure projects related to dams and reservoirs as eligible uses of SLFRF funds unless they meet the conditions discussed above. VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00079 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4416 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 325 See 40 CFR 35.3520(e)(5). 326 See Public Law 117–58, 40909(a)–(b) (Nov. 15, 2021). 327 See Public Law 117–58 §40909(c). Public Comment: Several commenters requested that the removal of dams and associated habitat restoration should be eligible uses of SLFRF funds, noting that in some cases, dam removal will improve water quality while removing long-term operational expenses for the recipient. Treasury Response: Dam removal projects and associated stream and habitat restoration projects are eligible uses of the CWSRF and continue to be eligible under the final rule when the removal implements either a nonpoint source management program plan or a National Estuary Program Comprehensive Conservation and Management Plan or when the removal will provide a water quality benefit. Habitat restoration projects more generally may also be eligible under the CWSRF and the final rule if they constitute a form of stormwater infrastructure. Expansion of Drinking Water Service Infrastructure Public Comment: Commenters asked for the ability to use funds for drinking water projects for the purpose of meeting needs arising from future growth, which, given the restrictions applicable to the DWSRF, was not permitted under the interim final rule. Treasury Response: As provided for in the SDWA, the DWSRF is meant to serve the public health needs of the existing population. The EPA regulation implementing the DWSRF program provides that projects needed primarily to serve future population growth are not eligible uses of the DWSRF. A project that is intended primarily to address public health or regulatory compliance issues for the existing service population may be sized for a ‘‘reasonable’’ amount of population growth over the useful life of the project.325 ARPA does not include the same limitation as the SDWA. Accordingly, the final rule provides that recipients may use SLFRF funds for projects that are needed to support increased population in certain cases. ARPA limits projects to those investments that are ‘‘necessary.’’ As discussed above, Treasury interprets this to mean that the investments must be (1) responsive to an identified need to achieve or maintain an adequate minimum level of service, which for some eligible project categories may include a reasonable projection of increased need, whether due to population growth or otherwise and (2) a cost-effective means for meeting that need, taking into account available alternatives. For this eligible use category, expansion of drinking water service infrastructure, the project must also be projected to be sustainable over its estimated useful life. Investments must be determined to be necessary when they are initiated. Accordingly, Treasury is clarifying in the final rule that the need identified for a water or sewer project may include a need arising from reasonable expectations of future population growth, provided that it is necessary at the time the investment is initiated for the recipient to make the investment to meet this growth. For example, a recipient expecting increased population during the period of performance may install a drinking water treatment plant to meet that growth. In addition, a recipient expecting increased population growth outside the period of performance may install the treatment plant if the planning and construction timeline for the project would require work to begin during the performance period in order to meet the expected population growth. A recipient may install transmission lines as part of the development of new housing occurring during the period of performance. In this case, the housing development must be in progress; a recipient may not use the SLFRF funds to install a water main, for example, to an undeveloped tract in the expectation that in the future that tract will be developed with housing, because there would be no need for that investment to be made at the time it is initiated. For the reasons discussed above, if a project is undertaken to address expected growth in population, the project must also be sustainable, meaning that the project can continue providing the adequate minimum level of service for its estimated useful life, taking into account projected impacts of changes to the climate and other expected demands on the source of water. In considering how much of a source of water will be available in the future for the drinking water project, a recipient must consider that a source of water may be drawn upon or otherwise used for other current and expected uses, including use by fish and other wildlife. A drinking water project that is designed to address a growing population cannot be considered a necessary investment if the source of drinking water will cease to be available to meet the population’s needs before the end of the estimated useful life of the project. In such a case, a recipient should consider alternative sources for drinking water. See ‘‘Interpretation of Necessary Investments and Water and Sewer Infrastructure’’ above for more information. Non-Federal Matching Requirements for Authorized Bureau of Reclamation Projects The Infrastructure Investment and Jobs Act amends sections 602(c) and 603(c) of the Social Security Act to add an additional eligible use of SLFRF funds, providing that SLFRF funds ‘‘may be used for purposes of satisfying any non-Federal matching requirement required for [an authorized Bureau of Reclamation project].’’326 This amendment permits the use of SLFRF funds to meet non-federal matching requirements of any authorized Bureau of Reclamation project, regardless of whether the underlying project would be an eligible use of SLFRF funds under the water and sewer infrastructure eligible use category. These amendments are effective as of March 11, 2021, as if included in the ARPA at the time of its enactment.327 Treasury will provide further guidance to recipients on the scope of Bureau of Reclamation water projects and expenses covered by this provision. Floodplain Management and Flood Mitigation Projects Public Comment: Several commenters requested that projects to address floodwater, including floodplain management and flood mitigation projects, be included as an eligible use of SLFRF funds. Within this category of floodplain management and flood mitigation infrastructure, several commenters requested that the installation of levees, flood walls, sea walls, elevation projects, dredging, or nature-based flood mitigation projects be included as eligible projects. Treasury Response: Treasury notes that some floodplain management and flood mitigation infrastructure projects, including green infrastructure designed to protect treatment works from flood waters and flood impact are currently eligible under the CWSRF and therefore continue to be eligible under the final rule. Treasury has not included floodplain management and flood mitigation projects more generally as eligible under the final rule. Although floodplain management and flood mitigation are functions of many state and local governments, they are not the sort of generally-provided essential services included within the meaning of water VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00080 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4417 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 328 See FAQ 6.8, 6.9, 6.11. Coronavirus State and Local Fiscal Recovery Funds, Frequently Asked Questions, as of July 19, 2021; https:// home.treasury.gov/system/files/136/SLFRPFAQ.pdf. 329 See FAQ 6.10. Id. 330 See FAQ 6.12. Id. 331 See FAQ 6.16. Id. 332 See FAQ 6.4, 6.17. Id. and sewer projects under the ARPA, as discussed above. Irrigation Public Comment: Some commenters requested that irrigation projects be an eligible use because they consider such projects to be critical infrastructure. Several commenters supported this request by noting that irrigation systems may be used to replenish aquifers and recharge wells, in addition to delivering water for irrigation. One commenter also noted that the national irrigation system is antiquated and in need of repair. Treasury Response: Some irrigation projects were eligible under the interim final rule and continue to be eligible under the final rule as a result of their inclusion as eligible projects under the CWSRF. For example, water efficient irrigation equipment that reduces the runoff of nutrients and implements a management program established under section 319 of the CWA and/or a conservation and management plan under section 320 of the CWA are eligible uses under the CWSRF and therefore continue to be an eligible use of SLFRF funds under the final rule. Likewise, projects to receive and distribute reclaimed water for irrigation systems or other agricultural use are eligible under the CWSRF and therefore continue to be an eligible use under the final rule. Unlike projects for the improvement of irrigation systems generally, these reclaimed water projects are related to wastewater treatment and stormwater management, which are within the scope of the meaning of water and sewer infrastructure for purposes of ARPA. Treasury considered commenter requests for inclusion of additional irrigation infrastructure and determined that irrigation projects more generally are not permitted under the final rule. Although these types of projects may be water-related infrastructure, they are not the sort of generally-provided essential services included within the meaning of water and sewer projects under ARPA, as discussed above. Consumer Incentive Programs Public Comment: One commenter requested that consumer incentive programs in the areas of water use efficiency, conservation, green infrastructure, reuse, and other distributed solutions be an allowable use of SLFRF. Treasury Response: The DWSRF and CWSRF eligibilities include the development and implementation of incentive and educational programs that address and promote water conservation, source water protection, and efficiency related to infrastructure improvements, e.g., incentives such as rebates to install green infrastructure such as rain barrels or promote other water conservation activities. Treasury clarifies that such project types were eligible under the interim final rule and continue to be eligible under the final rule. 2. Broadband Infrastructure Under the ARPA, recipient governments may use SLFRF funds to make ‘‘necessary investments in . . . broadband infrastructure.’’ In the Supplementary Information to the interim final rule, Treasury interpreted necessary investments in infrastructure as investments ‘‘designed to provide an adequate minimum level of service and [that] are unlikely to be made using private sources of funds.’’ Treasury explained that, with respect to broadband specifically, such necessary investments include projects that ‘‘establish [] or improve [] broadband service to underserved populations to reach an adequate level to permit a household to work or attend school, and that are unlikely to be met with private sources of funds.’’ Summary of Interim Final Rule, Public Comments, and Treasury Response Summary of Interim Final Rule: In implementing the ARPA, the interim final rule provided that eligible broadband infrastructure investments are limited to those that are designed to provide service to unserved or underserved households or businesses, defined as those that lack access to a wireline connection capable of reliably delivering at least minimum speeds of 25 Mbps download and 3 Mbps upload. The interim final rule also provided that eligible projects under the SLFRF are limited to those that are designed to deliver, upon project completion, service that reliably meets or exceeds symmetrical upload and download speeds of 100 Mbps. In instances where it would not be practicable for a project to deliver such service speeds because of the geography, topography, or excessive costs associated with such a project, the interim final rule provided that the project would be required to be designed to deliver, upon project completion, service that reliably meets or exceeds 100 Mbps download speed and between at least 20 Mbps and 100 Mbps upload speeds and be scalable to a minimum of 100 Mbps symmetrical for download and upload speeds. In addition, Treasury, in the Supplementary Information to the interim final rule, encouraged recipients to pursue a number of other objectives. First, Treasury encouraged recipients to prioritize investments in fiber-optic infrastructure wherever feasible and focus on projects that deliver a physical broadband connection by prioritizing projects that achieve last-mile connections. Second, Treasury encouraged recipients to integrate affordability options into their program design. Third, Treasury encouraged recipients to prioritize support for local networks owned, operated, or affiliated with local governments, nonprofits, and cooperatives. Fourth, Treasury encouraged recipients to avoid investing in locations with existing agreements to build reliable wireline service with minimum speeds of 100 Mbps download and 20 Mbps upload by December 31, 2024, in order to avoid duplication of efforts and resources. Finally, following release of the interim final rule, Treasury provided further guidance clarifying some aspects of broadband infrastructure eligibility, specifically on flexibility for recipients to determine eligible areas to be served,328 middle-mile projects,329 pre- project development costs,330 broadband connections to schools or libraries,331 and the applicability of the National Environmental Policy Act (NEPA) and the Davis-Bacon Act.332 Summary of Public Comments: Treasury received several comments on the interim final rule’s requirements regarding eligible areas for investment and build-to speed standards, as well as Treasury’s encouragements in the Supplementary Information of the interim final rule. Many commenters found the interim final rule’s requirement to limit projects to those designed to provide service to unserved or underserved households or businesses to be appropriately focused on hard-to-reach areas. In contrast, other commenters argued that this requirement was too restrictive and that it would limit the ability for some recipients, particularly local governments, to invest in broadband infrastructure. Separately, some commenters supported the interim final rule’s requirement that eligible projects be built to reliable speeds of 100 Mbps symmetrical, with an exception for areas where it was impracticable, and encouragement that projects be built with fiber-optic infrastructure, while a VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00081 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4418 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 333 See FAQ 6.10. Coronavirus State and Local Fiscal Recovery Funds, Frequently Asked Questions, as of July 19, 2021; https:// home.treasury.gov/system/files/136/SLFRPFAQ.pdf. 334 See FAQ 6.12. Id. 335 See FAQ 6.16. Id. 336 See FAQ 6.4, 6.17. Id. 337 In the remainder of this Supplementary Information, ‘‘25/3 Mbps’’ refers to broadband infrastructure that is designed to reliably meet or exceed at least 25 Mbps download speeds and 3 few others argued that the interim final rule should remain technology-neutral and that lower speed standards would be more appropriate for today’s usage needs. Summary of Treasury Response: In response to the comments, the final rule expands eligible areas for investment by requiring recipients to invest in projects designed to provide service to households and businesses with an identified need for additional broadband infrastructure investment, which would include but not be limited to a lack of broadband service reliably delivering certain speeds. In addition, as discussed further below, the final rule further supports the expansion of affordable access to broadband service for households by requiring that recipients use a provider that participates in a qualifying affordability plan. Treasury encourages recipients to prioritize projects that are designed to provide service to locations not currently served by a wireline connection that reliably delivers at least 100 Mbps of download speed and 20 Mbps of upload speed. The final rule maintains the interim final rule’s requirement that eligible projects be designed to, upon completion, reliably meet or exceed symmetrical 100 Mbps download and upload speeds. As was the case under the interim final rule, in cases where it is not practicable, because of the excessive cost of the project or geography or topography of the area to be served by the project, eligible projects may be designed to reliably meet or exceed 100 Mbps download speed and between at least 20 Mbps and 100 Mbps upload speed and be scalable to a minimum of 100 Mbps download speed and 100 Mbps upload speed. Treasury continues to encourage recipients to prioritize investments in fiber-optic infrastructure wherever feasible and to focus on projects that will achieve last-mile connections, whether by focusing directly on funding last-mile projects or by ensuring that funded middle-mile projects have commitments in place to support new and/or improved last-mile service. The final rule requires recipients to address the affordability needs of low- income consumers in accessing broadband networks funded by SLFRF, given that such a project cannot be considered a necessary investment in broadband infrastructure if it is not affordable to the population the project would serve. Recipients must require the service provider for a completed broadband infrastructure investment project that provides service to households to either participate in the Federal Communications Commission’s (FCC) Affordable Connectivity Program (ACP), or otherwise provide access to a broad-based affordability program to low-income consumers in the proposed service area of the broadband infrastructure that provides benefits to households commensurate with those provided under the ACP. Treasury also recognizes the importance of affordable broadband access for all consumers beyond those that are low-income. As part of their project selection process, recipients are encouraged to consult with the community on the general affordability needs of the target markets in the proposed service area. Additionally, recipients are encouraged to require that services provided by a broadband infrastructure project include at least one low-cost option offered without data usage caps and at speeds that are sufficient for a household with multiple users to simultaneously telework and engage in remote learning. Recipients will be required to report speed, pricing, and any data allowance information as part of mandatory reporting to Treasury. The final rule also clarifies that subsidies to households and communities impacted by the pandemic to access the internet, broadband adoption programs, digital literacy programs, and device programs are eligible programs to respond to the public health and negative economic impacts of the pandemic under sections 602(c)(1)(A) and 603(c)(1)(A). See section Assistance to Households in Negative Economic Impacts. Treasury continues to encourage recipients to prioritize support for broadband networks owned, operated by, or affiliated with local governments, nonprofits, and cooperatives. In addition, to the extent recipients are considering deploying broadband to locations where there are existing enforceable federal or state funding commitments for reliable service at speeds of at least 100 Mbps download speed and 20 Mbps upload speed, recipients must ensure that SLFRF funds are designed to address an identified need for additional broadband investment that is not met by existing federal or state funding commitments. Recipients must also ensure that SLFRF funds will not be used for costs that will be reimbursed by the other federal or state funding streams. Further, Treasury highlights that recipients are subject to the prohibition on use of grant funds to procure or obtain certain telecommunications and video surveillance services or equipment as outlined in 2 CFR 200.216 and 2 CFR 200.471 and clarifies that modernization of cybersecurity for existing and new broadband networks are eligible uses of funds under sections 602(c)(1)(D) and 603(c)(1)(D). Finally, this Supplementary Information to the final rule incorporates and confirms guidance issued by Treasury following the interim final rule regarding middle-mile projects,333 pre-project development costs,334 broadband connections to schools or libraries,335 and applicability of the National Environmental Policy Act (NEPA) and Davis-Bacon Act.336 The remainder of this section provides additional details on the final rule. Specifically, these sections address: (1) Eligible areas for investment; (2) build-to speed standards; (3) affordability; (4) public networks; (5) duplication of efforts and resources; (6) cybersecurity; and (7) use of funds to meet non-federal match under the Infrastructure Investment and Jobs Act. Eligible Areas for Investment The interim final rule limited eligible broadband investments to projects focused on delivering service to unserved or underserved locations, defined as households or businesses that lack access to a wireline connection capable of reliably delivering at least minimum speeds of 25 Mbps download and 3 Mbps upload. This targeted approach was generally consistent with certain speed thresholds used in other federal programs to identify eligible areas for federal investment in broadband infrastructure, such as the FCC’s Rural Digital Opportunity Fund (RDOF) program and the National Telecommunication and Information Administration’s (NTIA’s) Broadband Infrastructure Program, and generally aligns with the FCC’s benchmark for an ‘‘advanced telecommunications capability’’ for wireline broadband services. Public Comment: Many commenters discussed the disadvantages of such an approach. Some commenters, including several local government recipients, argued that limiting investments to locations without access to reliable wireline 25/3 Mbps 337 was too VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00082 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4419 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations Mbps upload speeds. ‘‘100 Mbps’’ symmetrical refers to broadband infrastructure that is designed to reliably meet or exceed at least 100 Mbps download speeds and 100 Mbps upload speeds. 338 See FAQ 6.11. Coronavirus State and Local Fiscal Recovery Funds, Frequently Asked Questions, as of July 19, 2021; https:// home.treasury.gov/system/files/136/SLFRPFAQ.pdf. 339 Legacy technologies such as copper telephone lines (typically using Digital Subscriber Line technology) and early versions of cable system technology (DOCSIS 2.0 or earlier) typically lag on speeds, latency, and other factors, as compared to more modern technologies like fiber-optic. See, e.g., https://www.fcc.gov/sites/default/files/tech_ transitions_network_upgrades_that_may_affect_ your_service.pdf (comparing copper to fiber and noting that copper wire networks have ‘‘limited speeds,’’ are ‘‘susceptible to signal interference/ loss,’’ and have a ‘‘relatively short life’’); https:// Continued restrictive because some urban jurisdictions are already mostly or entirely covered by a network with at least 25/3 Mbps speeds yet lack widespread broadband adoption for various reasons. Commenters suggested that recipients would benefit from greater flexibility to provide necessary investments in broadband access in areas that are nominally covered by speeds of at least 25/3 Mbps, such as to provide affordable broadband access in low-income areas or to address service quality and reliability issues. Further, commenters argued that Treasury’s requirement that new projects meet minimum reliable speeds of 100 Mbps symmetrical was inconsistent with the requirement that broadband infrastructure projects focus on those with access to significantly lower speeds, and further noted that several states have already expanded the focus of their broadband programs beyond those without reliable access to speeds of 25/3 Mbps. Commenters argued that if the limitation to unserved and underserved households and businesses were maintained, the definition of unserved and underserved households and businesses should be revised to include households and businesses currently served by higher standards. Commenters proposed a number of alternative cutoff speeds, including 25/ 25 Mbps, 50/10 Mbps, and 100 Mbps symmetrical. Others expressed support for providing flexibility for recipients to make their own determination on eligible areas for investment. These commenters referenced studies indicating that 25/3 Mbps is inadequate for today’s modern household or business needs. Some commenters advocated for unserved and underserved areas to be prioritized while providing flexibility for recipients to serve areas beyond those designated as unserved or underserved. Reflecting the perceived restrictiveness of the interim final rule approach, some commenters asked for assurance that projects conducted under other categories of SLFRF eligible uses, specifically to respond to the public health and negative economic impacts of the pandemic under sections 602(c)(1)(A)–(C) and 603(c)(1)(A)–(C), were not barred by the presence of 25/ 3 Mbps service, including ‘‘gap networks,’’ which are networks designed to offer low-cost or no-cost internet access for lower-income households with low broadband adoption rates. Commenters suggested additional factors to be incorporated in the consideration of locations that are eligible to be served. Many commenters suggested that affordability should be considered a key factor when determining whether a community has access to broadband, as the presence of 25/3 Mbps service does not necessarily mean the service is financially accessible to the area’s residents. Commenters noted that surveys indicate that affordability, not lack of coverage, is the most significant barrier for most Americans who do not have robust broadband service in their households. Some advocated that the final rule allow for investments in areas with existing reliable wireline access at or above 25/3 Mbps as long as existing broadband service has been unaffordable for a certain segment of the population; others advocated that Treasury presume eligibility when investments are made in certain areas, such as Qualified Census Tracts or neighborhoods with persistent poverty, or are made by Tribal governments. Separately, some commenters noted that Treasury should provide more clarification on what constitutes a ‘‘reliabl[e]’’ connection, including providing details as to latency, jitter, and other technical specifications that would meet that standard, and what it means for certain technologies, such as copper and other outdated technologies, to be deemed presumptively unreliable. Other commenters supported the interim final rule’s approach on eligible areas for investment or suggested tightening eligibility even further. They argued that higher speed thresholds beyond 25/3 Mbps would likely lead to investments in or building of new broadband infrastructure in areas already served by broadband at speeds these commenters considered sufficient; these areas, commenters suggested, are less in need of federal assistance and permitting investments here could divert funding away from rural areas to more densely populated areas. Treasury Response: The final rule expands eligible areas for investment by requiring recipients to invest in projects designed to provide service to households and businesses with an identified need for additional broadband infrastructure investment. Recipients have flexibility to identify a need for additional broadband infrastructure investment: Examples of need include lack of access to a connection that reliably meets or exceeds symmetrical 100 Mbps download and upload speeds, lack of affordable access to broadband service, or lack of reliable broadband service. Recipients are encouraged to prioritize projects that are designed to provide service to locations not currently served by a wireline connection that reliably delivers at least 100 Mbps of download speed and 20 Mbps of upload speed, as many commenters indicated that those without such service constitute hard-to- reach areas in need of subsidized broadband deployment. Households and businesses with an identified need for additional broadband infrastructure investment do not have to be the only ones in the service area served by an eligible broadband infrastructure project. Indeed, serving these households and businesses may require a holistic approach that provides service to a wider area, for example, in order to make ongoing service of certain households or businesses within the service area economical. Consistent with further guidance issued by Treasury,338 in determining areas for investment, recipients may choose to consider any available data, including but not limited to documentation of existing broadband internet service performance, federal and/or state collected broadband data, user speed test results, interviews with community members and business owners, reports from community organizations, and any other information they deem relevant. In evaluating such data, recipients may take into account a variety of factors, including whether users actually receive internet service at or above the speed thresholds at all hours of the day, whether factors other than speed such as latency, jitter, or deterioration of the existing connections make their user experience unreliable, and whether the existing service is being delivered by legacy technologies, such as copper telephone lines (typically using Digital Subscriber Line technology) or early versions of cable system technology (DOCSIS 2.0 or earlier),339 and other factors related to VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00083 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4420 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations data.fcc.gov/download/measuring-broadband- america/2020/2020-Fixed-Measuring-Broadband- America-Report.pdf (comparing fiber with DSL and cable technologies on a number of dimensions); https://www.eff.org/wp/case-fiber-home-today-why- fiber-superior-medium-21st-century-broadband (providing a technical background comparing fiber technology to other legacy technologies). 340 Using the Federal Communications Commission (FCC) Broadband Speed Guide, a household with two telecommuters and two to three remote learners today is estimated to need 100 Mbps download to work simultaneously. See Federal Communications Commission, Broadband Speed Guide, available at https://www.fcc.gov/ consumers/guides/broadband-speed-guide (last visited October 28, 2021). 341 United States’ Mobile and Broadband Internet Speeds—Speedtest Global Index, available at https://www.speedtest.net/global-index/united- states#fixed. 342 Bennett Cyphers, The Case for Fiber to the Home, Today: Why Fiber is a Superior Medium for 21st Century Broadband, Electronic Frontier Foundation (October 16, 2019), https://www.eff.org/ wp/case-fiber-home-today-why-fiber-superior- medium-21st-century-broadband. 343 See FAQ 6.10, Coronavirus State and Local Fiscal Recovery Funds, Frequently Asked Questions, as of July 19, 2021; https:// home.treasury.gov/system/files/136/SLFRPFAQ.pdf. the services to be provided by the project. In addition, recipients may consider the actual experience of current broadband customers when making their determinations; whether there is a provider serving the area that advertises or otherwise claims to offer broadband at a given speed is not dispositive. Build-To Speed Standards The interim final rule provided that a recipient may use funds to make investments in broadband infrastructure that is designed to, upon completion, reliably meet or exceed symmetrical 100 Mbps download and upload speeds. In cases where it is not practicable, because of the excessive cost of the project or the geography or topography of the area to be served by the project, eligible projects may be designed to reliably meet or exceed 100 Mbps download speed and between at least 20 Mbps and 100 Mbps upload speed, so long as it is scalable to a minimum of 100 Mbps download speed and 100 Mbps upload speed. Relatedly, Treasury in the SUPPLEMENTARY INFORMATION to the interim final rule encouraged recipients to prioritize investments in fiber-optic infrastructure wherever feasible and to prioritize projects that achieve last-mile connections. Public Comment: Many commenters discussed the advantages of setting minimum symmetrical download and upload speeds of reliable 100 Mbps as the speed threshold for new projects. Some commenters indicated support for the interim final rule’s standard as it takes into account growing demands on internet use resulting from pandemic broadband usage and suggested that such a standard will help to ensure that networks built with SLFRF funds remain valuable for years to come, even as demands continue to accelerate, particularly on upload speeds. Some also indicated that the interim final rule standard has the effect of prioritizing the use of fiber-optic infrastructure to deliver such speeds, which some noted was a ‘‘gold standard’’ future-proof technology, although some commenters noted that other technologies like fixed wireless have been shown to deliver such speeds in certain circumstances. Other commenters suggested that 100 Mbps symmetrical speeds were unnecessary given current broadband usage needs and that such high standards may have the potential to slow down expansion to unserved or underserved rural areas. Some argued that setting this symmetrical threshold may limit the type of technologies that can be used, thereby decreasing competition and limiting flexibility to recipients whose communities might be better served by technologies such as wireless solutions or inexpensive gap networks. Commenters suggested alternate minimum speeds, ranging from 25/3 Mbps (which some argued best balances reaching all communities and maximizing the impact of federal funds) to 100/20 Mbps (which some argued best serves the typical broadband usage patterns of households and businesses, including new pandemic-driven needs). A few commenters suggested a higher minimum speed, such as gigabit speeds, advocating that such speeds were necessary for a network to last at least a decade. Many commenters supported the interim final rule’s lower speed standards for projects where it is impracticable to meet minimum reliable speeds of 100 Mbps symmetrical, as it provides flexibility for recipients to invest in hard-to-reach areas, such as those in mountainous regions. A few commenters indicated that Treasury should more clearly define the characteristics of a location eligible for this exception. Some indicated that the minimum standard for all new projects should be 100 Mbps symmetrical. In contrast, others argued that scalability to 100 Mbps symmetrical should not be a requirement to meet today’s demands, particularly in hard-to-reach areas. Some commenters requested that Treasury clarify eligibility for middle- mile projects as these projects potentially provide connectivity to far- reaching areas, while other commenters suggested that last-mile projects generally require more capital investment and are therefore most in need of government support. Treasury Response: The final rule maintains the interim final rule’s requirement that eligible projects be designed to, upon completion, reliably meet or exceed symmetrical 100 Mbps download and upload speeds, with the interim final rule’s exception for projects where it is impracticable to build to such speeds due to excessive cost, geography, or topography of the area to be served by the project. Given the build time associated with broadband infrastructure projects, these standards will enable SLFRF funds to fund lasting infrastructure that will be able to accommodate increased network demand once the network is complete,340 while providing flexibility for certain locations to meet lower speed standards where 100 Mbps symmetrical speeds are impracticable. To illustrate the accelerating need for higher upload speeds, by one measure, mean upload speeds as of October 2021 increased to 75.21 Mbps as compared to 62.11 Mbps a year earlier.341 Jurisdictions are increasingly responding to the growing demands of their communities for high speeds; for example, Illinois requires 100 Mbps symmetrical service as the construction standard for their state broadband grant programs. The 100 Mbps symmetrical standard accounts for increased pandemic internet usage and provides adequate upload speeds for individuals and businesses to accommodate interactive applications such as virtual learning and videoconferencing, while also helping ensure that funding is responsibly used to provide a true and lasting benefit for years to come. Treasury continues to encourage recipients to prioritize investments in fiber-optic infrastructure wherever feasible, as such advanced technology enables the next generation of application solutions for all communities and is capable of delivering superior, reliable performance and is generally most efficiently scalable to meet future needs.342 In designing these projects, recipients should ensure that the broadband infrastructure provides ‘‘reliable’’ service at required speeds and are not required to rely on providers’ advertised speeds in their assessments. Consistent with further guidance issued by Treasury,343 while recipients are permitted to make investments in ‘‘middle-mile’’ connections that otherwise satisfy the requirements of the final rule, Treasury continues to encourage recipients to focus on VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00084 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4421 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 344 The Executive Office of the President, Community-Based Broadband Solutions (January 2015), https://obamawhitehouse.archives.gov/sites/ default/files/docs/community-based_broadband_ report_by_executive_office_of_the_president.pdf. projects that will achieve last-mile connections—whether by focusing directly on funding last-mile projects or by ensuring that funded middle-mile projects have commitments in place to support new and/or improved last-mile service. Affordability The interim final rule encouraged recipients to consider ways to integrate affordability options into their program design but did not require recipients to take particular actions. The interim final rule also provided that assisting households with internet access and digital literacy is an eligible use of SLFRF funds under sections 602(c)(1)(A) and 603(c)(1)(A) to respond to the negative economic impacts of COVID–19. Public Comment: Many commenters suggested that Treasury provide recipients with a broader set of tools to tackle what the commenters characterized as an affordability crisis in the broadband sector. As noted above, some commenters proposed that Treasury consider affordability when determining whether an area is unserved or underserved by broadband. Some commenters indicated that the final rule should allow for the construction of broadband networks in low-income neighborhoods including low-cost or no-cost gap networks, even in areas with existing service at the speeds required under the interim final rule. Other commenters voiced support for direct subsidies to low-income communities to afford broadband service, which would provide additional incentives for providers to serve these communities. Treasury Response: In response to many commenters that highlighted the importance of affordability in providing meaningful access to necessary broadband infrastructure, the final rule provides additional requirements to address the affordability needs of low- income consumers in accessing broadband networks funded by SLFRF. Recipients must require the service provider for a completed broadband infrastructure investment project that provides service to households to: •Participate in the Federal Communications Commission’s (FCC) Affordable Connectivity Program (ACP); or •Otherwise provide access to a broad-based affordability program to low-income consumers in the proposed service area of the broadband infrastructure that provides benefits to households commensurate with those provided under the ACP. Recipients must require providers to participate in or provide access to these programs through the life of the ACP. This requirement will no longer apply once the SLFRF-funded broadband infrastructure is no longer in use. Furthermore, Treasury also recognizes the importance of affordable broadband access for all consumers beyond those that are low income. As part of their project selection process, recipients are encouraged to consult with the community on the general affordability needs of the target markets in the proposed service area. Additionally, recipients are encouraged to require that services provided by a broadband infrastructure project include at least one low-cost option offered without data usage caps at speeds that are sufficient for a household with multiple users to simultaneously telework and engage in remote learning. Treasury will require recipients to report speed, pricing, and any data allowance information as part of their mandatory reporting to Treasury. Further, Treasury is clarifying that, as a response to the public health and negative economic impacts of the pandemic, recipients may provide households and communities impacted by the pandemic with subsidies to help pay for internet service, digital literacy programs, broadband adoption programs, and device programs that provide discounted or no-cost devices for low-income households to access the internet. For further discussion of this eligible use category, see the section internet Assistance in Assistance to Households in Public Health and Negative Economic Impacts. Public Networks The interim final rule encouraged recipients to prioritize support for local networks owned, operated, or affiliated with local governments, nonprofits, and cooperatives. Public Comment: Many commenters voiced their support for Treasury’s encouragement that recipients work with governmental or community entities to establish local networks, arguing that they have been shown to effectively provide broadband access to areas that would otherwise be left with unaffordable or insufficient service. These commenters suggested that, since these entities are less driven by financial returns to investment than private providers, in some circumstances they may be able to provide robust service at a lower price as compared to private providers, along with potentially increasing local competition in a service area. Other commenters argued against Treasury’s encouragement, remarking that private businesses have a robust track record of serving hard-to-reach customers. These commenters argued that commercial providers have greater technical and operational expertise in deploying and operating broadband networks and may be able to construct broadband networks with greater efficiency. Additionally, some commenters argued that providing what they considered an unfair competitive advantage for government- or community-owned or operated networks may hurt consumers over time. Treasury Response: The final rule maintains the interim final rule’s encouragement for recipients to prioritize support for broadband networks owned, operated by, or affiliated with local governments, nonprofits, and cooperatives, given that these networks have less pressure to generate profits and a commitment to serve entire communities.344 This encouragement provides flexibility for recipients to select providers that best fit their needs, while noting the critical role that networks owned, operated, or affiliated with local governments and community organizations can play in providing sufficient coverage, affordable access, or increased competition in the broadband sector. Duplication of Efforts and Resources Public Comment: Some commenters raised concerns that Treasury’s encouragement in the interim final rule that recipients avoid funding projects in locations with an existing agreement to provide service that reliably delivers 100/20 Mbps by December 31, 2024 was too restrictive. Commenters noted that many plans do not always lead to a successful and complete deployment, as issues may arise that prevent such infrastructure from deploying on time or at all, and that several existing federal grants were designed and awarded before the onset of the COVID–19 pandemic and do not meet the critical broadband needs highlighted by the pandemic. Other commenters argued that Treasury’s encouragement to avoid duplication of resources should be strengthened, as investing in areas with existing agreements would be an inefficient duplication of efforts. Treasury Response: Given the final rule’s revised requirements on eligible areas for investment, this VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00085 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4422 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 345 For more on the importance of cybersecurity to the reliability and resiliency of broadband networks, see: Federal Communications Commission, https://docs.fcc.gov/public/ attachments/FCC-10-63A1.doc; Brookings Institute, Protecting the Cybersecurity of America’s Networks (February 11, 2021), https://www.brookings.edu/ blog/techtank/2021/02/11/protecting-the- cybersecurity-of-americas-networks/. 346 See Infrastructure Investment and Jobs Act, Public Law 117–58 (2021). Supplementary Information to the final rule also modifies the interim final rule’s requirements around duplication of resources. Since recipients must ensure that the objective of the broadband projects is to serve locations with an identified need for additional broadband investment, the final rule provides that, to the extent recipients are considering deploying broadband to locations where there are existing enforceable federal or state funding commitments for reliable service at speeds of at least 100 Mbps download speed and 20 Mbps upload speed, recipients must ensure that SLFRF funds are designed to address an identified need for additional broadband investment that is not met by existing federal or state funding commitments. Recipients must also ensure that SLFRF funds will not be used for costs that will be reimbursed by the other federal or state funding streams. Cybersecurity Public Comment: Several commenters expressed concern about the cybersecurity of new broadband projects funded with SLFRF funds and urged Treasury to prohibit recipients from utilizing SLFRF funds to procure equipment from certain providers from the People’s Republic of China that may pose a national security risk. These commenters pointed out that the 2019 National Defense Authorization Act (NDAA) and the FCC’s Universal Service Fund have similar prohibitions. Further, several commenters requested that Treasury explicitly include cybersecurity costs as an eligible use for broadband infrastructure investment given the growing threat of cyber-attacks and cyber-intrusions into the nation’s infrastructure. Treasury Response: Treasury highlights that investments in broadband infrastructure must be carried out in ways that comply with applicable federal laws, including the 2019 NDAA. Among other requirements contained in 2 CFR part 200, 2 CFR 200.216 implements certain provisions of the NDAA and contains prohibitions on the use of federal financial assistance to procure or obtain certain telecommunications and video surveillance services or equipment provided or produced by designated entities, including certain entities owned or controlled by the People’s Republic of China. In addition, 2 CFR 200.471 provides that certain telecommunications and video surveillance costs associated with 2 CFR 200.216 are unallowable. Further, the final rule allows for modernization of cybersecurity for existing and new broadband infrastructure as an eligible use under sections 602(c)(1)(D) and 603(c)(1)(D) as such investments are necessary for the reliability and resiliency of broadband infrastructure.345 Recipients may provide necessary investments in cybersecurity, including modernization of hardware and software, for existing and new broadband infrastructure regardless of their speed delivery standards. The final rule maintains the interim final rule’s provision that allows for broader modernization of cybersecurity, including hardware, software, and protection of critical infrastructure as an eligible provision of government services, to the extent of revenue loss due to the pandemic, under sections 602(c)(1)(C) and 603(c)(1)(C). Use of Funds To Meet Non-Federal Match Under the Infrastructure Investment and Jobs Act The Infrastructure Investment and Jobs Act specifies that, except as otherwise provided, an entity using funding under section 60102 of the law for broadband deployment ‘‘shall provide, or require a subgrantee to provide, a contribution, derived from non-Federal funds (or funds from a Federal regional commission or authority) . . . of not less than 25 percent of project costs.’’346 It further states that the matching contribution may include funds provided to an eligible entity or subgrantee under the American Rescue Plan Act for the purpose of deployment of broadband service, which includes funds provided under the SLFRF program. SLFRF and the program established under section 60102 of the Infrastructure Investment and Jobs Act are separate programs with separate requirements. While section 60102 allows states and other eligible entities to use SLFRF funds as the source of matching funds for broadband deployment, the requirements of the SLFRF program still apply. As such, recipients that use SLFRF funds to meet the section 60102 matching requirement will continue to be subject to the requirements of the SLFRF program. III. Restrictions on Use While recipients have considerable flexibility to use funds to address the diverse needs of their communities, some restrictions on use of funds apply. The ARPA includes two statutory provisions that further define the boundaries of the statute’s eligible uses. First, section 602(c)(2)(A) of the Social Security Act provides that states and territories may not ‘‘use the funds . . . to either directly or indirectly offset a reduction in . . . net tax revenue . . . resulting from a change in law, regulation, or administrative interpretation during the covered period that reduces any tax . . . or delays the imposition of any tax or tax increase.’’ Second, sections 602(c)(2)(B) and 603(c)(2) prohibit all recipients, except Tribal governments, from using funds for deposit into any pension fund. These restrictions support use of funds only for the congressionally permitted purposes described in the Eligible Uses section by providing a backstop against the use of funds for purposes outside of the eligible use categories provided for in the statute. In addition to the restrictions on use of funds provided for in the ARPA statute, the interim final rule noted that several uses of funds would be ineligible under any eligible use category, including as a response to the public health and negative economic impacts of the pandemic or as a ‘‘government service’’ under the revenue loss eligible use category. Specifically, use of funds for debt service, to replenish financial reserves, or to satisfy an obligation arising from a judicial settlement or judgment were ineligible uses of funds under the eligible use categories for public health and negative economic impacts and revenue loss. These restrictions apply to all recipients. Recipients should note that restrictions on use of funds for debt service, to replenish financial reserves, or to satisfy an obligation arising from a judicial settlement or judgment apply to all eligible use categories, not just the eligible use categories in which they were discussed in the interim final rule. Recipients are also subject to other restrictions on use of funds in the ARPA, the Award Terms and Conditions, and other federal laws. As discussed further below, uses of funds may not conflict with the overall statutory purpose of the ARPA to reduce the spread of COVID–19. Per the Award Terms and Conditions, recipients must adopt and abide by policies to prevent conflicts of interest. Finally, recipients are reminded that other federal laws VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00086 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4423 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 347 In this sub-section, ‘‘recipient governments’’ refers only to states and territories. In other sections, ‘‘recipient governments’’ refers more broadly to eligible governments receiving funding from the SLFRF. 348 For brevity, this phrase is referred to as ‘‘changes in law, regulation, or interpretation’’ for the remainder of this SUPPLEMENTARY INFORMATION. also apply to uses of funds, including environmental and civil rights laws. To enhance clarity, this SUPPLEMENTARY INFORMATION for the final rule consolidates these restrictions on use of funds into one section and makes clear that they apply to all eligible use categories and any use of funds under the program by recipients to whom each specific restriction applies. This section discusses the aforementioned restrictions, public comments received, and Treasury’s response to these comments. For clarity, Treasury has divided the following discussion into (A) statutory restrictions under the ARPA, which include (1) offsetting a reduction in net tax revenue, and (2) deposits into pension funds, and (B) other restrictions on use, which include (1) debt service and replenishing reserves, (2) settlements and judgments, and (3) general restrictions. A. Ineligible Uses of Funds Under the ARPA Statute 1. Offset a Reduction in Net Tax Revenue For states and territories (recipient governments 347), section 602(c)(2)(A)— the offset provision—prohibits the use of SLFRF funds to directly or indirectly offset a reduction in net tax revenue resulting from a change in law, regulation, or administrative interpretation 348 during the covered period. If a state or territory uses SLFRF funds to offset a reduction in net tax revenue resulting from a change in law, regulation, or interpretation, the ARPA provides that the state or territory must repay to Treasury an amount equal to the lesser of (i) the amount of the applicable reduction attributable to the impermissible offset and (ii) the amount of SLFRF funds received by the state or territory. A state or territory that uses SLFRF funds to offset a reduction in net tax revenue does not forfeit its entire allocation of SLFRF funds (unless it misused the full allocation to offset a reduction in net tax revenue) or any non-SLFRF funding. The interim final rule implements these conditions by establishing a framework for states and territories to determine the cost of changes in law, regulation, or interpretation that reduce tax revenue and to identify and value the sources of funds that will offset— i.e., cover the cost of—any reduction in net tax revenue resulting from such changes. The interim final rule recognizes three sources of funds that may offset a reduction in net tax revenue other than SLFRF funds: Organic revenue growth, increases in revenue due to policy changes (e.g., an increase in a tax rate), and certain cuts in spending. Specifically, the interim final rule establishes a step-by-step process for determining whether, and the extent to which, SLFRF funds have been used to offset a reduction in net tax revenue, based on information reported by the recipient government: •First, each year, each recipient government will identify and value the changes in law, regulation, or interpretation that would result in a reduction in net tax revenue, as it would in the ordinary course of its budgeting process. The sum of these values in the year for which the government is reporting is the amount it needs to ‘‘pay for’’ with sources other than SLFRF funds (total value of revenue reducing changes). •Second, the interim final rule recognizes that it may be difficult to predict how a change would affect net tax revenue in future years and, accordingly, provides that if the total value of the changes in the year for which the recipient government is reporting is below a de minimis level, as discussed below, the recipient government need not identify any sources of funding to pay for revenue reducing changes and will not be subject to recoupment. •Third, a recipient government will consider the amount of actual tax revenue recorded in the year for which it is reporting. If the recipient government’s actual tax revenue is greater than the amount of tax revenue received by the recipient for the fiscal year ending 2019, adjusted annually for inflation, the recipient government will not be considered to have violated the offset provision because there will not have been a reduction in net tax revenue. •Fourth, if the recipient government’s actual tax revenue is less than the amount of tax revenue received by the recipient government for the fiscal year ending 2019, adjusted annually for inflation, in the reporting year the recipient government will identify any sources of funds that have been used to permissibly offset the total value of covered tax changes other than SLFRF funds. These are: Æ State or territory tax changes that would increase any source of general fund revenue, such as a change that would increase a tax rate; and Æ Spending cuts in areas not being replaced by SLFRF funds. The recipient government will calculate the value of revenue reduction remaining after applying these sources of offsetting funding to the total value of revenue reducing changes—that is, how much of the tax change has not been paid for. The recipient government will then compare that value to the difference between the baseline and actual tax revenue. A recipient government will not be required to repay to Treasury an amount that is greater than the recipient government’s actual tax revenue shortfall relative to the baseline (i.e., fiscal year 2019 tax revenue adjusted for inflation). This ‘‘revenue reduction cap,’’ together with Step 3, ensures that recipient governments can use organic revenue growth to offset the cost of revenue reductions. •Finally, if there are any amounts that could be subject to recoupment, Treasury will provide notice to the recipient government of such amounts along with an explanation of such amounts. This process is discussed in greater detail in section Remediation and Recoupment of this Supplementary Information. Together, these steps allow Treasury to identify the amount of reduction in net tax revenue that both is attributable to covered changes and has been directly or indirectly offset with SLFRF funds. Overview of Comments: Many commenters supported the framework established under the interim final rule. These commenters argued that the offset provision, and the interim final rule’s implementation of the offset provision, was essential to ensuring SLFRF funds are used in a manner consistent with the statute’s defined eligible uses and, in particular, to support the use of SLFRF funds to build public sector capacity. Several commenters argued that the framework should be made more restrictive; for example, some comments advocated that the offset provision be applied to local governments. Other commenters argued that the offset provision and the interim final rule’s implementation of the offset provision is too restrictive, with some asserting that the offset provision prohibits states from making changes to reduce taxes. Many of these commenters argued that the offset provision presents constitutional concerns. These commenters asserted that the offset provision is ambiguous and the restriction is unrelated to the purpose of the ARPA. These commenters also VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00087 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4424 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 349 See, e.g., State of West Virginia v. U.S. Department of the Treasury, No. 7:21–cv–00465– LSC, 2021 WL 2952863 (N.D. Ala. Jul. 14, 2021); State of Ohio v. Yellen, No. 1:21–cv–181, 2021 WL 2712220 (S.D. Ohio Jul. 1, 2021). 350 National Fed’n of Indep. Bus. v. Sebelius (NFIB), 567 U.S. 519, 580 (2012) (plurality opinion); see, e.g., South Dakota v. Dole, 483 U.S. 203, 206– 208 (1987); Gruver v. Louisiana Bd. of Supervisors for Louisiana State Univ. Agric. & Mech. Coll., 959 F.3d 178, 183 (5th Cir.), cert. denied, 141 S. Ct. 901 (2020). For additional discussion of these issues, see, e.g., Brief Reply for Appellants, Ohio v. Yellen, No. 21–3787 (6th Cir. Oct. 26, 2021). 351 Sabri v. United States, 541 U.S. 600, 608 (2004). 352 The new federal funds offered by the Affordable Care Act totaled $100 billion per year. Even the dissenting Justices agreed that ‘‘Congress could have made just the new funding provided under the ACA contingent on acceptance of the terms of the Medicaid Expansion,’’ although they disagreed with the majority about whether that funding condition was severable. NFIB at 687–688 (joint dissent). 353 For example, a state law that sets its earned income tax credit (EITC) at a fixed percentage of the federal EITC will see its EITC payments automatically increase—and thus its tax revenue reduced—because of the federal government’s expansion of the EITC in the ARPA See, e.g., Tax argued that the generous amount of SLFRF funds provided to those governments gave recipient governments little choice as to whether to accept the SLFRF funds and, as a result, the offset provision is coercive. In describing these concerns and arguments, several of these commenters referenced litigation regarding the offset provision.349 Many of these commenters also expressed concern regarding the interim final rule’s implementation of the offset provision. Some of these commenters argued that Treasury lacked the authority to implement the provision, asserting that the significance of the provision required Congress to make an explicit delegation of rulemaking authority and provide clearer principles by which Treasury should implement the provision. Finally, one commenter argued that the offset provision should only apply if the recipient expressly and intentionally uses SLFRF funds to offset a reduction in revenue, arguing that the term ‘‘offset’’ implies a deliberate use SLFRF funds to ‘‘pay for’’ a tax cut. As discussed in the interim final rule, the offset provision does not prevent a recipient government from enacting a broad variety of tax changes. Rather, the offset provision prevents a recipient government from using SLFRF funds to offset a revenue reduction resulting from a tax cut. A recipient government would only be considered to have used SLFRF funds to offset a reduction in net tax revenue resulting from changes in law, regulation, or interpretation if, and to the extent that, the recipient government could not identify sufficient funds from sources other than SLFRF funds to offset the reduction in net tax revenue. Only if sufficient funds from other sources cannot be identified to cover the full cost of the reduction in net tax revenue resulting from changes in law, regulation, or interpretation, will the remaining amount not covered by these sources be considered to have been offset by SLFRF funds, in contravention of the offset provision. Consistent with the statutory text, the approach taken in the interim final rule recognizes that, because money is fungible, even if SLFRF funds are not explicitly or directly used to cover the costs of changes that reduce net tax revenue, those funds may be used in a manner inconsistent with the statute by indirectly being used to substitute for the state’s or territory’s funds that would otherwise have been needed to cover the costs of the reduction. As discussed below, the scope of changes in law, regulation, or interpretation is further limited to those that the recipient government voluntarily enacted during the covered period. Congress has the authority under the Spending Clause in Article I, section 8 of the Constitution to specify the permissible and impermissible uses of federal grants. The Supreme Court has repeatedly ‘‘upheld Congress’s authority to condition the receipt of funds on the States’ complying with restrictions on the use of those funds, because that is the means by which Congress ensures that the funds are spent according to its view of the ‘general Welfare.’’’350 ‘‘The power to keep a watchful eye on expenditures . . . is bound up with congressional authority to spend in the first place.’’351 Assertions that the amount of SLFRF funds are sufficiently large to be coercive are inconsistent with the Supreme Court’s reasoning in NFIB, which distinguished between conditions placed on new federal funds and conditions placed on existing federal funds and not based on the size of funds.352 Further, the conditions placed on the use of SLFRF funds under the ARPA—both the eligible uses and additional limitations on deposits into pension funds and the offset provision—were well known to recipient governments prior to recipient governments requesting to receive SLFRF funds. Finally, the ARPA provides Treasury with the express authority ‘‘to issue such regulations as may be necessary or appropriate to carry out’’ section 602, which includes the offset provision. A number of commenters expressed concern regarding the burden associated with complying with the offset provision and the interim final rule. Similarly, other commenters argued that the framework provided in the interim final rule complicated implementation of the offset provision. Treasury took several steps to minimize burden for recipient governments in the interim final rule. For example, the interim final rule incorporates the types of information and modeling already used by states and territories in their own fiscal and budgeting processes. By incorporating existing budgeting processes and capabilities, states and territories will be able to assess and evaluate the relationship of tax and budget decisions to uses of SLFRF funds based on information they likely have or can readily obtain. This approach ensures that recipient governments have the information they need to understand the implications of their decisions regarding the use of SLFRF funds—and, in particular, whether they are using the funds to directly or indirectly offset a reduction in net tax revenue resulting from a change in law, regulation, or interpretation, making the funds potentially subject to recoupment. To further reduce burden, Treasury is considering whether the scope of reporting requirements can be further tailored. As described in greater detail below, Treasury is finalizing its implementation of the offset provision largely without change. This approach is consistent with the text of the ARPA. The remainder of this section discusses and responds to comments on specific aspects of the framework. 1. Definitions Covered change. The offset provision is triggered by a reduction in net tax revenue resulting from ‘‘a change in law, regulation, or administrative interpretation.’’ Consistent with this language, the interim final rule defines a ‘‘covered change’’ to include any final legislative or regulatory action, a new or changed administrative interpretation, and the phase-in or taking effect of any statute or rule where the phase-in or taking effect was not prescribed prior to the start of the covered period. Thus, the offset provision applies only to actions for which the change in policy occurs during the covered period; it excludes regulations or other actions that implement a change or law substantively enacted prior to March 3, 2021. For example, covered changes do not include a change in rate that is triggered automatically and based on statutory or regulatory criteria in effect prior to the covered period.353 Changed VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00088 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4425 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations Policy Center, How do state earned income tax credits work?, https://www.taxpolicycenter.org/ briefing-book/how-do-state-earned-income-tax- credits-work/ (last visited May 9, 2021). 354 Assistance must be consistent with eligible uses of SLFRF funds. See section Eligible Uses of this SUPPLEMENTARY INFORMATION. 355 See Statement on State Fiscal Recovery Funds and Tax Conformity, April 7, 2021, available at https://home.treasury.gov/news/press-releases/ jy0113. 356 U.S. Census Bureau, Annual Survey of State and Local Government Finances Glossary, https:// www.census.gov/programs-surveys/state/about/ glossary.html (last visited Apr. 30, 2021). administrative interpretations would not include corrections to replace prior inaccurate interpretations; such corrections would instead be treated as changes implementing legislation enacted or regulations issued prior to the covered period. The operative change in those circumstances is the underlying legislation or regulation that occurred prior to the covered period. Moreover, only changes within the control of the state or territory are considered covered changes. Finally, covered changes do not include changes that simply conform with recent changes in federal law (including those to conform to recent changes in federal taxation of unemployment insurance benefits and taxation of loan forgiveness under the Paycheck Protection Program). Scope of Covered Changes Public Comment: Several commenters argued that the definition of covered change, and thus the limitations of the offset provision, should apply to subsidies for businesses. Similarly, other commenters requested that Treasury clarify that the offset provision applies to tax abatements and reductions in corporate taxes, even if administered by a sub-unit of the recipient government. Citing to empirical research and other evidence, these commenters argued that these types of economic development policies were poorly administered, reduced public sector capacity, and were ineffective at achieving stated objectives of creating jobs, increasing income, and increasing economic growth. On the other hand, some commenters argued that, because subsidies were economically similar to some tax cuts, neither action should be considered a covered change and subject to the offset provision. Finally, other commenters requested that Treasury clarify whether covered changes must be broad-based policies or whether administrative decisions applicable to individuals would be considered covered changes. Treasury Response: Section 602(c)(2)(A) applies to any change that ‘‘reduces any tax (by providing for a reduction in a rate, a rebate, a deduction, a credit, or otherwise or delays the imposition of any tax or tax increase.’’ Accordingly, and consistent with this statutory text, the final rule applies to covered changes that reduce any tax, which can include tax abatements, but does not apply to loans, grants, or other types of interventions that do not reduce tax revenue.354 In addition, by including changes in regulation or administrative interpretation, in addition to changes in law, within the scope of the offset provision, the ARPA recognizes that a recipient government may make a covered change through its legislature or may delegate the authority to make a covered change including, but not limited to, to a sub-unit of government. Treasury has revised the definition of ‘‘covered change’’ in the final rule using the statutory language above to make clear that the offset provision only applies to such changes in law, regulation, or administrative interpretation. With respect to the question of whether covered changes could include administrative decisions applicable to individuals, as discussed above, a covered change includes a change in law, regulation, or administrative interpretation that reduces any tax. Such changes may apply to one or more individuals or entities, provided that—consistent with the statutory text—they result from a change in law, regulation, or administrative interpretation. Prior Enactment and Phase-In Public Comment: A number of commenters expressed concern, or requested clarification, regarding changes that were enacted prior to the covered period but take effect or phase- in during the covered period. Several commenters argued that the definition of covered change should include changes that were made prior to the covered period but that phase-in during the covered period. Treasury Response: As discussed above, the offset provision is triggered by a reduction in net tax revenue resulting from ‘‘a change in law, regulation, or administrative interpretation’’ made during the covered period. Consistent with the statutory text, ‘‘covered change’’ is defined to include any final legislative or regulatory action, a new or changed administrative interpretation, and the phase-in or taking effect of any statute or rule where the phase-in or taking effect was not prescribed prior to the start of the covered period. Conformity Public Comment: A number of commenters requested clarification on the scope of covered changes. Specifically, several commenters requested clarification on the scope of changes that would be considered as conforming to recent changes in federal law. These commenters requested that Treasury clarify whether actions to selectively conform with federal law would be considered covered changes and requested clarification regarding the extent to which changes would be considered ‘‘recent.’’ For example, these commenters requested clarification regarding conformance with the Global Intangible Low-Taxed Income provision of the 2017 Tax Cuts and Jobs Act. Some commenters further argued that changes that selectively conform or decouple from the Internal Revenue Code should be included within scope of covered changes and thus subject to the offset provision. Treasury Response: The final rule maintains the treatment of changes that simply conform with recent changes in federal law, such as those to conform to recent changes in federal taxation of unemployment insurance benefits and taxation of loan forgiveness under the Paycheck Protection Program 355 and including other changes over the past several years. Regardless of the particular method of conformity and the effect on net tax revenue, Treasury views such changes as permissible under the offset provision. Accordingly, and for the reasons discussed above, Treasury is maintaining the definition of covered change without change. Tax revenue. The interim final rule’s definition of ‘‘tax revenue’’ is based on the Census Bureau’s definition of taxes, used for its Annual Survey of State Government Finances.356 It provides a consistent, well-established definition with which states and territories will be familiar and is consistent with the approach taken in section Revenue Loss of this SUPPLEMENTARY INFORMATION describing the implementation of sections 602(c)(1)(C) and 603(c)(1)(C) of the Social Security Act regarding revenue loss. A number of commenters expressed concern and requested clarification regarding the definition of ‘‘tax revenue.’’ These comments and responses are discussed in section Revenue Loss of this Supplemental Information and, for the reasons discussed above, Treasury is finalizing the definition of tax revenue without VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00089 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4426 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 357 As discussed in section Revenue Loss of this Supplementary Information, for purposes of measuring revenue lost due to the pandemic under sections 602(c)(1)(C) and 603(c)(1)(C), recipients must adjust the amount of revenue lost to reflect changes that resulted from a tax increase or decrease. These adjustments do not apply to or affect the definition of tax revenue. 358 U.S. Department of Commerce, Bureau of Economic Analysis, GDP Price Deflator, https:// www.bea.gov/data/prices-inflation/gdp-price- deflator (last visited Apr. 30, 2021). The FY 2019 baseline revenue is adjusted annually for inflation to allow for direct comparison of actual tax revenue in each year (reported in nominal terms) to baseline revenue in common units of measurement; without inflation adjustment, each dollar of reported actual tax revenue would be worth less than each dollar of baseline revenue expressed in 2019 terms. 359 Economy Statement by Catherine Wolfram, Acting Assistant Secretary for Economy Policy, for the Treasury Borrowing Advisory Committee November 1, 2021 (Nov. 1, 2021), available at https://home.treasury.gov/news/press-releases/ jy0453. 360 One commenter requested clarification that references to fiscal year refer to the fiscal year of the recipient. ‘‘Reporting year’’ is defined in the interim final rule and final rule to mean ‘‘a single year or partial year within the covered period, aligned to the current fiscal year of the State or Territory during the covered period.’’ 361 By permitting recipient governments to use actual or estimated values, the interim final rule and final rule provide flexibility to recipients and thus minimizes burden. change and maintaining a consistent definition of ‘‘tax revenue.’’357 Baseline. For purposes of measuring a reduction in net tax revenue, the interim final rule measures actual changes in tax revenue relative to a revenue baseline (baseline). The baseline is calculated as fiscal year 2019 (FY 2019) tax revenue indexed for inflation in each year of the covered period, with inflation calculated using the Bureau of Economic Analysis’s Implicit Price Deflator.358 Public Comment: Some commenters expressed concern regarding the choice of FY 2019 as the baseline, arguing that the choice lacked justification and would make the offset provision more restrictive as applied to recipient governments that experienced a decline in revenue independent of making any covered changes. Treasury Response: Measuring a ‘‘reduction’’ in net tax revenue requires identification of a baseline. In other words, a ‘‘reduction’’ can be assessed only by comparing two amounts. The Act defines ‘‘covered period’’ to begin on March 3, 2021, and thus the baseline year must end prior to March 3, 2021. As discussed in the interim final rule, FY 2019 is the last full fiscal year prior to the COVID–19 public health emergency, and thus is consistent with the statutory definition and does not include the extraordinary effects of the pandemic that began in 2020. Further, as discussed above, the interim final rule recognizes three potential ways that a recipient government may offset or ‘‘pay for’’ a reduction in net tax revenue due to a covered change: Increases in taxes, decreases in spending, and organic revenue growth. U.S. gross domestic product rebounded to exceed its pre-pandemic level in 2021,359 suggesting that an FY 2019 pre- pandemic baseline is a reasonable comparator for future revenue levels and provides recipients with flexibility to identify organic growth as a permissible offset. Finally, this baseline year is consistent with the approach directed by sections 602(c)(1)(C) and 603(c)(1)(C), which identify the ‘‘most recent full fiscal year of the [state, territory, or Tribal government] prior to the emergency’’ as the comparator for measuring revenue loss. For these reasons, Treasury is finalizing the definition of ‘‘baseline’’ without change. The interim final rule includes several other definitions that are applicable to the implementation of the offset provision, such as the term ‘‘reporting year.’’360 Commenters did not express concern regarding other definitions in the interim final rule. 2. Framework The interim final rule provides a step- by-step framework, to be used in each reporting year, to determine whether a state or territory used SLFRF funds to offset a reduction in net tax revenue. Consistent with section 602(c)(2) and the interim final rule, the final rule applies to states and territories: (1) Covered changes that reduce tax revenue. Under the interim final rule, a recipient government identifies and values covered changes that the recipient government predicts will have the effect of reducing tax revenue in a given reporting year, similar to the way it would in the ordinary course of its budgeting process. The interim final rule states that the value of these covered changes may be reported based on estimated values produced by a budget model, incorporating reasonable assumptions, that aligns with the recipient government’s existing approach for measuring the effects of fiscal policies, and that measures these effects relative to a current law baseline. If the recipient would prefer, the covered changes may also be reported based on actual values using a statistical methodology to isolate the change in year-over-year revenue attributable to the covered change(s), relative to the current law baseline prior to the change(s).361 Further, estimation approaches may not use dynamic methodologies that incorporate the projected effects of macroeconomic growth because macroeconomic growth is accounted for separately in the framework. Estimation Public Comment: A number of commenters expressed concern that estimating the value of covered changes required a number of assumptions and that the actual effects of covered changes on tax revenue would be difficult to predict. Several commenters expressed support for the interim final rule’s approach to dynamic scoring methodologies, and one commenter argued that the final rule should prohibit the use of prior cash balances in calculations of permissible tax cuts. Treasury Response: Treasury recognizes that estimating the effects of covered changes requires assumptions and that many other factors influence the amount of tax revenue received. The interim final rule addresses these concerns in several ways. First, in general and where possible, reporting should be produced by the agency of the recipient government responsible for estimating the costs and effects of fiscal policy changes. This approach offers recipient governments the flexibility to determine their reporting methodology based on their existing budget scoring practices and capabilities. In addition, by relying on scoring methodologies that do not incorporate projected effects of macroeconomic growth, the estimation of the value of covered changes relies on fewer assumptions and thus provide greater consistency among states and territories. Finally, as discussed below, the interim final rule includes a de minimis threshold, below which the sum of covered changes will be deemed not to have any revenue- reducing effects. Timing of the Impact of Covered Changes Public Comment: Several commenters expressed concern that recipient governments, to evade the offset provision, may backload the costs of certain covered changes outside of the covered period, and advocated that covered changes be instead evaluated as the net present value in the year that the covered change is enacted. These commenters argued that some tax cuts could have effects on tax revenue for many decades or could be structured to take effect after the end of the covered period. Treasury Response: As discussed in section Timeline for Use of SLFRF Funds, SLFRF funds must be used to cover costs incurred prior to December 31, 2024. Accordingly, SLFRF funds VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00090 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4427 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 362 Data provided by the Urban-Brookings Tax Policy Center for state-level EITC changes for 2004– 2017. generally would not be able to offset a reduction in net tax revenue occurring after December 31, 2024. For these reasons, Treasury is maintaining this element of the interim final rule without change. (2) In excess of the de minimis. Under the framework established in the interim final rule, after establishing that a covered change occurred, the recipient government next calculates the total value of all covered changes in the reporting year resulting in revenue reductions, identified in Step 1. If the total value of the revenue reductions resulting from these changes is below the de minimis level, the recipient government is deemed not to have any revenue-reducing changes for the purpose of determining the recognized net reduction. If the total is above the de minimis level, the recipient government must identify sources of in-year revenue to cover the full costs of changes that reduce tax revenue. Under the interim final rule, the de minimis level is calculated as 1 percent of the reporting year’s baseline. Public Comment: Many commenters supported the inclusion of the de minimis, noting that the de minimis protects recipients from penalty resulting from minor or incidental changes, minimizes administrative burden, and enhances predictability of the application of the offset provision. Some commenters expressed concern that the fixed threshold could result in cliff effects. Treasury Response: A clear de minimis threshold supports recipient governments’ compliance with the offset provision. A de minimis level recognizes the inherent challenges and uncertainties that recipient governments face, and thus allows relatively small reductions in tax revenue without consequence. In other words, states and territories may make many small changes to alter the composition of their tax revenues or implement other policies with marginal effects on tax revenues. They may also make changes based on projected revenue effects that turn out to differ from actual effects, unintentionally resulting in minor revenue changes that are not fairly described as ‘‘resulting from’’ tax law changes. However, a de minimis does not automatically result in consequences under the offset provision, since a recipient government could demonstrate that other, non- SLFRF funds to offset a net reduction in tax revenue. Accordingly, any cliff effects associated with a clear de minimis threshold are mitigated by other aspects of the framework. Public Comment: Commenters expressed a range of views regarding the amount of the de minimis. Some commenters argued that the de minimis was too generous, noting that the choice of 1 percent could, in some cases, permit reductions in net tax revenue of hundreds of millions of dollars. These commenters advocated that the de minimis be lowered (e.g., to 25 basis points) or be tied to a fixed amount. Other commenters argued that the choice of de minimis was not well supported by the statute, advocated for a larger de minimis and suggested that the amount be tied to the recipient government’s total expenditures in the prior fiscal year. Treasury Response: Treasury adopted a de minimis threshold as an administrative accommodation for the reasons discussed above. As discussed in the interim final rule, Treasury determined that the 1 percent de minimis level reflects the historical reductions in revenue due to minor changes in state fiscal policies and was determined by assessing the historical effects of state-level tax policy changes in state EITCs implemented to effect policy goals other than reducing net tax revenues.362 For these reasons, Treasury is adopting the 1 percent de minimis without change. (3) Safe harbor. Next, under the interim final rule, if the revenue reduction caused by the covered changes exceeds the 1 percent de minimis threshold, the recipient government compares the reporting year’s actual tax revenue to the baseline. If actual tax revenue is greater than the baseline, Treasury will deem the recipient government not to have any recognized net reduction for the reporting year, and therefore to be in a safe harbor and outside the ambit of the offset provision. This approach is consistent with the ARPA, which contemplates recoupment of SLFRF funds only in the event that such funds are used to offset a reduction in net tax revenue. If net tax revenue has not been reduced, the offset provision does not apply. In the event that actual tax revenue is above the baseline, the organic revenue growth that has occurred, plus any other revenue-raising changes, by definition must have been enough to offset the in-year costs of any covered changes. One commenter argued that the offset for organic growth be adjusted to reflect population growth. To minimize administrative burden, and for the reasons discussed above, Treasury is maintaining the measurement of actual tax revenue without adjustment for population growth. (4) Consideration of other sources of funding. The recipient government will then identify and calculate the total value of changes that could pay for revenue reduction due to covered changes and sum these items. This amount can be used to pay for up to the total value of revenue-reducing changes in the reporting year. These changes consist of two categories: (a) Tax and other increases in revenue. The recipient government must identify and consider covered changes in policy that the recipient government predicts will have the effect of increasing general revenue in a given reporting year. Recipient governments should use the same approach to identify and value covered changes that increase tax revenue as applied to covered changes that reduce tax revenue. For the reasons discussed above, Treasury is adopting these aspects of identifying and valuing covered changes without change. (b) Covered spending cuts. A recipient government also may cut spending in certain areas to pay for covered changes that reduce tax revenue, up to the amount of the recipient government’s net reduction in total spending as described below. These changes must be reductions in government outlays in an area where the recipient government has not spent SLFRF funds. To better align with existing reporting and accounting, the interim final rule considers the department, agency, or authority from which spending has been cut and whether the recipient government has spent SLFRF funds on that same department, agency, or authority. If the recipient government has not spent SLFRF funds in a department, agency, or authority, the full amount of the reduction in spending counts as a covered spending cut, up to the recipient government’s net reduction in total spending. If they have spent SLFRF funds in such department, agency, or authority, the SLFRF funds generally would be deemed to have replaced the amount of spending cut and only reductions in spending above the amount of SLFRF funds spent on the department, agency, or authority would count. This approach—allowing only spending reductions in areas where the recipient government has not spent SLFRF funds to be used as an offset for a reduction in net tax revenue—aims to prevent recipient governments from using SLFRF funds to supplant state or territory funding in the eligible use VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00091 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4428 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 363 This cap is applied in section 35.8(c) of the final rule, calculating the amount of funds used in violation of the tax offset provision. 364 See Reporting Guidance, Section C.11, available at https://home.treasury.gov/system/files/ 136/SLFRF-Compliance-and-Reporting- Guidance.pdf. areas, and then using those state or territory funds to offset tax cuts. Such an approach helps ensure that SLFRF funds are not used to ‘‘indirectly’’ offset revenue reductions due to covered changes. Department, Agency, or Authority Public Comment: Several commenters supported the interim final rule’s approach to considering spending cuts at the department, agency, or authority level, on the basis that this approach is supported by the statutory language prohibiting SLFRF funds from being used to ‘‘directly or indirectly’’ offset a reduction in net tax revenue. On the other hand, some commenters argued that the methodology for identifying offsetting spending cuts was too restrictive; specifically, that measurement at the agency or department-level may not adequately account for the size and various programs that could occur in one agency or department. One commenter argued that recipient governments should instead be permitted to consider spending cuts on a more granular sub- unit of a department but noted that this additional flexibility would come at the cost of transparency and clarity. Treasury Comment: Treasury recognizes that some recipients may vary in their budgeting processes, with some budgeting on a department level and others budgeting at more or less granular sub-units of government. Relying on spending at a department, agency, or authority level allows recipient governments to report how SLFRF funds have been spent using reporting units already incorporated into their budgeting process. Spending Cuts Baseline Under the interim final rule, to calculate the amount of spending cuts that are available to offset a reduction in tax revenue, the recipient government must first consider whether there has been a reduction in total net spending, excluding SLFRF funds (net reduction in total spending). This approach ensures that reported spending cuts actually create fiscal space, rather than simply offset other spending increases. A net reduction in total spending is measured as the difference between total spending in each reporting year, excluding SLFRF funds spent, relative to total spending for the recipient’s fiscal year ending in 2019, adjusted for inflation. Measuring reductions in spending relative to 2019 reflects the fact that the fiscal space created by a spending cut persists so long as spending remains below its original level, even if it does not decline further, relative to the same amount of revenue. Public Comment: Several commenters expressed concern regarding the measurement of spending cuts relative to the recipient’s FY 2019, for example arguing that the choice did not take into account increases in spending in 2020. As one commenter noted, the fiscal year 2020 required extraordinary intervention by recipient governments and the ongoing public health emergency continues to require extraordinary intervention. Treasury Response: FY 2019 provides a reasonable and relatively generous baseline for considering spending because it is the last full fiscal year prior to the COVID–19 public health emergency and governments’ extraordinary efforts to address the impact of the pandemic. This approach also aligns with the FY 2019 baseline for measuring revenue loss. Measuring spending cuts from year to year would, by contrast, not recognize any available funds to offset revenue reductions unless spending continued to decline, failing to reflect the actual availability of funds created by a persistent change and limiting the discretion of states and territories. For the reasons discussed above, Treasury is adopting the approach taken in the interim final rule without change. (5) Identification of amounts subject to recoupment. If a recipient government (i) reports covered changes that reduce tax revenue (Step 1); (ii) to a degree greater than the de minimis (Step 2); (iii) has experienced a reduction in net tax revenue (Step 3); and (iv) lacks sufficient revenue from other, permissible sources to pay for the entirety of the reduction (Step 4), then the recipient government will be considered to have used SLFRF funds to offset a reduction in net tax revenue, up to the amount that revenue has actually declined. That is, the maximum value of the reduction revenue due to covered changes that a recipient government must cover is capped at the difference between the baseline and actual tax revenue.363 In the event that the baseline is above actual tax revenue but the difference between them is less than the sum of revenue reducing changes that are not paid for with other, permissible sources, organic revenue growth has implicitly offset a portion of the reduction. The revenue reduction cap implements this approach for permitting organic revenue growth to cover the cost of tax cuts. Finally, a recipient government may request reconsideration of any amounts identified in a notice from Treasury as subject to recoupment under this framework. Comments and responses to the recoupment process are discussed in section Remediation and Recoupment of this Supplemental Information. 3. Reporting To facilitate the implementation of the framework above, and in addition to reporting required on eligible uses, recipient governments are required to report certain information. The interim final rule indicated that Treasury would provide additional guidance at a later date and that, on an annual basis, it expected each recipient government would be required to provide the following information: •Actual net tax revenue for the reporting year; •Each revenue-reducing change made to date during the covered period and the in-year value of each change; •Each revenue-raising change made to date during the covered period and the in-year value of each change; and •Each covered spending cut made to date during the covered period, the in- year value of each cut, and documentation demonstrating that each spending cut is covered as prescribed under the interim final rule. Since the adoption of the interim final rule, Treasury has provided guidance on reporting regarding eligible uses and has required recipient governments to indicate whether they have made covered changes and the value of such changes.364 Reporting Burden Public Comment: Some commenters argued that the framework for identifying and reporting impermissible offsets was burdensome and that the burdens should be accounted for under Executive Order 13132 (Federalism, August 4, 1999). Treasury Response: Taking into consideration comments received regarding burden, Treasury is considering a tiered approach to reporting on the offset provision. Specifically, under this approach, a recipient would only be required to report information to the extent needed to determine whether SLFRF funds had been used to offset a reduction in net tax revenue. For example, a recipient government would be required to report VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00092 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4429 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 365 ‘‘[G]overnment services would not include interest or principal on any outstanding debt instrument, including, for example, short-term revenue or tax anticipation notes, or fees or issuance costs associated with the issuance of new debt. For the same reasons, government services would not include satisfaction of any obligation arising under or pursuant to a settlement agreement, judgment, consent decree, or judicially confirmed debt restructuring in a judicial, administrative, or regulatory proceeding, except if the judgment or settlement required the provision of government services.’’ 86 FR 26796–97 (May 17, 2021). information regarding permissible offsets only if it had also reported covered changes that were in excess of the de minimis and had reported a net reduction in tax revenue. Treasury will provide additional guidance and instructions on the reporting requirements at a later date. As discussed in section Regulatory Analyses of this Supplemental Information, Treasury maintains that the final rule does not have federalism implications within the meaning of Executive Order 13132 (Federalism, August 4, 1999). In the ARPA, Congress requires states and territories to repay the Secretary for amounts used in violation of the prohibition on using SLFRF funds to offset reductions in net tax revenue, and it authorizes the Secretary to issue regulations to carry out this limitation and other requirements of the statute. Section 6(b) of Executive Order 13132 contemplates that certain regulations will be required by statute, as is the case with the interim final rule and the final rule, in which case section 6(b)(2)(B)’s requirement to include a federalism summary impact statement in the Supplementary Information to the regulation does not apply. Notwithstanding the above, Treasury has engaged in efforts to consult and work cooperatively with affected state, local, and Tribal government officials and associations in the process of developing the interim final rule. Reporting Transparency Public Comment: Several commenters argued that information supporting the net tax offset calculation should be publicly available. Some of these commenters requested that reporting be made available in a machine-readable format, and others advocated that recipient governments disclose this information on their local budget agency’s website. These commenters argued that making information regarding tax changes publicly available would increase transparency and accountability. Further, several commenters suggested that Treasury provide a mechanism for citizens to register their concerns about particular tax actions. Treasury Response: As discussed in other sections, reporting requirements promote transparency and accountability for the general public and constituents of recipient governments to understand how state, local, and Tribal governments have used SLFRF funds. Since the publication of the interim final rule, Treasury issued supplementary reporting guidance in the Compliance and Reporting Guidance and in the User Guide: Treasury’s Portal for Recipient Reporting (User Guide), which addresses the particular content and form of required reporting. Treasury will continue to issue updated guidance prior to each reporting period clarifying any modifications to requested report content and will continue to consider how reporting can best support transparency and accountability while minimizing recipient administrative burden. Further, as discussed in the section Remediation and Recoupment, Treasury may address potential violations of this final rule based on both information submitted from recipients, either through quarterly reports or self-reporting, and from other sources of information (e.g., information submitted from the public). 2. Deposit Into Pension Funds Background: Subsection 602(c)(2)(B) of the Social Security Act provides that ‘‘[n]o State or territory may use funds made available under this section for deposit into any pension fund.’’ Similarly, subsection 603(c)(2) of the Social Security Act provides that ‘‘[n]o metropolitan city, nonentitlement unit of local government, or county may use funds made available under this section for deposit into any pension fund.’’ For purposes of this restriction on pension deposits, the interim final rule defined deposit to mean ‘‘an extraordinary payment of an accrued, unfunded liability.’’ The interim final rule also specified that a deposit does not include routine contributions made as part of a payroll obligation, such as the normal cost component of a pension contribution or the component that consists of amortization of unfunded liabilities calculated by reference to the employer’s payroll costs. The interim final rule applied the restriction on pension deposits to all recipients. Public Comment: Several commenters observed that the statutory restriction on deposits into pension funds does not apply to Tribal governments. Treasury Response: In response, Treasury is clarifying in the final rule that the pension restriction does not apply to Tribal governments. Public Comment: Treasury also received a comment expressing concern that the interim final rule permitted recipients to make a larger than usual pension contribution, so long as the timing of that contribution aligns with the historical timing of contributions. Treasury Response: The interim final rule prohibited the use of SLFRF funds from the ARPA to make extraordinary payments, and the SUPPLEMENTARY INFORMATION to the interim final rule said that a payment would be an extraordinary payment if it reduces a liability incurred prior to the start of the COVID–19 public health emergency and occurs outside the recipient’s regular timing for making the payment. At the same time, however, as suggested by the comment Treasury received, a payment made at the regular time for pension contributions may very well be an extraordinary payment, for example, if it is larger than a regular payment would have been. Such a payment would be a restricted use. Public Comment: Other commenters asked which pension contributions are permitted. Treasury Response: To be an eligible use of SLFRF funds, a use must (1) be eligible under one of the eligible use categories and (2) not contravene any of the applicable restrictions on uses of funds. Some pension contributions may be eligible because they both fit within an eligible use category and do not contravene the restriction on deposits into pension funds (i.e., they are not an extraordinary payment of an accrued, unfunded liability). For example, payroll and covered benefits for public health and safety staff responding to COVID–19 are an eligible use of funds to respond to the public health and negative economic impacts of the pandemic; routine pension contributions as part of an employee’s regular covered benefits are permissible under that eligible use category. B. Other Restrictions on Use of Funds 1. Debt Service and Replenishing Financial Reserves The SUPPLEMENTARY INFORMATION to the interim final rule provided that debt service is not an eligible use of funds either to respond to the public health emergency or its negative economic impacts or as a provision of government services to the extent of revenue loss.365 The interim final rule also provided that replenishing financial reserves (e.g., rainy day funds) is not an eligible use of funds either to respond to the public health emergency or its negative economic impacts or as a provision of VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00093 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4430 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 366 ‘‘In addition, replenishing financial reserves (e.g., rainy day or other reserve funds) would not be considered provision of a government service, since such expenses do not directly relate to the provision of government services.’’ 367 Table Z.1 of the Financial Accounts of the United States, Board of Governors of the Federal Reserve System, and Table 1.1.5 of National Income and Product Accounts, Bureau of Economic Analysis. government services to the extent of revenue loss.366 As explained in greater detail below, Treasury, in the final rule, has retained these restrictions and is clarifying that these restrictions on the use of SLFRF funds apply to all eligible use categories. Public Comments Several commenters suggested that debt service and reserve replenishment should qualify as the provision of a government service and be an eligible use of funds, up to the amount of revenue loss due to the pandemic. Many commenters indicated that they had been forced to borrow money or dip into reserve funds to continue providing government services during the public health emergency and that using SLFRF funds for resulting debt service or reserve replenishment costs should therefore be considered a government service. Many comments from Tribal governments noted that their governments depend on revenue from Tribal enterprises to pay government debts and provide services. The comments suggest that it should be an eligible use of SLFRF to replace lost revenue from these enterprises that would typically be used to pay debt service costs. Other commenters argued that paying the interest or principal on debt should in some cases be considered provision of government services and an eligible use of funds as such expenditures facilitate the provision of government services. Some commenters argued that debt costs or reserve drawdowns during the public health emergency constitute a negative economic impact to recipient governments, and thus debt service or reserve replenishment should be an eligible use to respond to that negative economic impact. For example, several commenters suggested that there should be a specific carve-out allowing the use of SLFRF funds for debt service on debt incurred for government services after January 27, 2020, the start of the public health emergency, or short-term debt incurred for this purpose. Others suggested that recipient governments should be able to service debt, up to the amount of debt incurred in direct response to the pandemic. These commenters generally reasoned that the cost of responding to the public health emergency and its negative economic impacts prior to APRA’s passage constitutes a negative economic impact of the pandemic. Some commenters argued that the specific impacts of the pandemic on the travel, tourism, and hospitality sector had affected their ability to meet debt service costs. For example, some commenters explained that specific tax streams (e.g., hotel room taxes) or revenue sources (e.g., hospitality generally) are tied to specific debt instruments and that these revenue sources had declined during the public health emergency; commenters argued that this constitutes a negative economic impact that SLFRF funds should be permitted to address. Finally, some commenters questioned why servicing debt incurred after March 3, 2021 for an otherwise eligible project (e.g., a broadband infrastructure project) would not be an eligible use of funds. On the other hand, many commenters expressed support for the interim final rule’s prohibition on use of funds for debt service and reserve replenishment. These commenters largely argued that SLFRF funds should be used to provide current services to communities in response to the public health emergency and that use of funds for debt service or reserve replenishment represented, respectively, payment for past costs or savings for potential future costs. In addition to the prohibition on debt service and reserve replenishment, some commentors suggested that the final rule should also prevent funds from being used for state UI trust fund replenishment or for paying off debt owed through UI trust funds. One commenter argued that Treasury should further restrict recipient governments, for example by preventing recipients from making cuts to an allowable budget item, filling the budget gap with SLFRF funds, and then using the savings from the initial cut for debt service or reserve replenishment. Treasury Response The final rule maintains the restriction on the use of funds for debt service or reserve replenishment for the reasons described below and clarifies that this restriction applies to all eligible use categories. First, debt service and reserve replenishment costs do not constitute the provision of services to constituents. As noted in the interim final rule, financing expenses—such as issuance of debt or payment of debt service—do not provide services or aid to citizens. Similarly, contributions to rainy day funds and similar financial reserves constitute savings for future spending needs. As such, these expenses do not respond to the current and ongoing public health and negative economic impacts of the pandemic, nor do they provide a government service. Second, payments from the SLFRF are intended to be used prospectively (see section Timeline for Use of SLFRF Funds). The interim final rule provided that funds may be used for costs incurred beginning on March 3, 2021, which Treasury has maintained in the final rule. Use of funds for debt service on indebtedness issued prior to March 3, 2021 necessarily entails using funds for costs incurred during prior time periods, rather than the present response to the public health emergency and its negative economic impacts or to provide government services. Third, SLFRF funds provide recipients with substantial latitude to use funds to support the diverse needs in their communities. With SLFRF resources available, recipients have less need to incur debt for otherwise-eligible SLFRF uses. Finally, given the strong performance of overall revenues and low municipal bond yields, state and local governments generally do not face high levels of fiscal stress. Limits on debt service or replenishment of reserves would not have a substantial impact on recipients’ ability to provide services. The ratio of state and local debt-to-GDP, which spiked briefly during the pandemic, has recovered to its pre- pandemic level and remains well below levels seen during the Great Recession.367 2. Settlements and Judgments The interim final rule also provided that satisfaction of any obligation arising under or pursuant to a settlement agreement, judgment, consent decree, or judicially confirmed debt restructuring in a judicial, administrative, or regulatory proceeding would not be an eligible use of funds to respond to the public health and negative economic impacts of the pandemic or as a government service provided under the revenue loss eligible use category. However, if the judgment or settlement requires the recipient to provide services that are otherwise eligible under an SLFRF eligible use category, specifically if the settlement or judgment requires the recipient to provide services to respond to the COVID–19 public health emergency or its negative economic impacts or to provide government services, then those costs are eligible uses of SLFRF funds. VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00094 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4431 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 368 See Sec. 602(a)(1); 603(a)(1); 602(c)(1); 603(c)(1). 369 See 35.6(b); Coronavirus State and Local Fiscal Recovery Funds, 86 FR at 26786. 370 Specifically, the Award Terms and Conditions provide that ‘‘[r]ecipient understands and agrees it must maintain a conflict of interest policy consistent with 2 CFR 200.318(c), and that such conflict-of-interest policy is applicable to each activity funded under this award. Recipients and subrecipients must disclose in writing to Treasury or the pass-through agency, as appropriate, any potential conflict of interest affecting the awarded funds in accordance with 2 CFR 200.112.’’ 371 An exception is statutes that do not apply unless explicitly stated, including, e.g., the National Environmental Policy Act and the Davis-Bacon Act. In other words, satisfaction of a settlement or judgment itself is not itself an eligible use of funds, unless the settlement requires the recipient to provide services or incur other costs that are eligible uses of SLFRF funds. In the final rule, Treasury is maintaining the interim final rule approach and clarifying that it applies to all eligible use categories and any use of funds under the SLFRF program. 3. General Restrictions In addition to the above restrictions, there are three general restrictions that apply to SLFRF funds. These restrictions, which reflect existing laws and regulations, the Award Terms and Conditions, and application of the ARPA statute, applied under the interim final rule, and they continue to apply under the final rule. A primary purpose of the SLFRF in the ARPA is to support efforts to stop the spread of COVID–19.368 As discussed above, recipients of SLFRF funds are required to comply with the Award Terms and Conditions established for the use of such funds. The interim final rule and final rule implement this objective by, in part, providing that recipients may use SLFRF funds for COVID–19 mitigation and prevention.369 See section Public Health in Public Health and Negative Economic Impacts. The CDC has provided recommendations and guidelines to help mitigate and prevent COVID–19 and has identified vaccines and masks as two of the best tools to prevent the spread of COVID–19. The interim final rule and final rule help support recipients in stopping the spread of COVID–19 through these recommendations and guidelines. Consistent with the purpose of the ARPA and as implemented through the interim final rule and final rule, a recipient may not use SLFRF funds for a program, service, or capital expenditure that includes a term or condition that undermines efforts to stop the spread of COVID–19. A program or service that imposes conditions on participation or acceptance of the service that would undermine efforts to stop the spread of COVID–19 or discourage compliance with recommendations and guidelines in CDC guidance for stopping the spread of COVID–19 is not a permissible use of SLFRF funds. In other words, recipients may not use funds for a program that undermines practices included in the CDC’s guidelines and recommendations for stopping the spread of COVID–19. This includes programs that impose a condition to discourage compliance with practices in line with CDC guidance (e.g., paying off fines to businesses incurred for violation of COVID–19 vaccination or safety requirements), as well as programs that require households, businesses, nonprofits, or other entities not to use practices in line with CDC guidance as a condition of receiving funds (e.g., requiring that businesses abstain from requiring mask use or employee vaccination as a condition of receiving SLFRF funds). Second, a recipient may not use SLFRF funds in violation of the conflict of interest requirements contained in the Award Terms and Conditions or the Office of Management and Budget’s Uniform Guidance, including any self- dealing or violation of ethics rules. Recipients are required to establish policies and procedures to manage potential conflicts of interest.370 Treasury may provide further guidance on the types of activities or conflicts that the recipient’s policies and procedures must cover. Lastly, recipients should also be cognizant that federal, state, and local laws and regulations, outside of SLFRF program requirements, may apply. Recipients may not use revenue loss funds, for instance, to violate other background laws that limit the scope of activities that may be conducted as ‘‘government services,’’ including other state and federal laws. State and local procurement, contracting, and conflicts- of-interest laws and regulations may include applicable requirements, including, for example, required procurement processes for contractor selection or competitive price setting. Furthermore, recipients are also required to comply with other federal, state, and local background laws, including environmental laws 371 and federal civil rights and nondiscrimination requirements, which include prohibitions on discrimination on the basis of race, color, national origin, sex, (including sexual orientation and gender identity), religion, disability, or age, or familial status (having children under the age of 18). IV. Program Administration Provisions The interim final rule included several sections that described the processes and requirements for administering the program on an ongoing basis, specifically: Distribution of funds, transfer of funds, use of funds for program administration, reporting on the use of funds, and remediation and recoupment of funds used for ineligible purposes. To enhance clarity, this SUPPLEMENTARY INFORMATION for the final rule organizes these issues into one section on Program Administration Provisions. Recipients should also consult Treasury’s Compliance and Reporting Guidance for additional information on program administration processes and requirements, including the applicability of the Uniform Guidance. A. Payments in Tranches to Local Governments and Certain States Section 602(b)(6)(A)(ii) of the Social Security Act authorizes the Secretary to withhold payment of up to 50 percent of the amount allocated to each state and territory for a period of up to 12 months from the date on which the state or territory provides its statutorily- required certification to the Secretary. The Social Security Act requires any such withholding be based on the unemployment rate in the state or territory as of the date of the certification. Under the interim final rule, Treasury provided that it would withhold 50 percent of the amount allocated from any state that had an unemployment rate less than two percentage points above its unemployment rate in February 2020 as of the date the state submitted its initial certification for payment of funds pursuant to section 602(d)(1) of the Social Security Act. Based on data available at the time of the issuance of the interim final rule, this threshold was expected to result in a majority of states being paid in two tranches. Treasury did not split the payments of any territories. Public Comment: One commenter asked Treasury to allow a state to request release of the portion of the state’s second tranche payment after the state could demonstrate that it had allocated the entirety of the first tranche, a need to continue ongoing programs, and a desire to avoid borrowing costs. Another commenter asked Treasury to clarify whether states that received half their funding in the VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00095 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4432 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 372 Treasury’s Update on Interpretation for the 75 Percent Budget Cap Calculation can be found at: https://home.treasury.gov/system/files/136/NEU- Update-75-Percent-Budget-Cap.pdf. 373 The Guidance on Distribution of Funds to Nonentitlement Units of Local Government can be found at this link: https://home.treasury.gov/ system/files/136/NEU_Guidance.pdf. The Nonentitlement Unit of Local Government Definitional and Data Methodology can be found at this link: https://home.treasury.gov/system/files/ 136/NEU_Methodology.pdf. 374 Treasury has interpreted NEU to generally include both incorporated places and MCDs with active functioning governments, subject to the state determining, in the case of weak-MCD States, that a weak MCD has the legal and operational capacity to accept SLFRF funds and provides a broad range of services that would constitute eligible uses under ARPA. More details can be found in the Nonentitlement Unit of Local Government Definitional and Data Methodology, available at https://home.treasury.gov/system/files/136/NEU_ Methodology.pdf. first payment would receive their second half payment within 12 months. Similarly, some recipients requested clarification on whether they could obligate second tranche funds before receipt or use second tranche funds for costs incurred prior to receipt. Treasury Response: The final rule maintains the approach in the interim final rule with two modifications. As described in the interim final rule, splitting payments for most states provides consistency with payments to local governments and encourages states to adapt their use of funds to developments that arise in the course of the economic recovery. Moreover, SLFRF funds may be used for costs incurred during the period of performance. Recipients may use their jurisdiction’s budgeting and procurement practices and laws to determine how and when second tranche funds may be obligated. The final rule makes two adjustments for operational purposes. First, the final rule provides that Treasury expects to make all second tranche payments to states available beginning 12 months from the date that funding was first made available by Treasury (May 10, 2021) regardless of when each individual state submitted its initial certification. This should increase clarity and consistency on the timing of second tranche payments for both states and Treasury. Second, also to ease recipient states’ administrative burden, the final rule strikes a requirement from the interim final rule that states must certify for their second tranche payments and file all required reports at least 30 days prior to the date on which their second payment is made available. The final rule simply requires that states certify for their second tranche payment and file all required reports before receiving their second tranche payment, with no 30 day wait period required. B. Payments to Nonentitlement Units of Local Government (NEUs) and Units of Local Government (UGLGs) Within Non- UGLG Counties The interim final rule established requirements related to distributions of SLFRF funds by states and territories to NEUs and UGLGs within non-UGLG counties. Specifically, the interim final rule provided that the total distribution to an NEU cannot exceed 75 percent of the most recent budget for the NEU (the 75 percent budget cap); a requirement set forth in section 603(b)(2)(C)(iii) of the Social Security Act. The interim final rule SUPPLEMENTARY INFORMATION defined the NEU’s budget for purposes of calculating the 75 percent budget cap as the NEU’s ‘‘most recent annual total operating budget, including its general fund and other funds, as of January 27, 2020.’’ The interim final rule further provided that states and territories must permit NEUs without formal budgets as of January 27, 2020 to self-certify their most recent annual expenditures as of January 27, 2020 for the purpose of calculating the 75 percent budget cap. Further, the interim final rule prohibited states and territories from placing additional conditions or requirements on distributions to NEUs beyond those required by the statute, the interim final rule, or Treasury’s guidance and from offsetting any debt owed by such NEUs against such distributions. Commenters predominantly focused on the definition of an NEU’s budget for purposes of calculating the 75 percent budget cap, NEU allocations and eligibility, and the prohibition on states and territories imposing additional conditions or requirements in the NEU distribution process. Definition of NEU Budget Public Comment: Commenters suggested that Treasury provide greater clarification on the definition of an NEU’s ‘‘most recent budget’’ for purposes of the 75 percent budget cap calculation. Treasury provided updated guidance on its interpretation of the 75 percent budget cap on June 30, 2021, and a commenter suggested that Treasury incorporate such updated interpretation into the SUPPLEMENTARY INFORMATION of the final rule. Treasury Response: Consistent with the Update on Interpretation for the 75 Percent Budget Cap Calculation published on June 30, 2021,372 the SUPPLEMENTARY INFORMATION of the final rule defines an NEU’s budget for purposes of calculating the 75 percent budget cap as its total annual budget, including both operating and capital expenditure budgets, in effect as of January 27, 2020. The guidance also gives states and territories flexibility to provide further guidance to their NEUs to operationalize the 75 percent budget cap. Given the variance in local financial accounting, this updated definition will better facilitate states’ and territories’ distribution of SLFRF funds to NEUs. Allocations and Eligibility Public Comment: Many commenters provided feedback on specific allocation calculations and eligibility of local governments for NEU funding. Commenters addressed how a locality was classified as an NEU or metropolitan city, deviations between Treasury’s allocation calculations and earlier estimates from other sources, treatment of unincorporated areas, sources for population data, and Treasury’s allocation of NEU funding to states and territories based on the population of a state and territory outside of its metropolitan cities. Two commenters proposed that Treasury provide an appeal process for localities that were not identified on the List of Local Governments used by states and territories as part of the process in which a state or territory determines the eligibility of an NEU in accordance with Treasury guidance, or for Minor Civil Divisions (MCDs) that were denied funding as part of a facts-and- circumstances test undertaken by a weak-MCD state. Treasury Response: Neither the interim final rule nor the final rule addresses eligibility or allocations issues, and comments on these topics are outside the scope of this rulemaking. These questions are addressed in other Treasury guidance, including the Guidance on Distribution of Funds to Non-entitlement Units of Local Government and Non-entitlement Unit of Local Government Definitional and Data Methodology guidance documents available on Treasury’s website.373 Because Treasury interpreted the definition of an NEU 374 in accordance with the statute and established an NEU distribution process in May 2021, the final rule does not incorporate an appeals process regarding the definitions or the facts-and- circumstances test used for eligibility determinations. Prohibition on Additional Conditions or Requirements in the NEU Distribution Process Public Comment: One commenter expressed support for Treasury’s prohibition on states and territories VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00096 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4433 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations placing additional conditions or requirements on distributions to NEUs. This prohibition restricts states and territories from imposing limitations on NEUs’ use of SLFRF funds based on an NEU’s proposed spending plan or other policies, offsetting any debt owed by an NEU against the NEU’s distribution, or providing funding on a reimbursement model. In particular, the commenter noted that a reimbursement model would lead to inequities in accessing SLFRF funds. Treasury Response: The final rule maintains and finalizes the prohibition on states and territories placing additional conditions or requirements on distributions to NEUs as well as to any UGLGs within counties that are non-UGLGs. Such conditions or requirements may contravene the statutory requirement that states and territories make distributions based on population and within the statutorily defined timeframe. Other Provisions Treasury did not receive substantive comments on the requirement that states and territories permit NEUs without formal budgets as of January 27, 2020 to self-certify their most recent annual expenditures as of January 27, 2020 for the purpose of calculating the 75 percent budget cap, or Treasury’s interpretation of the 75 percent budget cap applying only to a consolidated government’s NEU allocation under section 603(b)(2) but not to a consolidated government’s county allocation under section 603(b)(3). Further, Treasury did not receive substantive comments on the interim final rule’s allowance that states and territories be able to use SLFRF funds under section 602(c)(1)(A) to fund expenses related to administering payments to NEUs and units of general local government. As such, the final rule maintains these provisions as written in the interim final rule without modification. Treasury received some comments that are not addressed because they are beyond the scope of the NEU provision of the interim final rule or not authorized by the statute, including comments related to state accounting practices, re-allocations of NEU allocations that exceed the 75 percent budget cap, and concerns around eligible uses under SLFRF that small local governments may find particularly salient. C. Timeline for Use of SLFRF Funds The interim final rule provided that ‘‘[a] recipient may only use funds to cover costs incurred during the period beginning March 3, 2021 and ending December 31, 2024.’’ The interim final rule also provides that the period of performance will run until December 31, 2026, which will provide recipients an additional two years during which they may expend funds for costs incurred (i.e., obligated). As explained in more detail below, in the final rule Treasury is maintaining these time periods. Treasury will retain March 3, 2021 as the first date when costs may be incurred, to provide for forward-looking or prospective use of funds and to align with the start date of the ‘‘covered period’’ as such term is used in section 602(c)(2)(A). The deadline for costs to be incurred— which the final rule clarifies means obligated—December 31, 2024, is specified in the ARPA statute, and Treasury will retain December 31, 2026 as the end of the period of performance to provide a reasonable amount of time for recipients to liquidate obligations incurred by the statutory deadline. Public Comments. Some commenters expressed concerns about costs incurred before March 3, 2021 not being covered and recommended the ‘‘start date’’ be changed to January 2020 to coincide with the declaration of the public health emergency. These commenters argued that recipient governments began incurring costs to respond to COVID–19 and its economic impacts in January 2020 and that prior federal fiscal relief, such as relief provided in the Coronavirus Aid, Relief, and Economic Security Act, did not fully compensate recipient governments for these costs. These commenters recommended that costs incurred before March 3, 2021 that otherwise fit within eligible use categories for SLFRF should be permissible uses of funds. Some commenters asked Treasury to clarify whether local governments are subject to the same covered period as states and territories beginning March 3, 2021. Commenters noted that section 603(g) of the Social Security Act does not contain the same definition of ‘‘covered period’’ as section 602(g)(1) of the Social Security Act, which references a statutory provision that only applies to states and territories. Many commenters requested that the deadline for costs to be incurred and the period of performance be extended due to the longer timeline for completing water and sewer projects. One commenter requested that recipients be able to split projects into different phases so that funds could be expended on larger, longer term projects (e.g., by obligating funds on one portion of the project by the statutory deadline). One commenter recommended that the period of performance be extended for at least two additional years beyond the expenditure deadline set forth in the interim final rule, i.e., until December 31, 2028. One commenter wrote that the final rule should allow for extended projects (e.g., over a time horizon of more than ten years) for recipients working to develop long-term water supplies to prepare for extreme drought. Treasury Response. In the final rule, Treasury is maintaining March 3, 2021 as the date when recipients may begin to incur costs using SLFRF funds. As described in the interim final rule, use of SLFRF funds is forward looking and the eligible use categories provided by statute are all prospective in nature. While recipients may identify and respond to negative economic impacts that occurred during 2020, the costs incurred to respond to these impacts remain prospective. Further, Treasury considers the beginning of the covered period for purposes of determining compliance with section 602(c)(2)(A) to be a relevant reference point for this purpose that provides some flexibility for recipients that began incurring costs in the anticipation of enactment of the ARPA or in advance of the issuance of the interim final rule and receipt of payment. Finally, establishing an earlier start date would permit governments to use funds received in 2021 to satisfy obligations incurred in 2020. This use raises a substantial risk of SLFRF funds being used to supplant other recipient funds previously used to pay for such 2020 obligations, freeing funds for recipients to use for any purpose rather than eligible uses of SLFRF funds under the ARPA. Permitting such usage would undermine the provisions setting forth permissible and impermissible uses in the statute. Therefore, a reading of the statute permitting use of funds prior to March 3, 2021 would be inconsistent with the statutory structure. In the final rule, Treasury is also maintaining the deadlines by which funds must be obligated (i.e., December 31, 2024) and by which such obligations must be liquidated (i.e., December 31, 2026). The December 31, 2024 deadline by which eligible costs must be incurred is established by statute. Treasury is finalizing its interpretation of ‘‘incurred’’ to be equivalent to the definition of ‘‘obligation,’’ based on the definition used for purposes of the Uniform Guidance. Treasury is also maintaining the period of performance, which will run through December 31, 2026, and provides the deadline by which recipients must expend obligated funds. Most recipients received SLFRF funds in the spring and summer of 2021, VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00097 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4434 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 375 Coronavirus State and Local Fiscal Recovery Funds, Frequently Asked Questions, as of July 19, 2021; https://home.treasury.gov/system/files/136/ SLFRPFAQ.pdf. 376 See FAQ 4.10. Id. meaning that they have over three years to obligate and over five years to expend funds. This provides a sufficient amount of time for recipients to plan and execute projects. D. Transfers of Funds Under section 602(c)(3) of the Social Security Act, a state, territory, or Tribal government may transfer SLFRF funds to a ‘‘private nonprofit organization . . . a Tribal organization . . . a public benefit corporation involved in the transportation of passengers or cargo, or a special-purpose unit of state or local government.’’ Similarly, section 603(c)(3) authorizes a local government to transfer SLFRF funds to the same entities (other than Tribal organizations). Separately, section 603(c)(4) authorizes a local government to transfer SLFRF funds to the state in which it is located. Entities Eligible for a Transfer Under Sections 602(c)(3) and 603(c)(3) Regarding transfers permitted under sections 602(c)(3) and 603(c)(3) of the Act, the interim final rule Supplementary Information clarified that the lists of transferees in these sections are not exclusive and that state, local, territorial, and Tribal governments may transfer funds to other constituent units of government or private entities beyond those specified in the statute. Public Comment: Several commenters supported Treasury’s interpretation of eligible transferees in sections 602(c)(3) and 603(c)(3) as nonexclusive. However, many commenters asked for greater clarity as to whether specific entities not listed in Treasury’s examples of eligible subrecipients, such as nonprofits and Tribal governments, were eligible transferees. One commenter also asked whether a recipient may transfer SLFRF funds to a higher level of government, such as a locality to the county in which it is located. Treasury Response: The final rule clarifies that, in addition to the entities enumerated in sections 602(c)(3) and 603(c)(3), recipients may transfer SLFRF funds to any entity to carry out as a subrecipient an eligible use of funds by the transferor, as long as they comply with the Award Terms and Conditions and other applicable requirements, including the Uniform Guidance at 2 CFR 200.331–200.333. Eligible subrecipients include, but are not limited to, other units of government (including Tribal governments), nonprofits and other civil society organizations, and private entities. Further, the final rule clarifies that transfers may be made to both constituent or non-constituent units of government. For example, county A may transfer SLFRF funds to county B as long as county B abides by the use restrictions applicable to county A and the transfer would constitute an eligible use of the funds by county A. County A must receive a benefit proportionate to the amount transferred. As detailed in the interim final rule Supplementary Information, once transfers are received, the transferee must abide by the restrictions on use applicable to the transferor under the ARPA and other applicable law, regulations, and program guidance. Further, the transferor remains responsible for monitoring and overseeing the subrecipient’s use of SLFRF funds and other activities related to the award to ensure that the subrecipient complies with the statutory and regulatory requirements and the Award Terms and Conditions. Recipients also remain responsible for reporting to Treasury on their subrecipients’ use of payments from the SLFRF for the duration of the award. Pooling Funds Public Comment: Several commenters asked for clarification about whether they may pool SLFRF funds for a project with other recipients, including when doing so involves a transfer to another entity, such as a regional organization or government that undertakes projects on behalf of a number of local governments. Commenters also asked for clarification on the oversight and reporting obligations that would result from such transfers. Treasury Response: Consistent with guidance issued following the interim final rule,375 the final rule clarifies that recipients may pool SLFRF funds for projects, provided that the project is itself an eligible use of SLFRF funds for each recipient that is contributing to the pool of funds and that recipients are able to track the use of funds in line with the reporting and compliance requirements of the SLFRF. In general, when pooling funds for regional projects, recipients may expend funds directly on the project or transfer funds to another government or other entity that is undertaking the project on behalf of multiple recipients. To the extent recipients undertake regional projects via transfer to another organization or government, recipients would need to comply with the rules on transfers specified in the final rule SUPPLEMENTARY INFORMATION. A recipient may transfer funds to a government outside its boundaries (e.g., county transfers to a neighboring county), provided that the transferor can document that the transfer constitutes an eligible expense of the transferor government and that its jurisdiction receives a benefit proportionate to the amount transferred. Blending and Braiding of Funds Treasury is clarifying in the final rule that, consistent with further guidance issued by Treasury following the interim final rule,376 recipients may fund a project with both SLFRF funds and other sources of funding, provided that the costs are eligible costs under each source program and are compliant with all other related statutory and regulatory requirements and policies. The recipient must comply with applicable reporting requirements for all sources of funds supporting the SLFRF projects and with any requirements and restrictions on the use of funds from the supplemental funding sources and the SLFRF program. Specifically, •All funds provided under the SLFRF program must be used for projects, investments, or services that are eligible under the SLFRF program. SLFRF funds may not be used to fund an activity that is not, in its entirety, an eligible use under the SLFRF program. For example: Æ SLFRF funds may be used in conjunction with other sources of funds to make an investment in water infrastructure that is eligible under section 602 or 603 of the Social Security Act and the final rule. Æ SLFRF funds could not be used to fund the entirety of a water infrastructure project that was partially, although not entirely, an eligible use under Treasury’s final rule. However, the recipient could use SLFRF funds only for a smaller component project that does constitute an eligible use, while using other funds for the remaining portions of the larger planned water infrastructure project that do not constitute an eligible use. In this case, the ‘‘project’’ for SLFRF purposes under this program would be only the eligible use component of the larger project. •In addition, because SLFRF funds must be obligated by December 31, 2024, and recipients must expend all funds under the award no later than December 31, 2026, recipients must be able to, at a minimum, determine and report to Treasury on the amount of SLFRF funds obligated and expended and when such funds were obligated and expended. VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00098 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4435 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 377 U.S. Department of the Treasury, Recipient Compliance and Reporting Responsibilities, as of November 5, 2021; https://home.treasury.gov/ policy-issues/coronavirus/assistance-for-state-local- and-tribal-governments/state-and-local-fiscal- Continued Scope of a 603(c)(4) Transfer Unlike in the case of a transfer under sections 602(c)(3) or 603(c)(3), the interim final rule SUPPLEMENTARY INFORMATION specified that transfers from a local government to the state under section 603(c)(4) will result in a cancellation or termination of the award on the part of the transferor local government and a modification of the award to the transferee state. Public Comment: Two commenters suggested that Treasury expand section 603(c)(4) beyond transfers from localities to the state to include transfers from counties to their constituent local governments, which would incentivize counties to augment funds to address the needs of local governments. These commenters noted that counties are disincentivized to make transfers under section 603(c)(3), as is currently allowed, as such transfers would require that counties provide oversight and monitoring over its subrecipients. Treasury Response: Section 603(c)(4), by its terms, applies only to transfers from local governments to states. Accordingly, the final rule must maintain the interim final rule’s limitation of section 603(c)(4) transfers as applicable only to transfers from local governments to states. Expansions of section 603(c)(4) transfer authority beyond transfers from local governments to states were not explicitly authorized by Congress. As such, transfers under section 603(c)(4) may only be made by local governments to the state in which they are located. Congress enumerated two separate transfer provisions for local governments—section 603(c)(3) and section 603(c)(4)—that use different language and were intended to operate differently. Section 603(c)(4) contains prefatory language (‘‘Notwithstanding paragraph (1)’’—a reference to the eligible SLFRF uses) that section 603(c)(3) does not. In other words, section 603(c)(4) transfers are not required to constitute an eligible use of the funds from the perspective of the transferor local government, but section 603(c)(3) transfers are required to constitute an eligible use. A transfer to accomplish an eligible use fits within the recipient-subrecipient framework. Further, treating section 603(c)(3) transfers as leading to a cancellation of the award for the transferor local government would result in scenarios that are inconsistent with the statutory language. An award cancellation pursuant to a section 603(c)(3) transfer would result in either (1) non- governmental entities becoming award recipients under the program, which would contravene the purpose of SLFRF or (2) transfers to governmental and non-governmental entities being treated in a distinct and inconsistent manner. That is, section 603(c)(3) transfers to governmental entities would lead to award cancellation but section 603(c)(3) transfers to non-governmental entities would lead to a recipient-subrecipient relationship. Therefore, in the final rule, Treasury maintains its distinct treatment of a section 603(c)(3) transfer and section 603(c)(4) transfer. The final rule clarifies that a transfer under section 603(c)(4) will result in a modification, termination, or cancellation of the award on the part of the transferor local government and a modification of the award to the transferee state or territory. As detailed in the SUPPLEMENTARY INFORMATION to the interim final rule, the transferor must provide notice of the transfer to Treasury in a format specified by Treasury. Until the local government provides such notice and Treasury provides confirmation of its acceptance of the notice, the local government will remain responsible for ensuring that the SLFRF award is being used in accordance with the Award Terms and Conditions, section 602 or 603 of the Social Security Act, the final rule, and program guidance including reporting on such uses of the award funds to Treasury. A state that receives a transfer from a local government under section 603(c)(4) will be bound, by statute, by all of the use restrictions set forth in section 602(c) with respect to the use of those SLFRF funds, including the prohibitions on use of such SLFRF funds to offset certain reductions in taxes or to make deposits into pension funds. The state will be responsible as the prime recipient for the use and reporting on any funds transferred under section 603(c)(4) by the local government. Such transferred funds will be subject to the Award Terms and Conditions previously accepted by the state in connection with its SLFRF award. Subrecipient Transfers Public Comment: Commenters sought clarification as to how funds may be transferred from a recipient to another entity. For instance, one commenter requested that recipients be able to advance funds to subrecipients as opposed to reimbursing subrecipients for expenses incurred. Treasury Response: Treasury did not specify in the interim final rule whether recipients may advance funds to subrecipients. This omission was not intended to prevent recipients from advancing funds to subrecipients, consistent with the various methods permitted under the Uniform Guidance. Given the broad flexibility that recipients have in selecting eligible uses and the broad variety of potential subrecipients, Treasury believes that specifying a single method of advancement or reimbursement would add unnecessary administrative difficulty to program administration. Recipients may determine the optimal payment structure for the transfer of funds (e.g., advance payments, reimbursement basis, etc.) from recipients to subrecipients. Ultimately, recipients must comply with the eligible use requirements and any other applicable laws or requirements and are responsible for the actions of their subrecipients. E. Administrative Expenses The interim final rule permitted, under the heading ‘‘[e]xpenses to improve efficacy of public health or economic relief programs,’’ use of funds for ‘‘[a]dministrative costs associated with the recipient’s COVID–19 public health emergency assistance programs, including services responding to the COVID–19 public health emergency or its negative economic impacts, that are not federally funded.’’ Following release of the interim final rule, Treasury issued Compliance and Reporting Guidance that provided that ‘‘recipients may use funds for administering the SLFRF program, including costs of consultants to support effective management and oversight, including consultation for ensuring compliance with legal, regulatory, and other requirements. Further, costs must be reasonable and allocable as outlined in 2 CFR 200.404 and 2 CFR 200.405. Pursuant to the SLFRF Award Terms and Conditions, recipients are permitted to charge both direct and indirect costs to their SLFRF award as administrative costs. Direct costs are those that are identified specifically as costs of implementing the SLFRF program objectives, such as contract support, materials, and supplies for a project. Indirect costs are general overhead costs of an organization where a portion of such costs are [sic] allocable to the SLFRF award such as the cost of facilities or administrative functions like a director’s office.’’377 Several commenters VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00099 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4436 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations recovery-funds/recipient-compliance-and-reporting- responsibilities. 378 Id. 379 Coronavirus Relief Fund for States, Tribal Governments, and Certain Eligible Local Governments, 86 FR at 4192. 380 See FAQ 4.11. Coronavirus State and Local Fiscal Recovery Funds, Frequently Asked Questions, as of July 19, 2021; https:// home.treasury.gov/system/files/136/SLFRPFAQ.pdf. 381 See U.S. Government Accountability Office, Principles of Federal Appropriations Law, Third Edition, Volume II, p. 10–99, GAO–06–382SP (February 2006), https://www.gao.gov/assets/gao- 06-382sp.pdf. requested clarity on which administrative expenses are permissible uses of funds and how recipients should structure administrative costs. In the final rule, Treasury is clarifying that direct and indirect administrative expenses are permissible uses of SLFRF funds and are a separate eligible use category from ‘‘[e]xpenses to improve efficacy of public health or economic relief programs,’’ which refers to efforts to improve the effectiveness of public health and economic programs through use of data, evidence, and targeted consumer outreach. For details on permissible direct and indirect administrative costs, recipients should refer to Treasury’s Compliance and Reporting Guidance.378 Costs incurred for the same purpose in like circumstances must be treated consistently as either direct or indirect costs. F. Treatment of Loans The interim final rule allowed recipients to use SLFRF funds to make loans for uses that are otherwise eligible (for example, for small business assistance). Subsequent guidance clarified how recipients must track and dispose of program income from loans, consistent with the statutory requirements for the timing of SLFRF expenditures. SLFRF funds must be used to cover ‘‘costs incurred’’ by the recipient between March 3, 2021 and December 31, 2024. The interim final rule provided that SLFRF funds must be obligated by December 31, 2024 and expended by December 31, 2026. In using SLFRF funds to make loans, recipients must be able to determine the amount of funds used to make a loan and must comply with restrictions on the timing of the use of funds and with restrictions in the Uniform Guidance. When SLFRF funds are used as the principal for loans, there is an expectation that a significant share of the loaned funds will be repaid. Thus, recipients may not simply consider the full amount of loaned funds to be permanently expended and must appropriately account for the return of loaned funds. For loans that mature or are forgiven on or before December 31, 2026, the recipient must account for the use of funds on a cash flow basis, consistent with Treasury’s guidance regarding loans made by recipients using payments from the Coronavirus Relief Fund.379 Recipients may use SLFRF funds to fund the principal of the loan and in that case must track repayment of principal and interest (i.e., ‘‘program income,’’ as defined under 2 CFR 200). When the loan is made, recipients must report the principal of the loan as an expense. Repayment of principal may be re- used only for eligible uses and is subject to restrictions on the timing of the use of funds. Interest payments received prior to the end of the period of performance will be considered an addition to the total award and may be used for any purpose that is an eligible use of funds under the statute and final rule. Recipients are not subject to restrictions under 2 CFR 200.307(e)(1) with respect to such payments. For loans with maturities longer than December 31, 2026, the recipient must estimate the cost to the recipient of extending the loan over the life of the loan. In other words, at origination, the recipient must measure the projected cost of the loan and may use SLFRF funds for the projected cost of the loan. Recipients have two options for estimating this amount: They may estimate the subsidy cost (i.e., net present value of estimated cash flows) or the discounted cash flow under current expected credit losses (i.e., CECL method). See further guidance issued by Treasury for further explanation.380 Public Comment: Many commenters asked for further clarification on the treatment of loans and the calculation of ‘‘costs incurred.’’ Some commenters requested that grants made for eligible activities prior to December 31, 2024 to a revolving loan fund, an economic development corporation, a land bank, or a similar facility should be considered obligated and expended at the time of the grant. This would allow funds to be expended by the grantee beyond the covered period and for funds returned to the grantee to be re- invested in further uses outside of the covered period. Treasury Response: The final rule maintains the treatment of loans from the interim final rule and subsequent guidance, as discussed above. This approach is consistent with the statutory requirement that funds be used for costs incurred for eligible purposes by December 31, 2024 and is consistent with standard accounting practices and the Uniform Guidance. G. Use of Funds for Match or Cost-Share Requirements As a general matter and as referenced in the SUPPLEMENTARY INFORMATION to the interim final rule, funds provided under one federal program may not be used by a recipient to meet the non- federal match or cost-share requirements of another federal program. However, Treasury has since determined that, consistent with this general principle and the requirements of the Uniform Guidance at 2 CFR 200.306(b)(5), the funds available under sections 602(c)(1)(C) and 603(c)(1)(C) of the Social Security Act for the provision of government services, up to the amount of the recipient’s reduction in revenue due to the public health emergency, generally may be used to meet the non-federal cost-share or matching requirements of other federal programs. Federal funds that constitute revenue sharing to state and local governments may generally be used to meet non-federal match requirements.381 The broad eligible uses of the SLFRF funds available under sections 602(c)(1)(C) and 603(c)(1)(C) of the Social Security Act, combined with the purpose of these provisions (which is to provide general fiscal assistance to governments facing revenue losses due to the public health emergency), demonstrate that these funds are revenue sharing. They thus should generally be permitted to be used to meet the non-federal match and cost- share requirements of other federal programs. As such, the SLFRF funds available for the provision of government services, up to the amount of the recipient’s reduction in revenue due to the public health emergency, may be used to meet the non-federal match requirements of the Drinking Water State Revolving Fund and Clean Water State Revolving Fund programs administered by the EPA, for example. Pursuant to 2 CFR 200.306(b) of the Uniform Guidance, if funds are legally available to meet the match or cost- share requirements of an agency’s federal program, such awarding agency is required to accept such funds for the purpose of that program’s match or cost- share requirements except in the circumstances enumerated in that section. The Office of Management and Budget has authority under 2 CFR VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00100 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4437 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 382 U.S. Department of the Treasury, Recipient Compliance and Reporting Responsibilities, as of November 5, 2021; https://home.treasury.gov/ policy-issues/coronavirus/assistance-for-state-local- and-tribal-governments/state-and-local-fiscal- recovery-funds/recipient-compliance-and-reporting- responsibilities. 383 Id. 200.102 of the Uniform Guidance to issue waivers of this requirement on request of the relevant awarding agency. Analogous requirements and waiver authorities may be present in other regulations. If a recipient seeks to use SLFRF funds to satisfy match or cost- share requirements for a federal grant program, it should first confirm with the relevant awarding agency that no waiver has been granted for that program, that no other circumstances enumerated under 2 CFR 200.306(b) would limit the use of SLFRF funds to meet the match or cost-share requirement, and that there is no other statutory or regulatory impediment to using the SLFRF funds for the match or cost-share requirement. Note that SLFRF funds may not be used as the non-federal share for purposes of a state’s Medicaid and CHIP programs because the Office of Management and Budget has approved a waiver as requested by the Centers for Medicare & Medicaid Services pursuant to 2 CFR 200.102 of the Uniform Guidance and related regulations. SLFRF funds beyond those that are available under sections 602(c)(1)(C) or 603(c)(1)(C) of the Social Security Act for the provision of government services may not be used to meet the non-federal match or cost-share requirements of other federal programs other than as specifically provided for by statute. For example, as discussed in other sections of this final rule, section 40909 of the Infrastructure Investment and Jobs Act provides that SLFRF funds may be used to meet the non-federal match requirements of any authorized Bureau of Reclamation project, and section 60102 of the Infrastructure Investment and Jobs Act provides that the SLFRF may be used to meet the non-federal match requirements of the broadband infrastructure program authorized under that section (see sections Water and Sewer Infrastructure and Broadband Infrastructure). H. Reporting The interim final rule established Treasury’s authority to collect information from recipients through requested reports and any additional requests for information. The interim final rule also provided Treasury flexibility to extend or accelerate reporting deadlines and to modify requested content for the Interim Report, Project and Expenditure reports, and Recovery Plan Performance reports. The SUPPLEMENTARY INFORMATION of the interim final rule provided initial guidance on the reporting requirements for the SLFRF funds. States (defined to include the District of Columbia), territories, metropolitan cities, counties, and Tribal governments were required to submit one interim report and quarterly Project and Expenditure reports thereafter. Non-entitlement units of local government were not required to submit an interim report. States, territories, and metropolitan cities and counties with a population greater than 250,000 residents were also required to submit an annual Recovery Plan Performance report to Treasury. The Supplementary Information of the interim final rule provided guidance on the deadlines and content required for each type of report. Public Comment: Treasury received many comments on the content and specific data elements required of program reporting. Some commenters expressed enthusiasm for including particular details in reporting to promote transparency. Other commenters requested that Treasury streamline reporting requirements to avoid imposing undue administrative burdens and compliance costs. Many commenters requested further clarification on or amendments to particular elements of reporting content. Some commenters requested that reports and specific reporting elements be public, including a request for a public website with a number of programmatic data metrics about the use of SLFRF funds. Some commenters sought clarification and guidance for using the reporting portal, which allows recipients to upload the required information, or requested user modifications to the portal. Finally, some commenters requested that Treasury provide example materials and reporting metrics to aid recipient understanding. Treasury Response: Since the publication of the interim final rule, Treasury issued supplementary reporting guidance in the Compliance and Reporting Guidance and in the User Guide: Treasury’s Portal for Recipient Reporting (User Guide).382 Treasury has addressed many of these comments in the Compliance and Reporting Guidance and User Guide and will continue to issue updated guidance prior to each reporting period clarifying any modifications to requested report content. Treasury notes that the interim final rule did not address the specific content and data elements required in reporting, the reporting portal or submission process, and the specific form of reporting (e.g., example templates, machine readability); comments on these topics are outside the scope of the final rule and, as noted, are addressed instead in Compliance and Reporting Guidance. Reporting Deadlines Public Comment: Treasury received comments requesting various changes to reporting deadlines to ease compliance burdens. For example, Treasury received several comments requesting that Treasury delay early reporting deadlines for various reasons, including to align with the timeline for issuing a final rule and to allow for more time for recipients to determine SLFRF allocations. Commenters also requested changes to the immediacy of reporting, for example requesting that Treasury allow expenses to be reported with a lag instead of the quarter in which they were accrued or that reports be due 90 days after period close instead of 30 days after the close of a reporting period. Some commenters requested changes to the reporting frequency, for example to report biannually rather than quarterly. Treasury Response: Treasury has clarified reporting deadlines in the Compliance and Reporting guidance.383 Treasury is retaining the reporting deadline of 30 days after the close of the reporting period to ensure timely accounting of the use of SLFRF funds; this timeline also aligns with practices in many other federal programs. The final rule maintains Treasury’s discretion to extend or delay reporting deadlines. Administrative Costs for Reporting and Compliance Public Comment: Many commenters sought clarification about whether various administrative costs related to reporting and compliance were eligible uses of funds and asked for clarification on the limits of such use. Treasury Response: Treasury notes that administrative costs are generally allowable uses of SLFRF funds, including for reporting. For additional information on administrative expenses, please see section Administrative Expenses under Program Administration Provisions. Uniform Guidance Public Comment: The SUPPLEMENTARY INFORMATION of the interim final rule clarified that SLFRF funds were generally subject to the provisions of the Uniform Administrative Requirements, Cost Principles, and Audit VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00101 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4438 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 384 Id. 385 Treasury will also consider the tax offset provision on an annual basis. 386 Funds subject to recoupment cannot later be returned. Requirements for Federal Awards (2 CFR part 200) (the Uniform Guidance), including the cost principles and restrictions on general provisions for selected items of cost. Treasury received many comments requesting clarification about or modifications to the applicability of the Uniform Guidance on various issues. For example, one commenter requested that Treasury remove requirements that expenditures of funds be made in conformance with the Uniform Guidance, particularly in case of expenditures made during period from March 3, 2021 to the release of the interim final rule, while other comments requested that Treasury raise the single-audit threshold from $750,000 to $5 million. Commenters sought clarification on items such as: The applicability of the Uniform Guidance for funds that are used for the provision of government services, the applicability of particular sections of the cost principles provided in subpart E of the Uniform Guidance, the applicability of the procurement provisions of the Uniform Guidance, and requirements for subrecipient reporting. Treasury Response: Recipients of SLFRF funds are subject to the provisions of the Uniform Guidance (2 CFR part 200) from the date of award to the end of the period of performance on December 31, 2026 unless otherwise specified in this rule or program- specific guidance. Costs must follow the requirements in 2 CFR 200 Subpart E, Cost Principles, including procurement standards. Recipients that receive an aggregate amount of federal financial assistance in a given fiscal year that exceeds the Single Audit threshold are subject to the requirements in 2 CFR 200 Subpart F, Audit Requirements, unless otherwise specified in program-specific guidance. SLFRF funds transferred to subrecipients are also subject to reporting and Uniform Guidance requirements. Additional information about the definition of subrecipients is available in the section Distinguishing Subrecipients versus Beneficiaries. Recipients should refer to the Assistance Listing for details on the specific provisions of the Uniform Guidance that do not apply to this program. The Assistance Listing is available on SAM.gov. Additional changes to compliance and reporting guidelines, including any clarifications on Uniform Guidance requirements, will be addressed in Compliance and Reporting Guidance and the User Guide.384 I. Remediation and Recoupment Sections 602(e) and 603(e) of the Social Security Act provide the Secretary with the power to recoup ‘‘funds used in violation’’ of the Social Security Act. The interim final rule implemented these provisions by establishing a process for recoupment. Treasury may identify funds used in violation of the Social Security Act based on information submitted by recipients, including as part of reporting requirements, as well as information from other sources.385 If a potential violation is identified, Treasury will provide the recipient an initial written notice of the amount subject to recoupment along with an explanation of such amounts. A recipient then has 60 calendar days following receipt of a recoupment notice to submit a request for reconsideration containing any information it believes supports its use of funds. Within 60 calendar days of receipt of the request for reconsideration, the interim final rule provided that a recipient will receive a final notice of the Secretary’s decision to affirm, withdraw, or modify the recoupment notice. If the recipient did not submit a request for reconsideration, the initial notice of recoupment would be deemed a final notice. A recipient would then be required to repay any amounts subject to recoupment within 120 calendar days of either the initial recoupment notice, if the recipient does not request reconsideration, or the final recoupment notice, if the recipient does request reconsideration. Public Comments Treasury received several comments on the process for recoupment. For instance, some commenters, including many Tribal governments, requested additional time to file a request for reconsideration and submit repayment to ensure that small entities have the time necessary to carry out any logistical steps and consult with counsel. Treasury was also asked to align its recoupment process with that of the Office of the Inspector General and other departmental administrative processes to resolve findings, agency decisions, and related timelines. One commenter asked if the 120-calendar- day time limit for repayment was based on the initial notice, rather than a final decision issued by the Secretary. Several commenters expressed concern regarding the recoupment process, arguing that consideration of ‘‘all relevant facts and circumstances’’ provided Treasury with too much authority and created ambiguity. Other commenters urged Treasury to establish a robust enforcement and compliance program and process and advocated for the creation of a whistleblower mechanism or public complaint process to allow public and private entities to report suspected misuses of funds. Finally, some commenters requested clarification regarding the process after a violation is identified and becomes final. One commenter also asked to allow recipients to amend reports deemed to contain ineligible expenses and inform recipients how the agency intends to resolve instances where a use was later deemed unacceptable. Another commenter asked if recouped funds could be released back to the recipient. Commenters also expressed concern about Treasury’s authority to recoup funds used in violation of the tax offset provision. Some commenters requested additional clarity around when tax cuts would trigger Treasury’s recoupment authority and the duration of Treasury’s authority to seek recoupment of such funds. Treasury Response The final rule largely preserves the process established in the interim final rule but includes several adjustments to clarify certain elements. Like the interim final rule, the final rule provides that, after an initial determination is made that a recipient has used SLFRF funds in violation of the law, a recipient may submit a request for reconsideration concerning any amounts identified in a notice provided by Treasury. If a recipient chooses to seek reconsideration of the initial notice, the recipient must submit a request for reconsideration as provided under the final rule. If a recipient does not request reconsideration, the initial notice that the recipient received will be deemed the final notice.386 Treasury has clarified that a recipient must invoke and exhaust the procedures available under section 35.10 of the final rule prior to seeking judicial review of a recoupment decision. Consistent with Section 602(b)(6)(A)(ii)(III) of the Social Security Act, if a state or territory is required to repay funds pursuant to the Secretary’s recoupment authority, the Secretary may reduce the amount payable to the state or territory in a second tranche payment by the amount that the state or territory would be required to repay as recoupment. In the final rule, Treasury has clarified that, if it identifies a potential VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00102 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4439 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 388 Treasury may address potential violations based on information submitted from recipients, either through quarterly reports or self-reported information, and from other sources of information as Treasury deems necessary and appropriate (e.g., press, information submitted from the public). 389 Treasury intends to work with recipients to support the use of SLFRF funds consistent with the law. violation,387 it may request additional information from a recipient before initiating the recoupment process and, where necessary, provide written notice to the recipient along with an explanation of such amounts potentially subject to recoupment. Furthermore, Treasury has also made clear that it retains the ability to expedite or extend timelines in any adjudication or pre- adjudication process pursuant to section 35.4(b) of the final rule, although the general timelines set forth in the interim final rule are maintained in the final rule. This process is intended to provide the recipient with an adequate opportunity to present additional information regarding its uses of funds and provides flexibility for recipients to determine the information relevant to the particular facts and circumstances. It is also flexible enough to align with other adjudication procedures in other ARPA recovery programs administered by the Office of Recovery Programs at Treasury. As discussed above, the initial notice will provide recipients with an explanation of the identified potential violation in order to provide recipients with a meaningful opportunity to respond. Such initial notice will generally include information regarding the specific use of SLFRF funds and the source of such information.388 This process also will allow the Secretary to take into consideration the information provided by recipients, along with other relevant information, to ensure SLFRF funds are used in a manner consistent with the Social Security Act. Finally, Treasury expects to work with recipients to support the use of SLFRF funds consistent with the law. For example, Treasury may request additional information from a recipient before initiating the recoupment process. In addition, Treasury may pursue other forms of remediation and monitoring in conjunction with, or as an alternative to, recoupment.389 These efforts may include working with recipients to identify and substitute permissible uses of SLFRF funds or amending uses of SLFRF funds to comply with applicable restrictions. In response to comments regarding the amount of time provided to respond to an initial notice, the final rule clarifies that Treasury retains the ability to expedite or extend timelines in any adjudication or pre-adjudication process pursuant to section 35.4(b) of the final rule, although the general timelines set forth in the interim final rule are maintained in the final rule. V. Regulatory Analyses Executive Orders 12866 and 13563 Regulatory Impact Assessment This final rule is a ‘‘significant regulatory action’’ under section 3(f) of Executive Order 12866 for the purposes of Executive Orders 12866 and 13563 because it is likely to have an annual effect on the economy of $100 million or more. As explained below, this regulation meets a substantial need: ensuring that recipients—states, territories, Tribal governments, and local governments— of SLFRF funds fully understand the requirements and parameters of the program as set forth in the statute and deploy funds in a manner that best reflects Congress’ intent to provide necessary relief to recipient governments adversely impacted by the COVID–19 public health emergency. Furthermore, as required by Executive Orders 12866 and 13563, Treasury has weighed the costs and benefits of this final rule and varying alternatives and has reasonably determined that the benefits of the final rule to recipients and their communities far outweigh any costs. The rule has been reviewed by the Office of Management and Budget (OMB) in accordance with Executive Order 12866. Executive Orders 12866 and 13563 Under Executive Order 12866, OMB must determine whether this regulatory action is ‘‘significant,’’ and therefore, subject to the requirements of the Executive Order and subject to review by OMB. Section 3(f) of Executive Order 12866 defines a significant regulatory action as an action likely to result in a rule that may, among other things, have an annual effect on the economy of $100 million or more. This rule is likely to have an annual effect on the economy of $100 million or more, and therefore, it is subject to review by OMB under section 3(f) of Executive Order 12866. Treasury has also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, section 1(b) of Executive Order 13563 requires that an agency: (1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or providing information that enables the public to make choices. Executive Order 13563 also requires an agency ‘‘to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.’’ OMB’s Office of Information and Regulatory Affairs (OIRA) has emphasized that these techniques may include ‘‘identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.’’ Based on the analysis that follows and the reasons stated elsewhere in this document, Treasury believes that this final rule is consistent with the principles set forth in Executive Orders 12866 and 13563. This Regulatory Impact Analysis discusses the need for regulatory action, the potential benefits, and the potential costs. Treasury has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action, and is issuing this final rule only on a reasoned determination that the benefits exceed the costs. In choosing among alternative regulatory approaches, Treasury selected those approaches that would maximize net benefits. Need for Regulatory Action This final rule implements the $350 billion SLFRF program of the ARPA, which Congress passed to help states, territories, Tribal governments, and localities respond to the ongoing COVID–19 public health emergency and its economic impacts. As the agency charged with execution of these programs, Treasury has concluded that this final rule is needed to ensure that recipients of SLFRF funds fully VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00103 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4440 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 390 See, e.g., Gabriel Chodorow-Reich et al., Does state Fiscal Relief During Recessions Increase Employment? Evidence from the American Recovery and Reinvestment Act, 4 American Economic Journal 118–145 (2012) http://dx.doi.org/ 10.1257/pol.4.3.118. 391 See, e.g., Fitzpatrick, supra note 278. understand the requirements and parameters of the program as set forth in the statute and deploy funds in a manner that best reflects Congress’ mandate for targeted fiscal relief. This final rule governs the use of $350 billion in grant funds from the federal government to states, territories, Tribal governments, and localities, generating a significant macroeconomic effect on the U.S. economy. Treasury has sought to implement the program in ways that maximize its potential benefits while minimizing its costs. It has done so by: aiming to target relief in key areas according to the congressional mandate; offering clarity to states, territories, Tribal governments, and localities while maintaining their flexibility to respond to local needs; and limiting administrative burdens. Analysis of Benefits Relative to a pre-statutory baseline, the SLFRF funds provide a combined $350 billion to state, local, and Tribal governments for fiscal relief and support for costs incurred responding to the COVID–19 pandemic. Treasury believes that this transfer will generate substantial additional economic activity, although given the flexibility accorded to recipients in the use of funds, it is not possible to precisely estimate the extent to which this will occur and the timing with which it will occur. Economic research has demonstrated that state fiscal relief is an efficient and effective way to mitigate declines in jobs and output during an economic downturn.390 Absent such fiscal relief, fiscal austerity among state, local, and Tribal governments could exert a prolonged drag on the overall economic recovery, as occurred following the 2007–2009 recession.391 This final rule provides benefits across several areas by implementing the four eligible use categories, as defined in statute: strengthening the response to the COVID–19 public health emergency and its negative economic impacts; replacing lost revenue to ease fiscal pressure on state, local, and Tribal governments that might otherwise lead to harmful cutbacks in employment or government services; providing premium pay to essential workers; and making necessary investments in water, sewer, and broadband infrastructure. These benefits are achieved in the final rule through a broadly flexible approach that sets clear guidelines on eligible uses of SLFRF funds and provides state, local, and Tribal government officials discretion within those eligible uses to direct SLFRF funds to areas of greatest need within their jurisdiction. While preserving recipients’ overall flexibility, the final rule includes several provisions that implement statutory requirements and will help support use of SLFRF funds to achieve the intended benefits. Preserving flexibility for recipients not only serves an important public policy goal by allowing them to meet particularized and diverse needs of their local communities but also enhances the economic benefits of the final rule by allowing recipients to choose eligible uses of funds that provide the highest utility in their jurisdictions. In implementing the ARPA, Treasury has also prioritized supporting underserved communities that have been disproportionately impacted by the pandemic. The SLFRF program as implemented by the final rule provides even greater flexibility to recipients for uses of funds in underserved communities, recognizing that pre- existing health and economic disparities in these communities amplified the impact of the pandemic there. In general, investments in improving health outcomes and economic opportunities provide high economic returns, so this approach is likely to achieve substantial near-term economic and public health benefits, in addition to the longer-term benefits arising from the allowable investments in water, sewer, and broadband infrastructure. The remainder of this section clarifies how Treasury’s approach to key provisions in the final rule will contribute to greater realization of benefits from the program. Public Health and Negative Economic Impacts The eligible use category for responding to the public health and negative economic impacts of the pandemic covers a wide range of eligible uses of funds. Treasury addresses several key uses of funds in this analysis, as well as ways that Treasury has structured this eligible use to minimize recipient administrative burden while also maintaining targeting of the funding to entities that experienced negative impacts from the pandemic. Government Employment: In order to bolster the government’s ability to effectively administer services, the final rule allows for a broader set of eligible uses to restore and support public sector employment relative to the interim final rule. In particular, eligible uses include hiring up to a pre-pandemic baseline that is adjusted for historic underinvestment in the public sector by allowing funds to be used to pay for payroll and covered benefits associated with the recipient increasing its number of employees up to 7.5 percent above its pre-pandemic baseline. Eligible uses also include providing additional funds for employees who experienced pay cuts or were furloughed, avoiding layoffs, providing worker retention incentives, and paying for ancillary administrative costs related to hiring. Treasury believes this expanded approach, relative to the interim final rule, provides useful flexibility to recipients, which may increase a state or local government’s ability to effectively deliver services to its residents. While the interim final rule already explicitly permitted using funds to restore recipients’ workforces up to pre- pandemic levels, the final rule’s inclusion of an upward adjustment factor recognizes that, as the population or economy of a jurisdiction grows over time, more workers are generally needed to effectively meet responsibilities. It also provides recipients greater room to employ funds toward building back the public sector workforce after years of chronic underinvestment since the Great Recession. Treasury arrived at the 7.5 percent adjustment factor through an analysis of data from the Bureau of Labor Statistics on state and local government employment and data from the Census Bureau on population to estimate the extent of underinvestment in the public sector since the onset of the Great Recession. While Treasury considered a range of methodologies and point estimates to set the adjustment factor, a 7.5 percent factor errs on the side of recipient flexibility. Treasury believes this adjustment enhances recipients’ ability to identify and meet the particularized needs of their communities. Treasury also believes that the additional enumerated eligible uses for supporting the workforce provide recipients several means to help retain current workers, decreasing turnover costs. Identifying Eligible Populations Treasury has provided several methods for recipients to identify households, populations, and communities eligible for services that respond to the public health and negative economic impacts of the pandemic. In general, these methods seek to provide recipients options to identify eligible populations with minimal administrative burden, while also maintaining targeting of the funds VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00104 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4441 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 392 See U.S. Bureau of Labor Statistics, Occupational Employment and Wage Estimates, https://www.bls.gov/oes/current/oes_nat.htm (last visited November 9, 2021). to entities impacted by the pandemic. Recipients also retain flexibility to identify and serve other populations and entities that experienced pandemic impacts, ensuring that recipients can meet the particularized needs of their local communities. Defining Low and Moderate Income: To streamline the provision of funds relating to negative economic impacts resulting from the pandemic, Treasury has created an eligibility standard making it easier for recipients to provide assistance to low- and moderate-income populations without needing to identify and document a specific negative economic impact. Populations falling under the definition of low income are presumed to have been disproportionately impacted by the pandemic, while those falling under the definition of moderate income are presumed to have been impacted by the pandemic. In addition, the final rule recognizes categorical eligibility for certain enumerated programs and populations if a recipient chooses to implement categorical eligibility when identifying impacted and disproportionately impacted populations. Treasury considered several options for eligibility standards that would reduce administrative burdens for recipients when determining who qualifies as low and moderate income. One option involved defining a household as low income or moderate income based only on FPG thresholds and could use levels lower than those selected. This option involved setting uniform thresholds throughout the country. A second option took a broader approach, defining a household as low income if it has (i) income at or below 185 percent of the FPG for the size of its household or (ii) income at or below 40 percent of the AMI for its county and size of household. The option defined a household as moderate income if it has (i) income at or below 300 percent of the FPG for the size of its household or (ii) income at or below 65 percent of the AMI for its county and size of household. The combination of an FPG floor with AMI allows for a regional adjustment in areas with substantially higher costs and incomes. Finally, Treasury also considered a range of FPG and AMI thresholds above and below these levels. Treasury chose the second option. Treasury believes that the higher FPG floor will ease administrative burdens by making more households presumptively eligible for funds meant to address negative economic impacts in a targeted manner. With respect to the low-income cutoff, 185 percent of the FPG for a family of four is $49,025, which is approximately the wage earnings for a two-earner household where both earners receive the median wage in occupations, such as waiters and waitresses and hotel clerks, that were heavily impacted by COVID–19. As such, this cutoff is likely to include more workers in industries heavily impacted by COVID–19, who may be most likely to face disproportionate impacts of the pandemic, than a lower threshold.392 With respect to the moderate-income cutoff, many households with incomes between 200 percent and 300 percent of the FPG struggle with a lack of economic security, suggesting that 300 percent of the FPG was an appropriate cutoff for moderate income. Treasury also considered relatively higher thresholds for both an FPG and AMI approach; however, increasing income thresholds for presumed eligibility increases the likelihood that higher-income workers, who generally experienced fewer economic impacts from the pandemic, would become presumed eligible for responsive services. Providing services to households that did not experience a negative economic impact, or experienced a relatively minimal impact, would provide much less benefit than serving households that experienced more severe impacts, diluting the benefits of the SLFRF funds. In all, Treasury anticipates that these selected thresholds, combined with the regional adjustment, will allow resources to be targeted toward individuals and households with the greatest need while also reducing administrative burdens on recipients. Disproportionately Impacted Populations: In the interim final rule, Treasury enumerated a broader set of eligible uses for disproportionately impacted communities, in recognition of the pre-existing health, economic, and social disparities that contributed to disproportionate pandemic impacts in certain communities and that addressing root causes of those disparities constitutes responding to the public health and negative economic impacts of the pandemic. To identify these communities and reduce administrative burden, Treasury allowed recipients to presume that certain populations—those in QCTs and those being served by Tribal governments—were disproportionately impacted. In the final rule, to further decrease administrative burden and enhance recipient flexibility, Treasury is allowing recipients to also presume that low-income households were disproportionately impacted. Treasury anticipates that adding low-income households as a presumed eligible population will maintain targeting of funds to populations and communities most likely to have experienced severe pandemic impacts, while providing a more flexible approach for recipients. Identifying Impacted Classes: In the final rule, Treasury reiterated its stance in the interim final rule allowing recipients to designate a class of households or other entities as impacted or disproportionately impacted and provide responsive services. After designating a class, recipients can serve a household or entity by simply identifying that the household or entity is a member of the class. Relative to restricting services to only presumed eligible populations identified by Treasury, this decision provides vital administrative flexibility for recipients that may identify particular impacted classes in the context of their jurisdiction. Treasury anticipates that SLFRF funds will be targeted to impacted or disproportionately impacted communities, as recipients must demonstrate that the designated class experienced negative economic impacts or meaningfully more severe negative economic impacts. This approach maintains the requirement that entities served have to have experienced a negative economic impact, while simultaneously minimizing any administrative costs associated with meeting this requirement. Additional Enumerated Uses The interim final rule enumerated eligible uses of SLFRF funds to serve both impacted and disproportionately impacted communities. For example, enumerated eligible uses to serve impacted communities included food assistance; rent, mortgage, or utility assistance; and counselling and legal aid to prevent eviction or homelessness. Examples of enumerated eligible uses to serve disproportionately impacted communities included remediation of lead paint or other lead hazards and housing vouchers and assistance relocating to neighborhoods with higher levels of economic opportunity. In the final rule, Treasury had the option to retain, expand, or reduce enumerated eligible uses, or shift use eligibility between disproportionately impacted and impacted communities. Many VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00105 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4442 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations public comments suggested potential expansions of uses, including shifting enumerated eligible uses for disproportionately impacted communities to serve a broader population of impacted communities. Taking these comments into account, Treasury generally took this approach, in anticipation that the benefits of the program will increase while recipient administrative costs in identifying and justifying non-enumerated uses of funds will decrease. Specifically, Treasury added enumerated eligible uses for impacted populations including paid sick, medical, or family leave; health insurance subsidies; and services for the unbanked and underbanked, on the basis that impacts of the pandemic that were broadly experienced by many communities would be addressed by these uses. Treasury also shifted some eligible uses, formerly restricted only to disproportionately impacted communities, to impacted communities. These uses included community violence intervention, assistance accessing or applying to public benefits and services, affordable housing development, and services to promote healthy childhood environments like childcare and early learning. These uses were shifted on the basis that the associated impacts of the pandemic were experienced by a broader population, and responses are, accordingly, eligible to benefit a broader population. Additionally, the final rule clarified that investments in parks and other public outdoor recreation spaces are enumerated eligible uses for disproportionately impacted communities. In including these uses, Treasury took into account evidence on the social determinants of health, or the ways that social context, like the neighborhood built environment, impacts health outcomes. By taking a more holistic approach to public health, the final rule allows recipients to respond more broadly to factors that contributed to the pandemic’s health impacts and more fully mitigate those health impacts. To balance administrative flexibility with a maintenance of focus on impacts of the pandemic, Treasury considered, but did not include, other proposed enumerated uses that did not respond to the impacts of the pandemic or responded to impacts that were not experienced generally across the country by many jurisdictions and populations. For example, Treasury did not include pollution remediation broadly, a proposed enumerated eligible use for disproportionately impacted communities, on the basis that associated projects would only respond to disproportionate impacts of the pandemic depending on the specific issue addressed. In sum, Treasury expanded enumerated eligible uses while retaining a focus on broadly experienced impacts of the pandemic. Treasury anticipates that this will give recipients further flexibility to presume eligibility and respond to pandemic impacts without increasing administrative burden. Capital Expenditures: In the interim final rule, Treasury permitted funds to be used for a limited number of capital expenditures mostly related to the COVID–19 public health response. This decision granted recipients some discretion to use SLFRF funds to address COVID–19 prevention and mitigation through certain investments in equipment, real property, and facilities, which Treasury recognized as critical components of the public health response. In the final rule, Treasury considered maintaining the provisions in the interim final rule or expanding allowable capital expenditures to provide recipients greater flexibility to pursue other capital investments that are responsive to the public health emergency and its negative economic impacts. While expanding allowable capital expenditures may increase the risk that recipients will undertake large expenditures that do not sufficiently address intended harms, or address harms in a less cost-efficient manner than an alternative investment (e.g., a program or service), expanding allowable capital expenditures would likely help fill critical gaps in recipients’ response to the pandemic and provide equipment and facilities that generate benefits beyond SLFRF’s period of performance. To preserve flexibility while mitigating risks, the final rule allows recipients to undertake an expanded set of capital expenditures while requiring additional written justifications for projects with an expected total cost at or over $1 million. Treasury believes this approach balances the implementation of appropriate risk-based compliance requirements and the provision of administrative convenience for smaller capital expenditures, while generally allowing recipients the flexibility to undertake a greater variety of responsive capital expenditures. Revenue Loss Revenue Loss Formula: In this final rule, Treasury’s approach to revenue loss allows recipients to compute the extent of reduction in revenue by comparing actual revenue to a counterfactual trend representing what could have plausibly been expected to occur in the absence of the pandemic. The counterfactual trend begins with the last full fiscal year prior to the public health emergency (as required by statute) and projects forward with an annualized growth adjustment. Treasury has made several adjustments in the final rule to decrease administrative burden, reducing costs for recipients, while still accurately capturing reductions in revenue due to the pandemic. Under the interim final rule, Treasury specified that recipients calculate revenue loss on a calendar year basis. In this final rule, Treasury is providing recipients the option to calculate revenue loss on a calendar year or fiscal year basis, which will allow recipients the administrative flexibility to minimize administrative burdens based on the data available to them. Treasury’s decision to incorporate a growth adjustment into the calculation of revenue loss ensures that the formula more fully captures revenue shortfalls relative to recipients’ pre-pandemic expectations. Recipients will have the opportunity to calculate revenue loss at several points throughout the program, recognizing that some recipients may experience revenue effects with a lag. This option to re-calculate revenue loss on an ongoing basis is intended to result in more support for recipients to avoid harmful cutbacks in future years. In calculating revenue loss, recipients will look at general revenue in the aggregate, rather than on a source-by-source basis, given that recipients may have experienced offsetting changes in revenues across sources. The final rule also provides for removing the impact of tax increasing or decreasing changes, which affect the amount of revenue collected but are not ‘‘due to’’ the pandemic, from the calculation of revenue loss due to the public health emergency. Both of these components of Treasury’s approach provide a more accurate representation of the effect of the pandemic on overall revenues. Revenue Loss Standard Allowance: In addition to largely preserving the formula to calculate revenue loss from the interim final rule, Treasury also added an alternative ‘‘standard allowance’’ option for the revenue loss calculation to this final rule. Treasury’s decision to elect to allow a fixed amount of loss that can be used to fund ‘‘government services’’ allows recipients the flexibility to use minimal administrative capacity on the calculation if desired. The decision also benefits recipients by allowing them to avoid expending administrative VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00106 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4443 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 393 Further, the final rule encourages, but does not require, that recipients pursue broadband infrastructure projects in locations not currently served by a wireline connection that reliably delivers at least 100 Mbps of download speed and 20 Mbps of upload speed. 394 Data from the Federal Communications Commission shows that as of June 2020, 9.07 percent of the U.S. population had no available cable or fiber broadband providers providing greater than 25 Mbps download speeds and 3 Mbps upload speeds. Federal Communications Commission, Fixed Broadband Deployment, https:// broadbandmap.fcc.gov/#/ (last visited May 9, 2021). 395 See Federal Communications Commission, Broadband Speed Guide, available at https:// www.fcc.gov/consumers/guides/broadband-speed- guide (last visited October 28, 2021). resources to determine how unique variations in revenue interact with the revenue loss formula. Premium Pay Per the ARPA statute, recipients have broad latitude to designate critical infrastructure sectors and make grants to third-party employers for the purpose of providing premium pay. While the final rule provides significant flexibility to implement the statutory requirement that premium pay respond to essential workers, it requires recipients give written justification in the case that premium pay would increase a worker’s annual pay above a certain threshold or is awarded to an individual whose annual pay is already above that threshold. To set this threshold, Treasury analyzed data from the Bureau of Labor Statistics to determine a level that would not require further justification for premium pay to the vast majority of essential workers, while requiring higher scrutiny for provision of premium pay to higher earners who, even without premium pay, would likely have greater personal financial resources to cope with the effects of the pandemic. Alternatively, a recipient need not submit written justification to Treasury if the worker receiving premium pay is eligible for overtime under the FLSA. Treasury believes this alternative, which is an addition to the final rule, will give recipients more flexibility and will simplify application of the final rule as employers, public and private, are already legally required to determine whether an employee is eligible for overtime pay under the FLSA. Treasury believes the threshold and overtime eligibility provision in the final rule strike the appropriate balance between preserving flexibility and helping encourage use of these resources to help those in greatest need. The final rule also requires that workers eligible for premium pay have regular in-person interactions or regular physical handling of items that were also handled by others. This requirement will help encourage use of financial resources for those who have endured the heightened risk of performing essential work. Water and Sewer Infrastructure In the interim final rule, Treasury aligned eligible uses of funds for water and sewer infrastructure to those projects eligible to receive financial assistance through the DWSRF and CWSRF administered by the EPA. The benefits of this approach included giving recipients an existing list that would provide them clarity as well as flexibility in identifying eligible projects, particularly given the broad range of projects eligible under the CWSRF and DWSRF. The approach also ensured that projects would conform to vetted project types from a widely used program. Treasury received comments from recipients requesting additional project categories to be considered eligible, indicating a potential cost to maintaining alignment with the CWSRF and DWSRF. For the final rule, Treasury has expanded eligibility to include several additional project types beyond those covered by the CWSRF and DWSRF. Treasury believes that expanded eligibility will benefit recipients by allowing them additional flexibility to pursue beneficial projects, including project categories that support the provision of drinking water and the removal, management, and treatment of wastewater and stormwater: Additional stormwater management projects, private well infrastructure, additional projects that address lead in water, and certain dam and reservoir rehabilitation projects undertaken to address the provision of drinking water. A potential cost of this approach is that uses beyond the CSWRF and DWSRF may have less public guidance available to understand project eligibilities. However, Treasury anticipates that this eligibility expansion will provide a net benefit to recipients by allowing them to pursue projects relevant to their goals that were ineligible under the interim final rule. The expansion to allow private well infrastructure may also affect the distributional impact of SLFRF. Private wells disproportionately serve rural Americans, including low-income households, and expanding eligibility to include this use may allow SLFRF funds to benefit such households. While distributional impacts are uncertain, Treasury believes that the potential for benefits to accrue to rural and low- income households makes it important to clarify that these types of projects are eligible. Broadband Infrastructure In the final rule, Treasury expands eligible areas for broadband investment by requiring that recipients invest in projects designed to provide service to households and businesses with an identified need for additional broadband investment, including increasing access to high-speed broadband, increasing the affordability of broadband services, and improving the reliability of broadband service.393 Treasury considered multiple alternatives when selecting this standard. The threshold for the interim final rule allowed benefits to accrue in a more targeted manner to the approximately 9 percent of the country with access to speeds under the 25/3 Mbps threshold.394 However, since SLFRF funds are distributed to tens of thousands of governments across the country with a variety of broadband needs, Treasury believes that allowing recipients greater flexibility to determine locations to serve in their jurisdictions—including considering affordability and competition barriers— will lead to greater long-term public benefit. Further, given that many federal broadband grant programs are focused solely on unserved and underserved areas, Treasury believes that the final rule’s flexibility enables these funds to fill an important role in the overall federal broadband landscape. In the final rule, Treasury also requires that broadband projects must meet a standard of reliably delivering at least 100 Mbps download speeds and upload speeds, or in cases where it is not practicable to do so, reliably delivering at least 100 Mbps download speed and between at least 20 Mbps and 100 Mbps upload speed while being scalable to 100 Mbps upload and download speeds. Treasury expects that this threshold will yield long-term benefits and allow networks to meet both pandemic-related and future needs. The Federal Communications Commission (FCC) estimates that currently a household with two to three remote learners using the internet simultaneously needs a connection supporting 100 Mbps download speeds.395 While a lower threshold may have resulted in lower near-term costs to build, it would have potentially constrained future utility from the infrastructure by producing infrastructure that would more quickly—potentially in the near-term— become obsolete and no longer meet household needs, potentially requiring sooner replacement and generally decreasing the return on investment. As VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00107 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4444 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations such, projects meeting a lower threshold could not be considered ‘‘necessary’’ investments in broadband infrastructure, so Treasury has retained the threshold from the interim final rule. Further, the final rule adds a requirement that recipients address the affordability needs of low-income consumers in accessing broadband networks funded by SLFRF, either by requiring service providers that provide service to households to either participate in the FCC’s Affordable Connectivity Program (ACP), or a broad- based affordability program with commensurate benefits. Treasury believes that this requirement will increase the number of customers that are able to take advantage of broadband infrastructure funded by SLFRF, increasing the effectiveness of funds in connecting households and businesses to high-speed internet that is critical to work, health, and education. There is a potential that this requirement may marginally increase project costs for recipients and providers, but this impact is uncertain, given the varying business models and pricing structures of broadband projects and providers. Labor Standards In this Supplementary Information for the final rule, Treasury encourages recipients to ensure that capital expenditures to respond to the public health and negative economic impacts of the pandemic and water, sewer, and broadband projects use strong labor standards, including, for example, project labor agreements and community benefits agreements that offer wages at or above the prevailing rate and include local hire provisions. Treasury believes that its encouragement of labor standards carries benefits because it will ensure that workers have access to strong employment opportunities associated with infrastructure projects, which will in turn aid the economic recovery. Treasury believes that infrastructure projects may also benefit from stronger labor standards due to the potential of these standards to ensure a stronger skilled labor supply and minimize labor disputes and workplace injuries, which can result in costly disruptions to projects. Treasury assesses that these benefits will increase the economy and efficiency of infrastructure projects undertaken through SLFRF and will outweigh the potential for a marginal increase in labor costs. Splitting Payments to Recipients Treasury is required by statute to deliver funds to local governments in two payments separated by at least twelve months, and the interim final rule provided for split payments to a majority of states as well. As discussed above, splitting payments ensures that recipients can adapt spending plans to evolving economic conditions and that at least some of the economic benefits will be realized in 2022 or later. However, consistent with authorities granted to Treasury in the statute, Treasury recognizes that a subset of states with significant remaining elevation in the unemployment rate could face heightened additional near term needs to aid unemployed workers and stimulate the recovery. Therefore, for a subset of state governments, Treasury has provided funds in one payment. Treasury believes that this approach strikes an appropriate balance between the general reasons to provide funds in two payments and the heightened additional near-term needs in specific states. As discussed above, Treasury set a threshold based on historical analysis of unemployment rates in recessions. Reaching Underserved Communities Finally, the final rule aims to promote and streamline the provision of assistance to individuals and communities in greatest need, particularly communities that have been historically underserved and have experienced disproportionate impacts of the COVID–19 crisis. Targeting relief is in line with Executive Order 13985, ‘‘Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,’’ which laid out an Administration-wide priority to support ‘‘equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.’’ To this end, the final rule enumerates a list of services that may be provided using SLFRF funds in disproportionately impacted communities, including low- income areas, to address the more severe impacts of the pandemic in these communities; establishes the characteristics of essential workers eligible for premium pay and encouragement to serve workers based on financial need; provides that recipients may use SLFRF funds to restore state and local workforces, where women and people of color are disproportionately represented; and requires that broadband infrastructure projects participate in programs to support affordability of broadband service. Collectively, these provisions will promote use of resources to facilitate the provision of assistance to individuals and communities with the greatest need. Analysis of Costs This regulatory action will generate administrative costs relative to a pre- statutory baseline. This includes, chiefly, costs required to administer SLFRF funds, oversee subrecipients and beneficiaries, and file periodic reports with Treasury. It also requires states to allocate SLFRF funds to nonentitlement units, which are smaller units of local government that are statutorily required to receive their funds through states. Treasury expects that the administrative burden associated with this program will be moderate for a grant program of its size. Treasury expects that many recipients receive direct or indirect funding from federal government programs and that many have familiarity with how to administer and report on federal funds or grant funding provided by other entities. In particular, states, territories, and large localities will have received funds from the Coronavirus Relief Fund (CRF) and Treasury expects them to rely heavily on established processes developed through that program or other prior grant funding, mitigating burden on these governments. Treasury has enhanced the level of recipient reporting as compared to the CRF, incorporating feedback from the Government Accountability Office and others that additions would improve the oversight of recipients’ use of funds. To balance the oversight benefits with the costs of added reporting burdens, Treasury has incorporated other mechanisms to mitigate burden. For example, Treasury is ‘‘tiering’’ reporting requirements so that recipients that receive relatively lesser amounts of SLFRF funds are required to submit less frequent reports than recipients receiving greater amounts of funds. Treasury is noting administrative costs as a generally allowable use of SLFRF funds, which defrays administrative expenses to recipients that may be needed to comply with reporting requirements. Treasury has also provided options for recipients to use eligibility thresholds they are already familiar with during administration of SLFRF funds, which will enable recipients to avoid the costs of setting up new programs and reporting mechanisms to meet reporting and compliance requirements. For example, Treasury has permitted recipients to use ‘‘categorical eligibility’’ when delivering assistance to particular groups, such as impacted or disproportionately impacted households. VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00108 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4445 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 396 See Coronavirus State and Local Fiscal Recovery Funds, Frequently Asked Questions, 10.2, as of July 19, 2021; https://home.treasury.gov/ system/files/136/SLFRPFAQ.pdf. In making implementation choices, Treasury has hosted numerous consultations with a diverse range of direct recipients—states, cities, counties, and Tribal governments— along with various communities across the United States, including those that are underserved. Furthermore, Treasury has made clear in guidance that SLFRF funds may be used to cover certain expenses related to administering programs established using SLFRF funds.396 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 final rule does not have federalism implications within the meaning of the Executive Order and does not impose substantial, direct compliance costs on state, local, and Tribal governments or preempt state law within the meaning of the Executive Order. The compliance costs are imposed on state, local, and Tribal governments by sections 602 and 603 of the Social Security Act, as enacted by the ARPA. Notwithstanding the above, Treasury has engaged in efforts to consult and work cooperatively with affected state, local, and Tribal government officials and associations in the process of developing the interim final rule and this final rule. 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.’’ 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)(B). The interim final rule was issued without prior notice and comment procedures because it implemented statutory conditions on the eligible uses of SLFRF funds, and addressed the payment of those funds, the reporting on uses of funds, and potential consequences of ineligible uses to help address the economic and public health emergency. See the SUPPLEMENTARY INFORMATION section of the May 17, 2021 interim final rule for the applicability of the requirements of 5 U.S.C. 553. In addition, under the exception discussed in that section for matters relating to agency grants, the requirements of 5 U.S.C. 553 also do not apply to this final rule. After careful consideration of the comments received, this final rule adopts the May 17, 2021 interim final rule with the revisions discussed in this SUPPLEMENTARY INFORMATION. Congressional Review Act The Administrator of OIRA has determined that this is a major rule for purposes of Subtitle E of the Small Business Regulatory Enforcement and Fairness Act of 1996 (also known as the Congressional Review Act or CRA) (5 U.S.C. 804(2) et seq.). Under the CRA, a major rule generally may take effect no earlier than 60 days after the rule is published in the Federal Register. 5 U.S.C. 801(a)(3). 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. Estimates of hourly burden under this program are set forth in the table below. Reporting Number respondents Number responses per respondent Total responses Hours per response Total burden in hours Cost to respondents ($48.80 per hour*) 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 Report ........ 430 1 430 100 ........................ 43,000 2,098,400 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 Project and Expenditure Report ........................... 37,000 1 37,000 5 ............................ 185,000 9,028,000 Total .............................................................. 54,870 .................... 54,980 ............................... 236,735 11,552,619 *Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, Accountants and Auditors, on the internet at https:// www.bls.gov/ooh/business-and-financial/accountants-and-auditors.htm (visited March 28, 2020). Base wage of $33.89/hour increased by 44 per- cent 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 Administrative Procedure Act 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 VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00109 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4446 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 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. Rule Text List of Subjects in 31 CFR Part 35 Executive compensation, State and Local Governments, Tribal Governments, Public health emergency. For the reasons stated in the preamble, the United States Department of the Treasury amends 31 CFR part 35 as follows: PART 35—PANDEMIC RELIEF PROGRAMS ■1. Revise Subpart A to read as follows: Subpart A—Coronavirus State and Local Fiscal Recovery Funds Sec. 35.1 Purpose. 35.2 Applicability. 35.3 Definitions. 35.4 Reservation of authority, reporting. 35.5 Use of funds. 35.6 Eligible uses. 35.7 Pensions. 35.8 Tax. 35.9. Compliance with applicable laws. 35.10. Recoupment. 35.11 Payments to States. 35.12. Distributions to nonentitlement units of local government and units of general local government. Authority: 42 U.S.C. 802(f); 42 U.S.C. 803(f). §35.1 Purpose. This part implements section 9901 of the American Rescue Plan Act (Subtitle M of Title IX of Pub. L. 117–2), which amends Title VI of the Social Security Act (42 U.S.C. 801 et seq.) by adding sections 602 and 603 to establish the Coronavirus State Fiscal Recovery Fund and Coronavirus Local Fiscal Recovery Fund. §35.2 Applicability. This part applies to states, territories, Tribal governments, metropolitan cities, nonentitlement units of local government, counties, and units of general local government that accept a payment or transfer of funds made under section 602 or 603 of the Social Security Act. §35.3 Definitions. Baseline means tax revenue of the recipient for its fiscal year ending in 2019, adjusted for inflation in each reporting year using the Bureau of Economic Analysis’s Implicit Price Deflator for the gross domestic product of the United States. Capital expenditures has the same meaning given in 2 CFR 200.1. County means a county, parish, or other equivalent county division (as defined by the Census Bureau). Covered benefits include, but are not limited to, the costs of all types of leave (vacation, family-related, sick, military, bereavement, sabbatical, jury duty), employee insurance (health, life, dental, vision), retirement (pensions, 401(k)), unemployment benefit plans (Federal and State), workers’ compensation insurance, and Federal Insurance Contributions Act taxes (which includes Social Security and Medicare taxes). Covered change means a change in law, regulation, or administrative interpretation that reduces any tax (by providing for a reduction in a rate, a rebate, a deduction, a credit, or otherwise) or delays the imposition of any tax or tax increase. A change in law includes any final legislative or regulatory action, a new or changed administrative interpretation, and the phase-in or taking effect of any statute or rule if the phase-in or taking effect was not prescribed prior to the start of the covered period. Covered period means, with respect to a state or territory, the period that: (1) Begins on March 3, 2021; and (2) Ends on the last day of the fiscal year of such State or territory in which all funds received by the State or territory from a payment made under section 602 or 603 of the Social Security Act have been expended or returned to, or recovered by, the Secretary. COVID–19 means the Coronavirus Disease 2019. COVID–19 public health emergency means the period beginning on January 27, 2020 and lasting until the termination of the national emergency concerning the COVID–19 outbreak declared pursuant to the National Emergencies Act (50 U.S.C. 1601 et seq.). Deposit means an extraordinary payment of an accrued, unfunded liability. The term deposit does not refer to routine contributions made by an employer to pension funds as part of the employer’s obligations related to payroll, such as either a pension contribution consisting of a normal cost component related to current employees or a component addressing the amortization of unfunded liabilities calculated by reference to the employer’s payroll costs. Eligible employer means an employer of an eligible worker who performs essential work. Eligible workers means workers needed to maintain continuity of operations of essential critical infrastructure sectors, including health care; emergency response; sanitation, disinfection, and cleaning work; maintenance work; grocery stores, restaurants, food production, and food delivery; pharmacy; biomedical research; behavioral health work; medical testing and diagnostics; home- and community-based health care or assistance with activities of daily living; family or childcare; social services work; public health work; vital services to Tribes; any work performed by an employee of a State, local, or Tribal government; educational work, school nutrition work, and other work required to operate a school facility; laundry work; elections work; solid waste or hazardous materials management, response, and cleanup work; work requiring physical interaction with patients; dental care work; transportation and warehousing; work at hotel and commercial lodging facilities that are used for COVID–19 mitigation and containment; work in a mortuary; and work in critical clinical research, development, and testing necessary for COVID–19 response. (1) With respect to a recipient that is a metropolitan city, nonentitlement unit of local government, or county, workers in any additional non-public sectors as each chief executive officer of such recipient may designate as critical to protect the health and well-being of the residents of their metropolitan city, nonentitlement unit of local government, or county; or (2) With respect to a State, territory, or Tribal government, workers in any additional non-public sectors as each Governor of a State or territory, or each Tribal government, may designate as critical to protect the health and well- being of the residents of their State, territory, or Tribal government. Essential work means work that: (1) Is not performed while teleworking from a residence; and (2) Involves: (i) Regular in-person interactions with patients, the public, or coworkers of the individual that is performing the work; or (ii) Regular physical handling of items that were handled by, or are to be handled by patients, the public, or coworkers of the individual that is performing the work. VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00110 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4447 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations Funds means, with respect to a recipient, amounts provided to the recipient pursuant to a payment made under section 602(b) or 603(b) of the Social Security Act or transferred to the recipient pursuant to section 603(c)(4) of the Social Security Act. General revenue means money that is received from tax revenue, current charges, and miscellaneous general revenue, excluding refunds and other correcting transactions and proceeds from issuance of debt or the sale of investments, agency or private trust transactions, and intergovernmental transfers from the Federal Government, including transfers made pursuant to section 9901 of the American Rescue Plan Act. General revenue also includes revenue from liquor stores that are owned and operated by state and local governments. General revenue does not include revenues from utilities, except recipients may choose to include revenue from utilities that are part of their own government as general revenue provided the recipient does so consistently over the remainder of the period of performance. Revenue from Tribal business enterprises must be included in general revenue. Intergovernmental transfers means money received from other governments, including grants and shared taxes. Low-income household means a household with: (1) Income at or below 185 percent of the Federal Poverty Guidelines for the size of its household based on the poverty guidelines published most recently by the Department of Health and Human Services; or (2) Income at or below 40 percent of the Area Median Income for its county and size of household based on data published most recently by the Department of Housing and Urban Development. Micro-business means a small business that has five or fewer employees, one or more of whom owns the small business. Moderate-income household means a household with: (1) Income at or below 300 percent of the Federal Poverty Guidelines for the size of its household based on poverty guidelines published most recently by the Department of Health and Human Services; or (2) Income at or below 65 percent of the Area Median Income for its county and size of household based on data published most recently by the Department of Housing and Urban Development. Metropolitan city has the meaning given that term in section 102(a)(4) of the Housing and Community Development Act of 1974 (42 U.S.C. 5302(a)(4)) and includes cities that relinquish or defer their status as a metropolitan city for purposes of receiving allocations under section 106 of such Act (42 U.S.C. 5306) for fiscal year 2021. Net reduction in total spending is measured as the State or territory’s total spending for a given reporting year excluding its spending of funds, subtracted from its total spending for its fiscal year ending in 2019, adjusted for inflation using the Bureau of Economic Analysis’s Implicit Price Deflator for the gross domestic product of the United States for that reporting year. Nonentitlement unit of local government means a ‘‘city,’’ as that term is defined in section 102(a)(5) of the Housing and Community Development Act of 1974 (42 U.S.C. 5302(a)(5)), that is not a metropolitan city. Nonprofit means a nonprofit organization that is exempt from Federal income taxation and that is described in section 501(c)(3) or 501(c)(19) of the Internal Revenue Code. Obligation means an order placed for property and services and entering into contracts, subawards, and similar transactions that require payment. Pension fund means a defined benefit plan and does not include a defined contribution plan. Period of performance means the time period described in §35.5 during which a recipient may obligate and expend funds in accordance with sections 602(c)(1) and 603(c)(1) of the Social Security Act and this subpart. Premium pay means an amount of up to $13 per hour that is paid to an eligible worker, in addition to wages or remuneration the eligible worker otherwise receives, for all work performed by the eligible worker during the COVID–19 public health emergency. Such amount may not exceed $25,000 in total over the period of performance with respect to any single eligible worker. Premium pay may be awarded to non-hourly and part-time eligible workers performing essential work. Premium pay will be considered to be in addition to wages or remuneration the eligible worker otherwise receives if, as measured on an hourly rate, the premium pay is: (1) With regard to work that the eligible worker previously performed, pay and remuneration equal to the sum of all wages and remuneration previously received plus up to $13 per hour with no reduction, substitution, offset, or other diminishment of the eligible worker’s previous, current, or prospective wages or remuneration; or (2) With regard to work that the eligible worker continues to perform, pay of up to $13 per hour that is in addition to the eligible worker’s regular rate of wages or remuneration, with no reduction, substitution, offset, or other diminishment of the worker’s current and prospective wages or remuneration. Qualified census tract has the same meaning given in 26 U.S.C. 42(d)(5)(B)(ii)(I). Recipient means a State, territory, Tribal government, metropolitan city, nonentitlement unit of local government, county, or unit of general local government that receives a payment made under section 602(b) or 603(b) of the Social Security Act or transfer pursuant to section 603(c)(4) of the Social Security Act. Reporting year means a single year or partial year within the covered period, aligned to the current fiscal year of the State or territory during the covered period. Secretary means the Secretary of the Treasury. State means each of the 50 States and the District of Columbia. Small business means a business concern or other organization that: (1) Has no more than 500 employees or, if applicable, the size standard in number of employees established by the Administrator of the Small Business Administration for the industry in which the business concern or organization operates, and (2) Is a small business concern as defined in section 3 of the Small Business Act (15 U.S.C. 632). Tax revenue means revenue received from a compulsory contribution that is exacted by a government for public purposes excluding refunds and corrections and, for purposes of §35.8, intergovernmental transfers. Tax revenue does not include payments for a special privilege granted or service rendered, employee or employer assessments and contributions to finance retirement and social insurance trust systems, or special assessments to pay for capital improvements. Territory means the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, or American Samoa. Title I eligible schools means schools eligible to receive services under section 1113 of Title I, Part A of the Elementary and Secondary Education Act of 1965, as amended (20 U.S.C. 6313), including schools served under section 1113(b)(1)(C) of that Act. Tribal enterprise means a business concern: VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00111 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4448 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations (1) That is wholly owned by one or more Tribal governments, or by a corporation that is wholly owned by one or more Tribal governments; or (2) That is owned in part by one or more Tribal governments, or by a corporation that is wholly owned by one or more Tribal governments, if all other owners are either United States citizens or small business concerns, as these terms are used and consistent with the definitions in 15 U.S.C. 657a(b)(2)(D). Tribal government means the recognized governing body of any Indian or Alaska Native Tribe, band, nation, pueblo, village, community, component band, or component reservation, individually identified (including parenthetically) in the list published on January 29, 2021, pursuant to section 104 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 5131). Unemployment rate means the U–3 unemployment rate provided by the Bureau of Labor Statistics as part of the Local Area Unemployment Statistics program, measured as total unemployment as a percentage of the civilian labor force. Unemployment trust fund means an unemployment trust fund established under section 904 of the Social Security Act (42 U.S.C. 1104). Unit of general local government has the meaning given to that term in section 102(a)(1) of the Housing and Community Development Act of 1974 (42 U.S.C. 5302(a)(1)). §35.4 Reservation of authority, reporting. (a) Reservation of authority. Nothing in this part shall limit the authority of the Secretary to take action to enforce conditions or violations of law, including actions necessary to prevent evasions of this subpart. (b) Extensions or accelerations of timing. The Secretary may extend or accelerate any deadline or compliance date of this part, including reporting requirements that implement this subpart, if the Secretary determines that such extension or acceleration is appropriate. In determining whether an extension or acceleration is appropriate, the Secretary will consider the period of time that would be extended or accelerated and how the modified timeline would facilitate compliance with this subpart. (c) Reporting and requests for other information. During the period of performance, recipients shall provide to the Secretary periodic reports providing detailed accounting of the uses of funds, modifications to a State or Territory’s tax revenue sources, and such other information as the Secretary may require for the administration of this section. In addition to regular reporting requirements, the Secretary may request other additional information as may be necessary or appropriate, including as may be necessary to prevent evasions of the requirements of this subpart. False statements or claims made to the Secretary may result in criminal, civil, or administrative sanctions, including fines, imprisonment, civil damages and penalties, debarment from participating in Federal awards or contracts, and/or any other remedy available by law. §35.5 Use of funds. (a) In general. A recipient may only use funds to cover costs incurred during the period beginning March 3, 2021, and ending December 31, 2024, for one or more of the purposes enumerated in sections 602(c)(1) and 603(c)(1) of the Social Security Act, as applicable, including those enumerated in §35.6, subject to the restrictions set forth in sections 602(c)(2) and 603(c)(2) of the Social Security Act, as applicable. (b) Costs incurred. A cost shall be considered to have been incurred for purposes of paragraph (a) of this section if the recipient has incurred an obligation with respect to such cost by December 31, 2024. (c) Return of funds. A recipient must return any funds not obligated by December 31, 2024. A recipient must also return funds obligated by December 31, 2024 but not expended by December 31, 2026. §35.6 Eligible uses. (a) In general. Subject to §§35.7 and 35.8, a recipient may use funds for one or more of the purposes described in paragraphs (b) through (f) of this section. (b) Responding to the public health emergency or its negative economic impacts. A recipient may use funds to respond to the public health emergency or its negative economic impacts if the use meets the criteria provided in paragraph (b)(1) of this section or is enumerated in paragraph (b)(3) of this section; provided that, in the case of a use of funds for a capital expenditure under paragraphs (b)(1) or (b)(3) of this section, the use of funds must also meet the criteria provided in paragraph (b)(4) of this section. Treasury may also articulate additional eligible programs, services, or capital expenditures from time to time that satisfy the eligibility criteria of this paragraph (b), which shall be eligible under this paragraph (b). (1) Identifying eligible responses to the public health emergency or its negative economic impacts. (i) A program, service, or capital expenditure is eligible under this paragraph (b)(1) if a recipient identifies a harm or impact to a beneficiary or class of beneficiaries caused or exacerbated by the public health emergency or its negative economic impacts and the program, service, or capital expenditure responds to such harm. (ii) A program, service, or capital expenditure responds to a harm or impact experienced by an identified beneficiary or class of beneficiaries if it is reasonably designed to benefit the beneficiary or class of beneficiaries that experienced the harm or impact and is related and reasonably proportional to the extent and type of harm or impact experienced. (2) Identified harms: Presumptions of impacted and disproportionately impacted beneficiaries. A recipient may rely on the following presumptions to identify beneficiaries presumptively impacted or disproportionately impacted by the public health emergency or its negative economic impacts for the purpose of providing a response under paragraph (b)(1) or (b)(3) of this section: (i) Households or populations that experienced unemployment; experienced increased food or housing insecurity; qualify for the Children’s Health Insurance Program (42 U.S.C. 1397aa et seq.), Childcare Subsidies through the Child Care and Development Fund Program (42 U.S.C. 9857 et seq. and 42 U.S.C. 618), or Medicaid (42 U.S.C. 1396 et seq.); if funds are to be used for affordable housing programs, qualify for the National Housing Trust Fund (12 U.S.C. 4568) or the Home Investment Partnerships Program (42 U.S.C. 12721 et seq.); if funds are to be used to address impacts of lost instructional time for students in kindergarten through twelfth grade, any student who did not have access to in-person instruction for a significant period of time; and low- and moderate-income households and populations are presumed to be impacted by the public health emergency or its negative economic impacts; (ii) The general public is presumed to be impacted by the public health emergency for the purposes of providing the uses set forth in subparagraphs (b)(3)(i)(A) and (b)(3)(i)(C); and (iii) The following households, communities, small businesses, and nonprofit organizations are presumed to be disproportionately impacted by the public health emergency or its negative economic impacts: (A) Households and populations residing in a qualified census tract; VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00112 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4449 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations households and populations receiving services provided by Tribal governments; households and populations residing in the territories; households and populations receiving services provided by territorial governments; low-income households and populations; households that qualify for Temporary Assistance for Needy Families (42 U.S.C. 601 et seq.), the Supplemental Nutrition Assistance Program (7 U.S.C. 2011 et seq.), Free and Reduced Price School Lunch and/ or Breakfast programs (42 U.S.C. 1751 et seq. and 42 U.S.C. 1773), Medicare Part D Low-income Subsidies (42 U.S.C. 1395w–114), Supplemental Security Income (42 U.S.C. 1381 et seq.), Head Start (42 U.S.C. 9831 et seq.), Early Head Start (42 U.S.C. 9831 et seq.), the Special Supplemental Nutrition Program for Women, Infants, and Children (42 U.S.C. 1786), Section 8 Vouchers (42 U.S.C. 1437f), the Low- Income Home Energy Assistance Program (42 U.S.C. 8621 et seq.), Pell Grants (20 U.S.C. 1070a), and, if SLFRF funds are to be used for services to address educational disparities, Title I eligible schools; (B) Small businesses operating in a qualified census tract, operated by Tribal governments or on Tribal lands, or operating in the territories; and (C) Nonprofit organizations operating in a qualified census tract, operated by Tribal governments or on Tribal lands, or operating in the territories. (3) Enumerated eligible uses: Responses presumed reasonably proportional. A recipient may use funds to respond to the public health emergency or its negative economic impacts on a beneficiary or class of beneficiaries for one or more of the following purposes unless such use is grossly disproportionate to the harm caused or exacerbated by the public health emergency or its negative economic impacts: (i) Responding to the public health impacts of the public health emergency for purposes including: (A) COVID–19 mitigation and prevention in a manner that is consistent with recommendations and guidance from the Centers for Disease Control and Prevention, including vaccination programs and incentives; testing programs; contact tracing; isolation and quarantine; mitigation and prevention practices in congregate settings; acquisition and distribution of medical equipment for prevention and treatment of COVID–19, including personal protective equipment; COVID– 19 prevention and treatment expenses for public hospitals or health care facilities, including temporary medical facilities; establishing or enhancing public health data systems; installation and improvement of ventilation systems in congregate settings, health facilities, or other public facilities; and assistance to small businesses, nonprofits, or impacted industries to implement mitigation measures; (B) Medical expenses related to testing and treating COVID–19 that are provided in a manner consistent with recommendations and guidance from the Centers for Disease Control and Prevention, including emergency medical response expenses, treatment of long-term symptoms or effects of COVID–19, and costs to medical providers or to individuals for testing or treating COVID–19; (C) Behavioral health care, including prevention, treatment, emergency or first-responder programs, harm reduction, supports for long-term recovery, and behavioral health facilities and equipment; and (D) Preventing and responding to increased violence resulting from the public health emergency, including community violence intervention programs, or responding to increased gun violence resulting from the public health emergency, including payroll and covered benefits associated with community policing strategies; enforcement efforts to reduce gun violence; and investing in technology and equipment; (ii) Responding to the negative economic impacts of the public health emergency for purposes including: (A) Assistance to households and individuals, including: (1) Assistance for food; emergency housing needs; burials, home repairs, or weatherization; internet access or digital literacy; cash assistance; and assistance accessing public benefits; (2) Paid sick, medical, or family leave programs, or assistance to expand access to health insurance; (3) Childcare, early learning services, home visiting, or assistance for child welfare-involved families or foster youth; (4) Programs to address the impacts of lost instructional time for students in kindergarten through twelfth grade; (5) Development, repair, and operation of affordable housing and services or programs to increase long- term housing security; (6) Financial services that facilitate the delivery of Federal, State, or local benefits for unbanked and underbanked individuals; (7) Benefits for the surviving family members of individuals who have died from COVID–19, including cash assistance to surviving spouses or dependents of individuals who died of COVID–19; (8) Assistance for individuals who want and are available for work, including those who are unemployed, have looked for work sometime in the past 12 months, who are employed part time but who want and are available for full-time work, or who are employed but seeking a position with greater opportunities for economic advancement; (9) Facilities and equipment related to the provision of services to households provided in subparagraphs (b)(3)(ii)(A)(1)–(8); (10) The following expenses related to Unemployment Trust Funds: (i) Contributions to a recipient Unemployment Trust Fund and repayment of principal amounts due on advances received under Title XII of the Social Security Act (42 U.S.C. 1321) up to an amount equal to the difference between the balance in the recipient’s Unemployment Trust Fund as of January 27, 2020 and the balance of such account as of May 17, 2021 plus the principal amount outstanding as of May 17, 2021 on any advances received under Title XII of the Social Security Act between January 27, 2020 and May 17, 2021; provided that if a recipient repays principal on Title XII advances or makes a contribution to an Unemployment Trust Fund after April 1, 2022, such recipient shall not reduce average weekly benefit amounts or maximum benefit entitlements prior to December 31, 2024; and (ii) Any interest due on such advances received under Title XII of the Social Security Act (42 U.S.C. 1321); and (11) A program, service, capital expenditure, or other assistance that is provided to a disproportionately impacted household, population, or community, including: (i) Services to address health disparities of the disproportionately impacted household, population, or community; (ii) Housing vouchers and relocation assistance; (iii) Investments in communities to promote improved health outcomes and public safety such as parks, recreation facilities, and programs that increase access to healthy foods; (iv) Capital expenditures and other services to address vacant or abandoned properties; (v) Services to address educational disparities; and (vi) Facilities and equipment related to the provision of these services to the disproportionately impacted household, population, or community. VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00113 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4450 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations (B) Assistance to small businesses, including: (1) Programs, services, or capital expenditures that respond to the negative economic impacts of the COVID–19 public health emergency, including loans or grants to mitigate financial hardship such as declines in revenues or impacts of periods of business closure, or providing technical assistance; and (2) A program, service, capital expenditure, or other assistance that responds to disproportionately impacted small businesses, including rehabilitation of commercial properties; storefront and fac¸ade improvements; technical assistance, business incubators, and grants for start-ups or expansion costs for small businesses; and programs or services to support micro-businesses; (C) Assistance to nonprofit organizations including programs, services, or capital expenditures, including loans or grants to mitigate financial hardship such as declines in revenues or increased costs, or technical assistance; (D) Assistance to tourism, travel, hospitality, and other impacted industries for programs, services, or capital expenditures, including support for payroll costs and covered benefits for employees, compensating returning employees, support for operations and maintenance of existing equipment and facilities, and technical assistance; and (E) Expenses to support public sector capacity and workforce, including: (1) Payroll and covered benefit expenses for public safety, public health, health care, human services, and similar employees to the extent that the employee’s time is spent mitigating or responding to the COVID–19 public health emergency; (2) Payroll, covered benefit, and other costs associated with programs or services to support the public sector workforce and with the recipient: (i) Hiring or rehiring staff to fill budgeted full-time equivalent positions that existed on January 27, 2020 but that were unfilled or eliminated as of March 3, 2021; or (ii) Increasing the number of its budgeted full-time equivalent employees by up to the difference between the number of its budgeted full- time equivalent employees on January 27, 2020, multiplied by 1.075, and the number of its budgeted full-time equivalent employees on March 3, 2021, provided that funds shall only be used for additional budgeted full-time equivalent employees above the recipient’s number of budgeted full-time equivalent employees as of March 3, 2021; (3) Costs to improve the design and execution of programs responding to the COVID–19 pandemic and to administer or improve the efficacy of programs addressing the public health emergency or its negative economic impacts; and (4) Costs associated with addressing administrative needs of recipient governments that were caused or exacerbated by the pandemic. (4) Capital expenditures. A recipient, other than a Tribal government, must prepare a written justification for certain capital expenditures according to Table 1 to paragraph (b)(4) of this section. Such written justification must include the following elements: (i) Describe the harm or need to be addressed; (ii) Explain why a capital expenditure is appropriate; and (iii) Compare the proposed capital expenditure to at least two alternative capital expenditures and demonstrate why the proposed capital expenditure is superior. TABLE 1 TO PARAGRAPH (b)(4) If a project has total expected capital expenditures of and the use is enumerated in (b)(3), then and the use is not enumerated in (b)(3), then Less than $1 million ........................ No Written Justification required ............................... No Written Justification required. Greater than or equal to $1 million, but less than $10 million. Written Justification required but recipients are not required to submit as part of regular reporting to Treasury. Written Justification required and recipients must submit as part of regular reporting to Treasury. $10 million or more ......................... Written Justification required and recipients must submit as part of regular reporting to Treasury. (c) Providing premium pay to eligible workers. A recipient may use funds to provide premium pay to eligible workers of the recipient who perform essential work or to provide grants to eligible employers that have eligible workers who perform essential work, provided that any premium pay or grants provided under this paragraph (c) must respond to eligible workers performing essential work during the COVID–19 public health emergency. A recipient uses premium pay or grants provided under this paragraph (c) to respond to eligible workers performing essential work during the COVID–19 public health emergency if: (1) The eligible worker’s total wages and remuneration, including the premium pay, is less than or equal to 150 percent of the greater of such eligible worker’s residing State’s or county’s average annual wage for all occupations as defined by the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics; (2) The eligible worker is not exempt from the Fair Labor Standards Act overtime provisions (29 U.S.C. 207); or (3) The recipient has submitted to the Secretary a written justification that explains how providing premium pay to the eligible worker is responsive to the eligible worker performing essential work during the COVID–19 public health emergency (such as a description of the eligible workers’ duties, health, or financial risks faced due to COVID–19, and why the recipient determined that the premium pay was responsive despite the worker’s higher income). (d) Providing government services. A recipient may use funds for the provision of government services to the extent of the reduction in the recipient’s general revenue due to the public health emergency, calculated according to this paragraph (d). A recipient must make a one-time election to calculate the amount of the reduction in the recipient’s general revenue due to the public health emergency according to either paragraph (d)(1) or (d)(2) of this section: (1) Standard allowance. The reduction in the recipient’s general revenue due to the public health emergency over the period of performance will be deemed to be ten million dollars; or (2) Formula. The reduction in the recipient’s general revenue due to the public health emergency over the period of performance equals the sum of the reduction in revenue, calculated as of each date identified in paragraph (d)(2)(i) of this section and according to the formula in paragraph (d)(2)(ii) of this section: VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00114 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4451 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations (i) A recipient must make a one-time election to calculate the reduction in its general revenue using information as of either: (A) December 31, 2020, December 31, 2021, December 31, 2022, and December 31, 2023; or (B) The last day of each of the recipient’s fiscal years ending in 2020, 2021, 2022, and 2023. (ii) A reduction in a recipient’s general revenue for each date identified in paragraph (d)(2)(i) of this section equals: Max {[Base Year Revenue * (1 + Growth Adjustment)∧(nt/12)]¥Actual General Revenue; 0} Where: (A) Base Year Revenue is the recipient’s general revenue for the most recent full fiscal year prior to the COVID–19 public health emergency; (B) Growth Adjustment is equal to the greater of 5.2 percent (or 0.052) and the recipient’s average annual revenue growth over the three full fiscal years prior to the COVID–19 public health emergency; (C) n equals the number of months elapsed from the end of the base year to the calculation date; (D) Subscript t denotes the specific calculation date; and (E) Actual General Revenue is a recipient’s actual general revenue collected during the 12-month period ending on each calculation date identified in paragraph (d)(2)(i) of this section, except: (1) For purposes of all calculation dates on or after April 1, 2022, in the case of any change made after January 6, 2022 to any law, regulation, or administrative interpretation that reduces any tax (by providing for a reduction in a rate, a rebate, a deduction, a credit, or otherwise) or delays the imposition of any tax or tax increase and that the recipient assesses has had the effect of decreasing the amount of tax revenue collected during the 12-month period ending on the calculation date relative to the amount of tax revenue that would have been collected in the absence of such change, the recipient must add to actual general revenue the amount of such decrease in tax revenue; (2) For purposes of any calculation date on or after April 1, 2022, in the case of any change made after January 6, 2022 to any law, regulation, or administrative interpretation that increases any tax (by providing for an increase in a rate, the reduction of a rebate, a deduction, or a credit, or otherwise) or accelerates the imposition of any tax or tax increase and that the recipient assesses has had the effect of increasing the amount of tax revenue collected during the 12-month period ending on the calculation date relative to the amount of tax revenue that would have been collected in the absence of such change, the recipient must subtract from actual general revenue the amount of such increase in tax revenue; (3) If the recipient makes a one-time election to adjust general revenue to reflect tax changes made during the period beginning on January 27, 2020 and ending on January 6, 2022, for purposes of each calculation date identified in paragraph (d)(2)(i) of this section: (i) In the case of any change made during such prior period to any law, regulation, or administrative interpretation that reduces any tax (by providing for a reduction in a rate, a rebate, a deduction, a credit, or otherwise) or delays the imposition of any tax or tax increase and that the recipient assesses has had the effect of decreasing the amount of tax revenue collected during the 12-month period ending on the calculation date relative to the amount of tax revenue that would have been collected in the absence of such change, the recipient must add to actual general revenue the amount of such decrease in tax revenue; and (ii) In the case of any change made during such prior period to any law, regulation, or administrative interpretation that increases any tax (by providing for an increase in a rate, the reduction of a rebate, a deduction, or a credit, or otherwise) or accelerates the imposition of any tax or tax increase and that the recipient assesses has had the effect of increasing the amount of tax revenue collected during the 12- month period ending on the calculation date relative to the amount of tax revenue that would have been collected in the absence of such change, the recipient must subtract from actual general revenue the amount of such increase in tax revenue; and (4) With respect to any calculation date during the period beginning on January 6, 2022 and ending on March 31, 2022, if the recipient makes the election in paragraph (d)(3) of this section, the recipient must also make the adjustments referenced in paragraph (d)(3) of this section with respect to any such changes in law, regulation, or administrative interpretation during the period beginning on January 6, 2022 and ending on such calculation date. (e) Making necessary investments in water, sewer, and broadband infrastructure. A recipient may use funds to make the following investments in water, sewer, and broadband infrastructure. (1) Water and sewer investments—(i) Clean Water State Revolving Fund projects. Projects or activities of the type that meet the eligibility requirements of section 603(c) of the Federal Water Pollution Control Act (33 U.S.C. 1383(c)); (ii) Additional stormwater projects. Projects to manage, reduce, treat, or recapture stormwater or subsurface drainage water regardless of whether such projects would improve water quality if such projects would otherwise meet the eligibility requirements of section 603(c)(5) of the Federal Water Pollution Control Act (33 U.S.C. 1383(c)(5)); (iii) Drinking Water State Revolving Fund projects. Projects or activities of the type that meet the eligibility requirements of section 1452 of the Safe Drinking Water Act (42 U.S.C. 300j–12) as implemented by the regulations adopted by the Environmental Protection Agency (EPA) under 40 CFR 35.3520, provided that: (A) The recipient is not required to comply with the limitation under 40 CFR 35.3520(c)(2) to acquisitions of land from willing sellers or the prohibition under 40 CFR 35.3520(e)(6) on uses of funds for certain Tribal projects; and (B) In the case of lead service line replacement projects, the recipient must replace the full length of the service line and may not replace only a partial portion of the service line. (iv) Additional lead remediation and household water quality testing. Projects or activities to address lead in drinking water or provide household water quality testing that are within the scope of the programs the EPA is authorized to establish under sections 1459A(b)(2), 1459B(b)(1), 1464(d)(2), and 1465 of the Safe Drinking Water Act (42 U.S.C. 300j–19a(b)(2), 300j–19b(b)(1), 300j– 24(d)(2), and 300j–25), provided that: (A) In the case of lead service line replacement projects, the recipient must replace the full length of the service line and may not replace only a partial portion of the service line; and (B) In the case of projects within the scope of the program the EPA is authorized to establish under section 1459B(b)(1) of the Safe Drinking Water Act, the recipient may determine the income eligibility of homeowners served by lead service line replacement projects in its discretion. (v) Drinking water projects to support increased population. Projects of the type that meet the eligibility requirements of 40 CFR 35.3520 other than the requirement of subparagraph VerDate Sep<11>2014 20:28 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00115 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4452 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations (b)(1) of such regulation to address present or prevent future violations of health-based drinking water standards, if the following conditions are met: (A) The project is needed to support increased population, with need assessed as of the time the project is undertaken; (B) The project is designed to support no more than a reasonable level of projected increased need, whether due to population growth or otherwise; (C) The project is a cost-effective means for achieving the desired level of service; and (D) The project is projected to continue to provide an adequate level of drinking water over its estimated useful life. (vi) Dams and reservoirs. Rehabilitation of dams and reservoirs if the following conditions are met: (A) The project meets the requirements of 40 CFR 35.3520 other than the following requirements: (1) The prohibition on the rehabilitation of dams and reservoirs in 40 CFR 35.3520(e)(1) and (3); and (2) The requirement in 40 CFR 35.3520(b)(1) that the project is needed to address present or prevent future violations of health-based drinking water standards, provided that if the dam or reservoir project does not meet this requirement, the project must be needed to support increased population, with need assessed as of the time the project is undertaken, and the project must be projected to continue to provide an adequate level of drinking water over its estimated useful life; (B) The primary purpose of the dam or reservoir is for drinking water supply; (C) The project is needed for the provision of drinking water supply, with need assessed as of the time the project is initiated; (D) The project is designed to support no more than a reasonable level of projected increased need, whether due to population growth or otherwise; and (E) The project is a cost-effective means for achieving the desired level of service. (vii) Private wells. Rehabilitation of private wells, testing initiatives to identify contaminants in private wells, and treatment activities and remediation projects that address contamination in private wells, if the project meets the requirements of 40 CFR 35.3520 other than the limitation to certain eligible systems under 40 CFR 35.3520(a). (2) Broadband investments—(i) General. Broadband infrastructure if the following conditions are met: (A) The broadband infrastructure is designed to provide service to households and businesses with an identified need, as determined by the recipient, for such infrastructure; (B) The broadband infrastructure is designed to, upon completion: (1) Reliably meet or exceed symmetrical 100 Mbps download speed and upload speeds; or (2) In cases where it is not practicable, because of the excessive cost of the project or geography or topography of the area to be served by the project, to provide service reliably meeting or exceeding symmetrical 100 Mbps download speed and upload speeds: (i) Reliably meet or exceed 100 Mbps download speed and between at least 20 Mbps and 100 Mbps upload speed; and (ii) Be scalable to a minimum of 100 Mbps download speed and 100 Mbps upload speed; and (C) The service provider for a completed broadband infrastructure investment project that provides service to households is required, for as long as the SLFRF-funded broadband infrastructure is in use, by the recipient to: (1) Participate in the Federal Communications Commission’s Affordable Connectivity Program (ACP) through the lifetime of the ACP; or (2) Otherwise provide access to a broad-based affordability program to low-income consumers in the proposed service area of the broadband infrastructure that provides benefits to households commensurate with those provided under the ACP through the lifetime of the ACP. (ii) Cybersecurity infrastructure investments. Cybersecurity infrastructure investments that are designed to improve the reliability and resiliency of new and existing broadband infrastructure. Such investments may include the addition or modernization of network security hardware and software tools designed to strengthen cybersecurity for the end- users of these networks. (f) Meeting the non-federal matching requirements for Bureau of Reclamation projects. A recipient may use funds to meet the non-federal matching requirements of any authorized Bureau of Reclamation project. §35.7 Pensions. A recipient (other than a Tribal government) may not use funds for deposit into any pension fund. §35.8 Tax. (a) Restriction. A State or Territory shall not use funds to either directly or indirectly offset a reduction in the net tax revenue of the State or Territory resulting from a covered change during the covered period. (b) Violation. Treasury will consider a State or Territory to have used funds to offset a reduction in net tax revenue if, during a reporting year: (1) Covered change. The State or Territory has made a covered change that, either based on a reasonable statistical methodology to isolate the impact of the covered change in actual revenue or based on projections that use reasonable assumptions and do not incorporate the effects of macroeconomic growth to reduce or increase the projected impact of the covered change, the State or Territory assesses has had or predicts to have the effect of reducing tax revenue relative to current law; (2) Exceeds the de minimis threshold. The aggregate amount of the measured or predicted reductions in tax revenue caused by covered changes identified under paragraph (b)(1) of this section, in the aggregate, exceeds 1 percent of the State’s or Territory’s baseline; (3) Reduction in net tax revenue. The State or Territory reports a reduction in net tax revenue, measured as the difference between actual tax revenue and the State’s or Territory’s baseline, each measured as of the end of the reporting year; and (4) Consideration of other changes. The aggregate amount of measured or predicted reductions in tax revenue caused by covered changes is greater than the sum of the following, in each case, as calculated for the reporting year: (i) The aggregate amount of the expected increases in tax revenue caused by one or more covered changes that, either based on a reasonable statistical methodology to isolate the impact of the covered change in actual revenue or based on projections that use reasonable assumptions and do not incorporate the effects of macroeconomic growth to reduce or increase the projected impact of the covered change, the State or Territory assesses has had or predicts to have the effect of increasing tax revenue; and (ii) Reductions in spending, up to the amount of the State’s or Territory’s net reduction in total spending, that are in: (A) Departments, agencies, or authorities in which the State or Territory is not using funds; and (B) Departments, agencies, or authorities in which the State or Territory is using funds, in an amount equal to the value of the spending cuts in those departments, agencies, or authorities, minus funds used. (c) Amount and revenue reduction cap. If a State or Territory is considered to be in violation pursuant to paragraph (b) of this section, the amount used in VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00116 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4453 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations violation of paragraph (a) of this section is equal to the lesser of: (1) The reduction in net tax revenue of the State or Territory for the reporting year, measured as the difference between the State’s or Territory’s baseline and its actual tax revenue, each measured as of the end of the reporting year; and, (2) The aggregate amount of the reductions in tax revenues caused by covered changes identified in paragraph (b)(1) of this section, minus the sum of the amounts in identified in paragraphs (b)(4)(i) and (ii) of this section. §35.9 Compliance with applicable laws. A recipient must comply with all other applicable Federal statutes, regulations, and executive orders, and a recipient shall provide for compliance with the American Rescue Plan Act, this subpart, and any interpretive guidance by other parties in any agreements it enters into with other parties relating to these funds. §35.10 Recoupment. (a) Identification of violations—(1) In general. Any amount used in violation of §35.5, 35.6, or 35.7 may be identified at any time prior to December 31, 2026. (2) Annual reporting of amounts of violations. On an annual basis, a recipient that is a State or territory must calculate and report any amounts used in violation of §35.8. (b) Calculation of amounts subject to recoupment—(1) In general. Except as provided in paragraph (b)(2) of this section, the Secretary will calculate any amounts subject to recoupment resulting from a violation of §35.5, 35.6 or 35.7 as the amounts used in violation of such restrictions. (2) Violations of §35.8. The Secretary will calculate any amounts subject to recoupment resulting from a violation of §35.8, equal to the lesser of: (i) The amount set forth in §35.8(c); and, (ii) The amount of funds received by such recipient. (c) Initial notice. If the Secretary calculates an amount subject to recoupment under paragraph (b) of this section, Treasury will provide the recipient an initial written notice of the amount subject to recoupment along with an explanation of such amounts. (d) Request for reconsideration. Unless the Secretary extends or accelerates the time period, within 60 calendar days of receipt of an initial notice of recoupment provided under paragraph (c) of this section, a recipient may submit a written request to the Secretary requesting reconsideration of any amounts subject to recoupment under paragraph (b) of this section. To request reconsideration of any amounts subject to recoupment, a recipient must submit to the Secretary a written request that includes: (1) An explanation of why the recipient believes all or some of the amount should not be subject to recoupment; and (2) A discussion of supporting reasons, along with any additional information. (e) Final amount subject to recoupment. Unless the Secretary extends or accelerates the time period, within 60 calendar days of receipt of the recipient’s request for reconsideration provided pursuant to paragraph (d) of this section or the expiration of the period for requesting reconsideration provided under paragraph (d), the recipient will be notified of the Secretary’s decision to affirm, withdraw, or modify the notice of recoupment. Such notification will include an explanation of the decision, including responses to the recipient’s supporting reasons and consideration of additional information provided. A recipient must invoke and exhaust the procedures available under this subpart prior to seeking judicial review of a decision under §35.10. (f) Repayment of funds. Unless the Secretary extends or accelerates the time period, a recipient shall repay to the Secretary any amounts subject to recoupment in accordance with instructions provided by the Secretary: (1) Within 120 calendar days of receipt of the notice of recoupment provided under paragraph (c) of this section, in the case of a recipient that does not submit a request for reconsideration in accordance with the requirements of paragraph (d) of this section; or (2) Within 120 calendar days of receipt of the Secretary’s decision under paragraph (e) of this section, in the case of a recipient that submits a request for reconsideration in accordance with the requirements of paragraph (d) of this section. (g) Other remedial actions. Prior to seeking recoupment or taking other appropriate action pursuant to paragraph (c), (d), (e), or (f) of this section, the Secretary may notify the recipient of potential violations and provide the recipient an opportunity for informal consultation and remediation. §35.11 Payments to States. (a) In general. With respect to any State or Territory that has an unemployment rate as of the date that it submits an initial certification for payment of funds pursuant to section 602(d)(1) of the Social Security Act that is less than two percentage points above its unemployment rate in February 2020, the Secretary will withhold 50 percent of the amount of funds allocated under section 602(b) of the Social Security Act to such State or territory until at least May 10, 2022 and not more than twelve months from the date such initial certification is provided to the Secretary. (b) Payment of withheld amount. In order to receive the amount withheld under paragraph (a) of this section, the State or Territory must submit to the Secretary the following information: (1) A certification, in the form provided by the Secretary, that such State or Territory requires the payment to carry out the activities specified in section 602(c) of the Social Security Act and will use the payment in compliance with section 602(c) of the Social Security Act; and (2) Any reports required to be filed by that date pursuant to this part that have not yet been filed. §35.12 Distributions to nonentitlement units of local government and units of general local government. (a) Nonentitlement units of local government. Each State or Territory that receives a payment from the Secretary pursuant to section 603(b)(2)(B) of the Social Security Act shall distribute the amount of the payment to nonentitlement units of local government in such State or Territory in accordance with the requirements set forth in section 603(b)(2)(C) of the Social Security Act and without offsetting any debt owed by such nonentitlement units of local governments against such payments. (b) Budget cap. A State or Territory may not make a payment to a nonentitlement unit of local government pursuant to section 603(b)(2)(C) of the Social Security Act and paragraph (a) of this section in excess of the amount equal to 75 percent of the most recent budget for the nonentitlement unit of local government as of January 27, 2020. For purposes of this section 35.12, a nonentitlement unit of local government’s most recent budget shall mean the nonentitlement unit of local government’s total annual budget, including both operating and capital expenditure budgets, in effect as of January 27, 2020. A State or Territory shall permit a nonentitlement unit of local government without a formal budget as of January 27, 2020, to provide a certification from an authorized officer of the nonentitlement unit of local government of its most recent annual expenditures as of VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00117 Fmt 4701 Sfmt 4700 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 4454 Federal Register /Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations January 27, 2020, and a State or Territory may rely on such certification for purposes of complying with this section 35.12. (c) Units of general local government. Each State or Territory that receives a payment from the Secretary pursuant to section 603(b)(3)(B)(ii) of the Social Security Act, in the case of an amount to be paid to a county that is not a unit of general local government, shall distribute the amount of the payment to units of general local government within such county in accordance with the requirements set forth in section 603(b)(3)(B)(ii) of the Social Security Act and without offsetting any debt owed by such units of general local government against such payments. (d) Additional conditions. A State or Territory may not place additional conditions or requirements on distributions to nonentitlement units of local government or units of general local government beyond those required by section 603 of the Social Security Act or this subpart. Jacob Leibenluft, Chief Recovery Officer. [FR Doc. 2022–00292 Filed 1–26–22; 8:45 am] BILLING CODE P VerDate Sep<11>2014 19:24 Jan 26, 2022 Jkt 256001 PO 00000 Frm 00118 Fmt 4701 Sfmt 9990 E:\FR\FM\27JAR2.SGM 27JAR2 lotter on DSK11XQN23PROD with RULES2 12 Attachment C – Uniform Administrative Requirements, Cost Principles, Federal Provisions and Audit Requirements for Federal Awards -2 CFR Part 200 et seq 2 CFR Part 200 attached hereto 81 PART 200—UNIFORM ADMINISTRA- TIVE REQUIREMENTS, COST PRIN- CIPLES, AND AUDIT REQUIRE- MENTS FOR FEDERAL AWARDS Subpart A—Acronyms and Definitions ACRONYMS Sec. 200.0 Acronyms. 200.1 Definitions. 200.2 Acquisition cost. 200.3 Advance payment. 200.4 Allocation. 200.5 Audit finding. 200.6 Auditee. 200.7 Auditor. 200.8 Budget. 200.9 Central service cost allocation plan. 200.10 Catalog of Federal Domestic Assist- ance (CFDA) number. 200.11 CFDA program title. 200.12 Capital assets. 200.13 Capital expenditures. 200.14 Claim. 200.15 Class of Federal awards. 200.16 Closeout. 200.17 Cluster of programs. 200.18 Cognizant agency for audit. 200.19 Cognizant agency for indirect costs. 200.20 Computing devices. 200.21 Compliance supplement. 200.22 Contract. 200.23 Contractor. 200.24 Cooperative agreement. 200.25 Cooperative audit resolution. 200.26 Corrective action. 200.27 Cost allocation plan. 200.28 Cost objective. 200.29 Cost sharing or matching. 200.30 Cross-cutting audit finding. 200.31 [Reserved] 200.32 Data Universal Numbering System (DUNS) number. 200.33 Equipment. 200.34 Expenditures. 200.35 Federal agency. 200.36 Federal Audit Clearinghouse (FAC). 200.37 Federal awarding agency. 200.38 Federal award. 200.39 Federal award date. 200.40 Federal financial assistance. 200.41 Federal interest. 200.42 Federal program. 200.43 Federal share. 200.44 Final cost objective. 200.45 Fixed amount awards. 200.46 Foreign public entity. 200.47 Foreign organization. 200.48 General purpose equipment. 200.49 Generally Accepted Accounting Prin- ciples (GAAP). 200.50 Generally Accepted Government Au- diting Standards (GAGAS). 200.51 Grant agreement. 200.52 Hospital. 200.53 Improper payment. 200.54 Indian tribe (or ‘‘federally recognized Indian tribe’’). 200.55 Institutions of Higher Education (IHEs). 200.56 Indirect (facilities & administrative (F&A)) costs. 200.57 Indirect cost rate proposal. 200.58 Information technology systems. 200.59 Intangible property. 200.60 Intermediate cost objective. 200.61 Internal controls. 200.62 Internal control over compliance re- quirements for Federal awards. 200.63 Loan. 200.64 Local government. 200.65 Major program. 200.66 Management decision. 200.67 Micro-purchase. 200.68 Modified Total Direct Cost (MTDC). 200.69 Non-Federal entity. 200.70 Nonprofit organization. 200.71 Obligations. 200.72 Office of Management and Budget (OMB). 200.73 Oversight agency for audit. 200.74 Pass-through entity. 200.75 Participant support costs. 200.76 Performance goal. 200.77 Period of performance. 200.78 Personal property. 200.79 Personally Identifiable Information (PII). 200.80 Program income. 200.81 Property. 200.82 Protected Personally Identifiable In- formation (Protected PII). 200.83 Project cost. 200.84 Questioned cost. 200.85 Real property. 200.86 Recipient. 200.87 Research and Development (R&D). 200.88 Simplified acquisition threshold. 200.89 Special purpose equipment. 200.90 State. 200.91 Student Financial Aid (SFA). 200.92 Subaward. 200.93 Subrecipient. 200.94 Supplies. 200.95 Termination. 200.96 Third-party in-kind contributions. 200.97 Unliquidated obligations. 200.98 Unobligated balance. 200.99 Voluntary committed cost sharing. Subpart B—General Provisions 200.100 Purpose. 200.101 Applicability. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00093 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 82 2 CFR Ch. II (1–1–21 Edition) Pt. 200 200.102 Exceptions. 200.103 Authorities. 200.104 Supersession. 200.105 Effect on other issuances. 200.106 Agency implementation. 200.107 OMB responsibilities. 200.108 Inquiries. 200.109 Review date. 200.110 Effective/applicability date. 200.111 English language. 200.112 Conflict of interest. 200.113 Mandatory disclosures. Subpart C—Pre-Federal Award Require- ments and Contents of Federal Awards 200.200 Purpose. 200.201 Use of grant agreements (including fixed amount awards), cooperative agree- ments, and contracts. 200.202 Program planning and design. 200.203 Requirement to provide public no- tice of Federal financial assistance pro- grams. 200.204 Notices of funding opportunities. 200.205 Federal awarding agency review of merit of proposals. 200.206 Federal awarding agency review of risk posed by applicants. 200.207 Standard application requirements. 200.208 Specific conditions. 200.209 Certifications and representations. 200.210 Pre-award costs. 200.211 Information contained in a Federal award. 200.212 Public access to Federal award infor- mation. 200.213 Reporting a determination that a non-Federal entity is not qualified for a Federal award. 200.214 Suspension and debarment. 200.215 Never contract with the enemy. 200.216 Prohibition on certain telecommuni- cations and video surveillance services or equipment. Subpart D—Post Federal Award Requirements 200.300 Statutory and national policy re- quirements. 200.301 Performance measurement. 200.302 Financial management. 200.303 Internal controls. 200.304 Bonds. 200.305 Federal payment. 200.306 Cost sharing or matching. 200.307 Program income. 200.308 Revision of budget and program plans. 200.309 Modifications to period of perform- ance. PROPERTY STANDARDS 200.310 Insurance coverage. 200.311 Real property. 200.312 Federally-owned and exempt prop- erty. 200.313 Equipment. 200.314 Supplies. 200.315 Intangible property. 200.316 Property trust relationship. PROCUREMENT STANDARDS 200.317 Procurements by states. 200.318 General procurement standards. 200.319 Competition. 200.320 Methods of procurement to be fol- lowed. 200.321 Contracting with small and minority businesses, women’s business enterprises, and labor surplus area firms. 200.322 Domestic preferences for procure- ments. 200.323 Procurement of recovered materials. 200.324 Contract cost and price. 200.325 Federal awarding agency or pass- through entity review. 200.326 Bonding requirements. 200.327 Contract provisions. PERFORMANCE AND FINANCIAL MONITORING AND REPORTING 200.328 Financial reporting. 200.329 Monitoring and reporting program performance. 200.330 Reporting on real property. SUBRECIPIENT MONITORING AND MANAGEMENT 200.331 Subrecipient and contractor deter- minations. 200.332 Requirements for pass-through enti- ties. 200.333 Fixed amount subawards. RECORD RETENTION AND ACCESS 200.334 Retention requirements for records. 200.335 Requests for transfer of records. 200.336 Methods for collection, trans- mission, and storage of information. 200.337 Access to records. 200.338 Restrictions on public access to records. REMEDIES FOR NONCOMPLIANCE 200.339 Remedies for noncompliance. 200.340 Termination. 200.341 Notification of termination require- ment. 200.342 Opportunities to object, hearings, and appeals. 200.343 Effects of suspension and termi- nation. CLOSEOUT 200.344 Closeout. POST-CLOSEOUT ADJUSTMENTS AND CONTINUING RESPONSIBILITIES 200.345 Post-closeout adjustments and con- tinuing responsibilities. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00094 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 83 OMB Guidance Pt. 200 COLLECTION OF AMOUNTS DUE 200.346 Collection of amounts due. Subpart E—Cost Principles GENERAL PROVISIONS 200.400 Policy guide. 200.401 Application. BASIC CONSIDERATIONS 200.402 Composition of costs. 200.403 Factors affecting allowability of costs. 200.404 Reasonable costs. 200.405 Allocable costs. 200.406 Applicable credits. 200.407 Prior written approval (prior ap- proval). 200.408 Limitation on allowance of costs. 200.409 Special considerations. 200.410 Collection of unallowable costs. 200.411 Adjustment of previously negotiated indirect (F&A) cost rates containing un- allowable costs. DIRECT AND INDIRECT (F&A) COSTS 200.412 Classification of costs. 200.413 Direct costs. 200.414 Indirect (F&A) costs. 200.415 Required certifications. SPECIAL CONSIDERATIONS FOR STATES, LOCAL GOVERNMENTS AND INDIAN TRIBES 200.416 Cost allocation plans and indirect cost proposals. 200.417 Interagency service. SPECIAL CONSIDERATIONS FOR INSTITUTIONS OF HIGHER EDUCATION 200.418 Costs incurred by states and local governments. 200.419 Cost accounting standards and dis- closure statement. GENERAL PROVISIONS FOR SELECTED ITEMS OF COST 200.420 Considerations for selected items of cost. 200.421 Advertising and public relations. 200.422 Advisory councils. 200.423 Alcoholic beverages. 200.424 Alumni/ae activities. 200.425 Audit services. 200.426 Bad debts. 200.427 Bonding costs. 200.428 Collections of improper payments. 200.429 Commencement and convocation costs. 200.430 Compensation—personal services. 200.431 Compensation—fringe benefits. 200.432 Conferences. 200.433 Contingency provisions. 200.434 Contributions and donations. 200.435 Defense and prosecution of criminal and civil proceedings, claims, appeals and patent infringements. 200.436 Depreciation. 200.437 Employee health and welfare costs. 200.438 Entertainment costs. 200.439 Equipment and other capital expend- itures. 200.440 Exchange rates. 200.441 Fines, penalties, damages and other settlements. 200.442 Fund raising and investment man- agement costs. 200.443 Gains and losses on disposition of de- preciable assets. 200.444 General costs of government. 200.445 Goods or services for personal use. 200.446 Idle facilities and idle capacity. 200.447 Insurance and indemnification. 200.448 Intellectual property. 200.449 Interest. 200.450 Lobbying. 200.451 Losses on other awards or contracts. 200.452 Maintenance and repair costs. 200.453 Materials and supplies costs, includ- ing costs of computing devices. 200.454 Memberships, subscriptions, and pro- fessional activity costs. 200.455 Organization costs. 200.456 Participant support costs. 200.457 Plant and security costs. 200.458 Pre-award costs. 200.459 Professional service costs. 200.460 Proposal costs. 200.461 Publication and printing costs. 200.462 Rearrangement and reconversion costs. 200.463 Recruiting costs. 200.464 Relocation costs of employees. 200.465 Rental costs of real property and equipment. 200.466 Scholarships and student aid costs. 200.467 Selling and marketing costs. 200.468 Specialized service facilities. 200.469 Student activity costs. 200.470 Taxes (including Value Added Tax). 200.471 Telecommunication costs and video surveillance costs. 200.472 Termination costs. 200.473 Training and education costs. 200.474 Transportation costs. 200.475 Travel costs. 200.476 Trustees. Subpart F—Audit Requirements GENERAL 200.500 Purpose. AUDITS 200.501 Audit requirements. 200.502 Basis for determining Federal awards expended. 200.503 Relation to other audit require- ments. 200.504 Frequency of audits. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00095 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 84 2 CFR Ch. II (1–1–21 Edition) §200.0 200.505 Sanctions. 200.506 Audit costs. 200.507 Program-specific audits. AUDITEES 200.508 Auditee responsibilities. 200.509 Auditor selection. 200.510 Financial statements. 200.511 Audit findings follow-up. 200.512 Report submission. FEDERAL AGENCIES 200.513 Responsibilities. AUDITORS 200.514 Scope of audit. 200.515 Audit reporting. 200.516 Audit findings. 200.517 Audit documentation. 200.518 Major program determination. 200.519 Criteria for Federal program risk. 200.520 Criteria for a low-risk auditee. MANAGEMENT DECISIONS 200.521 Management decision. APPENDIX I TO PART 200—FULL TEXT OF NO- TICE OF FUNDING OPPORTUNITY APPENDIX II TO PART 200—CONTRACT PROVI- SIONS FOR NON-FEDERAL ENTITY CON- TRACTS UNDER FEDERAL AWARDS APPENDIX III TO PART 200—INDIRECT (F&A) COSTS IDENTIFICATION AND ASSIGNMENT, AND RATE DETERMINATION FOR INSTITU- TIONS OF HIGHER EDUCATION (IHES) APPENDIX IV TO PART 200—INDIRECT (F&A) COSTS IDENTIFICATION AND ASSIGNMENT, AND RATE DETERMINATION FOR NONPROFIT ORGANIZATIONS APPENDIX V TO PART 200— STATE/LOCAL GOV- ERNMENTWIDE CENTRAL SERVICE COST AL- LOCATION PLANS APPENDIX VI TO PART 200—PUBLIC ASSIST- ANCE COST ALLOCATION PLANS APPENDIX VII TO PART 220—STATES AND LOCAL GOVERNMENT AND INDIAN TRIBE IN- DIRECT COST PROPOSALS APPENDIX VIII TO PART 200—NONPROFIT OR- GANIZATIONS EXEMPTED FROM SUBPART E OF PART 200 APPENDIX IX TO PART 200—HOSPITAL COST PRINCIPLES APPENDIX X TO PART 200—DATA COLLECTION FORM (FORM SF–SAC) APPENDIX XI TO PART 200—COMPLIANCE SUP- PLEMENT APPENDIX XII TO PART 200—AWARD TERM AND CONDITION FOR RECIPIENT INTEGRITY AND PERFORMANCE MATTERS AUTHORITY: 31 U.S.C. 503 SOURCE: 78 FR 78608, Dec. 26, 2013, unless otherwise noted. Subpart A—Acronyms and Definitions ACRONYMS §200.0 Acronyms. ACRONYM TERM CAS Cost Accounting Standards CFR Code of Federal Regulations CMIA Cash Management Improve- ment Act COG Councils Of Governments COSO Committee of Sponsoring Orga- nizations of the Treadway Commis- sion EPA Environmental Protection Agen cy ERISA Employee Retirement Income Security Act of 1974 (29 U.S.C. 1301– 1461) EUI Energy Usage Index F&A Facilities and Administration FAC Federal Audit Clearinghouse FAIN Federal Award Identification Number FAPIIS Federal Awardee Perform- ance and Integrity Information Sys- tem FAR Federal Acquisition Regulation FFATA Federal Funding Account- ability and Transparency Act of 2006 or Transparency Act—Public Law 109–282, as amended by section 6202(a) of Public Law 110–252 (31 U.S.C. 6101) FICA Federal Insurance Contribu- tions Act FOIA Freedom of Information Act FR Federal Register FTE Full-time equivalent GAAP Generally Accepted Account- ing Principles GAGAS Generally Accepted Govern- ment Auditing Standards GAO Government Accountability Of- fice GOCO Government owned, contractor operated GSA General Services Administration IBS Institutional Base Salary IHE Institutions of Higher Education IRC Internal Revenue Code ISDEAA Indian Self-Determination and Education and Assistance Act MTC Modified Total Cost MTDC Modified Total Direct Cost NFE Non-Federal Entity VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00096 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 85 OMB Guidance §200.1 OMB Office of Management and Budg- et PII Personally Identifiable Informa- tion PMS Payment Management System PRHP Post-retirement Health Plans PTE Pass-through Entity REUI Relative Energy Usage Index SAM System for Award Management SFA Student Financial Aid SNAP Supplemental Nutrition Assist- ance Program SPOC Single Point of Contact TANF Temporary Assistance for Needy Families TFM Treasury Financial Manual U.S.C. United States Code VAT Value Added Tax [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75880, Dec. 19, 2014; 80 FR 43308, July 22, 2015; 85 FR 49529, Aug. 13, 2020] §200.1 Definitions. These are the definitions for terms used in this part. Different definitions may be found in Federal statutes or regulations that apply more specifi- cally to particular programs or activi- ties. These definitions could be supple- mented by additional instructional in- formation provided in governmentwide standard information collections. For purposes of this part, the following definitions apply: Acquisition cost means the cost of the asset including the cost to ready the asset for its intended use. Acquisition cost for equipment, for example, means the net invoice price of the equipment, including the cost of any modifica- tions, attachments, accessories, or aux- iliary apparatus necessary to make it usable for the purpose for which it is acquired. Acquisition costs for soft- ware includes those development costs capitalized in accordance with gen- erally accepted accounting principles (GAAP). Ancillary charges, such as taxes, duty, protective in transit insur- ance, freight, and installation may be included in or excluded from the acqui- sition cost in accordance with the non- Federal entity’s regular accounting practices. Advance payment means a payment that a Federal awarding agency or pass-through entity makes by any ap- propriate payment mechanism, includ- ing a predetermined payment schedule, before the non-Federal entity disburses the funds for program purposes. Allocation means the process of as- signing a cost, or a group of costs, to one or more cost objective(s), in rea- sonable proportion to the benefit pro- vided or other equitable relationship. The process may entail assigning a cost(s) directly to a final cost objective or through one or more intermediate cost objectives. Assistance listings refers to the pub- licly available listing of Federal assist- ance programs managed and adminis- tered by the General Services Adminis- tration, formerly known as the Catalog of Federal Domestic Assistance (CFDA). Assistance listing number means a unique number assigned to identify a Federal Assistance Listings, formerly known as the CFDA Number. Assistance listing program title means the title that corresponds to the Fed- eral Assistance Listings Number, for- merly known as the CFDA program title. Audit finding means deficiencies which the auditor is required by §200.516(a) to report in the schedule of findings and questioned costs. Auditee means any non-Federal enti- ty that expends Federal awards which must be audited under subpart F of this part. Auditor means an auditor who is a public accountant or a Federal, State, local government, or Indian tribe audit organization, which meets the general standards specified for external audi- tors in generally accepted government auditing standards (GAGAS). The term auditor does not include internal audi- tors of nonprofit organizations. Budget means the financial plan for the Federal award that the Federal awarding agency or pass-through enti- ty approves during the Federal award process or in subsequent amendments to the Federal award. It may include the Federal and non-Federal share or only the Federal share, as determined by the Federal awarding agency or pass-through entity. Budget period means the time inter- val from the start date of a funded por- tion of an award to the end date of that funded portion during which recipients are authorized to expend the funds VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00097 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 86 2 CFR Ch. II (1–1–21 Edition) §200.1 awarded, including any funds carried forward or other revisions pursuant to §200.308. Capital assets means: (1) Tangible or intangible assets used in operations having a useful life of more than one year which are capital- ized in accordance with GAAP. Capital assets include: (i) Land, buildings (facilities), equip- ment, and intellectual property (in- cluding software) whether acquired by purchase, construction, manufacture, exchange, or through a lease accounted for as financed purchase under Govern- ment Accounting Standards Board (GASB) standards or a finance lease under Financial Accounting Standards Board (FASB) standards; and (ii) Additions, improvements, modi- fications, replacements, rearrange- ments, reinstallations, renovations or alterations to capital assets that mate- rially increase their value or useful life (not ordinary repairs and mainte- nance). (2) For purpose of this part, capital assets do not include intangible right- to-use assets (per GASB) and right-to- use operating lease assets (per FASB). For example, assets capitalized that recognize a lessee’s right to control the use of property and/or equipment for a period of time under a lease contract. See also §200.465. Capital expenditures means expendi- tures to acquire capital assets or ex- penditures to make additions, improve- ments, modifications, replacements, rearrangements, reinstallations, ren- ovations, or alterations to capital as- sets that materially increase their value or useful life. Central service cost allocation plan means the documentation identifying, accumulating, and allocating or devel- oping billing rates based on the allow- able costs of services provided by a State or local government or Indian tribe on a centralized basis to its de- partments and agencies. The costs of these services may be allocated or billed to users. Claim means, depending on the con- text, either: (1) A written demand or written as- sertion by one of the parties to a Fed- eral award seeking as a matter of right: (i) The payment of money in a sum certain; (ii) The adjustment or interpretation of the terms and conditions of the Fed- eral award; or (iii) Other relief arising under or re- lating to a Federal award. (2) A request for payment that is not in dispute when submitted. Class of Federal awards means a group of Federal awards either awarded under a specific program or group of pro- grams or to a specific type of non-Fed- eral entity or group of non-Federal en- tities to which specific provisions or exceptions may apply. Closeout means the process by which the Federal awarding agency or pass- through entity determines that all ap- plicable administrative actions and all required work of the Federal award have been completed and takes actions as described in §200.344. Cluster of programs means a grouping of closely related programs that share common compliance requirements. The types of clusters of programs are re- search and development (R&D), student financial aid (SFA), and other clusters. ‘‘Other clusters’’ are as defined by OMB in the compliance supplement or as designated by a State for Federal awards the State provides to its sub- recipients that meet the definition of a cluster of programs. When designating an ‘‘other cluster,’’ a State must iden- tify the Federal awards included in the cluster and advise the subrecipients of compliance requirements applicable to the cluster, consistent with §200.332(a). A cluster of programs must be consid- ered as one program for determining major programs, as described in §200.518, and, with the exception of R&D as described in §200.501(c), wheth- er a program-specific audit may be elected. Cognizant agency for audit means the Federal agency designated to carry out the responsibilities described in §200.513(a). The cognizant agency for audit is not necessarily the same as the cognizant agency for indirect costs. A list of cognizant agencies for audit can be found on the Federal Audit Clear- inghouse (FAC) website. Cognizant agency for indirect costs means the Federal agency responsible VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00098 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 87 OMB Guidance §200.1 for reviewing, negotiating, and approv- ing cost allocation plans or indirect cost proposals developed under this part on behalf of all Federal agencies. The cognizant agency for indirect cost is not necessarily the same as the cog- nizant agency for audit. For assign- ments of cognizant agencies see the following: (1) For Institutions of Higher Edu- cation (IHEs): Appendix III to this part, paragraph C.11. (2) For nonprofit organizations: Ap- pendix IV to this part, paragraph C.2.a. (3) For State and local governments: Appendix V to this part, paragraph F.1. (4) For Indian tribes: Appendix VII to this part, paragraph D.1. Compliance supplement means an an- nually updated authoritative source for auditors that serves to identify exist- ing important compliance require- ments that the Federal Government expects to be considered as part of an audit. Auditors use it to understand the Federal program’s objectives, pro- cedures, and compliance requirements, as well as audit objectives and sug- gested audit procedures for deter- mining compliance with the relevant Federal program. Computing devices means machines used to acquire, store, analyze, process, and publish data and other information electronically, including accessories (or ‘‘peripherals’’) for printing, trans- mitting and receiving, or storing elec- tronic information. See also the defini- tions of supplies and information tech- nology systems in this section. Contract means, for the purpose of Federal financial assistance, a legal in- strument by which a recipient or sub- recipient purchases property or serv- ices needed to carry out the project or program under a Federal award. For additional information on subrecipient and contractor determinations, see §200.331. See also the definition of subaward in this section. Contractor means an entity that re- ceives a contract as defined in this sec- tion. Cooperative agreement means a legal instrument of financial assistance be- tween a Federal awarding agency and a recipient or a pass-through entity and a subrecipient that, consistent with 31 U.S.C. 6302–6305: (1) Is used to enter into a relation- ship the principal purpose of which is to transfer anything of value to carry out a public purpose authorized by a law of the United States (see 31 U.S.C. 6101(3)); and not to acquire property or services for the Federal Government or pass-through entity’s direct benefit or use; (2) Is distinguished from a grant in that it provides for substantial involve- ment of the Federal awarding agency in carrying out the activity con- templated by the Federal award. (3) The term does not include: (i) A cooperative research and devel- opment agreement as defined in 15 U.S.C. 3710a; or (ii) An agreement that provides only: (A) Direct United States Government cash assistance to an individual; (B) A subsidy; (C) A loan; (D) A loan guarantee; or (E) Insurance. Cooperative audit resolution means the use of audit follow-up techniques which promote prompt corrective action by improving communication, fostering collaboration, promoting trust, and de- veloping an understanding between the Federal agency and the non-Federal en- tity. This approach is based upon: (1) A strong commitment by Federal agency and non-Federal entity leader- ship to program integrity; (2) Federal agencies strengthening partnerships and working coopera- tively with non-Federal entities and their auditors; and non-Federal enti- ties and their auditors working coop- eratively with Federal agencies; (3) A focus on current conditions and corrective action going forward; (4) Federal agencies offering appro- priate relief for past noncompliance when audits show prompt corrective action has occurred; and (5) Federal agency leadership sending a clear message that continued failure to correct conditions identified by au- dits which are likely to cause improper payments, fraud, waste, or abuse is un- acceptable and will result in sanctions. Corrective action means action taken by the auditee that: (1) Corrects identified deficiencies; (2) Produces recommended improve- ments; or VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00099 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 88 2 CFR Ch. II (1–1–21 Edition) §200.1 (3) Demonstrates that audit findings are either invalid or do not warrant auditee action. Cost allocation plan means central service cost allocation plan or public assistance cost allocation plan. Cost objective means a program, func- tion, activity, award, organizational subdivision, contract, or work unit for which cost data are desired and for which provision is made to accumulate and measure the cost of processes, products, jobs, capital projects, etc. A cost objective may be a major function of the non-Federal entity, a particular service or project, a Federal award, or an indirect (Facilities & Administra- tive (F&A)) cost activity, as described in subpart E of this part. See also the definitions of final cost objective and in- termediate cost objective in this section. Cost sharing or matching means the portion of project costs not paid by Federal funds or contributions (unless otherwise authorized by Federal stat- ute). See also §200.306. Cross-cutting audit finding means an audit finding where the same under- lying condition or issue affects all Fed- eral awards (including Federal awards of more than one Federal awarding agency or pass-through entity). Disallowed costs means those charges to a Federal award that the Federal awarding agency or pass-through enti- ty determines to be unallowable, in ac- cordance with the applicable Federal statutes, regulations, or the terms and conditions of the Federal award. Discretionary award means an award in which the Federal awarding agency, in keeping with specific statutory au- thority that enables the agency to ex- ercise judgment (‘‘discretion’’), selects the recipient and/or the amount of Fed- eral funding awarded through a com- petitive process or based on merit of proposals. A discretionary award may be selected on a non-competitive basis, as appropriate. Equipment means tangible personal property (including information tech- nology systems) having a useful life of more than one year and a per-unit ac- quisition cost which equals or exceeds the lesser of the capitalization level es- tablished by the non-Federal entity for financial statement purposes, or $5,000. See also the definitions of capital as- sets, computing devices, general purpose equipment, information technology sys- tems, special purpose equipment, and sup- plies in this section. Expenditures means charges made by a non-Federal entity to a project or program for which a Federal award was received. (1) The charges may be reported on a cash or accrual basis, as long as the methodology is disclosed and is con- sistently applied. (2) For reports prepared on a cash basis, expenditures are the sum of: (i) Cash disbursements for direct charges for property and services; (ii) The amount of indirect expense charged; (iii) The value of third-party in-kind contributions applied; and (iv) The amount of cash advance pay- ments and payments made to sub- recipients. (3) For reports prepared on an ac- crual basis, expenditures are the sum of: (i) Cash disbursements for direct charges for property and services; (ii) The amount of indirect expense incurred; (iii) The value of third-party in-kind contributions applied; and (iv) The net increase or decrease in the amounts owed by the non-Federal entity for: (A) Goods and other property re- ceived; (B) Services performed by employees, contractors, subrecipients, and other payees; and (C) Programs for which no current services or performance are required such as annuities, insurance claims, or other benefit payments. Federal agency means an ‘‘agency’’ as defined at 5 U.S.C. 551(1) and further clarified by 5 U.S.C. 552(f). Federal Audit Clearinghouse (FAC) means the clearinghouse designated by OMB as the repository of record where non-Federal entities are required to transmit the information required by subpart F of this part. Federal award has the meaning, de- pending on the context, in either para- graph (1) or (2) of this definition: (1)(i) The Federal financial assistance that a recipient receives directly from VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00100 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 89 OMB Guidance §200.1 a Federal awarding agency or indi- rectly from a pass-through entity, as described in §200.101; or (ii) The cost-reimbursement contract under the Federal Acquisition Regula- tions that a non-Federal entity re- ceives directly from a Federal award- ing agency or indirectly from a pass- through entity, as described in §200.101. (2) The instrument setting forth the terms and conditions. The instrument is the grant agreement, cooperative agreement, other agreement for assist- ance covered in paragraph (2) of the definition of Federal financial assistance in this section, or the cost-reimburse- ment contract awarded under the Fed- eral Acquisition Regulations. (3) Federal award does not include other contracts that a Federal agency uses to buy goods or services from a contractor or a contract to operate Federal Government owned, contractor operated facilities (GOCOs). (4) See also definitions of Federal fi- nancial assistance, grant agreement, and cooperative agreement. Federal award date means the date when the Federal award is signed by the authorized official of the Federal awarding agency. Federal financial assistance means (1) Assistance that non-Federal enti- ties receive or administer in the form of: (i) Grants; (ii) Cooperative agreements; (iii) Non-cash contributions or dona- tions of property (including donated surplus property); (iv) Direct appropriations; (v) Food commodities; and (vi) Other financial assistance (ex- cept assistance listed in paragraph (2) of this definition). (2) For §200.203 and subpart F of this part, Federal financial assistance also in- cludes assistance that non-Federal en- tities receive or administer in the form of: (i) Loans; (ii) Loan Guarantees; (iii) Interest subsidies; and (iv) Insurance. (3) For §200.216, Federal financial as- sistance includes assistance that non- Federal entities receive or administer in the form of: (i) Grants; (ii) Cooperative agreements; (iii) Loans; and (iv) Loan Guarantees. (4) Federal financial assistance does not include amounts received as reim- bursement for services rendered to in- dividuals as described in §200.502(h) and (i). Federal interest means, for purposes of §200.330 or when used in connection with the acquisition or improvement of real property, equipment, or supplies under a Federal award, the dollar amount that is the product of the: (1) The percentage of Federal partici- pation in the total cost of the real property, equipment, or supplies; and (2) Current fair market value of the property, improvements, or both, to the extent the costs of acquiring or im- proving the property were included as project costs. Federal program means: (1) All Federal awards which are as- signed a single Assistance Listings Number. (2) When no Assistance Listings Number is assigned, all Federal awards from the same agency made for the same purpose must be combined and considered one program. (3) Notwithstanding paragraphs (1) and (2) of this definition, a cluster of programs. The types of clusters of pro- grams are: (i) Research and development (R&D); (ii) Student financial aid (SFA); and (iii) ‘‘Other clusters,’’ as described in the definition of cluster of programs in this section. Federal share means the portion of the Federal award costs that are paid using Federal funds. Final cost objective means a cost ob- jective which has allocated to it both direct and indirect costs and, in the non-Federal entity’s accumulation sys- tem, is one of the final accumulation points, such as a particular award, in- ternal project, or other direct activity of a non-Federal entity. See also the definitions of cost objective and inter- mediate cost objective in this section. Financial obligations, when ref- erencing a recipient’s or subrecipient’s use of funds under a Federal award, means orders placed for property and services, contracts and subawards VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00101 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 90 2 CFR Ch. II (1–1–21 Edition) §200.1 made, and similar transactions that re- quire payment. Fixed amount awards means a type of grant or cooperative agreement under which the Federal awarding agency or pass-through entity provides a specific level of support without regard to ac- tual costs incurred under the Federal award. This type of Federal award re- duces some of the administrative bur- den and record-keeping requirements for both the non-Federal entity and Federal awarding agency or pass- through entity. Accountability is based primarily on performance and results. See §§200.102(c), 200.201(b), and 200.333. Foreign organization means an entity that is: (1) A public or private organization located in a country other than the United States and its territories that is subject to the laws of the country in which it is located, irrespective of the citizenship of project staff or place of performance; (2) A private nongovernmental orga- nization located in a country other than the United States that solicits and receives cash contributions from the general public; (3) A charitable organization located in a country other than the United States that is nonprofit and tax ex- empt under the laws of its country of domicile and operation, and is not a university, college, accredited degree- granting institution of education, pri- vate foundation, hospital, organization engaged exclusively in research or sci- entific activities, church, synagogue, mosque or other similar entities orga- nized primarily for religious purposes; or (4) An organization located in a coun- try other than the United States not recognized as a foreign public entity. Foreign public entity means: (1) A foreign government or foreign governmental entity; (2) A public international organiza- tion, which is an organization entitled to enjoy privileges, exemptions, and immunities as an international organi- zation under the International Organi- zations Immunities Act (22 U.S.C. 288– 288f); (3) An entity owned (in whole or in part) or controlled by a foreign govern- ment; or (4) Any other entity consisting whol- ly or partially of one or more foreign governments or foreign governmental entities. General purpose equipment means equipment which is not limited to re- search, medical, scientific or other technical activities. Examples include office equipment and furnishings, mod- ular offices, telephone networks, infor- mation technology equipment and sys- tems, air conditioning equipment, re- production and printing equipment, and motor vehicles. See also the defini- tions of equipment and special purpose equipment in this section. Generally accepted accounting prin- ciples (GAAP) has the meaning specified in accounting standards issued by the GASB and the FASB. Generally accepted government auditing standards (GAGAS), also known as the Yellow Book, means generally accepted government auditing standards issued by the Comptroller General of the United States, which are applicable to financial audits. Grant agreement means a legal instru- ment of financial assistance between a Federal awarding agency or pass- through entity and a non-Federal enti- ty that, consistent with 31 U.S.C. 6302, 6304: (1) Is used to enter into a relation- ship the principal purpose of which is to transfer anything of value to carry out a public purpose authorized by a law of the United States (see 31 U.S.C. 6101(3)); and not to acquire property or services for the Federal awarding agen- cy or pass-through entity’s direct ben- efit or use; (2) Is distinguished from a coopera- tive agreement in that it does not pro- vide for substantial involvement of the Federal awarding agency in carrying out the activity contemplated by the Federal award. (3) Does not include an agreement that provides only: (i) Direct United States Government cash assistance to an individual; (ii) A subsidy; (iii) A loan; (vi) A loan guarantee; or (v) Insurance. Highest level owner means the entity that owns or controls an immediate owner of the offeror, or that owns or VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00102 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 91 OMB Guidance §200.1 controls one or more entities that con- trol an immediate owner of the offeror. No entity owns or exercises control of the highest-level owner as defined in the Federal Acquisition Regulations (FAR) (48 CFR 52.204–17). Hospital means a facility licensed as a hospital under the law of any state or a facility operated as a hospital by the United States, a state, or a subdivision of a state. Improper payment means: (1) Any payment that should not have been made or that was made in an incorrect amount under statutory, con- tractual, administrative, or other le- gally applicable requirements. (i) Incorrect amounts are overpay- ments or underpayments that are made to eligible recipients (including inap- propriate denials of payment or serv- ice, any payment that does not account for credit for applicable discounts, pay- ments that are for an incorrect amount, and duplicate payments). An improper payment also includes any payment that was made to an ineli- gible recipient or for an ineligible good or service, or payments for goods or services not received (except for such payments authorized by law). Note 1 to paragraph (1)(i) of this defini- tion. Applicable discounts are only those discounts where it is both advan- tageous and within the agency’s con- trol to claim them. (ii) When an agency’s review is un- able to discern whether a payment was proper as a result of insufficient or lack of documentation, this payment should also be considered an improper payment. When establishing docu- mentation requirements for payments, agencies should ensure that all docu- mentation requirements are necessary and should refrain from imposing addi- tional burdensome documentation re- quirements. (iii) Interest or other fees that may result from an underpayment by an agency are not considered an improper payment if the interest was paid cor- rectly. These payments are generally separate transactions and may be nec- essary under certain statutory, con- tractual, administrative, or other le- gally applicable requirements. (iv) A ‘‘questioned cost’’ (as defined in this section) should not be consid- ered an improper payment until the transaction has been completely re- viewed and is confirmed to be im- proper. (v) The term ‘‘payment’’ in this defi- nition means any disbursement or transfer of Federal funds (including a commitment for future payment, such as cash, securities, loans, loan guaran- tees, and insurance subsidies) to any non-Federal person, non-Federal enti- ty, or Federal employee, that is made by a Federal agency, a Federal con- tractor, a Federal grantee, or a govern- mental or other organization admin- istering a Federal program or activity. (vi) The term ‘‘payment’’ includes disbursements made pursuant to prime contracts awarded under the Federal Acquisition Regulation and Federal awards subject to this part that are ex- pended by recipients. (2) See definition of improper pay- ment in OMB Circular A–123 appendix C, part I A (1) ‘‘What is an improper payment?’’ Questioned costs, including those identified in audits, are not an improper payment until reviewed and confirmed to be improper as defined in OMB Circular A–123 appendix C. Indian tribe means any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. Chapter 33), which is recognized as eligible for the special programs and services provided by the United States to Indians be- cause of their status as Indians (25 U.S.C. 450b(e)). See annually published Bureau of Indian Affairs list of Indian Entities Recognized and Eligible to Re- ceive Services. Institutions of Higher Education (IHEs) is defined at 20 U.S.C. 1001. Indirect (facilities & administrative (F&A)) costs means those costs incurred for a common or joint purpose benefit- ting more than one cost objective, and not readily assignable to the cost ob- jectives specifically benefitted, with- out effort disproportionate to the re- sults achieved. To facilitate equitable distribution of indirect expenses to the cost objectives served, it may be nec- essary to establish a number of pools of indirect (F&A) costs. Indirect (F&A) VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00103 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 92 2 CFR Ch. II (1–1–21 Edition) §200.1 cost pools must be distributed to bene- fitted cost objectives on bases that will produce an equitable result in consider- ation of relative benefits derived. Indirect cost rate proposal means the documentation prepared by a non-Fed- eral entity to substantiate its request for the establishment of an indirect cost rate as described in appendices III through VII and appendix IX to this part. Information technology systems means computing devices, ancillary equip- ment, software, firmware, and similar procedures, services (including support services), and related resources. See also the definitions of computing devices and equipment in this section. Intangible property means property having no physical existence, such as trademarks, copyrights, patents and patent applications and property, such as loans, notes and other debt instru- ments, lease agreements, stock and other instruments of property owner- ship (whether the property is tangible or intangible). Intermediate cost objective means a cost objective that is used to accumu- late indirect costs or service center costs that are subsequently allocated to one or more indirect cost pools or final cost objectives. See also the defi- nitions of cost objective and final cost ob- jective in this section. Internal controls for non-Federal enti- ties means: (1) Processes designed and imple- mented by non-Federal entities to pro- vide reasonable assurance regarding the achievement of objectives in the following categories: (i) Effectiveness and efficiency of op- erations; (ii) Reliability of reporting for inter- nal and external use; and (iii) Compliance with applicable laws and regulations. (2) Federal awarding agencies are re- quired to follow internal control com- pliance requirements in OMB Circular No. A–123, Management’s Responsi- bility for Enterprise Risk Management and Internal Control. Loan means a Federal loan or loan guarantee received or administered by a non-Federal entity, except as used in the definition of program income in this section. (1) The term ‘‘direct loan’’ means a disbursement of funds by the Federal Government to a non-Federal borrower under a contract that requires the re- payment of such funds with or without interest. The term includes the pur- chase of, or participation in, a loan made by another lender and financing arrangements that defer payment for more than 90 days, including the sale of a Federal Government asset on credit terms. The term does not include the acquisition of a federally guaranteed loan in satisfaction of default claims or the price support loans of the Com- modity Credit Corporation. (2) The term ‘‘direct loan obligation’’ means a binding agreement by a Fed- eral awarding agency to make a direct loan when specified conditions are ful- filled by the borrower. (3) The term ‘‘loan guarantee’’ means any Federal Government guarantee, in- surance, or other pledge with respect to the payment of all or a part of the principal or interest on any debt obli- gation of a non-Federal borrower to a non-Federal lender, but does not in- clude the insurance of deposits, shares, or other withdrawable accounts in fi- nancial institutions. (4) The term ‘‘loan guarantee com- mitment’’ means a binding agreement by a Federal awarding agency to make a loan guarantee when specified condi- tions are fulfilled by the borrower, the lender, or any other party to the guar- antee agreement. Local government means any unit of government within a state, including a: (1) County; (2) Borough; (3) Municipality; (4) City; (5) Town; (6) Township; (7) Parish; (8) Local public authority, including any public housing agency under the United States Housing Act of 1937; (9) Special district; (10) School district; (11) Intrastate district; (12) Council of governments, whether or not incorporated as a nonprofit cor- poration under State law; and (13) Any other agency or instrumen- tality of a multi-, regional, or intra- State or local government. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00104 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 93 OMB Guidance §200.1 Major program means a Federal pro- gram determined by the auditor to be a major program in accordance with §200.518 or a program identified as a major program by a Federal awarding agency or pass-through entity in ac- cordance with §200.503(e). Management decision means the Fed- eral awarding agency’s or pass-through entity’s written determination, pro- vided to the auditee, of the adequacy of the auditee’s proposed corrective ac- tions to address the findings, based on its evaluation of the audit findings and proposed corrective actions. Micro-purchase means a purchase of supplies or services, the aggregate amount of which does not exceed the micro-purchase threshold. Micro-pur- chases comprise a subset of a non-Fed- eral entity’s small purchases as defined in §200.320. Micro-purchase threshold means the dollar amount at or below which a non- Federal entity may purchase property or services using micro-purchase proce- dures (see §200.320). Generally, the micro-purchase threshold for procure- ment activities administered under Federal awards is not to exceed the amount set by the FAR at 48 CFR part 2, subpart 2.1, unless a higher threshold is requested by the non-Federal entity and approved by the cognizant agency for indirect costs. Modified Total Direct Cost (MTDC) means all direct salaries and wages, ap- plicable fringe benefits, materials and supplies, services, travel, and up to the first $25,000 of each subaward (regard- less of the period of performance of the subawards under the award). MTDC ex- cludes equipment, capital expendi- tures, charges for patient care, rental costs, tuition remission, scholarships and fellowships, participant support costs and the portion of each subaward in excess of $25,000. Other items may only be excluded when necessary to avoid a serious inequity in the dis- tribution of indirect costs, and with the approval of the cognizant agency for indirect costs. Non-discretionary award means an award made by the Federal awarding agency to specific recipients in accord- ance with statutory, eligibility and compliance requirements, such that in keeping with specific statutory author- ity the agency has no ability to exer- cise judgement (‘‘discretion’’). A non- discretionary award amount could be determined specifically or by formula. Non-Federal entity (NFE) means a State, local government, Indian tribe, Institution of Higher Education (IHE), or nonprofit organization that carries out a Federal award as a recipient or subrecipient. Nonprofit organization means any cor- poration, trust, association, coopera- tive, or other organization, not includ- ing IHEs, that: (1) Is operated primarily for sci- entific, educational, service, chari- table, or similar purposes in the public interest; (2) Is not organized primarily for profit; and (3) Uses net proceeds to maintain, improve, or expand the operations of the organization. Notice of funding opportunity means a formal announcement of the avail- ability of Federal funding through a fi- nancial assistance program from a Fed- eral awarding agency. The notice of funding opportunity provides informa- tion on the award, who is eligible to apply, the evaluation criteria for selec- tion of an awardee, required compo- nents of an application, and how to submit the application. The notice of funding opportunity is any paper or electronic issuance that an agency uses to announce a funding opportunity, whether it is called a ‘‘program an- nouncement,’’ ‘‘notice of funding avail- ability,’’ ‘‘broad agency announce- ment,’’ ‘‘research announcement,’’ ‘‘solicitation,’’ or some other term. Office of Management and Budget (OMB) means the Executive Office of the President, Office of Management and Budget. Oversight agency for audit means the Federal awarding agency that provides the predominant amount of funding di- rectly (direct funding) (as listed on the schedule of expenditures of Federal awards, see §200.510(b)) to a non-Fed- eral entity unless OMB designates a specific cognizant agency for audit. When the direct funding represents less than 25 percent of the total Federal ex- penditures (as direct and sub-awards) by the non-Federal entity, then the Federal agency with the predominant VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00105 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 94 2 CFR Ch. II (1–1–21 Edition) §200.1 amount of total funding is the des- ignated cognizant agency for audit. When there is no direct funding, the Federal awarding agency which is the predominant source of pass-through funding must assume the oversight re- sponsibilities. The duties of the over- sight agency for audit and the process for any reassignments are described in §200.513(b). Participant support costs means direct costs for items such as stipends or sub- sistence allowances, travel allowances, and registration fees paid to or on be- half of participants or trainees (but not employees) in connection with con- ferences, or training projects. Pass-through entity (PTE) means a non-Federal entity that provides a subaward to a subrecipient to carry out part of a Federal program. Performance goal means a target level of performance expressed as a tangible, measurable objective, against which actual achievement can be compared, including a goal expressed as a quan- titative standard, value, or rate. In some instances (e.g., discretionary re- search awards), this may be limited to the requirement to submit technical performance reports (to be evaluated in accordance with agency policy). Period of performance means the total estimated time interval between the start of an initial Federal award and the planned end date, which may in- clude one or more funded portions, or budget periods. Identification of the period of performance in the Federal award per §200.211(b)(5) does not com- mit the awarding agency to fund the award beyond the currently approved budget period. Personal property means property other than real property. It may be tangible, having physical existence, or intangible. Personally Identifiable Information (PII) means information that can be used to distinguish or trace an individ- ual’s identity, either alone or when combined with other personal or iden- tifying information that is linked or linkable to a specific individual. Some information that is considered to be PII is available in public sources such as telephone books, public websites, and university listings. This type of in- formation is considered to be Public PII and includes, for example, first and last name, address, work telephone number, email address, home telephone number, and general educational cre- dentials. The definition of PII is not anchored to any single category of in- formation or technology. Rather, it re- quires a case-by-case assessment of the specific risk that an individual can be identified. Non-PII can become PII whenever additional information is made publicly available, in any me- dium and from any source, that, when combined with other available infor- mation, could be used to identify an in- dividual. Program income means gross income earned by the non-Federal entity that is directly generated by a supported ac- tivity or earned as a result of the Fed- eral award during the period of per- formance except as provided in §200.307(f). (See the definition of period of performance in this section.) Program income includes but is not limited to income from fees for services per- formed, the use or rental or real or per- sonal property acquired under Federal awards, the sale of commodities or items fabricated under a Federal award, license fees and royalties on patents and copyrights, and principal and interest on loans made with Fed- eral award funds. Interest earned on advances of Federal funds is not pro- gram income. Except as otherwise pro- vided in Federal statutes, regulations, or the terms and conditions of the Fed- eral award, program income does not include rebates, credits, discounts, and interest earned on any of them. See also §200.407. See also 35 U.S.C. 200–212 ‘‘Disposition of Rights in Educational Awards’’ applies to inventions made under Federal awards. Project cost means total allowable costs incurred under a Federal award and all required cost sharing and vol- untary committed cost sharing, includ- ing third-party contributions. Property means real property or per- sonal property. See also the definitions of real property and personal property in this section. Protected Personally Identifiable Infor- mation (Protected PII) means an individ- ual’s first name or first initial and last name in combination with any one or VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00106 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 95 OMB Guidance §200.1 more of types of information, includ- ing, but not limited to, social security number, passport number, credit card numbers, clearances, bank numbers, biometrics, date and place of birth, mother’s maiden name, criminal, med- ical and financial records, educational transcripts. This does not include PII that is required by law to be disclosed. See also the definition of Personally Identifiable Information (PII) in this sec- tion. Questioned cost means a cost that is questioned by the auditor because of an audit finding: (1) Which resulted from a violation or possible violation of a statute, regula- tion, or the terms and conditions of a Federal award, including for funds used to match Federal funds; (2) Where the costs, at the time of the audit, are not supported by ade- quate documentation; or (3) Where the costs incurred appear unreasonable and do not reflect the ac- tions a prudent person would take in the circumstances. (4) Questioned costs are not an im- proper payment until reviewed and confirmed to be improper as defined in OMB Circular A–123 appendix C. (See also the definition of Improper payment in this section). Real property means land, including land improvements, structures and ap- purtenances thereto, but excludes moveable machinery and equipment. Recipient means an entity, usually but not limited to non-Federal entities that receives a Federal award directly from a Federal awarding agency. The term recipient does not include sub- recipients or individuals that are bene- ficiaries of the award. Renewal award means an award made subsequent to an expiring Federal award for which the start date is con- tiguous with, or closely follows, the end of the expiring Federal award. A renewal award’s start date will begin a distinct period of performance. Research and Development (R&D) means all research activities, both basic and applied, and all development activities that are performed by non- Federal entities. The term research also includes activities involving the training of individuals in research techniques where such activities utilize the same facilities as other research and development activities and where such activities are not included in the instruction function. ‘‘Research’’ is de- fined as a systematic study directed to- ward fuller scientific knowledge or un- derstanding of the subject studied. ‘‘Development’’ is the systematic use of knowledge and understanding gained from research directed toward the pro- duction of useful materials, devices, systems, or methods, including design and development of prototypes and processes. Simplified acquisition threshold means the dollar amount below which a non- Federal entity may purchase property or services using small purchase meth- ods (see §200.320). Non-Federal entities adopt small purchase procedures in order to expedite the purchase of items at or below the simplified acquisition threshold. The simplified acquisition threshold for procurement activities administered under Federal awards is set by the FAR at 48 CFR part 2, sub- part 2.1. The non-Federal entity is re- sponsible for determining an appro- priate simplified acquisition threshold based on internal controls, an evalua- tion of risk, and its documented pro- curement procedures. However, in no circumstances can this threshold ex- ceed the dollar value established in the FAR (48 CFR part 2, subpart 2.1) for the simplified acquisition threshold. Re- cipients should determine if local gov- ernment laws on purchasing apply. Special purpose equipment means equipment which is used only for re- search, medical, scientific, or other technical activities. Examples of spe- cial purpose equipment include micro- scopes, x-ray machines, surgical instru- ments, and spectrometers. See also the definitions of equipment and general purpose equipment in this section. State means any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any agency or instrumentality thereof ex- clusive of local governments. Student Financial Aid (SFA) means Federal awards under those programs of general student assistance, such as those authorized by Title IV of the VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00107 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 96 2 CFR Ch. II (1–1–21 Edition) §200.2 Higher Education Act of 1965, as amended, (20 U.S.C. 1070–1099d), which are administered by the U.S. Depart- ment of Education, and similar pro- grams provided by other Federal agen- cies. It does not include Federal awards under programs that provide fellow- ships or similar Federal awards to stu- dents on a competitive basis, or for specified studies or research. Subaward means an award provided by a pass-through entity to a sub- recipient for the subrecipient to carry out part of a Federal award received by the pass-through entity. It does not in- clude payments to a contractor or pay- ments to an individual that is a bene- ficiary of a Federal program. A subaward may be provided through any form of legal agreement, including an agreement that the pass-through enti- ty considers a contract. Subrecipient means an entity, usually but not limited to non-Federal entities, that receives a subaward from a pass- through entity to carry out part of a Federal award; but does not include an individual that is a beneficiary of such award. A subrecipient may also be a re- cipient of other Federal awards di- rectly from a Federal awarding agency. Subsidiary means an entity in which more than 50 percent of the entity is owned or controlled directly by a par- ent corporation or through another subsidiary of a parent corporation. Supplies means all tangible personal property other than those described in the definition of equipment in this sec- tion. A computing device is a supply if the acquisition cost is less than the lesser of the capitalization level estab- lished by the non-Federal entity for fi- nancial statement purposes or $5,000, regardless of the length of its useful life. See also the definitions of com- puting devices and equipment in this sec- tion. Telecommunications cost means the cost of using communication and te- lephony technologies such as mobile phones, land lines, and internet. Termination means the ending of a Federal award, in whole or in part at any time prior to the planned end of period of performance. A lack of avail- able funds is not a termination. Third-party in-kind contributions means the value of non-cash contribu- tions (i.e., property or services) that— (1) Benefit a federally-assisted project or program; and (2) Are contributed by non-Federal third parties, without charge, to a non- Federal entity under a Federal award. Unliquidated financial obligations means, for financial reports prepared on a cash basis, financial obligations incurred by the non-Federal entity that have not been paid (liquidated). For reports prepared on an accrual ex- penditure basis, these are financial ob- ligations incurred by the non-Federal entity for which an expenditure has not been recorded. Unobligated balance means the amount of funds under a Federal award that the non-Federal entity has not ob- ligated. The amount is computed by subtracting the cumulative amount of the non-Federal entity’s unliquidated financial obligations and expenditures of funds under the Federal award from the cumulative amount of the funds that the Federal awarding agency or pass-through entity authorized the non-Federal entity to obligate. Voluntary committed cost sharing means cost sharing specifically pledged on a voluntary basis in the proposal’s budget on the part of the non-Federal entity and that becomes a binding re- quirement of Federal award. See also §200.306. [85 FR 49529, Aug. 13, 2020] §200.2 Acquisition cost. Acquisition cost means the cost of the asset including the cost to ready the asset for its intended use. Acquisition cost for equipment, for example, means the net invoice price of the equipment, including the cost of any modifica- tions, attachments, accessories, or aux- iliary apparatus necessary to make it usable for the purpose for which it is acquired. Acquisition costs for soft- ware includes those development costs capitalized in accordance with gen- erally accepted accounting principles (GAAP). Ancillary charges, such as taxes, duty, protective in transit insur- ance, freight, and installation may be included in or excluded from the acqui- sition cost in accordance with the non- VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00108 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 97 OMB Guidance §200.13 Federal entity’s regular accounting practices. §200.3 Advance payment. Advance payment means a payment that a Federal awarding agency or pass-through entity makes by any ap- propriate payment mechanism, includ- ing a predetermined payment schedule, before the non-Federal entity disburses the funds for program purposes. §200.4 Allocation. Allocation means the process of as- signing a cost, or a group of costs, to one or more cost objective(s), in rea- sonable proportion to the benefit pro- vided or other equitable relationship. The process may entail assigning a cost(s) directly to a final cost objective or through one or more intermediate cost objectives. §200.5 Audit finding. Audit finding means deficiencies which the auditor is required by §200.516 Audit findings, paragraph (a) to report in the schedule of findings and questioned costs. §200.6 Auditee. Auditee means any non-Federal enti- ty that expends Federal awards which must be audited under Subpart F— Audit Requirements of this part. §200.7 Auditor. Auditor means an auditor who is a public accountant or a Federal, state, local government, or Indian tribe audit organization, which meets the general standards specified for external audi- tors in generally accepted government auditing standards (GAGAS). The term auditor does not include internal audi- tors of nonprofit organizations. [79 FR 75880, Dec. 19, 2014] §200.8 Budget. Budget means the financial plan for the project or program that the Fed- eral awarding agency or pass-through entity approves during the Federal award process or in subsequent amend- ments to the Federal award. It may in- clude the Federal and non-Federal share or only the Federal share, as de- termined by the Federal awarding agency or pass-through entity. §200.9 Central service cost allocation plan. Central service cost allocation plan means the documentation identifying, accumulating, and allocating or devel- oping billing rates based on the allow- able costs of services provided by a state, local government, or Indian tribe on a centralized basis to its depart- ments and agencies. The costs of these services may be allocated or billed to users. §200.10 Catalog of Federal Domestic Assistance (CFDA) number. CFDA number means the number as- signed to a Federal program in the CFDA. §200.11 CFDA program title. CFDA program title means the title of the program under which the Federal award was funded in the CFDA. §200.12 Capital assets. Capital assets means tangible or in- tangible assets used in operations hav- ing a useful life of more than one year which are capitalized in accordance with GAAP. Capital assets include: (a) Land, buildings (facilities), equip- ment, and intellectual property (in- cluding software) whether acquired by purchase, construction, manufacture, lease-purchase, exchange, or through capital leases; and (b) Additions, improvements, modi- fications, replacements, rearrange- ments, reinstallations, renovations or alterations to capital assets that mate- rially increase their value or useful life (not ordinary repairs and mainte- nance). §200.13 Capital expenditures. Capital expenditures means expendi- tures to acquire capital assets or ex- penditures to make additions, improve- ments, modifications, replacements, rearrangements, reinstallations, ren- ovations, or alterations to capital as- sets that materially increase their value or useful life. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00109 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 98 2 CFR Ch. II (1–1–21 Edition) §200.14 §200.14 Claim. Claim means, depending on the con- text, either: (a) A written demand or written as- sertion by one of the parties to a Fed- eral award seeking as a matter of right: (1) The payment of money in a sum certain; (2) The adjustment or interpretation of the terms and conditions of the Fed- eral award; or (3) Other relief arising under or relat- ing to a Federal award. (b) A request for payment that is not in dispute when submitted. §200.15 Class of Federal awards. Class of Federal awards means a group of Federal awards either awarded under a specific program or group of pro- grams or to a specific type of non-Fed- eral entity or group of non-Federal en- tities to which specific provisions or exceptions may apply. §200.16 Closeout. Closeout means the process by which the Federal awarding agency or pass- through entity determines that all ap- plicable administrative actions and all required work of the Federal award have been completed and takes actions as described in §200.343 Closeout. §200.17 Cluster of programs. Cluster of programs means a grouping of closely related programs that share common compliance requirements. The types of clusters of programs are re- search and development (R&D), student financial aid (SFA), and other clusters. ‘‘Other clusters’’ are as defined by OMB in the compliance supplement or as designated by a state for Federal awards the state provides to its sub- recipients that meet the definition of a cluster of programs. When designating an ‘‘other cluster,’’ a state must iden- tify the Federal awards included in the cluster and advise the subrecipients of compliance requirements applicable to the cluster, consistent with §200.331 Requirements for pass-through enti- ties, paragraph (a). A cluster of pro- grams must be considered as one pro- gram for determining major programs, as described in §200.518 Major program determination, and, with the exception of R&D as described in §200.501 Audit requirements, paragraph (c), whether a program-specific audit may be elected. §200.18 Cognizant agency for audit. Cognizant agency for audit means the Federal agency designated to carry out the responsibilities described in §200.513 Responsibilities, paragraph (a). The cognizant agency for audit is not necessarily the same as the cognizant agency for indirect costs. A list of cog- nizant agencies for audit may be found at the FAC Web site. §200.19 Cognizant agency for indirect costs. Cognizant agency for indirect costs means the Federal agency responsible for reviewing, negotiating, and approv- ing cost allocation plans or indirect cost proposals developed under this part on behalf of all Federal agencies. The cognizant agency for indirect cost is not necessarily the same as the cog- nizant agency for audit. For assign- ments of cognizant agencies see the following: (a) For IHEs: Appendix III to Part 200—Indirect (F&A) Costs Identifica- tion and Assignment, and Rate Deter- mination for Institutions of Higher Education (IHEs), paragraph C.11. (b) For nonprofit organizations: Ap- pendix IV to Part 200—Indirect (F&A) Costs Identification and Assignment, and Rate Determination for Nonprofit Organizations, paragraph C.2.a. (c) For state and local governments: Appendix V to Part 200—State/Local Governmentwide Central Service Cost Allocation Plans, paragraph F.1. (d) For Indian tribes: Appendix VII to Part 200—States and Local Govern- ment and Indian Tribe Indirect Cost Proposal, paragraph D.1. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75880, Dec. 19, 2014; 80 FR 54407, Sept. 10, 2015] §200.20 Computing devices. Computing devices means machines used to acquire, store, analyze, process, and publish data and other information electronically, including accessories (or ‘‘peripherals’’) for printing, trans- mitting and receiving, or storing elec- tronic information. See also §§200.94 VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00110 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 99 OMB Guidance §200.28 Supplies and 200.58 Information tech- nology systems. §200.21 Compliance supplement. Compliance supplement means Appen- dix XI to Part 200—Compliance Supple- ment (previously known as the Cir- cular A–133 Compliance Supplement). §200.22 Contract. Contract means a legal instrument by which a non-Federal entity purchases property or services needed to carry out the project or program under a Federal award. The term as used in this part does not include a legal in- strument, even if the non-Federal enti- ty considers it a contract, when the substance of the transaction meets the definition of a Federal award or subaward (see §200.92 Subaward). §200.23 Contractor. Contractor means an entity that re- ceives a contract as defined in §200.22 Contract. §200.24 Cooperative agreement. Cooperative agreement means a legal instrument of financial assistance be- tween a Federal awarding agency or pass-through entity and a non-Federal entity that, consistent with 31 U.S.C. 6302–6305: (a) Is used to enter into a relation- ship the principal purpose of which is to transfer anything of value from the Federal awarding agency or pass- through entity to the non-Federal enti- ty to carry out a public purpose au- thorized by a law of the United States (see 31 U.S.C. 6101(3)); and not to ac- quire property or services for the Fed- eral Government or pass-through enti- ty’s direct benefit or use; (b) Is distinguished from a grant in that it provides for substantial involve- ment between the Federal awarding agency or pass-through entity and the non-Federal entity in carrying out the activity contemplated by the Federal award. (c) The term does not include: (1) A cooperative research and devel- opment agreement as defined in 15 U.S.C. 3710a; or (2) An agreement that provides only: (i) Direct United States Government cash assistance to an individual; (ii) A subsidy; (iii) A loan; (iv) A loan guarantee; or (v) Insurance. §200.25 Cooperative audit resolution. Cooperative audit resolution means the use of audit follow-up techniques which promote prompt corrective action by improving communication, fostering collaboration, promoting trust, and de- veloping an understanding between the Federal agency and the non-Federal en- tity. This approach is based upon: (a) A strong commitment by Federal agency and non-Federal entity leader- ship to program integrity; (b) Federal agencies strengthening partnerships and working coopera- tively with non-Federal entities and their auditors; and non-Federal enti- ties and their auditors working coop- eratively with Federal agencies; (c) A focus on current conditions and corrective action going forward; (d) Federal agencies offering appro- priate relief for past noncompliance when audits show prompt corrective action has occurred; and (e) Federal agency leadership sending a clear message that continued failure to correct conditions identified by au- dits which are likely to cause improper payments, fraud, waste, or abuse is un- acceptable and will result in sanctions. §200.26 Corrective action. Corrective action means action taken by the auditee that: (a) Corrects identified deficiencies; (b) Produces recommended improve- ments; or (c) Demonstrates that audit findings are either invalid or do not warrant auditee action. §200.27 Cost allocation plan. Cost allocation plan means central service cost allocation plan or public assistance cost allocation plan. §200.28 Cost objective. Cost objective means a program, func- tion, activity, award, organizational subdivision, contract, or work unit for which cost data are desired and for which provision is made to accumulate and measure the cost of processes, products, jobs, capital projects, etc. A VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00111 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 100 2 CFR Ch. II (1–1–21 Edition) §200.29 cost objective may be a major function of the non-Federal entity, a particular service or project, a Federal award, or an indirect (Facilities & Administra- tive (F&A)) cost activity, as described in Subpart E—Cost Principles of this Part. See also §§200.44 Final cost objec- tive and 200.60 Intermediate cost objec- tive. §200.29 Cost sharing or matching. Cost sharing or matching means the portion of project costs not paid by Federal funds (unless otherwise author- ized by Federal statute). See also §200.306 Cost sharing or matching. §200.30 Cross-cutting audit finding. Cross-cutting audit finding means an audit finding where the same under- lying condition or issue affects Federal awards of more than one Federal awarding agency or pass-through enti- ty. §200.31 Disallowed costs. Disallowed costs means those charges to a Federal award that the Federal awarding agency or pass-through enti- ty determines to be unallowable, in ac- cordance with the applicable Federal statutes, regulations, or the terms and conditions of the Federal award. §200.32 [Reserved] §200.33 Equipment. Equipment means tangible personal property (including information tech- nology systems) having a useful life of more than one year and a per-unit ac- quisition cost which equals or exceeds the lesser of the capitalization level es- tablished by the non-Federal entity for financial statement purposes, or $5,000. See also §§200.12 Capital assets, 200.20 Computing devices, 200.48 General pur- pose equipment, 200.58 Information technology systems, 200.89 Special pur- pose equipment, and 200.94 Supplies. §200.34 Expenditures. Expenditures means charges made by a non-Federal entity to a project or program for which a Federal award was received. (a) The charges may be reported on a cash or accrual basis, as long as the methodology is disclosed and is con- sistently applied. (b) For reports prepared on a cash basis, expenditures are the sum of: (1) Cash disbursements for direct charges for property and services; (2) The amount of indirect expense charged; (3) The value of third-party in-kind contributions applied; and (4) The amount of cash advance pay- ments and payments made to sub- recipients. (c) For reports prepared on an ac- crual basis, expenditures are the sum of: (1) Cash disbursements for direct charges for property and services; (2) The amount of indirect expense incurred; (3) The value of third-party in-kind contributions applied; and (4) The net increase or decrease in the amounts owed by the non-Federal entity for: (i) Goods and other property re- ceived; (ii) Services performed by employees, contractors, subrecipients, and other payees; and (iii) Programs for which no current services or performance are required such as annuities, insurance claims, or other benefit payments. §200.35 Federal agency. Federal agency means an ‘‘agency’’ as defined at 5 U.S.C. 551(1) and further clarified by 5 U.S.C. 552(f). §200.36 Federal Audit Clearinghouse (FAC). FAC means the clearinghouse des- ignated by OMB as the repository of record where non-Federal entities are required to transmit the reporting packages required by Subpart F—Audit Requirements of this part. The mailing address of the FAC is Federal Audit Clearinghouse, Bureau of the Census, 1201 E. 10th Street, Jeffersonville, IN 47132 and the web address is: http://har- vester.census.gov/sac/. Any future up- dates to the location of the FAC may be found at the OMB Web site. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00112 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 101 OMB Guidance §200.42 §200.37 Federal awarding agency. Federal awarding agency means the Federal agency that provides a Federal award directly to a non-Federal entity. §200.38 Federal award. Federal award has the meaning, de- pending on the context, in either para- graph (a) or (b) of this section: (a)(1) The Federal financial assist- ance that a non-Federal entity receives directly from a Federal awarding agen- cy or indirectly from a pass-through entity, as described in §200.101 Applica- bility; or (2) The cost-reimbursement contract under the Federal Acquisition Regula- tions that a non-Federal entity re- ceives directly from a Federal award- ing agency or indirectly from a pass- through entity, as described in §200.101 Applicability. (b) The instrument setting forth the terms and conditions. The instrument is the grant agreement, cooperative agreement, other agreement for assist- ance covered in paragraph (b) of §200.40 Federal financial assistance, or the cost-reimbursement contract awarded under the Federal Acquisition Regula- tions. (c) Federal award does not include other contracts that a Federal agency uses to buy goods or services from a contractor or a contract to operate Federal Government owned, contractor operated facilities (GOCOs). (d) See also definitions of Federal fi- nancial assistance, grant agreement, and cooperative agreement. §200.39 Federal award date. Federal award date means the date when the Federal award is signed by the authorized official of the Federal awarding agency. §200.40 Federal financial assistance. (a) Federal financial assistance means assistance that non-Federal entities re- ceive or administer in the form of: (1) Grants; (2) Cooperative agreements; (3) Non-cash contributions or dona- tions of property (including donated surplus property); (4) Direct appropriations; (5) Food commodities; and (6) Other financial assistance (except assistance listed in paragraph (b) of this section). (b) For §200.202 Requirement to pro- vide public notice of Federal financial assistance programs and Subpart F— Audit Requirements of this part, Fed- eral financial assistance also includes as- sistance that non-Federal entities re- ceive or administer in the form of: (1) Loans; (2) Loan Guarantees; (3) Interest subsidies; and (4) Insurance. (c) Federal financial assistance does not include amounts received as reim- bursement for services rendered to in- dividuals as described in §200.502 Basis for determining Federal awards ex- pended, paragraph (h) and (i) of this part. [78 FR 78608, Dec. 26, 2013, as amended at 80 FR 54407, Sept. 10, 2015] §200.41 Federal interest. Federal interest means, for purposes of §200.329 Reporting on real property or when used in connection with the ac- quisition or improvement of real prop- erty, equipment, or supplies under a Federal award, the dollar amount that is the product of the: (a) Federal share of total project costs; and (b) Current fair market value of the property, improvements, or both, to the extent the costs of acquiring or im- proving the property were included as project costs. §200.42 Federal program. Federal program means: (a) All Federal awards which are as- signed a single number in the CFDA. (b) When no CFDA number is as- signed, all Federal awards to non-Fed- eral entities from the same agency made for the same purpose must be combined and considered one program. (c) Notwithstanding paragraphs (a) and (b) of this definition, a cluster of programs. The types of clusters of pro- grams are: (1) Research and development (R&D); (2) Student financial aid (SFA); and VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00113 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 102 2 CFR Ch. II (1–1–21 Edition) §200.43 (3) ‘‘Other clusters,’’ as described in the definition of Cluster of Programs. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75880, Dec. 19, 2014] §200.43 Federal share. Federal share means the portion of the total project costs that are paid by Federal funds. §200.44 Final cost objective. Final cost objective means a cost ob- jective which has allocated to it both direct and indirect costs and, in the non-Federal entity’s accumulation sys- tem, is one of the final accumulation points, such as a particular award, in- ternal project, or other direct activity of a non-Federal entity. See also §§200.28 Cost objective and 200.60 Inter- mediate cost objective. §200.45 Fixed amount awards. Fixed amount awards means a type of grant agreement under which the Fed- eral awarding agency or pass-through entity provides a specific level of sup- port without regard to actual costs in- curred under the Federal award. This type of Federal award reduces some of the administrative burden and record- keeping requirements for both the non- Federal entity and Federal awarding agency or pass-through entity. Ac- countability is based primarily on per- formance and results. See §§200.201 Use of grant agreements (including fixed amount awards), cooperative agree- ments, and contracts, paragraph (b) and 200.332 Fixed amount subawards. §200.46 Foreign public entity. Foreign public entity means: (a) A foreign government or foreign governmental entity; (b) A public international organiza- tion, which is an organization entitled to enjoy privileges, exemptions, and immunities as an international organi- zation under the International Organi- zations Immunities Act (22 U.S.C. 288– 288f); (c) An entity owned (in whole or in part) or controlled by a foreign govern- ment; or (d) Any other entity consisting whol- ly or partially of one or more foreign governments or foreign governmental entities. §200.47 Foreign organization. Foreign organization means an entity that is: (a) A public or private organization located in a country other than the United States and its territories that is subject to the laws of the country in which it is located, irrespective of the citizenship of project staff or place of performance; (b) A private nongovernmental orga- nization located in a country other than the United States that solicits and receives cash contributions from the general public; (c) A charitable organization located in a country other than the United States that is nonprofit and tax ex- empt under the laws of its country of domicile and operation, and is not a university, college, accredited degree- granting institution of education, pri- vate foundation, hospital, organization engaged exclusively in research or sci- entific activities, church, synagogue, mosque or other similar entities orga- nized primarily for religious purposes; or (d) An organization located in a country other than the United States not recognized as a Foreign Public En- tity. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75880, Dec. 19, 2014] §200.48 General purpose equipment. General purpose equipment means equipment which is not limited to re- search, medical, scientific or other technical activities. Examples include office equipment and furnishings, mod- ular offices, telephone networks, infor- mation technology equipment and sys- tems, air conditioning equipment, re- production and printing equipment, and motor vehicles. See also Equip- ment and Special Purpose Equipment. §200.49 Generally Accepted Account- ing Principles (GAAP). GAAP has the meaning specified in accounting standards issued by the Government Accounting Standards Board (GASB) and the Financial Ac- counting Standards Board (FASB). VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00114 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 103 OMB Guidance §200.56 §200.50 Generally Accepted Govern- ment Auditing Standards (GAGAS). GAGAS, also known as the Yellow Book, means generally accepted gov- ernment auditing standards issued by the Comptroller General of the United States, which are applicable to finan- cial audits. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75880, Dec. 19, 2014] §200.51 Grant agreement. Grant agreement means a legal instru- ment of financial assistance between a Federal awarding agency or pass- through entity and a non-Federal enti- ty that, consistent with 31 U.S.C. 6302, 6304: (a) Is used to enter into a relation- ship the principal purpose of which is to transfer anything of value from the Federal awarding agency or pass- through entity to the non-Federal enti- ty to carry out a public purpose au- thorized by a law of the United States (see 31 U.S.C. 6101(3)); and not to ac- quire property or services for the Fed- eral awarding agency or pass-through entity’s direct benefit or use; (b) Is distinguished from a coopera- tive agreement in that it does not pro- vide for substantial involvement be- tween the Federal awarding agency or pass-through entity and the non-Fed- eral entity in carrying out the activity contemplated by the Federal award. (c) Does not include an agreement that provides only: (1) Direct United States Government cash assistance to an individual; (2) A subsidy; (3) A loan; (4) A loan guarantee; or (5) Insurance. §200.52 Hospital. Hospital means a facility licensed as a hospital under the law of any state or a facility operated as a hospital by the United States, a state, or a subdivision of a state. §200.53 Improper payment. (a) Improper payment means any pay- ment that should not have been made or that was made in an incorrect amount (including overpayments and underpayments) under statutory, con- tractual, administrative, or other le- gally applicable requirements; and (b) Improper payment includes any payment to an ineligible party, any payment for an ineligible good or serv- ice, any duplicate payment, any pay- ment for a good or service not received (except for such payments where au- thorized by law), any payment that does not account for credit for applica- ble discounts, and any payment where insufficient or lack of documentation prevents a reviewer from discerning whether a payment was proper. §200.54 Indian tribe (or ‘‘federally rec- ognized Indian tribe’’). Indian tribe means any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. Chapter 33), which is recognized as eligible for the special programs and services provided by the United States to Indians be- cause of their status as Indians (25 U.S.C. 450b(e)). See annually published Bureau of Indian Affairs list of Indian Entities Recognized and Eligible to Re- ceive Services. §200.55 Institutions of Higher Edu- cation (IHEs). IHE is defined at 20 U.S.C. 1001. §200.56 Indirect (facilities & adminis- trative (F&A)) costs. Indirect (F&A) costs means those costs incurred for a common or joint purpose benefitting more than one cost objec- tive, and not readily assignable to the cost objectives specifically benefitted, without effort disproportionate to the results achieved. To facilitate equi- table distribution of indirect expenses to the cost objectives served, it may be necessary to establish a number of pools of indirect (F&A) costs. Indirect (F&A) cost pools must be distributed to benefitted cost objectives on bases that will produce an equitable result in con- sideration of relative benefits derived. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75880, Dec. 19, 2014] VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00115 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 104 2 CFR Ch. II (1–1–21 Edition) §200.57 §200.57 Indirect cost rate proposal. Indirect cost rate proposal means the documentation prepared by a non-Fed- eral entity to substantiate its request for the establishment of an indirect cost rate as described in Appendix III to Part 200—Indirect (F&A) Costs Iden- tification and Assignment, and Rate Determination for Institutions of High- er Education (IHEs) through Appendix VII to Part 200—States and Local Gov- ernment and Indian Tribe Indirect Cost Proposals of this part, and Appendix IX to Part 200—Hospital Cost Principles. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75880, Dec. 19, 2014] §200.58 Information technology sys- tems. Information technology systems means computing devices, ancillary equip- ment, software, firmware, and similar procedures, services (including support services), and related resources. See also §§200.20 Computing devices and 200.33 Equipment. §200.59 Intangible property. Intangible property means property having no physical existence, such as trademarks, copyrights, patents and patent applications and property, such as loans, notes and other debt instru- ments, lease agreements, stock and other instruments of property owner- ship (whether the property is tangible or intangible). §200.60 Intermediate cost objective. Intermediate cost objective means a cost objective that is used to accumu- late indirect costs or service center costs that are subsequently allocated to one or more indirect cost pools or final cost objectives. See also §200.28 Cost objective and §200.44 Final cost objective. §200.61 Internal controls. Internal controls means a process, im- plemented by a non-Federal entity, de- signed to provide reasonable assurance regarding the achievement of objec- tives in the following categories: (a) Effectiveness and efficiency of op- erations; (b) Reliability of reporting for inter- nal and external use; and (c) Compliance with applicable laws and regulations. §200.62 Internal control over compli- ance requirements for Federal awards. Internal control over compliance re- quirements for Federal awards means a process implemented by a non-Federal entity designed to provide reasonable assurance regarding the achievement of the following objectives for Federal awards: (a) Transactions are properly re- corded and accounted for, in order to: (1) Permit the preparation of reliable financial statements and Federal re- ports; (2) Maintain accountability over as- sets; and (3) Demonstrate compliance with Federal statutes, regulations, and the terms and conditions of the Federal award; (b) Transactions are executed in com- pliance with: (1) Federal statutes, regulations, and the terms and conditions of the Federal award that could have a direct and ma- terial effect on a Federal program; and (2) Any other Federal statutes and regulations that are identified in the Compliance Supplement; and (c) Funds, property, and other assets are safeguarded against loss from un- authorized use or disposition. §200.63 Loan. Loan means a Federal loan or loan guarantee received or administered by a non-Federal entity, except as used in the definition of §200.80 Program in- come. (a) The term ‘‘direct loan’’ means a disbursement of funds by the Federal Government to a non-Federal borrower under a contract that requires the re- payment of such funds with or without interest. The term includes the pur- chase of, or participation in, a loan made by another lender and financing arrangements that defer payment for more than 90 days, including the sale of a Federal Government asset on credit terms. The term does not include the acquisition of a federally guaranteed loan in satisfaction of default claims or the price support loans of the Com- modity Credit Corporation. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00116 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 105 OMB Guidance §200.69 (b) The term ‘‘direct loan obligation’’ means a binding agreement by a Fed- eral awarding agency to make a direct loan when specified conditions are ful- filled by the borrower. (c) The term ‘‘loan guarantee’’ means any Federal Government guarantee, in- surance, or other pledge with respect to the payment of all or a part of the principal or interest on any debt obli- gation of a non-Federal borrower to a non-Federal lender, but does not in- clude the insurance of deposits, shares, or other withdrawable accounts in fi- nancial institutions. (d) The term ‘‘loan guarantee com- mitment’’ means a binding agreement by a Federal awarding agency to make a loan guarantee when specified condi- tions are fulfilled by the borrower, the lender, or any other party to the guar- antee agreement. §200.64 Local government. Local government means any unit of government within a state, including a: (a) County; (b) Borough; (c) Municipality; (d) City; (e) Town; (f) Township; (g) Parish; (h) Local public authority, including any public housing agency under the United States Housing Act of 1937; (i) Special district; (j) School district; (k) Intrastate district; (l) Council of governments, whether or not incorporated as a nonprofit cor- poration under state law; and (m) Any other agency or instrumen- tality of a multi-, regional, or intra- state or local government. §200.65 Major program. Major program means a Federal pro- gram determined by the auditor to be a major program in accordance with §200.518 Major program determination or a program identified as a major pro- gram by a Federal awarding agency or pass-through entity in accordance with §200.503 Relation to other audit re- quirements, paragraph (e). §200.66 Management decision. Management decision means the eval- uation by the Federal awarding agency or pass-through entity of the audit findings and corrective action plan and the issuance of a written decision to the auditee as to what corrective ac- tion is necessary. §200.67 Micro-purchase. Micro-purchase means a purchase of supplies or services using simplified ac- quisition procedures, the aggregate amount of which does not exceed the micro-purchase threshold. Micro-pur- chase procedures comprise a subset of a non-Federal entity’s small purchase procedures. The non-Federal entity uses such procedures in order to expe- dite the completion of its lowest-dollar small purchase transactions and mini- mize the associated administrative burden and cost. The micro-purchase threshold is set by the Federal Acquisi- tion Regulation at 48 CFR Subpart 2.1 (Definitions). It is $3,000 except as oth- erwise discussed in Subpart 2.1 of that regulation, but this threshold is peri- odically adjusted for inflation. §200.68 Modified Total Direct Cost (MTDC). MTDC means all direct salaries and wages, applicable fringe benefits, mate- rials and supplies, services, travel, and up to the first $25,000 of each subaward (regardless of the period of perform- ance of the subawards under the award). MTDC excludes equipment, capital expenditures, charges for pa- tient care, rental costs, tuition remis- sion, scholarships and fellowships, par- ticipant support costs and the portion of each subaward in excess of $25,000. Other items may only be excluded when necessary to avoid a serious in- equity in the distribution of indirect costs, and with the approval of the cog- nizant agency for indirect costs. [79 FR 75880, Dec. 19, 2014] §200.69 Non-Federal entity. Non-Federal entity means a state, local government, Indian tribe, institu- tion of higher education (IHE), or non- profit organization that carries out a Federal award as a recipient or sub- recipient. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00117 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 106 2 CFR Ch. II (1–1–21 Edition) §200.70 §200.70 Nonprofit organization. Nonprofit organization means any cor- poration, trust, association, coopera- tive, or other organization, not includ- ing IHEs, that: (a) Is operated primarily for sci- entific, educational, service, chari- table, or similar purposes in the public interest; (b) Is not organized primarily for profit; and (c) Uses net proceeds to maintain, improve, or expand the operations of the organization. §200.71 Obligations. When used in connection with a non- Federal entity’s utilization of funds under a Federal award, obligations means orders placed for property and services, contracts and subawards made, and similar transactions during a given period that require payment by the non-Federal entity during the same or a future period. §200.72 Office of Management and Budget (OMB). OMB means the Executive Office of the President, Office of Management and Budget. §200.73 Oversight agency for audit. Oversight agency for audit means the Federal awarding agency that provides the predominant amount of funding di- rectly to a non-Federal entity not as- signed a cognizant agency for audit. When there is no direct funding, the Federal awarding agency which is the predominant source of pass-through funding must assume the oversight re- sponsibilities. The duties of the over- sight agency for audit and the process for any reassignments are described in §200.513 Responsibilities, paragraph (b). §200.74 Pass-through entity. Pass-through entity means a non-Fed- eral entity that provides a subaward to a subrecipient to carry out part of a Federal program. §200.75 Participant support costs. Participant support costs means direct costs for items such as stipends or sub- sistence allowances, travel allowances, and registration fees paid to or on be- half of participants or trainees (but not employees) in connection with con- ferences, or training projects. §200.76 Performance goal. Performance goal means a target level of performance expressed as a tangible, measurable objective, against which actual achievement can be compared, including a goal expressed as a quan- titative standard, value, or rate. In some instances (e.g., discretionary re- search awards), this may be limited to the requirement to submit technical performance reports (to be evaluated in accordance with agency policy). §200.77 Period of performance. Period of performance means the time during which the non-Federal entity may incur new obligations to carry out the work authorized under the Federal award. The Federal awarding agency or pass-through entity must include start and end dates of the period of perform- ance in the Federal award (see §§200.210 Information contained in a Federal award paragraph (a)(5) and 200.331 Re- quirements for pass-through entities, paragraph (a)(1)(iv)). §200.78 Personal property. Personal property means property other than real property. It may be tangible, having physical existence, or intangible. §200.79 Personally Identifiable Infor- mation (PII). PII means information that can be used to distinguish or trace an individ- ual’s identity, either alone or when combined with other personal or iden- tifying information that is linked or linkable to a specific individual. Some information that is considered to be PII is available in public sources such as telephone books, public Web sites, and university listings. This type of in- formation is considered to be Public PII and includes, for example, first and last name, address, work telephone number, email address, home telephone number, and general educational cre- dentials. The definition of PII is not anchored to any single category of in- formation or technology. Rather, it re- quires a case-by-case assessment of the specific risk that an individual can be VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00118 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 107 OMB Guidance §200.87 identified. Non-PII can become PII whenever additional information is made publicly available, in any me- dium and from any source, that, when combined with other available infor- mation, could be used to identify an in- dividual. §200.80 Program income. Program income means gross income earned by the non-Federal entity that is directly generated by a supported ac- tivity or earned as a result of the Fed- eral award during the period of per- formance except as provided in §200.307 paragraph (f). (See §200.77 Period of performance.) Program income in- cludes but is not limited to income from fees for services performed, the use or rental or real or personal prop- erty acquired under Federal awards, the sale of commodities or items fab- ricated under a Federal award, license fees and royalties on patents and copy- rights, and principal and interest on loans made with Federal award funds. Interest earned on advances of Federal funds is not program income. Except as otherwise provided in Federal statutes, regulations, or the terms and condi- tions of the Federal award, program in- come does not include rebates, credits, discounts, and interest earned on any of them. See also §200.407 Prior written approval (prior approval). See also 35 U.S.C. 200–212 ‘‘Disposition of Rights in Educational Awards’’ applies to inven- tions made under Federal awards. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75880, Dec. 19, 2014] §200.81 Property. Property means real property or per- sonal property. §200.82 Protected Personally Identifi- able Information (Protected PII). Protected PII means an individual’s first name or first initial and last name in combination with any one or more of types of information, including, but not limited to, social security number, passport number, credit card numbers, clearances, bank numbers, biometrics, date and place of birth, mother’s maid- en name, criminal, medical and finan- cial records, educational transcripts. This does not include PII that is re- quired by law to be disclosed. (See also §200.79 Personally Identifiable Informa- tion (PII)). §200.83 Project cost. Project cost means total allowable costs incurred under a Federal award and all required cost sharing and vol- untary committed cost sharing, includ- ing third-party contributions. §200.84 Questioned cost. Questioned cost means a cost that is questioned by the auditor because of an audit finding: (a) Which resulted from a violation or possible violation of a statute, regu- lation, or the terms and conditions of a Federal award, including for funds used to match Federal funds; (b) Where the costs, at the time of the audit, are not supported by ade- quate documentation; or (c) Where the costs incurred appear unreasonable and do not reflect the ac- tions a prudent person would take in the circumstances. §200.85 Real property. Real property means land, including land improvements, structures and ap- purtenances thereto, but excludes moveable machinery and equipment. §200.86 Recipient. Recipient means a non-Federal entity that receives a Federal award directly from a Federal awarding agency to carry out an activity under a Federal program. The term recipient does not include subrecipients. See also §200.69 Non-Federal entity. §200.87 Research and Development (R&D). R&D means all research activities, both basic and applied, and all develop- ment activities that are performed by non-Federal entities. The term re- search also includes activities involv- ing the training of individuals in re- search techniques where such activities utilize the same facilities as other re- search and development activities and where such activities are not included in the instruction function. ‘‘Research’’ is defined as a system- atic study directed toward fuller sci- entific knowledge or understanding of the subject studied. ‘‘Development’’ is VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00119 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 108 2 CFR Ch. II (1–1–21 Edition) §200.88 the systematic use of knowledge and understanding gained from research di- rected toward the production of useful materials, devices, systems, or meth- ods, including design and development of prototypes and processes. §200.88 Simplified acquisition thresh- old. Simplified acquisition threshold means the dollar amount below which a non- Federal entity may purchase property or services using small purchase meth- ods. Non-Federal entities adopt small purchase procedures in order to expe- dite the purchase of items costing less than the simplified acquisition thresh- old. The simplified acquisition thresh- old is set by the Federal Acquisition Regulation at 48 CFR Subpart 2.1 (Defi- nitions) and in accordance with 41 U.S.C. 1908. As of the publication of this part, the simplified acquisition threshold is $150,000, but this threshold is periodically adjusted for inflation. (Also see definition of §200.67 Micro- purchase.) §200.89 Special purpose equipment. Special purpose equipment means equipment which is used only for re- search, medical, scientific, or other technical activities. Examples of spe- cial purpose equipment include micro- scopes, x-ray machines, surgical instru- ments, and spectrometers. See also §§200.33 Equipment and 200.48 General purpose equipment. §200.90 State. State means any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any agency or instrumentality thereof ex- clusive of local governments. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75880, Dec. 19, 2014] §200.91 Student Financial Aid (SFA). SFA means Federal awards under those programs of general student as- sistance, such as those authorized by Title IV of the Higher Education Act of 1965, as amended, (20 U.S.C. 1070–1099d), which are administered by the U.S. De- partment of Education, and similar programs provided by other Federal agencies. It does not include Federal awards under programs that provide fellowships or similar Federal awards to students on a competitive basis, or for specified studies or research. §200.92 Subaward. Subaward means an award provided by a pass-through entity to a sub- recipient for the subrecipient to carry out part of a Federal award received by the pass-through entity. It does not in- clude payments to a contractor or pay- ments to an individual that is a bene- ficiary of a Federal program. A subaward may be provided through any form of legal agreement, including an agreement that the pass-through enti- ty considers a contract. §200.93 Subrecipient. Subrecipient means a non-Federal en- tity that receives a subaward from a pass-through entity to carry out part of a Federal program; but does not in- clude an individual that is a bene- ficiary of such program. A subrecipient may also be a recipient of other Fed- eral awards directly from a Federal awarding agency. §200.94 Supplies. Supplies means all tangible personal property other than those described in §200.33 Equipment. A computing device is a supply if the acquisition cost is less than the lesser of the capitaliza- tion level established by the non-Fed- eral entity for financial statement pur- poses or $5,000, regardless of the length of its useful life. See also §§200.20 Com- puting devices and 200.33 Equipment. §200.95 Termination. Termination means the ending of a Federal award, in whole or in part at any time prior to the planned end of period of performance. §200.96 Third-party in-kind contribu- tions. Third-party in-kind contributions means the value of non-cash contribu- tions (i.e., property or services) that— (a) Benefit a federally assisted project or program; and VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00120 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 109 OMB Guidance §200.100 (b) Are contributed by non-Federal third parties, without charge, to a non- Federal entity under a Federal award. §200.97 Unliquidated obligations. Unliquidated obligations means, for fi- nancial reports prepared on a cash basis, obligations incurred by the non- Federal entity that have not been paid (liquidated). For reports prepared on an accrual expenditure basis, these are ob- ligations incurred by the non-Federal entity for which an expenditure has not been recorded. §200.98 Unobligated balance. Unobligated balance means the amount of funds under a Federal award that the non-Federal entity has not ob- ligated. The amount is computed by subtracting the cumulative amount of the non-Federal entity’s unliquidated obligations and expenditures of funds under the Federal award from the cu- mulative amount of the funds that the Federal awarding agency or pass- through entity authorized the non-Fed- eral entity to obligate. §200.99 Voluntary committed cost sharing. Voluntary committed cost sharing means cost sharing specifically pledged on a voluntary basis in the proposal’s budget or the Federal award on the part of the non-Federal entity and that becomes a binding requirement of Fed- eral award. Subpart B—General Provisions §200.100 Purpose. (a) Purpose. (1) This part establishes uniform administrative requirements, cost principles, and audit requirements for Federal awards to non-Federal enti- ties, as described in §200.101. Federal awarding agencies must not impose ad- ditional or inconsistent requirements, except as provided in §§200.102 and 200.211, or unless specifically required by Federal statute, regulation, or Ex- ecutive order. (2) This part provides the basis for a systematic and periodic collection and uniform submission by Federal agen- cies of information on all Federal fi- nancial assistance programs to the Of- fice of Management and Budget (OMB). It also establishes Federal policies re- lated to the delivery of this informa- tion to the public, including through the use of electronic media. It pre- scribes the manner in which General Services Administration (GSA), OMB, and Federal agencies that administer Federal financial assistance programs are to carry out their statutory respon- sibilities under the Federal Program Information Act (31 U.S.C. 6101–6106). (b) Administrative requirements. Sub- parts B through D of this part set forth the uniform administrative require- ments for grant and cooperative agree- ments, including the requirements for Federal awarding agency management of Federal grant programs before the Federal award has been made, and the requirements Federal awarding agen- cies may impose on non-Federal enti- ties in the Federal award. (c) Cost principles. Subpart E of this part establishes principles for deter- mining the allowable costs incurred by non-Federal entities under Federal awards. The principles are for the pur- pose of cost determination and are not intended to identify the circumstances or dictate the extent of Federal Gov- ernment participation in the financing of a particular program or project. The principles are designed to provide that Federal awards bear their fair share of cost recognized under these principles except where restricted or prohibited by statute. (d) Single Audit Requirements and Audit Follow-up. Subpart F of this part is issued pursuant to the Single Audit Act Amendments of 1996, (31 U.S.C. 7501–7507). It sets forth standards for obtaining consistency and uniformity among Federal agencies for the audit of non-Federal entities expending Fed- eral awards. These provisions also pro- vide the policies and procedures for Federal awarding agencies and pass- through entities when using the results of these audits. (e) Guidance on challenges and prizes. For OMB guidance to Federal awarding agencies on challenges and prizes, please see memo M–10–11 Guidance on the Use of Challenges and Prizes to Promote Open Government, issued March 8, 2010, or its successor. [78 FR 78608, Dec. 26, 2013, as amended at 85 FR 49536, Aug. 13, 2020] VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00121 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 110 2 CFR Ch. II (1–1–21 Edition) §200.101 §200.101 Applicability. (a) General applicability to Federal agencies. (1) The requirements estab- lished in this part apply to Federal agencies that make Federal awards to non-Federal entities. These require- ments are applicable to all costs re- lated to Federal awards. (2) Federal awarding agencies may apply subparts A through E of this part to Federal agencies, for-profit entities, foreign public entities, or foreign orga- nizations, except where the Federal awarding agency determines that the application of these subparts would be inconsistent with the international re- sponsibilities of the United States or the statutes or regulations of a foreign government. (b) Applicability to different types of Federal awards. (1) Throughout this part when the word ‘‘must’’ is used it indicates a requirement. Whereas, use of the word ‘‘should’’ or ‘‘may’’ indi- cates a best practice or recommended approach rather than a requirement and permits discretion. (2) The following table describes what portions of this part apply to which types of Federal awards. The terms and conditions of Federal awards (including this part) flow down to subawards to subrecipients unless a particular sec- tion of this part or the terms and con- ditions of the Federal award specifi- cally indicate otherwise. This means that non-Federal entities must comply with requirements in this part regard- less of whether the non-Federal entity is a recipient or subrecipient of a Fed- eral award. Pass-through entities must comply with the requirements de- scribed in subpart D of this part, §§200.331 through 200.333, but not any requirements in this part directed to- wards Federal awarding agencies un- less the requirements of this part or the terms and conditions of the Federal award indicate otherwise. TABLE 1 TO PARAGRAPH (b) The following portions of this Part Are applicable to the following types of Federal Awards and Fixed-Price Con- tracts and Subcontracts (except as noted in paragraphs (d) and (e) of this section): Are NOT applicable to the following types of Federal Awards and Fixed-Price Contracts and Subcontracts: Subpart A—Acronyms and Definitions ...... —All. Subpart B—General Provisions, except for §§200.111 English Language, 200.112 Conflict of Interest, 200.113 Mandatory Disclosures. —All. §§200.111 English Language, 200.112 Conflict of Interest, 200.113 Mandatory Disclosures. —Grant Agreements and cooperative agreements. —Agreements for loans, loan guaran- tees, interest subsidies and insurance. —Procurement contracts awarded by Federal Agencies under the Federal Acquisition Regulation and sub- contracts under those contracts. Subparts C–D, except for §§200.203 Re- quirement to provide public notice of Federal financial assistance programs, 200.303 Internal controls, 200.331–333 Subrecipient Monitoring and Manage- ment. —Grant Agreements and cooperative agreements. —Agreements for loans, loan guaran- tees, interest subsidies and insurance. —Procurement contracts awarded by Federal Agencies under the Federal Acquisition Regulation and sub- contracts under those contracts. §200.203 Requirement to provide public notice of Federal financial assistance programs. —Grant Agreements and cooperative agreements. —Agreements for loans, loan guaran- tees, interest subsidies and insurance. —Procurement contracts awarded by Federal Agencies under the Federal Acquisition Regulation and sub- contracts under those contracts. §§200.303 Internal controls, 200.331–333 Subrecipient Monitoring and Manage- ment. —All. Subpart E—Cost Principles ....................... —Grant Agreements and cooperative agreements, except those providing food commodities. —All procurement contracts under the Federal Acquisition Regulations ex- cept those that are not negotiated. —Grant agreements and cooperative agreements providing foods commod- ities. —Fixed amount awards. —Agreements for loans, loans guaran- tees, interest subsidies and insurance. —Federal awards to hospitals (see Ap- pendix IX Hospital Cost Principles). VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00122 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 111 OMB Guidance §200.101 TABLE 1 TO PARAGRAPH (b)—Continued The following portions of this Part Are applicable to the following types of Federal Awards and Fixed-Price Con- tracts and Subcontracts (except as noted in paragraphs (d) and (e) of this section): Are NOT applicable to the following types of Federal Awards and Fixed-Price Contracts and Subcontracts: Subpart F—Audit Requirements ............... —Grant Agreements and cooperative agreements. —Contracts and subcontracts, except for fixed price contacts and subcontracts, awarded under the Federal Acquisition Regulation. —Agreements for loans, loans guaran- tees, interest subsidies and insurance and other forms of Federal Financial Assistance as defined by the Single Audit Act Amendment of 1996. —Fixed-price contracts and subcontracts awarded under the Federal Acquisition Regulation. (c) Federal award of cost-reimbursement contract under the FAR to a non-Federal entity. When a non-Federal entity is awarded a cost-reimbursement con- tract, only subpart D, §§200.331 through 200.333, and subparts E and F of this part are incorporated by reference into the contract, but the requirements of subparts D, E, and F are supplementary to the FAR and the contract. When the Cost Accounting Standards (CAS) are applicable to the contract, they take precedence over the requirements of this part, including subpart F of this part, which are supplementary to the CAS requirements. In addition, costs that are made unallowable under 10 U.S.C. 2324(e) and 41 U.S.C. 4304(a) as described in the FAR 48 CFR part 31, subpart 31.2, and 48 CFR 31.603 are al- ways unallowable. For requirements other than those covered in subpart D, §§200.331 through 200.333, and subparts E and F of this part, the terms of the contract and the FAR apply. Note that when a non-Federal entity is awarded a FAR contract, the FAR applies, and the terms and conditions of the con- tract shall prevail over the require- ments of this part. (d) Governing provisions. With the ex- ception of subpart F of this part, which is required by the Single Audit Act, in any circumstances where the provi- sions of Federal statutes or regulations differ from the provisions of this part, the provision of the Federal statutes or regulations govern. This includes, for agreements with Indian tribes, the pro- visions of the Indian Self-Determina- tion and Education and Assistance Act (ISDEAA), as amended, 25 U.S.C 450– 458ddd–2. (e) Program applicability. Except for §§200.203 and 200.331 through 200.333, the requirements in subparts C, D, and E of this part do not apply to the following programs: (1) The block grant awards author- ized by the Omnibus Budget Reconcili- ation Act of 1981 (including Community Services), except to the extent that subpart E of this part apply to sub- recipients of Community Services Block Grant funds pursuant to 42 U.S.C. 9916(a)(1)(B); (2) Federal awards to local education agencies under 20 U.S.C. 7702–7703b, (portions of the Impact Aid program); (3) Payments under the Department of Veterans Affairs’ State Home Per Diem Program (38 U.S.C. 1741); and (4) Federal awards authorized under the Child Care and Development Block Grant Act of 1990, as amended: (i) Child Care and Development Block Grant (42 U.S.C. 9858). (ii) Child Care Mandatory and Match- ing Funds of the Child Care and Devel- opment Fund (42 U.S.C. 9858). (f) Additional program applicability. Except for §200.203, the guidance in subpart C of this part does not apply to the following programs: (1) Entitlement Federal awards to carry out the following programs of the Social Security Act: (i) Temporary Assistance for Needy Families (title IV–A of the Social Secu- rity Act, 42 U.S.C. 601–619); (ii) Child Support Enforcement and Establishment of Paternity (title IV–D VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00123 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 112 2 CFR Ch. II (1–1–21 Edition) §200.102 of the Social Security Act, 42 U.S.C. 651–669b); (iii) Foster Care and Adoption Assist- ance (title IV–E of the Act, 42 U.S.C. 670–679c); (iv) Aid to the Aged, Blind, and Dis- abled (titles I, X, XIV, and XVI–AABD of the Act, as amended); (v) Medical Assistance (Medicaid) (title XIX of the Act, 42 U.S.C. 1396– 1396w–5) not including the State Med- icaid Fraud Control program author- ized by section 1903(a)(6)(B) of the So- cial Security Act (42 U.S.C. 1396b(a)(6)(B)); and (vi) Children’s Health Insurance Pro- gram (title XXI of the Act, 42 U.S.C. 1397aa–1397mm). (2) A Federal award for an experi- mental, pilot, or demonstration project that is also supported by a Federal award listed in paragraph (f)(1) of this section. (3) Federal awards under subsection 412(e) of the Immigration and Nation- ality Act and subsection 501(a) of the Refugee Education Assistance Act of 1980 (Pub. L. 96–422, 94 Stat. 1809), for cash assistance, medical assistance, and supplemental security income ben- efits to refugees and entrants and the administrative costs of providing the assistance and benefits (8 U.S.C. 1522(e)). (4) Entitlement awards under the fol- lowing programs of The National School Lunch Act: (i) National School Lunch Program (section 4 of the Act, 42 U.S.C. 1753); (ii) Commodity Assistance (section 6 of the Act, 42 U.S.C. 1755); (iii) Special Meal Assistance (section 11 of the Act, 42 U.S.C. 1759a); (iv) Summer Food Service Program for Children (section 13 of the Act, 42 U.S.C. 1761); and (v) Child and Adult Care Food Pro- gram (section 17 of the Act, 42 U.S.C. 1766). (5) Entitlement awards under the fol- lowing programs of The Child Nutri- tion Act of 1966: (i) Special Milk Program (section 3 of the Act, 42 U.S.C. 1772); (ii) School Breakfast Program (sec- tion 4 of the Act, 42 U.S.C. 1773); and (iii) State Administrative Expenses (section 7 of the Act, 42 U.S.C. 1776). (6) Entitlement awards for State Ad- ministrative Expenses under The Food and Nutrition Act of 2008 (section 16 of the Act, 7 U.S.C. 2025). (7) Non-discretionary Federal awards under the following non-entitlement programs: (i) Special Supplemental Nutrition Program for Women, Infants and Chil- dren (section 17 of the Child Nutrition Act of 1966) 42 U.S.C. 1786; (ii) The Emergency Food Assistance Programs (Emergency Food Assistance Act of 1983) 7 U.S.C. 7501 note; and (iii) Commodity Supplemental Food Program (section 5 of the Agriculture and Consumer Protection Act of 1973) 7 U.S.C. 612c note. [85 FR 49536, Aug. 13, 2020] §200.102 Exceptions. (a) With the exception of subpart F of this part, OMB may allow exceptions for classes of Federal awards or non- Federal entities subject to the require- ments of this part when exceptions are not prohibited by statute. In the inter- est of maximum uniformity, exceptions from the requirements of this part will be permitted as described in this sec- tion. (b) Exceptions on a case-by-case basis for individual non-Federal entities may be authorized by the Federal awarding agency or cognizant agency for indirect costs, except where otherwise required by law or where OMB or other approval is expressly required by this part. (c) The Federal awarding agency may apply adjust requirements to a class of Federal awards or non-Federal entities when approved by OMB, or when re- quired by Federal statutes or regula- tions, except for the requirements in subpart F of this part. A Federal awarding agency may apply less re- strictive requirements when making fixed amount awards as defined in sub- part A of this part, except for those re- quirements imposed by statute or in subpart F of this part. (d) Federal awarding agencies may request exceptions in support of inno- vative program designs that apply a risk-based, data-driven framework to VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00124 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 113 OMB Guidance §200.106 alleviate select compliance require- ments and hold recipients accountable for good performance. See also §200.206. [85 FR 49538, Aug. 13, 2020] §200.103 Authorities. This part is issued under the fol- lowing authorities. (a) Subparts B through D of this part are authorized under 31 U.S.C. 503 (the Chief Financial Officers Act, Functions of the Deputy Director for Manage- ment), 41 U.S.C. 1101–1131 (the Office of Federal Procurement Policy Act), Re- organization Plan No. 2 of 1970, and Ex- ecutive Order 11541 (‘‘Prescribing the Duties of the Office of Management and Budget and the Domestic Policy Council in the Executive Office of the President’’), the Single Audit Act Amendments of 1996, (31 U.S.C. 7501– 7507), as well as The Federal Program Information Act (Pub. L. 95–220 and Pub. L. 98–169, as amended, codified at 31 U.S.C. 6101–6106). (b) Subpart E of this part is author- ized under the Budget and Accounting Act of 1921, as amended; the Budget and Accounting Procedures Act of 1950, as amended (31 U.S.C. 1101–1125); the Chief Financial Officers Act of 1990 (31 U.S.C. 503–504); Reorganization Plan No. 2 of 1970; and Executive Order 11541, ‘‘Prescribing the Duties of the Office of Management and Budget and the Do- mestic Policy Council in the Executive Office of the President.’’ (c) Subpart F of this part is author- ized under the Single Audit Act Amendments of 1996, (31 U.S.C. 7501– 7507). [85 FR 49538, Aug. 13, 2020] §200.104 Supersession. As described in §200.110, this part su- persedes the following OMB guidance documents and regulations under title 2 of the Code of Federal Regulations: (a) A–21, ‘‘Cost Principles for Edu- cational Institutions’’ (2 CFR part 220); (b) A–87, ‘‘Cost Principles for State, Local and Indian Tribal Governments’’ (2 CFR part 225) and also FEDERAL REG- ISTER notice 51 FR 552 (January 6, 1986); (c) A–89, ‘‘Federal Domestic Assist- ance Program Information’’; (d) A–102, ‘‘Grant Awards and Cooper- ative Agreements with State and Local Governments’’; (e) A–110, ‘‘Uniform Administrative Requirements for Awards and Other Agreements with Institutions of Higher Education, Hospitals, and Other Non- profit Organizations’’ (codified at 2 CFR 215); (f) A–122, ‘‘Cost Principles for Non- Profit Organizations’’ (2 CFR part 230); (g) A–133, ‘‘Audits of States, Local Governments and Non-Profit Organiza- tions’’; and (h) Those sections of A–50 related to audits performed under subpart F of this part. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75882, Dec. 19, 2014; 85 FR 49538, Aug. 13, 2020] §200.105 Effect on other issuances. (a) Superseding inconsistent require- ments. For Federal awards subject to this part, all administrative require- ments, program manuals, handbooks and other non-regulatory materials that are inconsistent with the require- ments of this part must be superseded upon implementation of this part by the Federal agency, except to the ex- tent they are required by statute or au- thorized in accordance with the provi- sions in §200.102. (b) Imposition of requirements on recipi- ents. Agencies may impose legally binding requirements on recipients only through the notice and public comment process through an approved agency process, including as authorized by this part, other statutes or regula- tions, or as incorporated into the terms of a Federal award. [85 FR 49538, Aug. 13, 2020] §200.106 Agency implementation. The specific requirements and re- sponsibilities of Federal agencies and non-Federal entities are set forth in this part. Federal agencies making Federal awards to non-Federal entities must implement the language in sub- parts C through F of this part in codi- fied regulations unless different provi- sions are required by Federal statute or are approved by OMB. [85 FR 49538, Aug. 13, 2020] VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00125 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 114 2 CFR Ch. II (1–1–21 Edition) §200.107 §200.107 OMB responsibilities. OMB will review Federal agency reg- ulations and implementation of this part, and will provide interpretations of policy requirements and assistance to ensure effective and efficient imple- mentation. Any exceptions will be sub- ject to approval by OMB. Exceptions will only be made in particular cases where adequate justification is pre- sented. §200.108 Inquiries. Inquiries concerning this part may be directed to the Office of Federal Finan- cial Management Office of Manage- ment and Budget, in Washington, DC. Non-Federal entities’ inquiries should be addressed to the Federal awarding agency, cognizant agency for indirect costs, cognizant or oversight agency for audit, or pass-through entity as ap- propriate. §200.109 Review date. OMB will review this part at least every five years after December 26, 2013. §200.110 Effective/applicability date. (a) The standards set forth in this part that affect the administration of Federal awards issued by Federal awarding agencies become effective once implemented by Federal awarding agencies or when any future amend- ment to this part becomes final. (b) Existing negotiated indirect cost rates (as of the publication date of the revisions to the guidance) will remain in place until they expire. The effective date of changes to indirect cost rates must be based upon the date that a newly re-negotiated rate goes into ef- fect for a specific non-Federal entity’s fiscal year. Therefore, for indirect cost rates and cost allocation plans, the re- vised Uniform Guidance (as of the pub- lication date for revisions to the guid- ance) become effective in generating proposals and negotiating a new rate (when the rate is re-negotiated). [85 FR 49538, Aug. 13, 2020] §200.111 English language. (a) All Federal financial assistance announcements and Federal award in- formation must be in the English lan- guage. Applications must be submitted in the English language and must be in the terms of U.S. dollars. If the Federal awarding agency receives applications in another currency, the Federal awarding agency will evaluate the ap- plication by converting the foreign cur- rency to United States currency using the date specified for receipt of the ap- plication. (b) Non-Federal entities may trans- late the Federal award and other docu- ments into another language. In the event of inconsistency between any terms and conditions of the Federal award and any translation into another language, the English language mean- ing will control. Where a significant portion of the non-Federal entity’s em- ployees who are working on the Fed- eral award are not fluent in English, the non-Federal entity must provide the Federal award in English and the language(s) with which employees are more familiar. §200.112 Conflict of interest. The Federal awarding agency must establish conflict of interest policies for Federal awards. The non-Federal entity must disclose in writing any po- tential conflict of interest to the Fed- eral awarding agency or pass-through entity in accordance with applicable Federal awarding agency policy. §200.113 Mandatory disclosures. The non-Federal entity or applicant for a Federal award must disclose, in a timely manner, in writing to the Fed- eral awarding agency or pass-through entity all violations of Federal crimi- nal law involving fraud, bribery, or gratuity violations potentially affect- ing the Federal award. Non-Federal en- tities that have received a Federal award including the term and condi- tion outlined in appendix XII to this part are required to report certain civil, criminal, or administrative pro- ceedings to SAM (currently FAPIIS). Failure to make required disclosures can result in any of the remedies de- scribed in §200.339. (See also 2 CFR part 180, 31 U.S.C. 3321, and 41 U.S.C. 2313.) [85 FR 49539, Aug. 13, 2020] VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00126 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 115 OMB Guidance §200.202 Subpart C—Pre-Federal Award Requirements and Contents of Federal Awards SOURCE: 85 FR 49539, Aug. 13, 2020, unless otherwise noted. §200.200 Purpose. Sections 200.201 through 200.216 pre- scribe instructions and other pre-award matters to be used by Federal awarding agencies in the program planning, an- nouncement, application and award processes. §200.201 Use of grant agreements (in- cluding fixed amount awards), co- operative agreements, and con- tracts. (a) Federal award instrument. The Fed- eral awarding agency or pass-through entity must decide on the appropriate instrument for the Federal award (i.e., grant agreement, cooperative agree- ment, or contract) in accordance with the Federal Grant and Cooperative Agreement Act (31 U.S.C. 6301–08). (b) Fixed amount awards. In addition to the options described in paragraph (a) of this section, Federal awarding agencies, or pass-through entities as permitted in §200.333, may use fixed amount awards (see Fixed amount awards in §200.1) to which the following conditions apply: (1) The Federal award amount is ne- gotiated using the cost principles (or other pricing information) as a guide. The Federal awarding agency or pass- through entity may use fixed amount awards if the project scope has measur- able goals and objectives and if ade- quate cost, historical, or unit pricing data is available to establish a fixed amount award based on a reasonable estimate of actual cost. Payments are based on meeting specific requirements of the Federal award. Accountability is based on performance and results. Ex- cept in the case of termination before completion of the Federal award, there is no governmental review of the ac- tual costs incurred by the non-Federal entity in performance of the award. Some of the ways in which the Federal award may be paid include, but are not limited to: (i) In several partial payments, the amount of each agreed upon in ad- vance, and the ‘‘milestone’’ or event triggering the payment also agreed upon in advance, and set forth in the Federal award; (ii) On a unit price basis, for a de- fined unit or units, at a defined price or prices, agreed to in advance of perform- ance of the Federal award and set forth in the Federal award; or, (iii) In one payment at Federal award completion. (2) A fixed amount award cannot be used in programs which require manda- tory cost sharing or match. (3) The non-Federal entity must cer- tify in writing to the Federal awarding agency or pass-through entity at the end of the Federal award that the project or activity was completed or the level of effort was expended. If the required level of activity or effort was not carried out, the amount of the Fed- eral award must be adjusted. (4) Periodic reports may be estab- lished for each Federal award. (5) Changes in principal investigator, project leader, project partner, or scope of effort must receive the prior written approval of the Federal awarding agen- cy or pass-through entity. §200.202 Program planning and de- sign. The Federal awarding agency must design a program and create an Assist- ance Listing before announcing the No- tice of Funding Opportunity. The pro- gram must be designed with clear goals and objectives that facilitate the deliv- ery of meaningful results consistent with the Federal authorizing legisla- tion of the program. Program perform- ance shall be measured based on the goals and objectives developed during program planning and design. See §200.301 for more information on per- formance measurement. Performance measures may differ depending on the type of program. The program must align with the strategic goals and ob- jectives within the Federal awarding agency’s performance plan and should support the Federal awarding agency’s performance measurement, manage- ment, and reporting as required by Part 6 of OMB Circular A–11 (Prepara- tion, Submission, and Execution of the VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00127 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 116 2 CFR Ch. II (1–1–21 Edition) §200.203 Budget). The program must also be de- signed to align with the Program Man- agement Improvement Accountability Act (Pub. L. 114–264). §200.203 Requirement to provide pub- lic notice of Federal financial as- sistance programs. (a) The Federal awarding agency must notify the public of Federal pro- grams in the Federal Assistance List- ings maintained by the General Serv- ices Administration (GSA). (1) The Federal Assistance Listings is the single, authoritative, government- wide comprehensive source of Federal financial assistance program informa- tion produced by the executive branch of the Federal Government. (2) The information that the Federal awarding agency must submit to GSA for approval by OMB is listed in para- graph (b) of this section. GSA must prescribe the format for the submission in coordination with OMB. (3) The Federal awarding agency may not award Federal financial assistance without assigning it to a program that has been included in the Federal As- sistance Listings as required in this section unless there are exigent cir- cumstances requiring otherwise, such as timing requirements imposed by statute. (b) For each program that awards discretionary Federal awards, non-dis- cretionary Federal awards, loans, in- surance, or any other type of Federal financial assistance, the Federal awarding agency must, to the extent practicable, create, update, and man- age Assistance Listings entries based on the authorizing statute for the pro- gram and comply with additional guid- ance provided by GSA in consultation with OMB to ensure consistent, accu- rate information is available to pro- spective applicants. Accordingly, Fed- eral awarding agencies must submit the following information to GSA: (1) Program Description, Purpose, Goals, and Measurement. A brief sum- mary of the statutory or regulatory re- quirements of the program and its in- tended outcome. Where appropriate, the Program Description, Purpose, Goals, and Measurement should align with the strategic goals and objectives within the Federal awarding agency’s performance plan and should support the Federal awarding agency’s per- formance measurement, management, and reporting as required by Part 6 of OMB Circular A–11; (2) Identification. Identification of whether the program makes Federal awards on a discretionary basis or the Federal awards are prescribed by Fed- eral statute, such as in the case of for- mula grants. (3) Projected total amount of funds available for the program. Estimates based on previous year funding are ac- ceptable if current appropriations are not available at the time of the sub- mission; (4) Anticipated source of available funds. The statutory authority for funding the program and, to the extent possible, agency, sub-agency, or, if known, the specific program unit that will issue the Federal awards, and asso- ciated funding identifier (e.g., Treasury Account Symbol(s)); (5) General eligibility requirements. The statutory, regulatory or other eligi- bility factors or considerations that de- termine the applicant’s qualification for Federal awards under the program (e.g., type of non-Federal entity); and (6) Applicability of Single Audit Re- quirements. Applicability of Single Audit Requirements as required by subpart F of this part. §200.204 Notices of funding opportuni- ties. For discretionary grants and cooper- ative agreements that are competed, the Federal awarding agency must an- nounce specific funding opportunities by providing the following information in a public notice: (a) Summary information in notices of funding opportunities. The Federal awarding agency must display the fol- lowing information posted on the OMB- designated governmentwide website for funding and applying for Federal finan- cial assistance, in a location preceding the full text of the announcement: (1) Federal Awarding Agency Name; (2) Funding Opportunity Title; (3) Announcement Type (whether the funding opportunity is the initial an- nouncement of this funding oppor- tunity or a modification of a pre- viously announced opportunity); VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00128 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 117 OMB Guidance §200.206 (4) Funding Opportunity Number (re- quired, if applicable). If the Federal awarding agency has assigned or will assign a number to the funding oppor- tunity announcement, this number must be provided; (5) Assistance Listings Number(s); (6) Key Dates. Key dates include due dates for applications or Executive Order 12372 submissions, as well as for any letters of intent or pre-applica- tions. For any announcement issued before a program’s application mate- rials are available, key dates also in- clude the date on which those mate- rials will be released; and any other ad- ditional information, as deemed appli- cable by the relevant Federal awarding agency. (b) Availability period. The Federal awarding agency must generally make all funding opportunities available for application for at least 60 calendar days. The Federal awarding agency may make a determination to have a less than 60 calendar day availability period but no funding opportunity should be available for less than 30 cal- endar days unless exigent cir- cumstances require as determined by the Federal awarding agency head or delegate. (c) Full text of funding opportunities. The Federal awarding agency must in- clude the following information in the full text of each funding opportunity. For specific instructions on the con- tent required in this section, refer to appendix I to this part. (1) Full programmatic description of the funding opportunity. (2) Federal award information, in- cluding sufficient information to help an applicant make an informed deci- sion about whether to submit an appli- cation. (See also §200.414(c)(4)). (3) Specific eligibility information, including any factors or priorities that affect an applicant’s or its applica- tion’s eligibility for selection. (4) Application Preparation and Sub- mission Information, including the ap- plicable submission dates and time. (5) Application Review Information including the criteria and process to be used to evaluate applications. See also §§200.205 and 200.206. (6) Federal Award Administration In- formation. See also §200.211. (7) Applicable terms and conditions for resulting awards, including any ex- ceptions from these standard terms. §200.205 Federal awarding agency re- view of merit of proposals. For discretionary Federal awards, unless prohibited by Federal statute, the Federal awarding agency must de- sign and execute a merit review process for applications, with the objective of selecting recipients most likely to be successful in delivering results based on the program objectives outlined in section §200.202. A merit review is an objective process of evaluating Federal award applications in accordance with written standards set forth by the Fed- eral awarding agency. This process must be described or incorporated by reference in the applicable funding op- portunity (see appendix I to this part.). See also §200.204. The Federal awarding agency must also periodically review its merit review process. §200.206 Federal awarding agency re- view of risk posed by applicants. (a) Review of OMB-designated reposi- tories of governmentwide data. (1) Prior to making a Federal award, the Fed- eral awarding agency is required by the Improper Payments Elimination and Recovery Improvement Act of 2012, 31 U.S.C. 3321 note, and 41 U.S.C. 2313 to review information available through any OMB-designated repositories of governmentwide eligibility qualifica- tion or financial integrity information as appropriate. See also suspension and debarment requirements at 2 CFR part 180 as well as individual Federal agency suspension and debarment regulations in title 2 of the Code of Federal Regula- tions. (2) In accordance 41 U.S.C. 2313, the Federal awarding agency is required to review the non-public segment of the OMB-designated integrity and perform- ance system accessible through SAM (currently the Federal Awardee Per- formance and Integrity Information System (FAPIIS)) prior to making a Federal award where the Federal share is expected to exceed the simplified ac- quisition threshold, defined in 41 U.S.C. 134, over the period of performance. As required by Public Law 112–239, Na- tional Defense Authorization Act for VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00129 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 118 2 CFR Ch. II (1–1–21 Edition) §200.207 Fiscal Year 2013, prior to making a Federal award, the Federal awarding agency must consider all of the infor- mation available through FAPIIS with regard to the applicant and any imme- diate highest level owner, predecessor (i.e.; a non-Federal entity that is re- placed by a successor), or subsidiary, identified for that applicant in FAPIIS, if applicable. At a minimum, the infor- mation in the system for a prior Fed- eral award recipient must demonstrate a satisfactory record of executing pro- grams or activities under Federal grants, cooperative agreements, or pro- curement awards; and integrity and business ethics. The Federal awarding agency may make a Federal award to a recipient who does not fully meet these standards, if it is determined that the information is not relevant to the cur- rent Federal award under consideration or there are specific conditions that can appropriately mitigate the effects of the non-Federal entity’s risk in ac- cordance with §200.208. (b) Risk evaluation. (1) The Federal awarding agency must have in place a framework for evaluating the risks posed by applicants before they receive Federal awards. This evaluation may incorporate results of the evaluation of the applicant’s eligibility or the qual- ity of its application. If the Federal awarding agency determines that a Federal award will be made, special conditions that correspond to the de- gree of risk assessed may be applied to the Federal award. Criteria to be evalu- ated must be described in the an- nouncement of funding opportunity de- scribed in §200.204. (2) In evaluating risks posed by appli- cants, the Federal awarding agency may use a risk-based approach and may consider any items such as the fol- lowing: (i) Financial stability. Financial sta- bility; (ii) Management systems and stand- ards. Quality of management systems and ability to meet the management standards prescribed in this part; (iii) History of performance. The appli- cant’s record in managing Federal awards, if it is a prior recipient of Fed- eral awards, including timeliness of compliance with applicable reporting requirements, conformance to the terms and conditions of previous Fed- eral awards, and if applicable, the ex- tent to which any previously awarded amounts will be expended prior to fu- ture awards; (iv) Audit reports and findings. Re- ports and findings from audits per- formed under subpart F of this part or the reports and findings of any other available audits; and (v) Ability to effectively implement re- quirements. The applicant’s ability to effectively implement statutory, regu- latory, or other requirements imposed on non-Federal entities. (c) Risk-based requirements adjustment. The Federal awarding agency may ad- just requirements when a risk-evalua- tion indicates that it may be merited either pre-award or post-award. (d) Suspension and debarment compli- ance. (1) The Federal awarding agency must comply with the guidelines on governmentwide suspension and debar- ment in 2 CFR part 180, and must re- quire non-Federal entities to comply with these provisions. These provisions restrict Federal awards, subawards and contracts with certain parties that are debarred, suspended or otherwise ex- cluded from or ineligible for participa- tion in Federal programs or activities. §200.207 Standard application re- quirements. (a) Paperwork clearances. The Federal awarding agency may only use applica- tion information collections approved by OMB under the Paperwork Reduc- tion Act of 1995 and OMB’s imple- menting regulations in 5 CFR part 1320 and in alignment with OMB-approved, governmentwide data elements avail- able from the OMB-designated stand- ards lead. Consistent with these re- quirements, OMB will authorize addi- tional information collections only on a limited basis. (b) Information collection. If applica- ble, the Federal awarding agency may inform applicants and recipients that they do not need to provide certain in- formation otherwise required by the relevant information collection. §200.208 Specific conditions. (a) Federal awarding agencies are re- sponsible for ensuring that specific VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00130 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 119 OMB Guidance §200.211 Federal award conditions are con- sistent with the program design re- flected in §200.202 and include clear performance expectations of recipients as required in §200.301. (b) The Federal awarding agency or pass-through entity may adjust spe- cific Federal award conditions as need- ed, in accordance with this section, based on an analysis of the following factors: (1) Based on the criteria set forth in §200.206; (2) The applicant or recipient’s his- tory of compliance with the general or specific terms and conditions of a Fed- eral award; (3) The applicant or recipient’s abil- ity to meet expected performance goals as described in §200.211; or (4) A responsibility determination of an applicant or recipient. (c) Additional Federal award condi- tions may include items such as the following: (1) Requiring payments as reimburse- ments rather than advance payments; (2) Withholding authority to proceed to the next phase until receipt of evi- dence of acceptable performance within a given performance period; (3) Requiring additional, more de- tailed financial reports; (4) Requiring additional project mon- itoring; (5) Requiring the non-Federal entity to obtain technical or management as- sistance; or (6) Establishing additional prior ap- provals. (d) If the Federal awarding agency or pass-through entity is imposing addi- tional requirements, they must notify the applicant or non-Federal entity as to: (1) The nature of the additional re- quirements; (2) The reason why the additional re- quirements are being imposed; (3) The nature of the action needed to remove the additional requirement, if applicable; (4) The time allowed for completing the actions if applicable; and (5) The method for requesting recon- sideration of the additional require- ments imposed. (e) Any additional requirements must be promptly removed once the condi- tions that prompted them have been satisfied. §200.209 Certifications and represen- tations. Unless prohibited by the U.S. Con- stitution, Federal statutes or regula- tions, each Federal awarding agency or pass-through entity is authorized to re- quire the non-Federal entity to submit certifications and representations re- quired by Federal statutes, or regula- tions on an annual basis. Submission may be required more frequently if the non-Federal entity fails to meet a re- quirement of a Federal award. §200.210 Pre-award costs. For requirements on costs incurred by the applicant prior to the start date of the period of performance of the Federal award, see §200.458. §200.211 Information contained in a Federal award. A Federal award must include the following information: (a) Federal award performance goals. Performance goals, indicators, targets, and baseline data must be included in the Federal award, where applicable. The Federal awarding agency must also specify how performance will be assessed in the terms and conditions of the Federal award, including the tim- ing and scope of expected performance. See §§200.202 and 200.301 for more infor- mation on Federal award performance goals. (b) General Federal award information. The Federal awarding agency must in- clude the following general Federal award information in each Federal award: (1) Recipient name (which must match the name associated with its unique entity identifier as defined at 2 CFR 25.315); (2) Recipient’s unique entity identi- fier; (3) Unique Federal Award Identifica- tion Number (FAIN); (4) Federal Award Date (see Federal award date in §200.201); (5) Period of Performance Start and End Date; (6) Budget Period Start and End Date; VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00131 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 120 2 CFR Ch. II (1–1–21 Edition) §200.212 (7) Amount of Federal Funds Obli- gated by this action; (8) Total Amount of Federal Funds Obligated; (9) Total Approved Cost Sharing or Matching, where applicable; (10) Total Amount of the Federal Award including approved Cost Sharing or Matching; (11) Budget Approved by the Federal Awarding Agency; (11) Federal award description, (to comply with statutory requirements (e.g., FFATA)); (12) Name of Federal awarding agen- cy and contact information for award- ing official, (13) Assistance Listings Number and Title; (14) Identification of whether the award is R&D; and (15) Indirect cost rate for the Federal award (including if the de minimis rate is charged per §200.414). (c) General terms and conditions. (1) Federal awarding agencies must incor- porate the following general terms and conditions either in the Federal award or by reference, as applicable: (i) Administrative requirements. Admin- istrative requirements implemented by the Federal awarding agency as speci- fied in this part. (ii) National policy requirements. These include statutory, executive order, other Presidential directive, or regu- latory requirements that apply by spe- cific reference and are not program- specific. See §200.300 Statutory and na- tional policy requirements. (iii) Recipient integrity and perform- ance matters. If the total Federal share of the Federal award may include more than $500,000 over the period of per- formance, the Federal awarding agency must include the term and condition available in appendix XII of this part. See also §200.113. (iv) Future budget periods. If it is an- ticipated that the period of perform- ance will include multiple budget peri- ods, the Federal awarding agency must indicate that subsequent budget peri- ods are subject to the availability of funds, program authority, satisfactory performance, and compliance with the terms and conditions of the Federal award. (v) Termination provisions. Federal awarding agencies must make recipi- ents aware, in a clear and unambiguous manner, of the termination provisions in §200.340, including the applicable termination provisions in the Federal awarding agency’s regulations or in each Federal award. (2) The Federal award must incor- porate, by reference, all general terms and conditions of the award, which must be maintained on the agency’s website. (3) If a non-Federal entity requests a copy of the full text of the general terms and conditions, the Federal awarding agency must provide it. (4) Wherever the general terms and conditions are publicly available, the Federal awarding agency must main- tain an archive of previous versions of the general terms and conditions, with effective dates, for use by the non-Fed- eral entity, auditors, or others. (d) Federal awarding agency, program, or Federal award specific terms and con- ditions. The Federal awarding agency must include with each Federal award any terms and conditions necessary to communicate requirements that are in addition to the requirements outlined in the Federal awarding agency’s gen- eral terms and conditions. See also §200.208. Whenever practicable, these specific terms and conditions also should be shared on the agency’s website and in notices of funding op- portunities (as outlined in §200.204) in addition to being included in a Federal award. See also §200.207. (e) Federal awarding agency require- ments. Any other information required by the Federal awarding agency. §200.212 Public access to Federal award information. (a) In accordance with statutory re- quirements for Federal spending trans- parency (e.g., FFATA), except as noted in this section, for applicable Federal awards the Federal awarding agency must announce all Federal awards pub- licly and publish the required informa- tion on a publicly available OMB-des- ignated governmentwide website. (b) All information posted in the des- ignated integrity and performance sys- tem accessible through SAM (currently FAPIIS) on or after April 15, 2011 will VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00132 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 121 OMB Guidance §200.213 be publicly available after a waiting period of 14 calendar days, except for: (1) Past performance reviews required by Federal Government contractors in accordance with the Federal Acquisi- tion Regulation (FAR) 48 CFR part 42, subpart 42.15; (2) Information that was entered prior to April 15, 2011; or (3) Information that is withdrawn during the 14-calendar day waiting pe- riod by the Federal Government offi- cial. (c) Nothing in this section may be construed as requiring the publication of information otherwise exempt under the Freedom of Information Act (5 U.S.C 552), or controlled unclassified information pursuant to Executive Order 13556. §200.213 Reporting a determination that a non-Federal entity is not qualified for a Federal award. (a) If a Federal awarding agency does not make a Federal award to a non- Federal entity because the official de- termines that the non-Federal entity does not meet either or both of the minimum qualification standards as described in §200.206(a)(2), the Federal awarding agency must report that de- termination to the designated integ- rity and performance system accessible through SAM (currently FAPIIS), only if all of the following apply: (1) The only basis for the determina- tion described in this paragraph (a) is the non-Federal entity’s prior record of executing programs or activities under Federal awards or its record of integ- rity and business ethics, as described in §200.206(a)(2) (i.e., the entity was deter- mined to be qualified based on all fac- tors other than those two standards); and (2) The total Federal share of the Federal award that otherwise would be made to the non-Federal entity is ex- pected to exceed the simplified acquisi- tion threshold over the period of per- formance. (b) The Federal awarding agency is not required to report a determination that a non-Federal entity is not quali- fied for a Federal award if they make the Federal award to the non-Federal entity and include specific award terms and conditions, as described in §200.208. (c) If a Federal awarding agency re- ports a determination that a non-Fed- eral entity is not qualified for a Fed- eral award, as described in paragraph (a) of this section, the Federal award- ing agency also must notify the non- Federal entity that— (1) The determination was made and reported to the designated integrity and performance system accessible through SAM, and include with the no- tification an explanation of the basis for the determination; (2) The information will be kept in the system for a period of five years from the date of the determination, as required by section 872 of Public Law 110–417, as amended (41 U.S.C. 2313), then archived; (3) Each Federal awarding agency that considers making a Federal award to the non-Federal entity during that five year period must consider that in- formation in judging whether the non- Federal entity is qualified to receive the Federal award when the total Fed- eral share of the Federal award is ex- pected to include an amount of Federal funding in excess of the simplified ac- quisition threshold over the period of performance; (4) The non-Federal entity may go to the awardee integrity and performance portal accessible through SAM (cur- rently the Contractor Performance As- sessment Reporting System (CPARS)) and comment on any information the system contains about the non-Federal entity itself; and (5) Federal awarding agencies will consider that non-Federal entity’s comments in determining whether the non-Federal entity is qualified for a fu- ture Federal award. (d) If a Federal awarding agency en- ters information into the designated integrity and performance system ac- cessible through SAM about a deter- mination that a non-Federal entity is not qualified for a Federal award and subsequently: (1) Learns that any of that informa- tion is erroneous, the Federal awarding agency must correct the information in the system within three business days; and (2) Obtains an update to that infor- mation that could be helpful to other Federal awarding agencies, the Federal VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00133 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 122 2 CFR Ch. II (1–1–21 Edition) §200.214 awarding agency is strongly encour- aged to amend the information in the system to incorporate the update in a timely way. (e) Federal awarding agencies must not post any information that will be made publicly available in the non- public segment of designated integrity and performance system that is cov- ered by a disclosure exemption under the Freedom of Information Act. If the recipient asserts within seven calendar days to the Federal awarding agency that posted the information that some or all of the information made publicly available is covered by a disclosure ex- emption under the Freedom of Infor- mation Act, the Federal awarding agency that posted the information must remove the posting within seven calendar days of receiving the asser- tion. Prior to reposting the releasable information, the Federal awarding agency must resolve the issue in ac- cordance with the agency’s Freedom of Information Act procedures. §200.214 Suspension and debarment. Non-Federal entities are subject to the non-procurement debarment and suspension regulations implementing Executive Orders 12549 and 12689, 2 CFR part 180. The regulations in 2 CFR part 180 restrict awards, subawards, and contracts with certain parties that are debarred, suspended, or otherwise ex- cluded from or ineligible for participa- tion in Federal assistance programs or activities. §200.215 Never contract with the enemy. Federal awarding agencies and re- cipients are subject to the regulations implementing Never Contract with the Enemy in 2 CFR part 183. The regula- tions in 2 CFR part 183 affect covered contracts, grants and cooperative agreements that are expected to exceed $50,000 within the period of perform- ance, are performed outside the United States and its territories, and are in support of a contingency operation in which members of the Armed Forces are actively engaged in hostilities. §200.216 Prohibition on certain tele- communications and video surveil- lance services or equipment. (a) Recipients and subrecipients are prohibited from obligating or expend- ing loan or grant funds to: (1) Procure or obtain; (2) Extend or renew a contract to pro- cure or obtain; or (3) Enter into a contract (or extend or renew a contract) to procure or ob- tain equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. As described in Public Law 115–232, section 889, covered tele- communications equipment is tele- communications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities). (i) For the purpose of public safety, security of government facilities, phys- ical security surveillance of critical in- frastructure, and other national secu- rity purposes, video surveillance and telecommunications equipment pro- duced by Hytera Communications Cor- poration, Hangzhou Hikvision Digital Technology Company, or Dahua Tech- nology Company (or any subsidiary or affiliate of such entities). (ii) Telecommunications or video sur- veillance services provided by such en- tities or using such equipment. (iii) Telecommunications or video surveillance equipment or services pro- duced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intel- ligence or the Director of the Federal Bureau of Investigation, reasonably be- lieves to be an entity owned or con- trolled by, or otherwise connected to, the government of a covered foreign country. (b) In implementing the prohibition under Public Law 115–232, section 889, subsection (f), paragraph (1), heads of executive agencies administering loan, grant, or subsidy programs shall prioritize available funding and tech- nical support to assist affected busi- nesses, institutions and organizations as is reasonably necessary for those af- fected entities to transition from cov- ered communications equipment and VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00134 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 123 OMB Guidance §200.301 services, to procure replacement equip- ment and services, and to ensure that communications service to users and customers is sustained. (c) See Public Law 115–232, section 889 for additional information. (d) See also §200.471. Subpart D—Post Federal Award Requirements SOURCE: 85 FR 49543, Aug. 13, 2020, unless otherwise noted. §200.300 Statutory and national policy requirements. (a) The Federal awarding agency must manage and administer the Fed- eral award in a manner so as to ensure that Federal funding is expended and associated programs are implemented in full accordance with the U.S. Con- stitution, Federal Law, and public pol- icy requirements: Including, but not limited to, those protecting free speech, religious liberty, public wel- fare, the environment, and prohibiting discrimination. The Federal awarding agency must communicate to the non- Federal entity all relevant public pol- icy requirements, including those in general appropriations provisions, and incorporate them either directly or by reference in the terms and conditions of the Federal award. (b) The non-Federal entity is respon- sible for complying with all require- ments of the Federal award. For all Federal awards, this includes the provi- sions of FFATA, which includes re- quirements on executive compensation, and also requirements implementing the Act for the non-Federal entity at 2 CFR parts 25 and 170. See also statu- tory requirements for whistleblower protections at 10 U.S.C. 2409, 41 U.S.C. 4712, and 10 U.S.C. 2324, 41 U.S.C. 4304 and 4310. §200.301 Performance measurement. (a) The Federal awarding agency must measure the recipient’s perform- ance to show achievement of program goals and objectives, share lessons learned, improve program outcomes, and foster adoption of promising prac- tices. Program goals and objectives should be derived from program plan- ning and design. See §200.202 for more information. Where appropriate, the Federal award may include specific program goals, indicators, targets, baseline data, data collection, or ex- pected outcomes (such as outputs, or services performance or public impacts of any of these) with an expected timeline for accomplishment. Where applicable, this should also include any performance measures or independent sources of data that may be used to measure progress. The Federal award- ing agency will determine how per- formance progress is measured, which may differ by program. Performance measurement progress must be both measured and reported. See §200.329 for more information on monitoring pro- gram performance. The Federal award- ing agency may include program-spe- cific requirements, as applicable. These requirements must be aligned, to the extent permitted by law, with the Fed- eral awarding agency strategic goals, strategic objectives or performance goals that are relevant to the program. See also OMB Circular A–11, Prepara- tion, Submission, and Execution of the Budget Part 6. (b) The Federal awarding agency should provide recipients with clear performance goals, indicators, targets, and baseline data as described in §200.211. Performance reporting fre- quency and content should be estab- lished to not only allow the Federal awarding agency to understand the re- cipient progress but also to facilitate identification of promising practices among recipients and build the evi- dence upon which the Federal awarding agency’s program and performance de- cisions are made. See §200.328 for more information on reporting program per- formance. (c) This provision is designed to oper- ate in tandem with evidence-related statutes (e.g.; The Foundations for Evi- dence-Based Policymaking Act of 2018, which emphasizes collaboration and co- ordination to advance data and evi- dence-building functions in the Federal government). The Federal awarding agency should also specify any require- ments of award recipients’ participa- tion in a federally funded evaluation, and any evaluation activities required to be conducted by the Federal award. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00135 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 124 2 CFR Ch. II (1–1–21 Edition) §200.302 §200.302 Financial management. (a) Each state must expend and ac- count for the Federal award in accord- ance with state laws and procedures for expending and accounting for the state’s own funds. In addition, the state’s and the other non-Federal enti- ty’s financial management systems, in- cluding records documenting compli- ance with Federal statutes, regula- tions, and the terms and conditions of the Federal award, must be sufficient to permit the preparation of reports re- quired by general and program-specific terms and conditions; and the tracing of funds to a level of expenditures ade- quate to establish that such funds have been used according to the Federal statutes, regulations, and the terms and conditions of the Federal award. See also §200.450. (b) The financial management sys- tem of each non-Federal entity must provide for the following (see also §§200.334, 200.335, 200.336, and 200.337): (1) Identification, in its accounts, of all Federal awards received and ex- pended and the Federal programs under which they were received. Federal pro- gram and Federal award identification must include, as applicable, the Assist- ance Listings title and number, Fed- eral award identification number and year, name of the Federal agency, and name of the pass-through entity, if any. (2) Accurate, current, and complete disclosure of the financial results of each Federal award or program in ac- cordance with the reporting require- ments set forth in §§200.328 and 200.329. If a Federal awarding agency requires reporting on an accrual basis from a re- cipient that maintains its records on other than an accrual basis, the recipi- ent must not be required to establish an accrual accounting system. This re- cipient may develop accrual data for its reports on the basis of an analysis of the documentation on hand. Simi- larly, a pass-through entity must not require a subrecipient to establish an accrual accounting system and must allow the subrecipient to develop ac- crual data for its reports on the basis of an analysis of the documentation on hand. (3) Records that identify adequately the source and application of funds for federally-funded activities. These records must contain information per- taining to Federal awards, authoriza- tions, financial obligations, unobli- gated balances, assets, expenditures, income and interest and be supported by source documentation. (4) Effective control over, and ac- countability for, all funds, property, and other assets. The non-Federal enti- ty must adequately safeguard all assets and assure that they are used solely for authorized purposes. See §200.303. (5) Comparison of expenditures with budget amounts for each Federal award. (6) Written procedures to implement the requirements of §200.305. (7) Written procedures for deter- mining the allowability of costs in ac- cordance with subpart E of this part and the terms and conditions of the Federal award. §200.303 Internal controls. The non-Federal entity must: (a) Establish and maintain effective internal control over the Federal award that provides reasonable assur- ance that the non-Federal entity is managing the Federal award in compli- ance with Federal statutes, regula- tions, and the terms and conditions of the Federal award. These internal con- trols should be in compliance with guidance in ‘‘Standards for Internal Control in the Federal Government’’ issued by the Comptroller General of the United States or the ‘‘Internal Con- trol Integrated Framework’’, issued by the Committee of Sponsoring Organiza- tions of the Treadway Commission (COSO). (b) Comply with the U.S. Constitu- tion, Federal statutes, regulations, and the terms and conditions of the Federal awards. (c) Evaluate and monitor the non- Federal entity’s compliance with stat- utes, regulations and the terms and conditions of Federal awards. (d) Take prompt action when in- stances of noncompliance are identified including noncompliance identified in audit findings. (e) Take reasonable measures to safe- guard protected personally identifiable information and other information the Federal awarding agency or pass- VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00136 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 125 OMB Guidance §200.305 through entity designates as sensitive or the non-Federal entity considers sensitive consistent with applicable Federal, State, local, and tribal laws regarding privacy and responsibility over confidentiality. §200.304 Bonds. The Federal awarding agency may in- clude a provision on bonding, insur- ance, or both in the following cir- cumstances: (a) Where the Federal Government guarantees or insures the repayment of money borrowed by the recipient, the Federal awarding agency, at its discre- tion, may require adequate bonding and insurance if the bonding and insur- ance requirements of the non-Federal entity are not deemed adequate to pro- tect the interest of the Federal Govern- ment. (b) The Federal awarding agency may require adequate fidelity bond coverage where the non-Federal entity lacks suf- ficient coverage to protect the Federal Government’s interest. (c) Where bonds are required in the situations described above, the bonds must be obtained from companies hold- ing certificates of authority as accept- able sureties, as prescribed in 31 CFR part 223. §200.305 Federal payment. (a) For states, payments are gov- erned by Treasury-State Cash Manage- ment Improvement Act (CMIA) agree- ments and default procedures codified at 31 CFR part 205 and Treasury Finan- cial Manual (TFM) 4A–2000, ‘‘Overall Disbursing Rules for All Federal Agen- cies’’. (b) For non-Federal entities other than states, payments methods must minimize the time elapsing between the transfer of funds from the United States Treasury or the pass-through entity and the disbursement by the non-Federal entity whether the pay- ment is made by electronic funds transfer, or issuance or redemption of checks, warrants, or payment by other means. See also §200.302(b)(6). Except as noted elsewhere in this part, Federal agencies must require recipients to use only OMB-approved, governmentwide information collection requests to re- quest payment. (1) The non-Federal entity must be paid in advance, provided it maintains or demonstrates the willingness to maintain both written procedures that minimize the time elapsing between the transfer of funds and disbursement by the non-Federal entity, and finan- cial management systems that meet the standards for fund control and ac- countability as established in this part. Advance payments to a non-Federal en- tity must be limited to the minimum amounts needed and be timed to be in accordance with the actual, immediate cash requirements of the non-Federal entity in carrying out the purpose of the approved program or project. The timing and amount of advance pay- ments must be as close as is adminis- tratively feasible to the actual dis- bursements by the non-Federal entity for direct program or project costs and the proportionate share of any allow- able indirect costs. The non-Federal entity must make timely payment to contractors in accordance with the contract provisions. (2) Whenever possible, advance pay- ments must be consolidated to cover anticipated cash needs for all Federal awards made by the Federal awarding agency to the recipient. (i) Advance payment mechanisms in- clude, but are not limited to, Treasury check and electronic funds transfer and must comply with applicable guidance in 31 CFR part 208. (ii) Non-Federal entities must be au- thorized to submit requests for advance payments and reimbursements at least monthly when electronic fund transfers are not used, and as often as they like when electronic transfers are used, in accordance with the provisions of the Electronic Fund Transfer Act (15 U.S.C. 1693–1693r). (3) Reimbursement is the preferred method when the requirements in this paragraph (b) cannot be met, when the Federal awarding agency sets a specific condition per §200.208, or when the non- Federal entity requests payment by re- imbursement. This method may be used on any Federal award for con- struction, or if the major portion of the construction project is accomplished through private market financing or Federal loans, and the Federal award constitutes a minor portion of the VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00137 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 126 2 CFR Ch. II (1–1–21 Edition) §200.305 project. When the reimbursement method is used, the Federal awarding agency or pass-through entity must make payment within 30 calendar days after receipt of the billing, unless the Federal awarding agency or pass- through entity reasonably believes the request to be improper. (4) If the non-Federal entity cannot meet the criteria for advance payments and the Federal awarding agency or pass-through entity has determined that reimbursement is not feasible be- cause the non-Federal entity lacks suf- ficient working capital, the Federal awarding agency or pass-through enti- ty may provide cash on a working cap- ital advance basis. Under this proce- dure, the Federal awarding agency or pass-through entity must advance cash payments to the non-Federal entity to cover its estimated disbursement needs for an initial period generally geared to the non-Federal entity’s disbursing cycle. Thereafter, the Federal award- ing agency or pass-through entity must reimburse the non-Federal entity for its actual cash disbursements. Use of the working capital advance method of payment requires that the pass- through entity provide timely advance payments to any subrecipients in order to meet the subrecipient’s actual cash disbursements. The working capital ad- vance method of payment must not be used by the pass-through entity if the reason for using this method is the un- willingness or inability of the pass- through entity to provide timely ad- vance payments to the subrecipient to meet the subrecipient’s actual cash dis- bursements. (5) To the extent available, the non- Federal entity must disburse funds available from program income (in- cluding repayments to a revolving fund), rebates, refunds, contract settle- ments, audit recoveries, and interest earned on such funds before requesting additional cash payments. (6) Unless otherwise required by Fed- eral statutes, payments for allowable costs by non-Federal entities must not be withheld at any time during the pe- riod of performance unless the condi- tions of §200.208, subpart D of this part, including §200.339, or one or more of the following applies: (i) The non-Federal entity has failed to comply with the project objectives, Federal statutes, regulations, or the terms and conditions of the Federal award. (ii) The non-Federal entity is delin- quent in a debt to the United States as defined in OMB Circular A–129, ‘‘Poli- cies for Federal Credit Programs and Non-Tax Receivables.’’ Under such con- ditions, the Federal awarding agency or pass-through entity may, upon rea- sonable notice, inform the non-Federal entity that payments must not be made for financial obligations incurred after a specified date until the condi- tions are corrected or the indebtedness to the Federal Government is liq- uidated. (iii) A payment withheld for failure to comply with Federal award condi- tions, but without suspension of the Federal award, must be released to the non-Federal entity upon subsequent compliance. When a Federal award is suspended, payment adjustments will be made in accordance with §200.343. (iv) A payment must not be made to a non-Federal entity for amounts that are withheld by the non-Federal entity from payment to contractors to assure satisfactory completion of work. A payment must be made when the non- Federal entity actually disburses the withheld funds to the contractors or to escrow accounts established to assure satisfactory completion of work. (7) Standards governing the use of banks and other institutions as deposi- tories of advance payments under Fed- eral awards are as follows. (i) The Federal awarding agency and pass-through entity must not require separate depository accounts for funds provided to a non-Federal entity or es- tablish any eligibility requirements for depositories for funds provided to the non-Federal entity. However, the non- Federal entity must be able to account for funds received, obligated, and ex- pended. (ii) Advance payments of Federal funds must be deposited and main- tained in insured accounts whenever possible. (8) The non-Federal entity must maintain advance payments of Federal awards in interest-bearing accounts, unless the following apply: VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00138 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 127 OMB Guidance §200.305 (i) The non-Federal entity receives less than $250,000 in Federal awards per year. (ii) The best reasonably available in- terest-bearing account would not be ex- pected to earn interest in excess of $500 per year on Federal cash balances. (iii) The depository would require an average or minimum balance so high that it would not be feasible within the expected Federal and non-Federal cash resources. (iv) A foreign government or banking system prohibits or precludes interest- bearing accounts. (9) Interest earned amounts up to $500 per year may be retained by the non- Federal entity for administrative ex- pense. Any additional interest earned on Federal advance payments deposited in interest-bearing accounts must be remitted annually to the Department of Health and Human Services Pay- ment Management System (PMS) through an electronic medium using ei- ther Automated Clearing House (ACH) network or a Fedwire Funds Service payment. (i) For returning interest on Federal awards paid through PMS, the refund should: (A) Provide an explanation stating that the refund is for interest; (B) List the PMS Payee Account Number(s) (PANs); (C) List the Federal award number(s) for which the interest was earned; and (D) Make returns payable to: Depart- ment of Health and Human Services. (ii) For returning interest on Federal awards not paid through PMS, the re- fund should: (A) Provide an explanation stating that the refund is for interest; (B) Include the name of the awarding agency; (C) List the Federal award number(s) for which the interest was earned; and (D) Make returns payable to: Depart- ment of Health and Human Services. (10) Funds, principal, and excess cash returns must be directed to the origi- nal Federal agency payment system. The non-Federal entity should review instructions from the original Federal agency payment system. Returns should include the following informa- tion: (i) Payee Account Number (PAN), if the payment originated from PMS, or Agency information to indicate whom to credit the funding if the payment originated from ASAP, NSF, or an- other Federal agency payment system. (ii) PMS document number and sub- account(s), if the payment originated from PMS, or relevant account num- bers if the payment originated from an- other Federal agency payment system. (iii) The reason for the return (e.g., excess cash, funds not spent, interest, part interest part other, etc.) (11) When returning funds or interest to PMS you must include the following as applicable: (i) For ACH Returns: Routing Number: 051036706 Account number: 303000 Bank Name and Location: Credit Gate- way—ACH Receiver St. Paul, MN (ii) For Fedwire Returns 1: Routing Number: 021030004 Account number: 75010501 Bank Name and Location: Federal Re- serve Bank Treas NYC/Funds Trans- fer Division New York, NY 1 Please note that the organization initiating payment is likely to incur a charge from their Financial Institution for this type of payment. (iii) For International ACH Returns: Beneficiary Account: Federal Reserve Bank of New York/ITS (FRBNY/ITS) Bank: Citibank N.A. (New York) Swift Code: CITIUS33 Account Number: 36838868 Bank Address: 388 Greenwich Street, New York, NY 10013 USA Payment Details (Line 70): Agency Lo- cator Code (ALC): 75010501 Name (abbreviated when possible) and ALC Agency POC (iv) For recipients that do not have electronic remittance capability, please make check 2 payable to: ‘‘The Department of Health and Human Services.’’ Mail Check to Treasury approved lockbox: HHS Program Support Center, P.O. Box 530231, Atlanta, GA 30353–0231 2 Please allow 4–6 weeks for proc- essing of a payment by check to be ap- plied to the appropriate PMS account. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00139 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 128 2 CFR Ch. II (1–1–21 Edition) §200.306 (v) Questions can be directed to PMS at 877–614–5533 or PMSSupport@psc.hhs.gov. §200.306 Cost sharing or matching. (a) Under Federal research proposals, voluntary committed cost sharing is not expected. It cannot be used as a factor during the merit review of appli- cations or proposals, but may be con- sidered if it is both in accordance with Federal awarding agency regulations and specified in a notice of funding op- portunity. Criteria for considering vol- untary committed cost sharing and any other program policy factors that may be used to determine who may re- ceive a Federal award must be explic- itly described in the notice of funding opportunity. See also §§200.414 and 200.204 and appendix I to this part. (b) For all Federal awards, any shared costs or matching funds and all contributions, including cash and third-party in-kind contributions, must be accepted as part of the non- Federal entity’s cost sharing or match- ing when such contributions meet all of the following criteria: (1) Are verifiable from the non-Fed- eral entity’s records; (2) Are not included as contributions for any other Federal award; (3) Are necessary and reasonable for accomplishment of project or program objectives; (4) Are allowable under subpart E of this part; (5) Are not paid by the Federal Gov- ernment under another Federal award, except where the Federal statute au- thorizing a program specifically pro- vides that Federal funds made avail- able for such program can be applied to matching or cost sharing requirements of other Federal programs; (6) Are provided for in the approved budget when required by the Federal awarding agency; and (7) Conform to other provisions of this part, as applicable. (c) Unrecovered indirect costs, in- cluding indirect costs on cost sharing or matching may be included as part of cost sharing or matching only with the prior approval of the Federal awarding agency. Unrecovered indirect cost means the difference between the amount charged to the Federal award and the amount which could have been charged to the Federal award under the non-Federal entity’s approved nego- tiated indirect cost rate. (d) Values for non-Federal entity contributions of services and property must be established in accordance with the cost principles in subpart E of this part. If a Federal awarding agency au- thorizes the non-Federal entity to do- nate buildings or land for construction/ facilities acquisition projects or long- term use, the value of the donated property for cost sharing or matching must be the lesser of paragraph (d)(1) or (2) of this section. (1) The value of the remaining life of the property recorded in the non-Fed- eral entity’s accounting records at the time of donation. (2) The current fair market value. However, when there is sufficient jus- tification, the Federal awarding agen- cy may approve the use of the current fair market value of the donated prop- erty, even if it exceeds the value de- scribed in paragraph (d)(1) of this sec- tion at the time of donation. (e) Volunteer services furnished by third-party professional and technical personnel, consultants, and other skilled and unskilled labor may be counted as cost sharing or matching if the service is an integral and necessary part of an approved project or program. Rates for third-party volunteer serv- ices must be consistent with those paid for similar work by the non-Federal en- tity. In those instances in which the required skills are not found in the non-Federal entity, rates must be con- sistent with those paid for similar work in the labor market in which the non-Federal entity competes for the kind of services involved. In either case, paid fringe benefits that are rea- sonable, necessary, allocable, and oth- erwise allowable may be included in the valuation. (f) When a third-party organization furnishes the services of an employee, these services must be valued at the employee’s regular rate of pay plus an amount of fringe benefits that is rea- sonable, necessary, allocable, and oth- erwise allowable, and indirect costs at either the third-party organization’s approved federally-negotiated indirect cost rate or, a rate in accordance with VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00140 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 129 OMB Guidance §200.307 §200.414(d) provided these services em- ploy the same skill(s) for which the employee is normally paid. Where do- nated services are treated as indirect costs, indirect cost rates will separate the value of the donated services so that reimbursement for the donated services will not be made. (g) Donated property from third par- ties may include such items as equip- ment, office supplies, laboratory sup- plies, or workshop and classroom sup- plies. Value assessed to donated prop- erty included in the cost sharing or matching share must not exceed the fair market value of the property at the time of the donation. (h) The method used for determining cost sharing or matching for third- party-donated equipment, buildings and land for which title passes to the non-Federal entity may differ accord- ing to the purpose of the Federal award, if paragraph (h)(1) or (2) of this section applies. (1) If the purpose of the Federal award is to assist the non-Federal enti- ty in the acquisition of equipment, buildings or land, the aggregate value of the donated property may be claimed as cost sharing or matching. (2) If the purpose of the Federal award is to support activities that re- quire the use of equipment, buildings or land, normally only depreciation charges for equipment and buildings may be made. However, the fair market value of equipment or other capital as- sets and fair rental charges for land may be allowed, provided that the Fed- eral awarding agency has approved the charges. See also §200.420. (i) The value of donated property must be determined in accordance with the usual accounting policies of the non-Federal entity, with the following qualifications: (1) The value of donated land and buildings must not exceed its fair mar- ket value at the time of donation to the non-Federal entity as established by an independent appraiser (e.g., cer- tified real property appraiser or Gen- eral Services Administration rep- resentative) and certified by a respon- sible official of the non-Federal entity as required by the Uniform Relocation Assistance and Real Property Acquisi- tion Policies Act of 1970, as amended, (42 U.S.C. 4601–4655) (Uniform Act) ex- cept as provided in the implementing regulations at 49 CFR part 24, ‘‘Uni- form Relocation Assistance And Real Property Acquisition For Federal And Federally-Assisted Programs’’. (2) The value of donated equipment must not exceed the fair market value of equipment of the same age and con- dition at the time of donation. (3) The value of donated space must not exceed the fair rental value of com- parable space as established by an inde- pendent appraisal of comparable space and facilities in a privately-owned building in the same locality. (4) The value of loaned equipment must not exceed its fair rental value. (j) For third-party in-kind contribu- tions, the fair market value of goods and services must be documented and to the extent feasible supported by the same methods used internally by the non-Federal entity. (k) For IHEs, see also OMB memo- randum M–01–06, dated January 5, 2001, Clarification of OMB A–21 Treatment of Voluntary Uncommitted Cost Shar- ing and Tuition Remission Costs. §200.307 Program income. (a) General. Non-Federal entities are encouraged to earn income to defray program costs where appropriate. (b) Cost of generating program income. If authorized by Federal regulations or the Federal award, costs incidental to the generation of program income may be deducted from gross income to de- termine program income, provided these costs have not been charged to the Federal award. (c) Governmental revenues. Taxes, spe- cial assessments, levies, fines, and other such revenues raised by a non- Federal entity are not program income unless the revenues are specifically identified in the Federal award or Fed- eral awarding agency regulations as program income. (d) Property. Proceeds from the sale of real property, equipment, or supplies are not program income; such proceeds will be handled in accordance with the requirements of the Property Stand- ards §§200.311, 200.313, and 200.314, or as specifically identified in Federal stat- utes, regulations, or the terms and con- ditions of the Federal award. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00141 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 130 2 CFR Ch. II (1–1–21 Edition) §200.308 (e) Use of program income. If the Fed- eral awarding agency does not specify in its regulations or the terms and con- ditions of the Federal award, or give prior approval for how program income is to be used, paragraph (e)(1) of this section must apply. For Federal awards made to IHEs and nonprofit research institutions, if the Federal awarding agency does not specify in its regula- tions or the terms and conditions of the Federal award how program income is to be used, paragraph (e)(2) of this section must apply. In specifying alter- natives to paragraphs (e)(1) and (2) of this section, the Federal awarding agency may distinguish between in- come earned by the recipient and in- come earned by subrecipients and be- tween the sources, kinds, or amounts of income. When the Federal awarding agency authorizes the approaches in paragraphs (e)(2) and (3) of this section, program income in excess of any amounts specified must also be de- ducted from expenditures. (1) Deduction. Ordinarily program in- come must be deducted from total al- lowable costs to determine the net al- lowable costs. Program income must be used for current costs unless the Fed- eral awarding agency authorizes other- wise. Program income that the non- Federal entity did not anticipate at the time of the Federal award must be used to reduce the Federal award and non- Federal entity contributions rather than to increase the funds committed to the project. (2) Addition. With prior approval of the Federal awarding agency (except for IHEs and nonprofit research insti- tutions, as described in this paragraph (e)) program income may be added to the Federal award by the Federal agen- cy and the non-Federal entity. The pro- gram income must be used for the pur- poses and under the conditions of the Federal award. (3) Cost sharing or matching. With prior approval of the Federal awarding agency, program income may be used to meet the cost sharing or matching requirement of the Federal award. The amount of the Federal award remains the same. (f) Income after the period of perform- ance. There are no Federal require- ments governing the disposition of in- come earned after the end of the period of performance for the Federal award, unless the Federal awarding agency regulations or the terms and condi- tions of the Federal award provide oth- erwise. The Federal awarding agency may negotiate agreements with recipi- ents regarding appropriate uses of in- come earned after the period of per- formance as part of the grant closeout process. See also §200.344. (g) License fees and royalties. Unless the Federal statute, regulations, or terms and conditions for the Federal award provide otherwise, the non-Fed- eral entity is not accountable to the Federal awarding agency with respect to program income earned from license fees and royalties for copyrighted ma- terial, patents, patent applications, trademarks, and inventions made under a Federal award to which 37 CFR part 401 is applicable. §200.308 Revision of budget and pro- gram plans. (a) The approved budget for the Fed- eral award summarizes the financial aspects of the project or program as ap- proved during the Federal award proc- ess. It may include either the Federal and non-Federal share (see definition for Federal share in §200.1) or only the Federal share, depending upon Federal awarding agency requirements. The budget and program plans include con- siderations for performance and pro- gram evaluation purposes whenever re- quired in accordance with the terms and conditions of the award. (b) Recipients are required to report deviations from budget or project scope or objective, and request prior approv- als from Federal awarding agencies for budget and program plan revisions, in accordance with this section. (c) For non-construction Federal awards, recipients must request prior approvals from Federal awarding agen- cies for the following program or budg- et-related reasons: (1) Change in the scope or the objec- tive of the project or program (even if there is no associated budget revision requiring prior written approval). (2) Change in a key person specified in the application or the Federal award. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00142 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 131 OMB Guidance §200.308 (3) The disengagement from the project for more than three months, or a 25 percent reduction in time devoted to the project, by the approved project director or principal investigator. (4) The inclusion, unless waived by the Federal awarding agency, of costs that require prior approval in accord- ance with subpart E of this part as ap- plicable. (5) The transfer of funds budgeted for participant support costs to other cat- egories of expense. (6) Unless described in the applica- tion and funded in the approved Fed- eral awards, the subawarding, transfer- ring or contracting out of any work under a Federal award, including fixed amount subawards as described in §200.333. This provision does not apply to the acquisition of supplies, material, equipment or general support services. (7) Changes in the approved cost- sharing or matching provided by the non-Federal entity. (8) The need arises for additional Federal funds to complete the project. (d) No other prior approval require- ments for specific items may be im- posed unless an exception has been ap- proved by OMB. See also §§200.102 and 200.407. (e) Except for requirements listed in paragraphs (c)(1) through (8) of this section, the Federal awarding agency is authorized, at its option, to waive other cost-related and administrative prior written approvals contained in subparts D and E of this part. Such waivers may include authorizing re- cipients to do any one or more of the following: (1) Incur project costs 90 calendar days before the Federal awarding agen- cy makes the Federal award. Expenses more than 90 calendar days pre-award require prior approval of the Federal awarding agency. All costs incurred be- fore the Federal awarding agency makes the Federal award are at the re- cipient’s risk (i.e., the Federal award- ing agency is not required to reimburse such costs if for any reason the recipi- ent does not receive a Federal award or if the Federal award is less than antici- pated and inadequate to cover such costs). See also §200.458. (2) Initiate a one-time extension of the period of performance by up to 12 months unless one or more of the con- ditions outlined in paragraphs (e)(2)(i) through (iii) of this section apply. For one-time extensions, the recipient must notify the Federal awarding agency in writing with the supporting reasons and revised period of perform- ance at least 10 calendar days before the end of the period of performance specified in the Federal award. This one-time extension must not be exer- cised merely for the purpose of using unobligated balances. Extensions re- quire explicit prior Federal awarding agency approval when: (i) The terms and conditions of the Federal award prohibit the extension. (ii) The extension requires additional Federal funds. (iii) The extension involves any change in the approved objectives or scope of the project. (3) Carry forward unobligated bal- ances to subsequent budget periods. (4) For Federal awards that support research, unless the Federal awarding agency provides otherwise in the Fed- eral award or in the Federal awarding agency’s regulations, the prior ap- proval requirements described in this paragraph (e) are automatically waived (i.e., recipients need not obtain such prior approvals) unless one of the con- ditions included in paragraph (e)(2) of this section applies. (f) The Federal awarding agency may, at its option, restrict the transfer of funds among direct cost categories or programs, functions and activities for Federal awards in which the Fed- eral share of the project exceeds the simplified acquisition threshold and the cumulative amount of such trans- fers exceeds or is expected to exceed 10 percent of the total budget as last ap- proved by the Federal awarding agen- cy. The Federal awarding agency can- not permit a transfer that would cause any Federal appropriation to be used for purposes other than those con- sistent with the appropriation. (g) All other changes to non-con- struction budgets, except for the changes described in paragraph (c) of this section, do not require prior ap- proval (see also §200.407). VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00143 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 132 2 CFR Ch. II (1–1–21 Edition) §200.309 (h) For construction Federal awards, the recipient must request prior writ- ten approval promptly from the Fed- eral awarding agency for budget revi- sions whenever paragraph (h)(1), (2), or (3) of this section applies: (1) The revision results from changes in the scope or the objective of the project or program. (2) The need arises for additional Federal funds to complete the project. (3) A revision is desired which in- volves specific costs for which prior written approval requirements may be imposed consistent with applicable OMB cost principles listed in subpart E. (4) No other prior approval require- ments for budget revisions may be im- posed unless an exception has been ap- proved by OMB. (5) When a Federal awarding agency makes a Federal award that provides support for construction and non-con- struction work, the Federal awarding agency may require the recipient to ob- tain prior approval from the Federal awarding agency before making any fund or budget transfers between the two types of work supported. (i) When requesting approval for budget revisions, the recipient must use the same format for budget infor- mation that was used in the applica- tion, unless the Federal awarding agen- cy indicates a letter of request suffices. (j) Within 30 calendar days from the date of receipt of the request for budg- et revisions, the Federal awarding agency must review the request and notify the recipient whether the budget revisions have been approved. If the re- vision is still under consideration at the end of 30 calendar days, the Federal awarding agency must inform the re- cipient in writing of the date when the recipient may expect the decision. §200.309 Modifications to Period of Performance. If a Federal awarding agency or pass- through entity approves an extension, or if a recipient extends under §200.308(e)(2), the Period of Perform- ance will be amended to end at the completion of the extension. If a termi- nation occurs, the Period of Perform- ance will be amended to end upon the effective date of termination. If a re- newal award is issued, a distinct Period of Performance will begin. PROPERTY STANDARDS §200.310 Insurance coverage. The non-Federal entity must, at a minimum, provide the equivalent in- surance coverage for real property and equipment acquired or improved with Federal funds as provided to property owned by the non-Federal entity. Fed- erally-owned property need not be in- sured unless required by the terms and conditions of the Federal award. §200.311 Real property. (a) Title. Subject to the requirements and conditions set forth in this section, title to real property acquired or im- proved under a Federal award will vest upon acquisition in the non-Federal en- tity. (b) Use. Except as otherwise provided by Federal statutes or by the Federal awarding agency, real property will be used for the originally authorized pur- pose as long as needed for that purpose, during which time the non-Federal en- tity must not dispose of or encumber its title or other interests. (c) Disposition. When real property is no longer needed for the originally au- thorized purpose, the non-Federal enti- ty must obtain disposition instructions from the Federal awarding agency or pass-through entity. The instructions must provide for one of the following alternatives: (1) Retain title after compensating the Federal awarding agency. The amount paid to the Federal awarding agency will be computed by applying the Federal awarding agency’s percent- age of participation in the cost of the original purchase (and costs of any im- provements) to the fair market value of the property. However, in those situ- ations where the non-Federal entity is disposing of real property acquired or improved with a Federal award and ac- quiring replacement real property under the same Federal award, the net proceeds from the disposition may be used as an offset to the cost of the re- placement property. (2) Sell the property and compensate the Federal awarding agency. The amount due to the Federal awarding VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00144 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 133 OMB Guidance §200.313 agency will be calculated by applying the Federal awarding agency’s percent- age of participation in the cost of the original purchase (and cost of any im- provements) to the proceeds of the sale after deduction of any actual and rea- sonable selling and fixing-up expenses. If the Federal award has not been closed out, the net proceeds from sale may be offset against the original cost of the property. When the non-Federal entity is directed to sell property, sales procedures must be followed that pro- vide for competition to the extent practicable and result in the highest possible return. (3) Transfer title to the Federal awarding agency or to a third party designated/approved by the Federal awarding agency. The non-Federal en- tity is entitled to be paid an amount calculated by applying the non-Federal entity’s percentage of participation in the purchase of the real property (and cost of any improvements) to the cur- rent fair market value of the property. §200.312 Federally-owned and exempt property. (a) Title to federally-owned property remains vested in the Federal Govern- ment. The non-Federal entity must submit annually an inventory listing of federally-owned property in its custody to the Federal awarding agency. Upon completion of the Federal award or when the property is no longer needed, the non-Federal entity must report the property to the Federal awarding agen- cy for further Federal agency utiliza- tion. (b) If the Federal awarding agency has no further need for the property, it must declare the property excess and report it for disposal to the appropriate Federal disposal authority, unless the Federal awarding agency has statutory authority to dispose of the property by alternative methods (e.g., the author- ity provided by the Federal Technology Transfer Act (15 U.S.C. 3710 (i)) to do- nate research equipment to edu- cational and nonprofit organizations in accordance with Executive Order 12999, ‘‘Educational Technology: Ensuring Opportunity for All Children in the Next Century.’’). The Federal awarding agency must issue appropriate instruc- tions to the non-Federal entity. (c) Exempt property means property acquired under a Federal award where the Federal awarding agency has cho- sen to vest title to the property to the non-Federal entity without further re- sponsibility to the Federal Govern- ment, based upon the explicit terms and conditions of the Federal award. The Federal awarding agency may ex- ercise this option when statutory au- thority exists. Absent statutory au- thority and specific terms and condi- tions of the Federal award, title to ex- empt property acquired under the Fed- eral award remains with the Federal Government. §200.313 Equipment. See also §200.439. (a) Title. Subject to the requirements and conditions set forth in this section, title to equipment acquired under a Federal award will vest upon acquisi- tion in the non-Federal entity. Unless a statute specifically authorizes the Federal agency to vest title in the non- Federal entity without further respon- sibility to the Federal Government, and the Federal agency elects to do so, the title must be a conditional title. Title must vest in the non-Federal en- tity subject to the following condi- tions: (1) Use the equipment for the author- ized purposes of the project during the period of performance, or until the property is no longer needed for the purposes of the project. (2) Not encumber the property with- out approval of the Federal awarding agency or pass-through entity. (3) Use and dispose of the property in accordance with paragraphs (b), (c), and (e) of this section. (b) General. A state must use, manage and dispose of equipment acquired under a Federal award by the state in accordance with state laws and proce- dures. Other non-Federal entities must follow paragraphs (c) through (e) of this section. (c) Use. (1) Equipment must be used by the non-Federal entity in the pro- gram or project for which it was ac- quired as long as needed, whether or not the project or program continues to be supported by the Federal award, and the non-Federal entity must not encumber the property without prior VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00145 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 134 2 CFR Ch. II (1–1–21 Edition) §200.313 approval of the Federal awarding agen- cy. The Federal awarding agency may require the submission of the applica- ble common form for equipment. When no longer needed for the original pro- gram or project, the equipment may be used in other activities supported by the Federal awarding agency, in the following order of priority: (i) Activities under a Federal award from the Federal awarding agency which funded the original program or project, then (ii) Activities under Federal awards from other Federal awarding agencies. This includes consolidated equipment for information technology systems. (2) During the time that equipment is used on the project or program for which it was acquired, the non-Federal entity must also make equipment available for use on other projects or programs currently or previously sup- ported by the Federal Government, provided that such use will not inter- fere with the work on the projects or program for which it was originally ac- quired. First preference for other use must be given to other programs or projects supported by Federal awarding agency that financed the equipment and second preference must be given to programs or projects under Federal awards from other Federal awarding agencies. Use for non-federally-funded programs or projects is also permis- sible. User fees should be considered if appropriate. (3) Notwithstanding the encourage- ment in §200.307 to earn program in- come, the non-Federal entity must not use equipment acquired with the Fed- eral award to provide services for a fee that is less than private companies charge for equivalent services unless specifically authorized by Federal stat- ute for as long as the Federal Govern- ment retains an interest in the equip- ment. (4) When acquiring replacement equipment, the non-Federal entity may use the equipment to be replaced as a trade-in or sell the property and use the proceeds to offset the cost of the replacement property. (d) Management requirements. Proce- dures for managing equipment (includ- ing replacement equipment), whether acquired in whole or in part under a Federal award, until disposition takes place will, as a minimum, meet the fol- lowing requirements: (1) Property records must be main- tained that include a description of the property, a serial number or other identification number, the source of funding for the property (including the FAIN), who holds title, the acquisition date, and cost of the property, percent- age of Federal participation in the project costs for the Federal award under which the property was acquired, the location, use and condition of the property, and any ultimate disposition data including the date of disposal and sale price of the property. (2) A physical inventory of the prop- erty must be taken and the results rec- onciled with the property records at least once every two years. (3) A control system must be devel- oped to ensure adequate safeguards to prevent loss, damage, or theft of the property. Any loss, damage, or theft must be investigated. (4) Adequate maintenance procedures must be developed to keep the property in good condition. (5) If the non-Federal entity is au- thorized or required to sell the prop- erty, proper sales procedures must be established to ensure the highest pos- sible return. (e) Disposition. When original or re- placement equipment acquired under a Federal award is no longer needed for the original project or program or for other activities currently or previously supported by a Federal awarding agen- cy, except as otherwise provided in Federal statutes, regulations, or Fed- eral awarding agency disposition in- structions, the non-Federal entity must request disposition instructions from the Federal awarding agency if required by the terms and conditions of the Federal award. Disposition of the equipment will be made as follows, in accordance with Federal awarding agency disposition instructions: (1) Items of equipment with a current per unit fair market value of $5,000 or less may be retained, sold or otherwise disposed of with no further responsi- bility to the Federal awarding agency. (2) Except as provided in §200.312(b), or if the Federal awarding agency fails VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00146 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 135 OMB Guidance §200.315 to provide requested disposition in- structions within 120 days, items of equipment with a current per-unit fair market value in excess of $5,000 may be retained by the non-Federal entity or sold. The Federal awarding agency is entitled to an amount calculated by multiplying the current market value or proceeds from sale by the Federal awarding agency’s percentage of par- ticipation in the cost of the original purchase. If the equipment is sold, the Federal awarding agency may permit the non-Federal entity to deduct and retain from the Federal share $500 or ten percent of the proceeds, whichever is less, for its selling and handling ex- penses. (3) The non-Federal entity may transfer title to the property to the Federal Government or to an eligible third party provided that, in such cases, the non-Federal entity must be entitled to compensation for its attrib- utable percentage of the current fair market value of the property. (4) In cases where a non-Federal enti- ty fails to take appropriate disposition actions, the Federal awarding agency may direct the non-Federal entity to take disposition actions. §200.314 Supplies. See also §200.453. (a) Title to supplies will vest in the non-Federal entity upon acquisition. If there is a residual inventory of unused supplies exceeding $5,000 in total aggre- gate value upon termination or com- pletion of the project or program and the supplies are not needed for any other Federal award, the non-Federal entity must retain the supplies for use on other activities or sell them, but must, in either case, compensate the Federal Government for its share. The amount of compensation must be com- puted in the same manner as for equip- ment. See §200.313 (e)(2) for the calcula- tion methodology. (b) As long as the Federal Govern- ment retains an interest in the sup- plies, the non-Federal entity must not use supplies acquired under a Federal award to provide services to other or- ganizations for a fee that is less than private companies charge for equiva- lent services, unless specifically au- thorized by Federal statute. §200.315 Intangible property. (a) Title to intangible property (see definition for Intangible property in §200.1) acquired under a Federal award vests upon acquisition in the non-Fed- eral entity. The non-Federal entity must use that property for the origi- nally-authorized purpose, and must not encumber the property without ap- proval of the Federal awarding agency. When no longer needed for the origi- nally authorized purpose, disposition of the intangible property must occur in accordance with the provisions in §200.313(e). (b) The non-Federal entity may copy- right any work that is subject to copy- right and was developed, or for which ownership was acquired, under a Fed- eral award. The Federal awarding agen- cy reserves a royalty-free, nonexclu- sive and irrevocable right to reproduce, publish, or otherwise use the work for Federal purposes, and to authorize oth- ers to do so. (c) The non-Federal entity is subject to applicable regulations governing patents and inventions, including gov- ernmentwide regulations issued by the Department of Commerce at 37 CFR part 401, ‘‘Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Awards, Contracts and Cooperative Agreements.’’ (d) The Federal Government has the right to: (1) Obtain, reproduce, publish, or oth- erwise use the data produced under a Federal award; and (2) Authorize others to receive, repro- duce, publish, or otherwise use such data for Federal purposes. (e)(1) In response to a Freedom of In- formation Act (FOIA) request for re- search data relating to published re- search findings produced under a Fed- eral award that were used by the Fed- eral Government in developing an agency action that has the force and effect of law, the Federal awarding agency must request, and the non-Fed- eral entity must provide, within a rea- sonable time, the research data so that they can be made available to the pub- lic through the procedures established under the FOIA. If the Federal award- ing agency obtains the research data solely in response to a FOIA request, VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00147 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 136 2 CFR Ch. II (1–1–21 Edition) §200.316 the Federal awarding agency may charge the requester a reasonable fee equaling the full incremental cost of obtaining the research data. This fee should reflect costs incurred by the Federal agency and the non-Federal en- tity. This fee is in addition to any fees the Federal awarding agency may as- sess under the FOIA (5 U.S.C. 552(a)(4)(A)). (2) Published research findings means when: (i) Research findings are published in a peer-reviewed scientific or technical journal; or (ii) A Federal agency publicly and of- ficially cites the research findings in support of an agency action that has the force and effect of law. ‘‘Used by the Federal Government in developing an agency action that has the force and effect of law’’ is defined as when an agency publicly and officially cites the research findings in support of an agen- cy action that has the force and effect of law. (3) Research data means the recorded factual material commonly accepted in the scientific community as necessary to validate research findings, but not any of the following: Preliminary anal- yses, drafts of scientific papers, plans for future research, peer reviews, or communications with colleagues. This ‘‘recorded’’ material excludes physical objects (e.g., laboratory samples). Re- search data also do not include: (i) Trade secrets, commercial infor- mation, materials necessary to be held confidential by a researcher until they are published, or similar information which is protected under law; and (ii) Personnel and medical informa- tion and similar information the dis- closure of which would constitute a clearly unwarranted invasion of per- sonal privacy, such as information that could be used to identify a particular person in a research study. §200.316 Property trust relationship. Real property, equipment, and intan- gible property, that are acquired or im- proved with a Federal award must be held in trust by the non-Federal entity as trustee for the beneficiaries of the project or program under which the property was acquired or improved. The Federal awarding agency may re- quire the non-Federal entity to record liens or other appropriate notices of record to indicate that personal or real property has been acquired or improved with a Federal award and that use and disposition conditions apply to the property. Procurement Standards §200.317 Procurements by states. When procuring property and serv- ices under a Federal award, a State must follow the same policies and pro- cedures it uses for procurements from its non-Federal funds. The State will comply with §§200.321, 200.322, and 200.323 and ensure that every purchase order or other contract includes any clauses required by §200.327. All other non-Federal entities, including sub- recipients of a State, must follow the procurement standards in §§200.318 through 200.327. §200.318 General procurement stand- ards. (a) The non-Federal entity must have and use documented procurement pro- cedures, consistent with State, local, and tribal laws and regulations and the standards of this section, for the acqui- sition of property or services required under a Federal award or subaward. The non-Federal entity’s documented procurement procedures must conform to the procurement standards identi- fied in §§200.317 through 200.327. (b) Non-Federal entities must main- tain oversight to ensure that contrac- tors perform in accordance with the terms, conditions, and specifications of their contracts or purchase orders. (c)(1) The non-Federal entity must maintain written standards of conduct covering conflicts of interest and gov- erning the actions of its employees en- gaged in the selection, award and ad- ministration of contracts. No em- ployee, officer, or agent may partici- pate in the selection, award, or admin- istration of a contract supported by a Federal award if he or she has a real or apparent conflict of interest. Such a conflict of interest would arise when the employee, officer, or agent, any VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00148 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 137 OMB Guidance §200.318 member of his or her immediate fam- ily, his or her partner, or an organiza- tion which employs or is about to em- ploy any of the parties indicated here- in, has a financial or other interest in or a tangible personal benefit from a firm considered for a contract. The of- ficers, employees, and agents of the non-Federal entity may neither solicit nor accept gratuities, favors, or any- thing of monetary value from contrac- tors or parties to subcontracts. How- ever, non-Federal entities may set standards for situations in which the financial interest is not substantial or the gift is an unsolicited item of nomi- nal value. The standards of conduct must provide for disciplinary actions to be applied for violations of such standards by officers, employees, or agents of the non-Federal entity. (2) If the non-Federal entity has a parent, affiliate, or subsidiary organi- zation that is not a State, local govern- ment, or Indian tribe, the non-Federal entity must also maintain written standards of conduct covering organi- zational conflicts of interest. Organiza- tional conflicts of interest means that because of relationships with a parent company, affiliate, or subsidiary orga- nization, the non-Federal entity is un- able or appears to be unable to be im- partial in conducting a procurement action involving a related organiza- tion. (d) The non-Federal entity’s proce- dures must avoid acquisition of unnec- essary or duplicative items. Consider- ation should be given to consolidating or breaking out procurements to ob- tain a more economical purchase. Where appropriate, an analysis will be made of lease versus purchase alter- natives, and any other appropriate analysis to determine the most eco- nomical approach. (e) To foster greater economy and ef- ficiency, and in accordance with efforts to promote cost-effective use of shared services across the Federal Govern- ment, the non-Federal entity is encour- aged to enter into state and local inter- governmental agreements or inter-en- tity agreements where appropriate for procurement or use of common or shared goods and services. Competition requirements will be met with applied to documented procurement actions using strategic sourcing, shared serv- ices, and other similar procurement ar- rangements. (f) The non-Federal entity is encour- aged to use Federal excess and surplus property in lieu of purchasing new equipment and property whenever such use is feasible and reduces project costs. (g) The non-Federal entity is encour- aged to use value engineering clauses in contracts for construction projects of sufficient size to offer reasonable op- portunities for cost reductions. Value engineering is a systematic and cre- ative analysis of each contract item or task to ensure that its essential func- tion is provided at the overall lower cost. (h) The non-Federal entity must award contracts only to responsible contractors possessing the ability to perform successfully under the terms and conditions of a proposed procure- ment. Consideration will be given to such matters as contractor integrity, compliance with public policy, record of past performance, and financial and technical resources. See also §200.214. (i) The non-Federal entity must maintain records sufficient to detail the history of procurement. These records will include, but are not nec- essarily limited to, the following: Ra- tionale for the method of procurement, selection of contract type, contractor selection or rejection, and the basis for the contract price. (j)(1) The non-Federal entity may use a time-and-materials type contract only after a determination that no other contract is suitable and if the contract includes a ceiling price that the contractor exceeds at its own risk. Time-and-materials type contract means a contract whose cost to a non- Federal entity is the sum of: (i) The actual cost of materials; and (ii) Direct labor hours charged at fixed hourly rates that reflect wages, general and administrative expenses, and profit. (2) Since this formula generates an open-ended contract price, a time-and- materials contract provides no positive profit incentive to the contractor for cost control or labor efficiency. There- fore, each contract must set a ceiling price that the contractor exceeds at its VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00149 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 138 2 CFR Ch. II (1–1–21 Edition) §200.319 own risk. Further, the non-Federal en- tity awarding such a contract must as- sert a high degree of oversight in order to obtain reasonable assurance that the contractor is using efficient meth- ods and effective cost controls. (k) The non-Federal entity alone must be responsible, in accordance with good administrative practice and sound business judgment, for the set- tlement of all contractual and adminis- trative issues arising out of procure- ments. These issues include, but are not limited to, source evaluation, pro- tests, disputes, and claims. These standards do not relieve the non-Fed- eral entity of any contractual respon- sibilities under its contracts. The Fed- eral awarding agency will not sub- stitute its judgment for that of the non-Federal entity unless the matter is primarily a Federal concern. Viola- tions of law will be referred to the local, state, or Federal authority hav- ing proper jurisdiction. §200.319 Competition. (a) All procurement transactions for the acquisition of property or services required under a Federal award must be conducted in a manner providing full and open competition consistent with the standards of this section and §200.320. (b) In order to ensure objective con- tractor performance and eliminate un- fair competitive advantage, contrac- tors that develop or draft specifica- tions, requirements, statements of work, or invitations for bids or re- quests for proposals must be excluded from competing for such procurements. Some of the situations considered to be restrictive of competition include but are not limited to: (1) Placing unreasonable require- ments on firms in order for them to qualify to do business; (2) Requiring unnecessary experience and excessive bonding; (3) Noncompetitive pricing practices between firms or between affiliated companies; (4) Noncompetitive contracts to con- sultants that are on retainer contracts; (5) Organizational conflicts of inter- est; (6) Specifying only a ‘‘brand name’’ product instead of allowing ‘‘an equal’’ product to be offered and describing the performance or other relevant re- quirements of the procurement; and (7) Any arbitrary action in the pro- curement process. (c) The non-Federal entity must con- duct procurements in a manner that prohibits the use of statutorily or ad- ministratively imposed state, local, or tribal geographical preferences in the evaluation of bids or proposals, except in those cases where applicable Federal statutes expressly mandate or encour- age geographic preference. Nothing in this section preempts state licensing laws. When contracting for architec- tural and engineering (A/E) services, geographic location may be a selection criterion provided its application leaves an appropriate number of quali- fied firms, given the nature and size of the project, to compete for the con- tract. (d) The non-Federal entity must have written procedures for procurement transactions. These procedures must ensure that all solicitations: (1) Incorporate a clear and accurate description of the technical require- ments for the material, product, or service to be procured. Such descrip- tion must not, in competitive procure- ments, contain features which unduly restrict competition. The description may include a statement of the quali- tative nature of the material, product or service to be procured and, when necessary, must set forth those min- imum essential characteristics and standards to which it must conform if it is to satisfy its intended use. De- tailed product specifications should be avoided if at all possible. When it is impractical or uneconomical to make a clear and accurate description of the technical requirements, a ‘‘brand name or equivalent’’ description may be used as a means to define the performance or other salient requirements of pro- curement. The specific features of the named brand which must be met by of- fers must be clearly stated; and (2) Identify all requirements which the offerors must fulfill and all other factors to be used in evaluating bids or proposals. (e) The non-Federal entity must en- sure that all prequalified lists of per- sons, firms, or products which are used VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00150 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 139 OMB Guidance §200.320 in acquiring goods and services are cur- rent and include enough qualified sources to ensure maximum open and free competition. Also, the non-Federal entity must not preclude potential bid- ders from qualifying during the solici- tation period. (f) Noncompetitive procurements can only be awarded in accordance with §200.320(c). §200.320 Methods of procurement to be followed. The non-Federal entity must have and use documented procurement pro- cedures, consistent with the standards of this section and §§200.317, 200.318, and 200.319 for any of the following methods of procurement used for the acquisition of property or services re- quired under a Federal award or sub- award. (a) Informal procurement methods. When the value of the procurement for property or services under a Federal award does not exceed the simplified ac- quisition threshold (SAT), as defined in §200.1, or a lower threshold established by a non-Federal entity, formal pro- curement methods are not required. The non-Federal entity may use infor- mal procurement methods to expedite the completion of its transactions and minimize the associated administra- tive burden and cost. The informal methods used for procurement of prop- erty or services at or below the SAT in- clude: (1) Micro-purchases—(i) Distribution. The acquisition of supplies or services, the aggregate dollar amount of which does not exceed the micro-purchase threshold (See the definition of micro- purchase in §200.1). To the maximum extent practicable, the non-Federal en- tity should distribute micro-purchases equitably among qualified suppliers. (ii) Micro-purchase awards. Micro-pur- chases may be awarded without solic- iting competitive price or rate quotations if the non-Federal entity considers the price to be reasonable based on research, experience, purchase history or other information and docu- ments it files accordingly. Purchase cards can be used for micro-purchases if procedures are documented and ap- proved by the non-Federal entity. (iii) Micro-purchase thresholds. The non-Federal entity is responsible for determining and documenting an ap- propriate micro-purchase threshold based on internal controls, an evalua- tion of risk, and its documented pro- curement procedures. The micro-pur- chase threshold used by the non-Fed- eral entity must be authorized or not prohibited under State, local, or tribal laws or regulations. Non-Federal enti- ties may establish a threshold higher than the Federal threshold established in the Federal Acquisition Regulations (FAR) in accordance with paragraphs (a)(1)(iv) and (v) of this section. (iv) Non-Federal entity increase to the micro-purchase threshold up to $50,000. Non-Federal entities may establish a threshold higher than the micro-pur- chase threshold identified in the FAR in accordance with the requirements of this section. The non-Federal entity may self-certify a threshold up to $50,000 on an annual basis and must maintain documentation to be made available to the Federal awarding agency and auditors in accordance with §200.334. The self-certification must in- clude a justification, clear identifica- tion of the threshold, and supporting documentation of any of the following: (A) A qualification as a low-risk auditee, in accordance with the criteria in §200.520 for the most recent audit; (B) An annual internal institutional risk assessment to identify, mitigate, and manage financial risks; or, (C) For public institutions, a higher threshold consistent with State law. (v) Non-Federal entity increase to the micro-purchase threshold over $50,000. Micro-purchase thresholds higher than $50,000 must be approved by the cog- nizant agency for indirect costs. The non-federal entity must submit a re- quest with the requirements included in paragraph (a)(1)(iv) of this section. The increased threshold is valid until there is a change in status in which the justification was approved. (2) Small purchases—(i) Small purchase procedures. The acquisition of property or services, the aggregate dollar amount of which is higher than the micro-purchase threshold but does not exceed the simplified acquisition threshold. If small purchase procedures are used, price or rate quotations must VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00151 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 140 2 CFR Ch. II (1–1–21 Edition) §200.320 be obtained from an adequate number of qualified sources as determined ap- propriate by the non-Federal entity. (ii) Simplified acquisition thresholds. The non-Federal entity is responsible for determining an appropriate sim- plified acquisition threshold based on internal controls, an evaluation of risk and its documented procurement proce- dures which must not exceed the threshold established in the FAR. When applicable, a lower simplified ac- quisition threshold used by the non- Federal entity must be authorized or not prohibited under State, local, or tribal laws or regulations. (b) Formal procurement methods. When the value of the procurement for prop- erty or services under a Federal finan- cial assistance award exceeds the SAT, or a lower threshold established by a non-Federal entity, formal procure- ment methods are required. Formal procurement methods require following documented procedures. Formal pro- curement methods also require public advertising unless a non-competitive procurement can be used in accordance with §200.319 or paragraph (c) of this section. The following formal methods of procurement are used for procure- ment of property or services above the simplified acquisition threshold or a value below the simplified acquisition threshold the non-Federal entity deter- mines to be appropriate: (1) Sealed bids. A procurement method in which bids are publicly solicited and a firm fixed-price contract (lump sum or unit price) is awarded to the respon- sible bidder whose bid, conforming with all the material terms and conditions of the invitation for bids, is the lowest in price. The sealed bids method is the preferred method for procuring con- struction, if the conditions. (i) In order for sealed bidding to be feasible, the following conditions should be present: (A) A complete, adequate, and real- istic specification or purchase descrip- tion is available; (B) Two or more responsible bidders are willing and able to compete effec- tively for the business; and (C) The procurement lends itself to a firm fixed price contract and the selec- tion of the successful bidder can be made principally on the basis of price. (ii) If sealed bids are used, the fol- lowing requirements apply: (A) Bids must be solicited from an adequate number of qualified sources, providing them sufficient response time prior to the date set for opening the bids, for local, and tribal govern- ments, the invitation for bids must be publicly advertised; (B) The invitation for bids, which will include any specifications and per- tinent attachments, must define the items or services in order for the bidder to properly respond; (C) All bids will be opened at the time and place prescribed in the invita- tion for bids, and for local and tribal governments, the bids must be opened publicly; (D) A firm fixed price contract award will be made in writing to the lowest responsive and responsible bidder. Where specified in bidding documents, factors such as discounts, transpor- tation cost, and life cycle costs must be considered in determining which bid is lowest. Payment discounts will only be used to determine the low bid when prior experience indicates that such discounts are usually taken advantage of; and (E) Any or all bids may be rejected if there is a sound documented reason. (2) Proposals. A procurement method in which either a fixed price or cost-re- imbursement type contract is awarded. Proposals are generally used when con- ditions are not appropriate for the use of sealed bids. They are awarded in ac- cordance with the following require- ments: (i) Requests for proposals must be publicized and identify all evaluation factors and their relative importance. Proposals must be solicited from an adequate number of qualified offerors. Any response to publicized requests for proposals must be considered to the maximum extent practical; (ii) The non-Federal entity must have a written method for conducting technical evaluations of the proposals received and making selections; (iii) Contracts must be awarded to the responsible offeror whose proposal is most advantageous to the non-Fed- eral entity, with price and other fac- tors considered; and VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00152 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 141 OMB Guidance §200.323 (iv) The non-Federal entity may use competitive proposal procedures for qualifications-based procurement of ar- chitectural/engineering (A/E) profes- sional services whereby offeror’s quali- fications are evaluated and the most qualified offeror is selected, subject to negotiation of fair and reasonable com- pensation. The method, where price is not used as a selection factor, can only be used in procurement of A/E profes- sional services. It cannot be used to purchase other types of services though A/E firms that are a potential source to perform the proposed effort. (c) Noncompetitive procurement. There are specific circumstances in which noncompetitive procurement can be used. Noncompetitive procurement can only be awarded if one or more of the following circumstances apply: (1) The acquisition of property or services, the aggregate dollar amount of which does not exceed the micro- purchase threshold (see paragraph (a)(1) of this section); (2) The item is available only from a single source; (3) The public exigency or emergency for the requirement will not permit a delay resulting from publicizing a com- petitive solicitation; (4) The Federal awarding agency or pass-through entity expressly author- izes a noncompetitive procurement in response to a written request from the non-Federal entity; or (5) After solicitation of a number of sources, competition is determined in- adequate. §200.321 Contracting with small and minority businesses, women’s busi- ness enterprises, and labor surplus area firms. (a) The non-Federal entity must take all necessary affirmative steps to as- sure that minority businesses, women’s business enterprises, and labor surplus area firms are used when possible. (b) Affirmative steps must include: (1) Placing qualified small and mi- nority businesses and women’s business enterprises on solicitation lists; (2) Assuring that small and minority businesses, and women’s business en- terprises are solicited whenever they are potential sources; (3) Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit max- imum participation by small and mi- nority businesses, and women’s busi- ness enterprises; (4) Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority businesses, and women’s busi- ness enterprises; (5) Using the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Minority Business Development Agency of the Department of Com- merce; and (6) Requiring the prime contractor, if subcontracts are to be let, to take the affirmative steps listed in paragraphs (b)(1) through (5) of this section. §200.322 Domestic preferences for pro- curements. (a) As appropriate and to the extent consistent with law, the non-Federal entity should, to the greatest extent practicable under a Federal award, pro- vide a preference for the purchase, ac- quisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The re- quirements of this section must be in- cluded in all subawards including all contracts and purchase orders for work or products under this award. (b) For purposes of this section: (1) ‘‘Produced in the United States’’ means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the appli- cation of coatings, occurred in the United States. (2) ‘‘Manufactured products’’ means items and construction materials com- posed in whole or in part of non-ferrous metals such as aluminum; plastics and polymer-based products such as poly- vinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber. §200.323 Procurement of recovered materials. A non-Federal entity that is a state agency or agency of a political subdivi- sion of a state and its contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00153 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 142 2 CFR Ch. II (1–1–21 Edition) §200.324 Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items des- ignated in guidelines of the Environ- mental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials prac- ticable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and re- source recovery; and establishing an af- firmative procurement program for procurement of recovered materials identified in the EPA guidelines. §200.324 Contract cost and price. (a) The non-Federal entity must per- form a cost or price analysis in connec- tion with every procurement action in excess of the Simplified Acquisition Threshold including contract modifica- tions. The method and degree of anal- ysis is dependent on the facts sur- rounding the particular procurement situation, but as a starting point, the non-Federal entity must make inde- pendent estimates before receiving bids or proposals. (b) The non-Federal entity must ne- gotiate profit as a separate element of the price for each contract in which there is no price competition and in all cases where cost analysis is performed. To establish a fair and reasonable prof- it, consideration must be given to the complexity of the work to be per- formed, the risk borne by the con- tractor, the contractor’s investment, the amount of subcontracting, the quality of its record of past perform- ance, and industry profit rates in the surrounding geographical area for similar work. (c) Costs or prices based on estimated costs for contracts under the Federal award are allowable only to the extent that costs incurred or cost estimates included in negotiated prices would be allowable for the non-Federal entity under subpart E of this part. The non- Federal entity may reference its own cost principles that comply with the Federal cost principles. (d) The cost plus a percentage of cost and percentage of construction cost methods of contracting must not be used. §200.325 Federal awarding agency or pass-through entity review. (a) The non-Federal entity must make available, upon request of the Federal awarding agency or pass- through entity, technical specifica- tions on proposed procurements where the Federal awarding agency or pass- through entity believes such review is needed to ensure that the item or serv- ice specified is the one being proposed for acquisition. This review generally will take place prior to the time the specification is incorporated into a so- licitation document. However, if the non-Federal entity desires to have the review accomplished after a solicita- tion has been developed, the Federal awarding agency or pass-through enti- ty may still review the specifications, with such review usually limited to the technical aspects of the proposed pur- chase. (b) The non-Federal entity must make available upon request, for the Federal awarding agency or pass- through entity pre-procurement re- view, procurement documents, such as requests for proposals or invitations for bids, or independent cost estimates, when: (1) The non-Federal entity’s procure- ment procedures or operation fails to comply with the procurement stand- ards in this part; (2) The procurement is expected to exceed the Simplified Acquisition Threshold and is to be awarded without competition or only one bid or offer is received in response to a solicitation; (3) The procurement, which is ex- pected to exceed the Simplified Acqui- sition Threshold, specifies a ‘‘brand name’’ product; (4) The proposed contract is more than the Simplified Acquisition Threshold and is to be awarded to other than the apparent low bidder under a sealed bid procurement; or (5) A proposed contract modification changes the scope of a contract or in- creases the contract amount by more than the Simplified Acquisition Threshold. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00154 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 143 OMB Guidance §200.329 (c) The non-Federal entity is exempt from the pre-procurement review in paragraph (b) of this section if the Fed- eral awarding agency or pass-through entity determines that its procurement systems comply with the standards of this part. (1) The non-Federal entity may re- quest that its procurement system be reviewed by the Federal awarding agency or pass-through entity to deter- mine whether its system meets these standards in order for its system to be certified. Generally, these reviews must occur where there is continuous high-dollar funding, and third-party contracts are awarded on a regular basis; (2) The non-Federal entity may self- certify its procurement system. Such self-certification must not limit the Federal awarding agency’s right to sur- vey the system. Under a self-certifi- cation procedure, the Federal awarding agency may rely on written assurances from the non-Federal entity that it is complying with these standards. The non-Federal entity must cite specific policies, procedures, regulations, or standards as being in compliance with these requirements and have its system available for review. §200.326 Bonding requirements. For construction or facility improve- ment contracts or subcontracts exceed- ing the Simplified Acquisition Thresh- old, the Federal awarding agency or pass-through entity may accept the bonding policy and requirements of the non-Federal entity provided that the Federal awarding agency or pass- through entity has made a determina- tion that the Federal interest is ade- quately protected. If such a determina- tion has not been made, the minimum requirements must be as follows: (a) A bid guarantee from each bidder equivalent to five percent of the bid price. The ‘‘bid guarantee’’ must con- sist of a firm commitment such as a bid bond, certified check, or other ne- gotiable instrument accompanying a bid as assurance that the bidder will, upon acceptance of the bid, execute such contractual documents as may be required within the time specified. (b) A performance bond on the part of the contractor for 100 percent of the contract price. A ‘‘performance bond’’ is one executed in connection with a contract to secure fulfillment of all the contractor’s requirements under such contract. (c) A payment bond on the part of the contractor for 100 percent of the con- tract price. A ‘‘payment bond’’ is one executed in connection with a contract to assure payment as required by law of all persons supplying labor and ma- terial in the execution of the work pro- vided for in the contract. §200.327 Contract provisions. The non-Federal entity’s contracts must contain the applicable provisions described in appendix II to this part. PERFORMANCE AND FINANCIAL MONITORING AND REPORTING §200.328 Financial reporting. Unless otherwise approved by OMB, the Federal awarding agency must so- licit only the OMB-approved govern- mentwide data elements for collection of financial information (at time of publication the Federal Financial Re- port or such future, OMB-approved, governmentwide data elements avail- able from the OMB-designated stand- ards lead. This information must be collected with the frequency required by the terms and conditions of the Fed- eral award, but no less frequently than annually nor more frequently than quarterly except in unusual cir- cumstances, for example where more frequent reporting is necessary for the effective monitoring of the Federal award or could significantly affect pro- gram outcomes, and preferably in co- ordination with performance reporting. The Federal awarding agency must use OMB-approved common information collections, as applicable, when pro- viding financial and performance re- porting information. §200.329 Monitoring and reporting program performance. (a) Monitoring by the non-Federal enti- ty. The non-Federal entity is respon- sible for oversight of the operations of the Federal award supported activities. The non-Federal entity must monitor its activities under Federal awards to VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00155 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 144 2 CFR Ch. II (1–1–21 Edition) §200.329 assure compliance with applicable Fed- eral requirements and performance ex- pectations are being achieved. Moni- toring by the non-Federal entity must cover each program, function or activ- ity. See also §200.332. (b) Reporting program performance. The Federal awarding agency must use OMB-approved common information collections, as applicable, when pro- viding financial and performance re- porting information. As appropriate and in accordance with above men- tioned information collections, the Federal awarding agency must require the recipient to relate financial data and accomplishments to performance goals and objectives of the Federal award. Also, in accordance with above mentioned common information collec- tions, and when required by the terms and conditions of the Federal award, recipients must provide cost informa- tion to demonstrate cost effective practices (e.g., through unit cost data). In some instances (e.g., discretionary research awards), this will be limited to the requirement to submit technical performance reports (to be evaluated in accordance with Federal awarding agency policy). Reporting require- ments must be clearly articulated such that, where appropriate, performance during the execution of the Federal award has a standard against which non-Federal entity performance can be measured. (c) Non-construction performance re- ports. The Federal awarding agency must use standard, governmentwide OMB-approved data elements for col- lection of performance information in- cluding performance progress reports, Research Performance Progress Re- ports. (1) The non-Federal entity must sub- mit performance reports at the inter- val required by the Federal awarding agency or pass-through entity to best inform improvements in program out- comes and productivity. Intervals must be no less frequent than annually nor more frequent than quarterly except in unusual circumstances, for example where more frequent reporting is nec- essary for the effective monitoring of the Federal award or could signifi- cantly affect program outcomes. Re- ports submitted annually by the non- Federal entity and/or pass-through en- tity must be due no later than 90 cal- endar days after the reporting period. Reports submitted quarterly or semi- annually must be due no later than 30 calendar days after the reporting pe- riod. Alternatively, the Federal award- ing agency or pass-through entity may require annual reports before the anni- versary dates of multiple year Federal awards. The final performance report submitted by the non-Federal entity and/or pass-through entity must be due no later than 120 calendar days after the period of performance end date. A subrecipient must submit to the pass- through entity, no later than 90 cal- endar days after the period of perform- ance end date, all final performance re- ports as required by the terms and con- ditions of the Federal award. See also §200.344. If a justified request is sub- mitted by a non-Federal entity, the Federal agency may extend the due date for any performance report. (2) As appropriate in accordance with above mentioned performance report- ing, these reports will contain, for each Federal award, brief information on the following unless other data ele- ments are approved by OMB in the agency information collection request: (i) A comparison of actual accom- plishments to the objectives of the Federal award established for the pe- riod. Where the accomplishments of the Federal award can be quantified, a computation of the cost (for example, related to units of accomplishment) may be required if that information will be useful. Where performance trend data and analysis would be in- formative to the Federal awarding agency program, the Federal awarding agency should include this as a per- formance reporting requirement. (ii) The reasons why established goals were not met, if appropriate. (iii) Additional pertinent information including, when appropriate, analysis and explanation of cost overruns or high unit costs. (d) Construction performance reports. For the most part, onsite technical in- spections and certified percentage of completion data are relied on heavily by Federal awarding agencies and pass- through entities to monitor progress under Federal awards and subawards VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00156 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 145 OMB Guidance §200.331 for construction. The Federal awarding agency may require additional per- formance reports only when considered necessary. (e) Significant developments. Events may occur between the scheduled per- formance reporting dates that have sig- nificant impact upon the supported ac- tivity. In such cases, the non-Federal entity must inform the Federal award- ing agency or pass-through entity as soon as the following types of condi- tions become known: (1) Problems, delays, or adverse con- ditions which will materially impair the ability to meet the objective of the Federal award. This disclosure must in- clude a statement of the action taken, or contemplated, and any assistance needed to resolve the situation. (2) Favorable developments which en- able meeting time schedules and objec- tives sooner or at less cost than antici- pated or producing more or different beneficial results than originally planned. (f) Site visits. The Federal awarding agency may make site visits as war- ranted by program needs. (g) Performance report requirement waiver. The Federal awarding agency may waive any performance report re- quired by this part if not needed. §200.330 Reporting on real property. The Federal awarding agency or pass- through entity must require a non-Fed- eral entity to submit reports at least annually on the status of real property in which the Federal Government re- tains an interest, unless the Federal in- terest in the real property extends 15 years or longer. In those instances where the Federal interest attached is for a period of 15 years or more, the Federal awarding agency or pass- through entity, at its option, may re- quire the non-Federal entity to report at various multi-year frequencies (e.g., every two years or every three years, not to exceed a five-year reporting pe- riod; or a Federal awarding agency or pass-through entity may require an- nual reporting for the first three years of a Federal award and thereafter re- quire reporting every five years). SUBRECIPIENT MONITORING AND MANAGEMENT §200.331 Subrecipient and contractor determinations. The non-Federal entity may concur- rently receive Federal awards as a re- cipient, a subrecipient, and a con- tractor, depending on the substance of its agreements with Federal awarding agencies and pass-through entities. Therefore, a pass-through entity must make case-by-case determinations whether each agreement it makes for the disbursement of Federal program funds casts the party receiving the funds in the role of a subrecipient or a contractor. The Federal awarding agency may supply and require recipi- ents to comply with additional guid- ance to support these determinations provided such guidance does not con- flict with this section. (a) Subrecipients. A subaward is for the purpose of carrying out a portion of a Federal award and creates a Federal assistance relationship with the sub- recipient. See definition for Subaward in §200.1 of this part. Characteristics which support the classification of the non-Federal entity as a subrecipient include when the non-Federal entity: (1) Determines who is eligible to re- ceive what Federal assistance; (2) Has its performance measured in relation to whether objectives of a Fed- eral program were met; (3) Has responsibility for pro- grammatic decision-making; (4) Is responsible for adherence to ap- plicable Federal program requirements specified in the Federal award; and (5) In accordance with its agreement, uses the Federal funds to carry out a program for a public purpose specified in authorizing statute, as opposed to providing goods or services for the ben- efit of the pass-through entity. (b) Contractors. A contract is for the purpose of obtaining goods and services for the non-Federal entity’s own use and creates a procurement relationship with the contractor. See the definition of contract in §200.1 of this part. Char- acteristics indicative of a procurement relationship between the non-Federal entity and a contractor are when the contractor: VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00157 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 146 2 CFR Ch. II (1–1–21 Edition) §200.332 (1) Provides the goods and services within normal business operations; (2) Provides similar goods or services to many different purchasers; (3) Normally operates in a competi- tive environment; (4) Provides goods or services that are ancillary to the operation of the Federal program; and (5) Is not subject to compliance re- quirements of the Federal program as a result of the agreement, though similar requirements may apply for other rea- sons. (c) Use of judgment in making deter- mination. In determining whether an agreement between a pass-through en- tity and another non-Federal entity casts the latter as a subrecipient or a contractor, the substance of the rela- tionship is more important than the form of the agreement. All of the char- acteristics listed above may not be present in all cases, and the pass- through entity must use judgment in classifying each agreement as a subaward or a procurement contract. §200.332 Requirements for pass- through entities. All pass-through entities must: (a) Ensure that every subaward is clearly identified to the subrecipient as a subaward and includes the following information at the time of the subaward and if any of these data ele- ments change, include the changes in subsequent subaward modification. When some of this information is not available, the pass-through entity must provide the best information available to describe the Federal award and subaward. Required information includes: (1) Federal award identification. (i) Subrecipient name (which must match the name associated with its unique entity identifier); (ii) Subrecipient’s unique entity identifier; (iii) Federal Award Identification Number (FAIN); (iv) Federal Award Date (see the defi- nition of Federal award date in §200.1 of this part) of award to the recipient by the Federal agency; (v) Subaward Period of Performance Start and End Date; (vi) Subaward Budget Period Start and End Date; (vii) Amount of Federal Funds Obli- gated by this action by the pass- through entity to the subrecipient; (viii) Total Amount of Federal Funds Obligated to the subrecipient by the pass-through entity including the cur- rent financial obligation; (ix) Total Amount of the Federal Award committed to the subrecipient by the pass-through entity; (x) Federal award project description, as required to be responsive to the Fed- eral Funding Accountability and Transparency Act (FFATA); (xi) Name of Federal awarding agen- cy, pass-through entity, and contact information for awarding official of the Pass-through entity; (xii) Assistance Listings number and Title; the pass-through entity must identify the dollar amount made avail- able under each Federal award and the Assistance Listings Number at time of disbursement; (xiii) Identification of whether the award is R&D; and (xiv) Indirect cost rate for the Fed- eral award (including if the de minimis rate is charged) per §200.414. (2) All requirements imposed by the pass-through entity on the sub- recipient so that the Federal award is used in accordance with Federal stat- utes, regulations and the terms and conditions of the Federal award; (3) Any additional requirements that the pass-through entity imposes on the subrecipient in order for the pass- through entity to meet its own respon- sibility to the Federal awarding agency including identification of any required financial and performance reports; (4)(i) An approved federally recog- nized indirect cost rate negotiated be- tween the subrecipient and the Federal Government. If no approved rate exists, the pass-through entity must deter- mine the appropriate rate in collabora- tion with the subrecipient, which is ei- ther: (A) The negotiated indirect cost rate between the pass-through entity and the subrecipient; which can be based on a prior negotiated rate between a dif- ferent PTE and the same subrecipient. If basing the rate on a previously nego- tiated rate, the pass-through entity is VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00158 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 147 OMB Guidance §200.332 not required to collect information jus- tifying this rate, but may elect to do so; (B) The de minimis indirect cost rate. (ii) The pass-through entity must not require use of a de minimis indirect cost rate if the subrecipient has a Fed- erally approved rate. Subrecipients can elect to use the cost allocation method to account for indirect costs in accord- ance with §200.405(d). (5) A requirement that the sub- recipient permit the pass-through enti- ty and auditors to have access to the subrecipient’s records and financial statements as necessary for the pass- through entity to meet the require- ments of this part; and (6) Appropriate terms and conditions concerning closeout of the subaward. (b) Evaluate each subrecipient’s risk of noncompliance with Federal stat- utes, regulations, and the terms and conditions of the subaward for purposes of determining the appropriate sub- recipient monitoring described in para- graphs (d) and (e) of this section, which may include consideration of such fac- tors as: (1) The subrecipient’s prior experi- ence with the same or similar sub- awards; (2) The results of previous audits in- cluding whether or not the sub- recipient receives a Single Audit in ac- cordance with Subpart F of this part, and the extent to which the same or similar subaward has been audited as a major program; (3) Whether the subrecipient has new personnel or new or substantially changed systems; and (4) The extent and results of Federal awarding agency monitoring (e.g., if the subrecipient also receives Federal awards directly from a Federal award- ing agency). (c) Consider imposing specific subaward conditions upon a sub- recipient if appropriate as described in §200.208. (d) Monitor the activities of the sub- recipient as necessary to ensure that the subaward is used for authorized purposes, in compliance with Federal statutes, regulations, and the terms and conditions of the subaward; and that subaward performance goals are achieved. Pass-through entity moni- toring of the subrecipient must in- clude: (1) Reviewing financial and perform- ance reports required by the pass- through entity. (2) Following-up and ensuring that the subrecipient takes timely and ap- propriate action on all deficiencies per- taining to the Federal award provided to the subrecipient from the pass- through entity detected through au- dits, on-site reviews, and written con- firmation from the subrecipient, high- lighting the status of actions planned or taken to address Single Audit find- ings related to the particular subaward. (3) Issuing a management decision for applicable audit findings pertaining only to the Federal award provided to the subrecipient from the pass-through entity as required by §200.521. (4) The pass-through entity is respon- sible for resolving audit findings spe- cifically related to the subaward and not responsible for resolving cross-cut- ting findings. If a subrecipient has a current Single Audit report posted in the Federal Audit Clearinghouse and has not otherwise been excluded from receipt of Federal funding (e.g., has been debarred or suspended), the pass- through entity may rely on the sub- recipient’s cognizant audit agency or cognizant oversight agency to perform audit follow-up and make management decisions related to cross-cutting find- ings in accordance with section §300.513(a)(3)(vii). Such reliance does not eliminate the responsibility of the pass-through entity to issue subawards that conform to agency and award-spe- cific requirements, to manage risk through ongoing subaward monitoring, and to monitor the status of the find- ings that are specifically related to the subaward. (e) Depending upon the pass-through entity’s assessment of risk posed by the subrecipient (as described in para- graph (b) of this section), the following monitoring tools may be useful for the pass-through entity to ensure proper accountability and compliance with program requirements and achieve- ment of performance goals: VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00159 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 148 2 CFR Ch. II (1–1–21 Edition) §200.333 (1) Providing subrecipients with training and technical assistance on program-related matters; and (2) Performing on-site reviews of the subrecipient’s program operations; (3) Arranging for agreed-upon-proce- dures engagements as described in §200.425. (f) Verify that every subrecipient is audited as required by Subpart F of this part when it is expected that the subrecipient’s Federal awards expended during the respective fiscal year equaled or exceeded the threshold set forth in §200.501. (g) Consider whether the results of the subrecipient’s audits, on-site re- views, or other monitoring indicate conditions that necessitate adjust- ments to the pass-through entity’s own records. (h) Consider taking enforcement ac- tion against noncompliant subrecipi- ents as described in §200.339 of this part and in program regulations. §200.333 Fixed amount subawards. With prior written approval from the Federal awarding agency, a pass- through entity may provide subawards based on fixed amounts up to the Sim- plified Acquisition Threshold, provided that the subawards meet the require- ments for fixed amount awards in §200.201. RECORD RETENTION AND ACCESS §200.334 Retention requirements for records. Financial records, supporting docu- ments, statistical records, and all other non-Federal entity records perti- nent to a Federal award must be re- tained for a period of three years from the date of submission of the final ex- penditure report or, for Federal awards that are renewed quarterly or annu- ally, from the date of the submission of the quarterly or annual financial re- port, respectively, as reported to the Federal awarding agency or pass- through entity in the case of a sub- recipient. Federal awarding agencies and pass-through entities must not im- pose any other record retention re- quirements upon non-Federal entities. The only exceptions are the following: (a) If any litigation, claim, or audit is started before the expiration of the 3-year period, the records must be re- tained until all litigation, claims, or audit findings involving the records have been resolved and final action taken. (b) When the non-Federal entity is notified in writing by the Federal awarding agency, cognizant agency for audit, oversight agency for audit, cog- nizant agency for indirect costs, or pass-through entity to extend the re- tention period. (c) Records for real property and equipment acquired with Federal funds must be retained for 3 years after final disposition. (d) When records are transferred to or maintained by the Federal awarding agency or pass-through entity, the 3- year retention requirement is not ap- plicable to the non-Federal entity. (e) Records for program income transactions after the period of per- formance. In some cases recipients must report program income after the period of performance. Where there is such a requirement, the retention pe- riod for the records pertaining to the earning of the program income starts from the end of the non-Federal enti- ty’s fiscal year in which the program income is earned. (f) Indirect cost rate proposals and cost allocations plans. This paragraph applies to the following types of docu- ments and their supporting records: In- direct cost rate computations or pro- posals, cost allocation plans, and any similar accounting computations of the rate at which a particular group of costs is chargeable (such as computer usage chargeback rates or composite fringe benefit rates). (1) If submitted for negotiation. If the proposal, plan, or other computation is required to be submitted to the Federal Government (or to the pass-through entity) to form the basis for negotia- tion of the rate, then the 3-year reten- tion period for its supporting records starts from the date of such submis- sion. (2) If not submitted for negotiation. If the proposal, plan, or other computa- tion is not required to be submitted to the Federal Government (or to the pass-through entity) for negotiation VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00160 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 149 OMB Guidance §200.338 purposes, then the 3-year retention pe- riod for the proposal, plan, or computa- tion and its supporting records starts from the end of the fiscal year (or other accounting period) covered by the proposal, plan, or other computa- tion. §200.335 Requests for transfer of records. The Federal awarding agency must request transfer of certain records to its custody from the non-Federal enti- ty when it determines that the records possess long-term retention value. However, in order to avoid duplicate recordkeeping, the Federal awarding agency may make arrangements for the non-Federal entity to retain any records that are continuously needed for joint use. §200.336 Methods for collection, trans- mission, and storage of information. The Federal awarding agency and the non-Federal entity should, whenever practicable, collect, transmit, and store Federal award-related informa- tion in open and machine-readable for- mats rather than in closed formats or on paper in accordance with applicable legislative requirements. A machine- readable format is a format in a stand- ard computer language (not English text) that can be read automatically by a web browser or computer system. The Federal awarding agency or pass- through entity must always provide or accept paper versions of Federal award- related information to and from the non-Federal entity upon request. If paper copies are submitted, the Federal awarding agency or pass-through enti- ty must not require more than an original and two copies. When original records are electronic and cannot be al- tered, there is no need to create and re- tain paper copies. When original records are paper, electronic versions may be substituted through the use of duplication or other forms of elec- tronic media provided that they are subject to periodic quality control re- views, provide reasonable safeguards against alteration, and remain read- able. §200.337 Access to records. (a) Records of non-Federal entities. The Federal awarding agency, Inspectors General, the Comptroller General of the United States, and the pass- through entity, or any of their author- ized representatives, must have the right of access to any documents, pa- pers, or other records of the non-Fed- eral entity which are pertinent to the Federal award, in order to make au- dits, examinations, excerpts, and tran- scripts. The right also includes timely and reasonable access to the non-Fed- eral entity’s personnel for the purpose of interview and discussion related to such documents. (b) Extraordinary and rare cir- cumstances. Only under extraordinary and rare circumstances would such ac- cess include review of the true name of victims of a crime. Routine monitoring cannot be considered extraordinary and rare circumstances that would neces- sitate access to this information. When access to the true name of victims of a crime is necessary, appropriate steps to protect this sensitive information must be taken by both the non-Federal enti- ty and the Federal awarding agency. Any such access, other than under a court order or subpoena pursuant to a bona fide confidential investigation, must be approved by the head of the Federal awarding agency or delegate. (c) Expiration of right of access. The rights of access in this section are not limited to the required retention pe- riod but last as long as the records are retained. Federal awarding agencies and pass-through entities must not im- pose any other access requirements upon non-Federal entities. §200.338 Restrictions on public access to records. No Federal awarding agency may place restrictions on the non-Federal entity that limit public access to the records of the non-Federal entity perti- nent to a Federal award, except for protected personally identifiable infor- mation (PII) or when the Federal awarding agency can demonstrate that such records will be kept confidential and would have been exempted from disclosure pursuant to the Freedom of VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00161 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 150 2 CFR Ch. II (1–1–21 Edition) §200.339 Information Act (5 U.S.C. 552) or con- trolled unclassified information pursu- ant to Executive Order 13556 if the records had belonged to the Federal awarding agency. The Freedom of In- formation Act (5 U.S.C. 552) (FOIA) does not apply to those records that re- main under a non-Federal entity’s con- trol except as required under §200.315. Unless required by Federal, state, local, and tribal statute, non-Federal entities are not required to permit pub- lic access to their records. The non- Federal entity’s records provided to a Federal agency generally will be sub- ject to FOIA and applicable exemp- tions. REMEDIES FOR NONCOMPLIANCE §200.339 Remedies for noncompliance. If a non-Federal entity fails to com- ply with the U.S. Constitution, Federal statutes, regulations or the terms and conditions of a Federal award, the Fed- eral awarding agency or pass-through entity may impose additional condi- tions, as described in §200.208. If the Federal awarding agency or pass- through entity determines that non- compliance cannot be remedied by im- posing additional conditions, the Fed- eral awarding agency or pass-through entity may take one or more of the fol- lowing actions, as appropriate in the circumstances: (a) Temporarily withhold cash pay- ments pending correction of the defi- ciency by the non-Federal entity or more severe enforcement action by the Federal awarding agency or pass- through entity. (b) Disallow (that is, deny both use of funds and any applicable matching credit for) all or part of the cost of the activity or action not in compliance. (c) Wholly or partly suspend or ter- minate the Federal award. (d) Initiate suspension or debarment proceedings as authorized under 2 CFR part 180 and Federal awarding agency regulations (or in the case of a pass- through entity, recommend such a pro- ceeding be initiated by a Federal awarding agency). (e) Withhold further Federal awards for the project or program. (f) Take other remedies that may be legally available. §200.340 Termination. (a) The Federal award may be termi- nated in whole or in part as follows: (1) By the Federal awarding agency or pass-through entity, if a non-Fed- eral entity fails to comply with the terms and conditions of a Federal award; (2) By the Federal awarding agency or pass-through entity, to the greatest extent authorized by law, if an award no longer effectuates the program goals or agency priorities; (3) By the Federal awarding agency or pass-through entity with the con- sent of the non-Federal entity, in which case the two parties must agree upon the termination conditions, in- cluding the effective date and, in the case of partial termination, the portion to be terminated; (4) By the non-Federal entity upon sending to the Federal awarding agen- cy or pass-through entity written noti- fication setting forth the reasons for such termination, the effective date, and, in the case of partial termination, the portion to be terminated. However, if the Federal awarding agency or pass- through entity determines in the case of partial termination that the reduced or modified portion of the Federal award or subaward will not accomplish the purposes for which the Federal award was made, the Federal awarding agency or pass-through entity may ter- minate the Federal award in its en- tirety; or (5) By the Federal awarding agency or pass-through entity pursuant to ter- mination provisions included in the Federal award. (b) A Federal awarding agency should clearly and unambiguously specify ter- mination provisions applicable to each Federal award, in applicable regula- tions or in the award, consistent with this section. (c) When a Federal awarding agency terminates a Federal award prior to the end of the period of performance due to the non-Federal entity’s mate- rial failure to comply with the Federal award terms and conditions, the Fed- eral awarding agency must report the termination to the OMB-designated in- tegrity and performance system acces- sible through SAM (currently FAPIIS). VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00162 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 151 OMB Guidance §200.341 (1) The information required under paragraph (c) of this section is not to be reported to designated integrity and performance system until the non-Fed- eral entity either— (i) Has exhausted its opportunities to object or challenge the decision, see §200.342; or (ii) Has not, within 30 calendar days after being notified of the termination, informed the Federal awarding agency that it intends to appeal the Federal awarding agency’s decision to termi- nate. (2) If a Federal awarding agency, after entering information into the designated integrity and performance system about a termination, subse- quently: (i) Learns that any of that informa- tion is erroneous, the Federal awarding agency must correct the information in the system within three business days; (ii) Obtains an update to that infor- mation that could be helpful to other Federal awarding agencies, the Federal awarding agency is strongly encour- aged to amend the information in the system to incorporate the update in a timely way. (3) Federal awarding agencies, must not post any information that will be made publicly available in the non- public segment of designated integrity and performance system that is cov- ered by a disclosure exemption under the Freedom of Information Act. If the non-Federal entity asserts within seven calendar days to the Federal awarding agency who posted the infor- mation, that some of the information made publicly available is covered by a disclosure exemption under the Free- dom of Information Act, the Federal awarding agency who posted the infor- mation must remove the posting with- in seven calendar days of receiving the assertion. Prior to reposting the releas- able information, the Federal agency must resolve the issue in accordance with the agency’s Freedom of Informa- tion Act procedures. (d) When a Federal award is termi- nated or partially terminated, both the Federal awarding agency or pass- through entity and the non-Federal en- tity remain responsible for compliance with the requirements in §§200.344 and 200.345. §200.341 Notification of termination requirement. (a) The Federal agency or pass- through entity must provide to the non-Federal entity a notice of termi- nation. (b) If the Federal award is terminated for the non-Federal entity’s material failure to comply with the U.S. Con- stitution, Federal statutes, regula- tions, or terms and conditions of the Federal award, the notification must state that— (1) The termination decision will be reported to the OMB-designated integ- rity and performance system accessible through SAM (currently FAPIIS); (2) The information will be available in the OMB-designated integrity and performance system for a period of five years from the date of the termination, then archived; (3) Federal awarding agencies that consider making a Federal award to the non-Federal entity during that five year period must consider that infor- mation in judging whether the non- Federal entity is qualified to receive the Federal award, when the Federal share of the Federal award is expected to exceed the simplified acquisition threshold over the period of perform- ance; (4) The non-Federal entity may com- ment on any information the OMB-des- ignated integrity and performance sys- tem contains about the non-Federal en- tity for future consideration by Fed- eral awarding agencies. The non-Fed- eral entity may submit comments to the awardee integrity and performance portal accessible through SAM (cur- rently (CPARS). (5) Federal awarding agencies will consider non-Federal entity comments when determining whether the non- Federal entity is qualified for a future Federal award. (c) Upon termination of a Federal award, the Federal awarding agency must provide the information required under FFATA to the Federal website established to fulfill the requirements of FFATA, and update or notify any other relevant governmentwide sys- tems or entities of any indications of poor performance as required by 41 U.S.C. 417b and 31 U.S.C. 3321 and im- plementing guidance at 2 CFR part 77 VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00163 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 152 2 CFR Ch. II (1–1–21 Edition) §200.342 (forthcoming at time of publication). See also the requirements for Suspen- sion and Debarment at 2 CFR part 180. §200.342 Opportunities to object, hear- ings, and appeals. Upon taking any remedy for non- compliance, the Federal awarding agency must provide the non-Federal entity an opportunity to object and provide information and documenta- tion challenging the suspension or ter- mination action, in accordance with written processes and procedures pub- lished by the Federal awarding agency. The Federal awarding agency or pass- through entity must comply with any requirements for hearings, appeals or other administrative proceedings to which the non-Federal entity is enti- tled under any statute or regulation applicable to the action involved. §200.343 Effects of suspension and ter- mination. Costs to the non-Federal entity re- sulting from financial obligations in- curred by the non-Federal entity dur- ing a suspension or after termination of a Federal award or subaward are not allowable unless the Federal awarding agency or pass-through entity ex- pressly authorizes them in the notice of suspension or termination or subse- quently. However, costs during suspen- sion or after termination are allowable if: (a) The costs result from financial obligations which were properly in- curred by the non-Federal entity before the effective date of suspension or ter- mination, are not in anticipation of it; and (b) The costs would be allowable if the Federal award was not suspended or expired normally at the end of the period of performance in which the ter- mination takes effect. CLOSEOUT §200.344 Closeout. The Federal awarding agency or pass- through entity will close out the Fed- eral award when it determines that all applicable administrative actions and all required work of the Federal award have been completed by the non-Fed- eral entity. If the non-Federal entity fails to complete the requirements, the Federal awarding agency or pass- through entity will proceed to close out the Federal award with the infor- mation available. This section specifies the actions the non-Federal entity and Federal awarding agency or pass- through entity must take to complete this process at the end of the period of performance. (a) The recipient must submit, no later than 120 calendar days after the end date of the period of performance, all financial, performance, and other reports as required by the terms and conditions of the Federal award. A sub- recipient must submit to the pass- through entity, no later than 90 cal- endar days (or an earlier date as agreed upon by the pass-through entity and subrecipient) after the end date of the period of performance, all financial, performance, and other reports as re- quired by the terms and conditions of the Federal award. The Federal award- ing agency or pass-through entity may approve extensions when requested and justified by the non-Federal entity, as applicable. (b) Unless the Federal awarding agen- cy or pass-through entity authorizes an extension, a non-Federal entity must liquidate all financial obligations in- curred under the Federal award no later than 120 calendar days after the end date of the period of performance as specified in the terms and conditions of the Federal award. (c) The Federal awarding agency or pass-through entity must make prompt payments to the non-Federal entity for costs meeting the requirements in Sub- part E of this part under the Federal award being closed out. (d) The non-Federal entity must promptly refund any balances of unob- ligated cash that the Federal awarding agency or pass-through entity paid in advance or paid and that are not au- thorized to be retained by the non-Fed- eral entity for use in other projects. See OMB Circular A–129 and see §200.346, for requirements regarding unreturned amounts that become de- linquent debts. (e) Consistent with the terms and conditions of the Federal award, the Federal awarding agency or pass- VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00164 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 153 OMB Guidance §200.346 through entity must make a settle- ment for any upward or downward ad- justments to the Federal share of costs after closeout reports are received. (f) The non-Federal entity must ac- count for any real and personal prop- erty acquired with Federal funds or re- ceived from the Federal Government in accordance with §§200.310 through 200.316 and 200.330. (g) When a recipient or subrecipient completes all closeout requirements, the Federal awarding agency or pass- through entity must promptly com- plete all closeout actions for Federal awards. The Federal awarding agency must make every effort to complete closeout actions no later than one year after the end of the period of perform- ance unless otherwise directed by au- thorizing statutes. Closeout actions in- clude Federal awarding agency actions in the grants management and pay- ment systems. (h) If the non-Federal entity does not submit all reports in accordance with this section and the terms and condi- tions of the Federal Award, the Federal awarding agency must proceed to close out with the information available within one year of the period of per- formance end date. (i) If the non-Federal entity does not submit all reports in accordance with this section within one year of the pe- riod of performance end date, the Fed- eral awarding agency must report the non-Federal entity’s material failure to comply with the terms and condi- tions of the award with the OMB-des- ignated integrity and performance sys- tem (currently FAPIIS). Federal awarding agencies may also pursue other enforcement actions per §200.339. POST-CLOSEOUT ADJUSTMENTS AND CONTINUING RESPONSIBILITIES §200.345 Post-closeout adjustments and continuing responsibilities. (a) The closeout of a Federal award does not affect any of the following: (1) The right of the Federal awarding agency or pass-through entity to dis- allow costs and recover funds on the basis of a later audit or other review. The Federal awarding agency or pass- through entity must make any cost disallowance determination and notify the non-Federal entity within the record retention period. (2) The requirement for the non-Fed- eral entity to return any funds due as a result of later refunds, corrections, or other transactions including final indi- rect cost rate adjustments. (3) The ability of the Federal award- ing agency to make financial adjust- ments to a previously closed award such as resolving indirect cost pay- ments and making final payments. (4) Audit requirements in subpart F of this part. (5) Property management and dis- position requirements in §§200.310 through 200.316 of this subpart. (6) Records retention as required in §§200.334 through 200.337 of this sub- part. (b) After closeout of the Federal award, a relationship created under the Federal award may be modified or ended in whole or in part with the con- sent of the Federal awarding agency or pass-through entity and the non-Fed- eral entity, provided the responsibil- ities of the non-Federal entity referred to in paragraph (a) of this section, in- cluding those for property management as applicable, are considered and provi- sions made for continuing responsibil- ities of the non-Federal entity, as ap- propriate. COLLECTION OF AMOUNTS DUE §200.346 Collection of amounts due. (a) Any funds paid to the non-Federal entity in excess of the amount to which the non-Federal entity is finally determined to be entitled under the terms of the Federal award constitute a debt to the Federal Government. If not paid within 90 calendar days after demand, the Federal awarding agency may reduce the debt by: (1) Making an administrative offset against other requests for reimburse- ments; (2) Withholding advance payments otherwise due to the non-Federal enti- ty; or (3) Other action permitted by Federal statute. (b) Except where otherwise provided by statutes or regulations, the Federal awarding agency will charge interest on an overdue debt in accordance with VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00165 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 154 2 CFR Ch. II (1–1–21 Edition) §200.400 the Federal Claims Collection Stand- ards (31 CFR parts 900 through 999). The date from which interest is computed is not extended by litigation or the fil- ing of any form of appeal. Subpart E—Cost Principles GENERAL PROVISIONS §200.400 Policy guide. The application of these cost prin- ciples is based on the fundamental premises that: (a) The non-Federal entity is respon- sible for the efficient and effective ad- ministration of the Federal award through the application of sound man- agement practices. (b) The non-Federal entity assumes responsibility for administering Fed- eral funds in a manner consistent with underlying agreements, program objec- tives, and the terms and conditions of the Federal award. (c) The non-Federal entity, in rec- ognition of its own unique combination of staff, facilities, and experience, has the primary responsibility for employ- ing whatever form of sound organiza- tion and management techniques may be necessary in order to assure proper and efficient administration of the Federal award. (d) The application of these cost prin- ciples should require no significant changes in the internal accounting policies and practices of the non-Fed- eral entity. However, the accounting practices of the non-Federal entity must be consistent with these cost principles and support the accumula- tion of costs as required by the prin- ciples, and must provide for adequate documentation to support costs charged to the Federal award. (e) In reviewing, negotiating and ap- proving cost allocation plans or indi- rect cost proposals, the cognizant agen- cy for indirect costs should generally assure that the non-Federal entity is applying these cost accounting prin- ciples on a consistent basis during their review and negotiation of indirect cost proposals. Where wide variations exist in the treatment of a given cost item by the non-Federal entity, the reasonableness and equity of such treatments should be fully considered. See the definition of indirect (facilities & administrative (F&A)) costs in §200.1 of this part. (f) For non-Federal entities that edu- cate and engage students in research, the dual role of students as both train- ees and employees (including pre- and post-doctoral staff) contributing to the completion of Federal awards for re- search must be recognized in the appli- cation of these principles. (g) The non-Federal entity may not earn or keep any profit resulting from Federal financial assistance, unless ex- plicitly authorized by the terms and conditions of the Federal award. See also §200.307. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75885, Dec. 19, 2014; 85 FR 49561, Aug. 13, 2020] §200.401 Application. (a) General. These principles must be used in determining the allowable costs of work performed by the non-Federal entity under Federal awards. These principles also must be used by the non-Federal entity as a guide in the pricing of fixed-price contracts and subcontracts where costs are used in determining the appropriate price. The principles do not apply to: (1) Arrangements under which Fed- eral financing is in the form of loans, scholarships, fellowships, traineeships, or other fixed amounts based on such items as education allowance or pub- lished tuition rates and fees. (2) For IHEs, capitation awards, which are awards based on case counts or number of beneficiaries according to the terms and conditions of the Federal award. (3) Fixed amount awards. See also §200.1 Definitions and 200.201. (4) Federal awards to hospitals (see appendix IX to this part). (5) Other awards under which the non-Federal entity is not required to account to the Federal Government for actual costs incurred. (b) Federal contract. Where a Federal contract awarded to a non-Federal en- tity is subject to the Cost Accounting Standards (CAS), it incorporates the applicable CAS clauses, Standards, and CAS administration requirements per the 48 CFR Chapter 99 and 48 CFR part 30 (FAR Part 30). CAS applies directly VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00166 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 155 OMB Guidance §200.404 to the CAS-covered contract and the Cost Accounting Standards at 48 CFR parts 9904 or 9905 takes precedence over the cost principles in this subpart E with respect to the allocation of costs. When a contract with a non-Federal entity is subject to full CAS coverage, the allowability of certain costs under the cost principles will be affected by the allocation provisions of the Cost Accounting Standards (e.g., CAS 414— 48 CFR 9904.414, Cost of Money as an Element of the Cost of Facilities Cap- ital, and CAS 417—48 CFR 9904.417, Cost of Money as an Element of the Cost of Capital Assets Under Construction), apply rather the allowability provi- sions of §200.449. In complying with those requirements, the non-Federal entity’s application of cost accounting practices for estimating, accumu- lating, and reporting costs for other Federal awards and other cost objec- tives under the CAS-covered contract still must be consistent with its cost accounting practices for the CAS-cov- ered contracts. In all cases, only one set of accounting records needs to be maintained for the allocation of costs by the non-Federal entity. (c) Exemptions. Some nonprofit orga- nizations, because of their size and na- ture of operations, can be considered to be similar to for-profit entities for pur- pose of applicability of cost principles. Such nonprofit organizations must op- erate under Federal cost principles ap- plicable to for-profit entities located at 48 CFR 31.2. A listing of these organiza- tions is contained in appendix VIII to this part. Other organizations, as ap- proved by the cognizant agency for in- direct costs, may be added from time to time. [78 FR 78608, Dec. 26, 2013, as amended at 85 FR 49562, Aug. 13, 2020] BASIC CONSIDERATIONS §200.402 Composition of costs. Total cost. The total cost of a Federal award is the sum of the allowable di- rect and allocable indirect costs less any applicable credits. §200.403 Factors affecting allowability of costs. Except where otherwise authorized by statute, costs must meet the fol- lowing general criteria in order to be allowable under Federal awards: (a) Be necessary and reasonable for the performance of the Federal award and be allocable thereto under these principles. (b) Conform to any limitations or ex- clusions set forth in these principles or in the Federal award as to types or amount of cost items. (c) Be consistent with policies and procedures that apply uniformly to both federally-financed and other ac- tivities of the non-Federal entity. (d) Be accorded consistent treatment. A cost may not be assigned to a Fed- eral award as a direct cost if any other cost incurred for the same purpose in like circumstances has been allocated to the Federal award as an indirect cost. (e) Be determined in accordance with generally accepted accounting prin- ciples (GAAP), except, for state and local governments and Indian tribes only, as otherwise provided for in this part. (f) Not be included as a cost or used to meet cost sharing or matching re- quirements of any other federally-fi- nanced program in either the current or a prior period. See also §200.306(b). (g) Be adequately documented. See also §§200.300 through 200.309 of this part. (h) Cost must be incurred during the approved budget period. The Federal awarding agency is authorized, at its discretion, to waive prior written ap- provals to carry forward unobligated balances to subsequent budget periods pursuant to §200.308(e)(3). [78 FR 78608, Dec. 26, 2013, as amended at 85 FR 49562, Aug. 13, 2020] §200.404 Reasonable costs. A cost is reasonable if, in its nature and amount, it does not exceed that which would be incurred by a prudent person under the circumstances pre- vailing at the time the decision was made to incur the cost. The question of reasonableness is particularly impor- tant when the non-Federal entity is predominantly federally-funded. In de- termining reasonableness of a given cost, consideration must be given to: VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00167 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 156 2 CFR Ch. II (1–1–21 Edition) §200.405 (a) Whether the cost is of a type gen- erally recognized as ordinary and nec- essary for the operation of the non- Federal entity or the proper and effi- cient performance of the Federal award. (b) The restraints or requirements imposed by such factors as: sound busi- ness practices; arm’s-length bar- gaining; Federal, state, local, tribal, and other laws and regulations; and terms and conditions of the Federal award. (c) Market prices for comparable goods or services for the geographic area. (d) Whether the individuals con- cerned acted with prudence in the cir- cumstances considering their respon- sibilities to the non-Federal entity, its employees, where applicable its stu- dents or membership, the public at large, and the Federal Government. (e) Whether the non-Federal entity significantly deviates from its estab- lished practices and policies regarding the incurrence of costs, which may unjustifiably increase the Federal award’s cost. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75885, Dec. 19, 2014] §200.405 Allocable costs. (a) A cost is allocable to a particular Federal award or other cost objective if the goods or services involved are chargeable or assignable to that Fed- eral award or cost objective in accord- ance with relative benefits received. This standard is met if the cost: (1) Is incurred specifically for the Federal award; (2) Benefits both the Federal award and other work of the non-Federal en- tity and can be distributed in propor- tions that may be approximated using reasonable methods; and (3) Is necessary to the overall oper- ation of the non-Federal entity and is assignable in part to the Federal award in accordance with the principles in this subpart. (b) All activities which benefit from the non-Federal entity’s indirect (F&A) cost, including unallowable activities and donated services by the non-Fed- eral entity or third parties, will receive an appropriate allocation of indirect costs. (c) Any cost allocable to a particular Federal award under the principles pro- vided for in this part may not be charged to other Federal awards to overcome fund deficiencies, to avoid re- strictions imposed by Federal statutes, regulations, or terms and conditions of the Federal awards, or for other rea- sons. However, this prohibition would not preclude the non-Federal entity from shifting costs that are allowable under two or more Federal awards in accordance with existing Federal stat- utes, regulations, or the terms and con- ditions of the Federal awards. (d) Direct cost allocation principles: If a cost benefits two or more projects or activities in proportions that can be determined without undue effort or cost, the cost must be allocated to the projects based on the proportional ben- efit. If a cost benefits two or more projects or activities in proportions that cannot be determined because of the interrelationship of the work in- volved, then, notwithstanding para- graph (c) of this section, the costs may be allocated or transferred to bene- fitted projects on any reasonable docu- mented basis. Where the purchase of equipment or other capital asset is spe- cifically authorized under a Federal award, the costs are assignable to the Federal award regardless of the use that may be made of the equipment or other capital asset involved when no longer needed for the purpose for which it was originally required. See also §§200.310 through 200.316 and 200.439. (e) If the contract is subject to CAS, costs must be allocated to the contract pursuant to the Cost Accounting Standards. To the extent that CAS is applicable, the allocation of costs in accordance with CAS takes precedence over the allocation provisions in this part. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75885, Dec. 19, 2014; 85 FR 49562, Aug. 13, 2020] §200.406 Applicable credits. (a) Applicable credits refer to those receipts or reduction-of-expenditure- type transactions that offset or reduce expense items allocable to the Federal award as direct or indirect (F&A) costs. Examples of such transactions are: pur- chase discounts, rebates or allowances, VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00168 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 157 OMB Guidance §200.409 recoveries or indemnities on losses, in- surance refunds or rebates, and adjust- ments of overpayments or erroneous charges. To the extent that such cred- its accruing to or received by the non- Federal entity relate to allowable costs, they must be credited to the Federal award either as a cost reduc- tion or cash refund, as appropriate. (b) In some instances, the amounts received from the Federal Government to finance activities or service oper- ations of the non-Federal entity should be treated as applicable credits. Spe- cifically, the concept of netting such credit items (including any amounts used to meet cost sharing or matching requirements) must be recognized in determining the rates or amounts to be charged to the Federal award. (See §§200.436 and 200.468, for areas of poten- tial application in the matter of Fed- eral financing of activities.) [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75885, Dec. 19, 2014; 85 FR 49562, Aug. 13, 2020] §200.407 Prior written approval (prior approval). Under any given Federal award, the reasonableness and allocability of cer- tain items of costs may be difficult to determine. In order to avoid subse- quent disallowance or dispute based on unreasonableness or nonallocability, the non-Federal entity may seek the prior written approval of the cognizant agency for indirect costs or the Federal awarding agency in advance of the in- currence of special or unusual costs. Prior written approval should include the timeframe or scope of the agree- ment. The absence of prior written ap- proval on any element of cost will not, in itself, affect the reasonableness or allocability of that element, unless prior approval is specifically required for allowability as described under cer- tain circumstances in the following sections of this part: (a) §200.201 Use of grant agreements (including fixed amount awards), coop- erative agreements, and contracts, paragraph (b)(5); (b) §200.306 Cost sharing or matching; (c) §200.307 Program income; (d) §200.308 Revision of budget and program plans; (e) §200.311 Real property; (f) §200.313 Equipment; (g) §200.333 Fixed amount subawards; (h) §200.413 Direct costs, paragraph (c); (i) §200.430 Compensation—personal services, paragraph (h); (j) §200.431 Compensation—fringe ben- efits; (k) §200.438 Entertainment costs; (l) §200.439 Equipment and other cap- ital expenditures; (m) §200.440 Exchange rates; (n) §200.441 Fines, penalties, damages and other settlements; (o) §200.442 Fund raising and invest- ment management costs; (p) §200.445 Goods or services for per- sonal use; (q) §200.447 Insurance and indem- nification; (r) §200.454 Memberships, subscrip- tions, and professional activity costs, paragraph (c); (s) §200.455 Organization costs; (t) §200.456 Participant support costs; (u) §200.458 Pre-award costs; (v) §200.462 Rearrangement and re- conversion costs; (w) §200.467 Selling and marketing costs; (x) §200.470 Taxes (including Value Added Tax); and (y) §200.475 Travel costs. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75885, Dec. 19, 2014; 85 FR 49562, Aug. 13, 2020] §200.408 Limitation on allowance of costs. The Federal award may be subject to statutory requirements that limit the allowability of costs. When the max- imum amount allowable under a limi- tation is less than the total amount de- termined in accordance with the prin- ciples in this part, the amount not re- coverable under the Federal award may not be charged to the Federal award. §200.409 Special considerations. In addition to the basic consider- ations regarding the allowability of costs highlighted in this subtitle, other subtitles in this part describe special considerations and requirements appli- cable to states, local governments, In- dian tribes, and IHEs. In addition, cer- tain provisions among the items of cost in this subpart are only applicable to VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00169 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 158 2 CFR Ch. II (1–1–21 Edition) §200.410 certain types of non-Federal entities, as specified in the following sections: (a) Direct and Indirect (F&A) Costs (§§200.412–200.415) of this subpart; (b) Special Considerations for States, Local Governments and Indian Tribes (§§200.416 and 200.417) of this subpart; and (c) Special Considerations for Insti- tutions of Higher Education (§§200.418 and 200.419) of this subpart. [85 FR 49562, Aug. 13, 2020] §200.410 Collection of unallowable costs. Payments made for costs determined to be unallowable by either the Federal awarding agency, cognizant agency for indirect costs, or pass-through entity, either as direct or indirect costs, must be refunded (including interest) to the Federal Government in accordance with instructions from the Federal agency that determined the costs are unallowable unless Federal statute or regulation directs otherwise. See also §§200.300 through 200.309 in subpart D of this part. [85 FR 49562, Aug. 13, 2020] §200.411 Adjustment of previously ne- gotiated indirect (F&A) cost rates containing unallowable costs. (a) Negotiated indirect (F&A) cost rates based on a proposal later found to have included costs that: (1) Are unallowable as specified by Federal statutes, regulations or the terms and conditions of a Federal award; or (2) Are unallowable because they are not allocable to the Federal award(s), must be adjusted, or a refund must be made, in accordance with the require- ments of this section. These adjust- ments or refunds are designed to cor- rect the proposals used to establish the rates and do not constitute a reopening of the rate negotiation. The adjust- ments or refunds will be made regard- less of the type of rate negotiated (pre- determined, final, fixed, or provi- sional). (b) For rates covering a future fiscal year of the non-Federal entity, the un- allowable costs will be removed from the indirect (F&A) cost pools and the rates appropriately adjusted. (c) For rates covering a past period, the Federal share of the unallowable costs will be computed for each year involved and a cash refund (including interest chargeable in accordance with applicable regulations) will be made to the Federal Government. If cash re- funds are made for past periods covered by provisional or fixed rates, appro- priate adjustments will be made when the rates are finalized to avoid dupli- cate recovery of the unallowable costs by the Federal Government. (d) For rates covering the current pe- riod, either a rate adjustment or a re- fund, as described in paragraphs (b) and (c) of this section, must be required by the cognizant agency for indirect costs. The choice of method must be at the discretion of the cognizant agency for indirect costs, based on its judgment as to which method would be most prac- tical. (e) The amount or proportion of unal- lowable costs included in each year’s rate will be assumed to be the same as the amount or proportion of unallow- able costs included in the base year proposal used to establish the rate. DIRECT AND INDIRECT (F&A) COSTS §200.412 Classification of costs. There is no universal rule for classifying certain costs as either di- rect or indirect (F&A) under every ac- counting system. A cost may be direct with respect to some specific service or function, but indirect with respect to the Federal award or other final cost objective. Therefore, it is essential that each item of cost incurred for the same purpose be treated consistently in like circumstances either as a direct or an indirect (F&A) cost in order to avoid possible double-charging of Fed- eral awards. Guidelines for determining direct and indirect (F&A) costs charged to Federal awards are provided in this subpart. §200.413 Direct costs. (a) General. Direct costs are those costs that can be identified specifically with a particular final cost objective, such as a Federal award, or other inter- nally or externally funded activity, or that can be directly assigned to such activities relatively easily with a high VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00170 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 159 OMB Guidance §200.414 degree of accuracy. Costs incurred for the same purpose in like circumstances must be treated consistently as either direct or indirect (F&A) costs. See also §200.405. (b) Application to Federal awards. Identification with the Federal award rather than the nature of the goods and services involved is the determining factor in distinguishing direct from in- direct (F&A) costs of Federal awards. Typical costs charged directly to a Federal award are the compensation of employees who work on that award, their related fringe benefit costs, the costs of materials and other items of expense incurred for the Federal award. If directly related to a specific award, certain costs that otherwise would be treated as indirect costs may also be considered direct costs. Examples in- clude extraordinary utility consump- tion, the cost of materials supplied from stock or services rendered by spe- cialized facilities, program evaluation costs, or other institutional service op- erations. (c) The salaries of administrative and clerical staff should normally be treat- ed as indirect (F&A) costs. Direct charging of these costs may be appro- priate only if all of the following condi- tions are met: (1) Administrative or clerical serv- ices are integral to a project or activ- ity; (2) Individuals involved can be spe- cifically identified with the project or activity; (3) Such costs are explicitly included in the budget or have the prior written approval of the Federal awarding agen- cy; and (4) The costs are not also recovered as indirect costs. (d) Minor items. Any direct cost of minor amount may be treated as an in- direct (F&A) cost for reasons of practi- cality where such accounting treat- ment for that item of cost is consist- ently applied to all Federal and non- Federal cost objectives. (e) The costs of certain activities are not allowable as charges to Federal awards. However, even though these costs are unallowable for purposes of computing charges to Federal awards, they nonetheless must be treated as di- rect costs for purposes of determining indirect (F&A) cost rates and be allo- cated their equitable share of the non- Federal entity’s indirect costs if they represent activities which: (1) Include the salaries of personnel, (2) Occupy space, and (3) Benefit from the non-Federal enti- ty’s indirect (F&A) costs. (f) For nonprofit organizations, the costs of activities performed by the non-Federal entity primarily as a serv- ice to members, clients, or the general public when significant and necessary to the non-Federal entity’s mission must be treated as direct costs whether or not allowable, and be allocated an equitable share of indirect (F&A) costs. Some examples of these types of activi- ties include: (1) Maintenance of membership rolls, subscriptions, publications, and related functions. See also §200.454. (2) Providing services and informa- tion to members, legislative or admin- istrative bodies, or the public. See also §§200.454 and 200.450. (3) Promotion, lobbying, and other forms of public relations. See also §§200.421 and 200.450. (4) Conferences except those held to conduct the general administration of the non-Federal entity. See also §200.432. (5) Maintenance, protection, and in- vestment of special funds not used in operation of the non-Federal entity. See also §200.442. (6) Administration of group benefits on behalf of members or clients, in- cluding life and hospital insurance, an- nuity or retirement plans, and finan- cial aid. See also §200.431. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75885, Dec. 19, 2014; 85 FR 49562, Aug. 13, 2020] §200.414 Indirect (F&A) costs. (a) Facilities and administration classi- fication. For major Institutions of Higher Education (IHE) and major non- profit organizations, indirect (F&A) costs must be classified within two broad categories: ‘‘Facilities’’ and ‘‘Administration.’’ ‘‘Facilities’’ is de- fined as depreciation on buildings, equipment and capital improvement, interest on debt associated with cer- tain buildings, equipment and capital improvements, and operations and VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00171 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 160 2 CFR Ch. II (1–1–21 Edition) §200.414 maintenance expenses. ‘‘Administra- tion’’ is defined as general administra- tion and general expenses such as the director’s office, accounting, personnel and all other types of expenditures not listed specifically under one of the sub- categories of ‘‘Facilities’’ (including cross allocations from other pools, where applicable). For nonprofit orga- nizations, library expenses are included in the ‘‘Administration’’ category; for IHEs, they are included in the ‘‘Facili- ties’’ category. Major IHEs are defined as those required to use the Standard Format for Submission as noted in ap- pendix III to this part, and Rate Deter- mination for Institutions of Higher Education paragraph C. 11. Major non- profit organizations are those which re- ceive more than $10 million dollars in direct Federal funding. (b) Diversity of nonprofit organizations. Because of the diverse characteristics and accounting practices of nonprofit organizations, it is not possible to specify the types of cost which may be classified as indirect (F&A) cost in all situations. Identification with a Fed- eral award rather than the nature of the goods and services involved is the determining factor in distinguishing direct from indirect (F&A) costs of Federal awards. However, typical ex- amples of indirect (F&A) cost for many nonprofit organizations may include depreciation on buildings and equip- ment, the costs of operating and main- taining facilities, and general adminis- tration and general expenses, such as the salaries and expenses of executive officers, personnel administration, and accounting. (c) Federal Agency Acceptance of Nego- tiated Indirect Cost Rates. (See also §200.306.) (1) The negotiated rates must be ac- cepted by all Federal awarding agen- cies. A Federal awarding agency may use a rate different from the negotiated rate for a class of Federal awards or a single Federal award only when re- quired by Federal statute or regula- tion, or when approved by a Federal awarding agency head or delegate based on documented justification as described in paragraph (c)(3) of this section. (2) The Federal awarding agency head or delegate must notify OMB of any ap- proved deviations. (3) The Federal awarding agency must implement, and make publicly available, the policies, procedures and general decision-making criteria that their programs will follow to seek and justify deviations from negotiated rates. (4) As required under §200.204, the Federal awarding agency must include in the notice of funding opportunity the policies relating to indirect cost rate reimbursement, matching, or cost share as approved under paragraph (e)(1) of this section. As appropriate, the Federal agency should incorporate discussion of these policies into Fed- eral awarding agency outreach activi- ties with non-Federal entities prior to the posting of a notice of funding op- portunity. (d) Pass-through entities are subject to the requirements in §200.332(a)(4). (e) Requirements for development and submission of indirect (F&A) cost rate proposals and cost allocation plans are contained in Appendices III– VII and Appendix IX as follows: (1) Appendix III to Part 200—Indirect (F&A) Costs Identification and Assign- ment, and Rate Determination for In- stitutions of Higher Education (IHEs); (2) Appendix IV to Part 200—Indirect (F&A) Costs Identification and Assign- ment, and Rate Determination for Non- profit Organizations; (3) Appendix V to Part 200—State/ Local Governmentwide Central Service Cost Allocation Plans; (4) Appendix VI to Part 200—Public Assistance Cost Allocation Plans; (5) Appendix VII to Part 200—States and Local Government and Indian Tribe Indirect Cost Proposals; and (6) Appendix IX to Part 200—Hospital Cost Principles. (f) In addition to the procedures out- lined in the appendices in paragraph (e) of this section, any non-Federal entity that does not have a current nego- tiated (including provisional) rate, ex- cept for those non-Federal entities de- scribed in appendix VII to this part, paragraph D.1.b, may elect to charge a de minimis rate of 10% of modified total direct costs (MTDC) which may be used indefinitely. No documentation VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00172 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 161 OMB Guidance §200.415 is required to justify the 10% de mini- mis indirect cost rate. As described in §200.403, costs must be consistently charged as either indirect or direct costs, but may not be double charged or inconsistently charged as both. If chosen, this methodology once elected must be used consistently for all Fed- eral awards until such time as a non- Federal entity chooses to negotiate for a rate, which the non-Federal entity may apply to do at any time. (g) Any non-Federal entity that has a current federally-negotiated indirect cost rate may apply for a one-time ex- tension of the rates in that agreement for a period of up to four years. This extension will be subject to the review and approval of the cognizant agency for indirect costs. If an extension is granted the non-Federal entity may not request a rate review until the ex- tension period ends. At the end of the 4-year extension, the non-Federal enti- ty must re-apply to negotiate a rate. Subsequent one-time extensions (up to four years) are permitted if a renegoti- ation is completed between each exten- sion request. (h) The federally negotiated indirect rate, distribution base, and rate type for a non-Federal entity (except for the Indian tribes or tribal organizations, as defined in the Indian Self Determina- tion, Education and Assistance Act, 25 U.S.C. 450b(1)) must be available pub- licly on an OMB-designated Federal website. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75886, Dec. 19, 2014; 85 FR 49563, Aug. 13, 2020] §200.415 Required certifications. Required certifications include: (a) To assure that expenditures are proper and in accordance with the terms and conditions of the Federal award and approved project budgets, the annual and final fiscal reports or vouchers requesting payment under the agreements must include a certifi- cation, signed by an official who is au- thorized to legally bind the non-Fed- eral entity, which reads as follows: ‘‘By signing this report, I certify to the best of my knowledge and belief that the re- port is true, complete, and accurate, and the expenditures, disbursements and cash receipts are for the purposes and objectives set forth in the terms and conditions of the Federal award. I am aware that any false, fictitious, or fraudulent information, or the omis- sion of any material fact, may subject me to criminal, civil or administrative penalties for fraud, false statements, false claims or otherwise. (U.S. Code Title 18, Section 1001 and Title 31, Sec- tions 3729–3730 and 3801–3812).’’ (b) Certification of cost allocation plan or indirect (F&A) cost rate pro- posal. Each cost allocation plan or in- direct (F&A) cost rate proposal must comply with the following: (1) A proposal to establish a cost allo- cation plan or an indirect (F&A) cost rate, whether submitted to a Federal cognizant agency for indirect costs or maintained on file by the non-Federal entity, must be certified by the non- Federal entity using the Certificate of Cost Allocation Plan or Certificate of Indirect Costs as set forth in appen- dices III through VII, and IX of this part. The certificate must be signed on behalf of the non-Federal entity by an individual at a level no lower than vice president or chief financial officer of the non-Federal entity that submits the proposal. (2) Unless the non-Federal entity has elected the option under §200.414(f), the Federal Government may either dis- allow all indirect (F&A) costs or uni- laterally establish such a plan or rate when the non-Federal entity fails to submit a certified proposal for estab- lishing such a plan or rate in accord- ance with the requirements. Such a plan or rate may be based upon audited historical data or such other data that have been furnished to the cognizant agency for indirect costs and for which it can be demonstrated that all unal- lowable costs have been excluded. When a cost allocation plan or indirect cost rate is unilaterally established by the Federal Government because the non-Federal entity failed to submit a certified proposal, the plan or rate es- tablished will be set to ensure that po- tentially unallowable costs will not be reimbursed. (c) Certifications by nonprofit orga- nizations as appropriate that they did not meet the definition of a major non- profit organization as defined in §200.414(a). VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00173 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 162 2 CFR Ch. II (1–1–21 Edition) §200.416 (d) See also §200.450 for another re- quired certification. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75886, Dec. 19, 2014; 85 FR 49563, Aug. 13, 2020] SPECIAL CONSIDERATIONS FOR STATES, LOCAL GOVERNMENTS AND INDIAN TRIBES §200.416 Cost allocation plans and in- direct cost proposals. (a) For states, local governments and Indian tribes, certain services, such as motor pools, computer centers, pur- chasing, accounting, etc., are provided to operating agencies on a centralized basis. Since Federal awards are per- formed within the individual operating agencies, there needs to be a process whereby these central service costs can be identified and assigned to benefitted activities on a reasonable and con- sistent basis. The central service cost allocation plan provides that process. (b) Individual operating agencies (governmental department or agency), normally charge Federal awards for in- direct costs through an indirect cost rate. A separate indirect cost rate(s) proposal for each operating agency is usually necessary to claim indirect costs under Federal awards. Indirect costs include: (1) The indirect costs originating in each department or agency of the gov- ernmental unit carrying out Federal awards and (2) The costs of central governmental services distributed through the cen- tral service cost allocation plan and not otherwise treated as direct costs. (c) The requirements for development and submission of cost allocation plans (for central service costs and public as- sistance programs) and indirect cost rate proposals are contained in appen- dices IV, V and VI to this part. §200.417 Interagency service. The cost of services provided by one agency to another within the govern- mental unit may include allowable di- rect costs of the service plus a pro- rated share of indirect costs. A stand- ard indirect cost allowance equal to ten percent of the direct salary and wage cost of providing the service (ex- cluding overtime, shift premiums, and fringe benefits) may be used in lieu of determining the actual indirect costs of the service. These services do not in- clude centralized services included in central service cost allocation plans as described in Appendix V to Part 200. [85 FR 49564, Aug. 13, 2020] SPECIAL CONSIDERATIONS FOR INSTITUTIONS OF HIGHER EDUCATION §200.418 Costs incurred by states and local governments. Costs incurred or paid by a state or local government on behalf of its IHEs for fringe benefit programs, such as pension costs and FICA and any other costs specifically incurred on behalf of, and in direct benefit to, the IHEs, are allowable costs of such IHEs whether or not these costs are recorded in the accounting records of the institutions, subject to the following: (a) The costs meet the requirements of §200.402–411 of this subpart; (b) The costs are properly supported by approved cost allocation plans in ac- cordance with applicable Federal cost accounting principles in this part; and (c) The costs are not otherwise borne directly or indirectly by the Federal Government. [78 FR 78608, Dec. 26, 2013, as amended at 85 FR 49564, Aug. 13, 2020] §200.419 Cost accounting standards and disclosure statement. (a) An IHE that receive an aggregate total $50 million or more in Federal awards and instruments subject to this subpart (as specified in §200.101) in its most recently completed fiscal year must comply with the Cost Accounting Standards Board’s cost accounting standards located at 48 CFR 9905.501, 9905.502, 9905.505, and 9905.506. CAS-cov- ered contracts and subcontracts award- ed to the IHEs are subject to the broad- er range of CAS requirements at 48 CFR 9900 through 9999 and 48 CFR part 30 (FAR Part 30). (b) Disclosure statement. An IHE that receives an aggregate total $50 million or more in Federal awards and instru- ments subject to this subpart (as speci- fied in §200.101) during its most re- cently completed fiscal year must dis- close their cost accounting practices by filing a Disclosure Statement (DS– VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00174 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 163 OMB Guidance §200.419 2), which is reproduced in Appendix III to Part 200. With the approval of the cognizant agency for indirect costs, an IHE may meet the DS–2 submission by submitting the DS–2 for each business unit that received $50 million or more in Federal awards and instruments. (1) The DS–2 must be submitted to the cognizant agency for indirect costs with a copy to the IHE’s cognizant agency for audit. The initial DS–2 and revisions to the DS–2 must be sub- mitted in coordination with the IHE’s indirect (F&A) rate proposal, unless an earlier submission is requested by the cognizant agency for indirect costs. IHEs with CAS-covered contracts or subcontracts meeting the dollar threshold in 48 CFR 9903.202–1(f) must submit their initial DS–2 or revisions no later than prior to the award of a CAS-covered contract or subcontract. (2) An IHE must maintain an accu- rate DS–2 and comply with disclosed cost accounting practices. An IHE must file amendments to the DS–2 to the cognizant agency for indirect costs in advance of a disclosed practice being changed to comply with a new or modi- fied standard, or when a practice is changed for other reasons. An IHE may proceed with implementing the change after it has notified the Federal cog- nizant agency for indirect costs. If the change represents a variation from 2 CFR part 200, the change may require approval by the Federal cognizant agency for indirect costs, in accordance with §200.102(b). Amendments of a DS– 2 may be submitted at any time. Re- submission of a complete, updated DS– 2 is discouraged except when there are extensive changes to disclosed prac- tices. (3) Cost and funding adjustments. Cost adjustments must be made by the cog- nizant agency for indirect costs if an IHE fails to comply with the cost poli- cies in this part or fails to consistently follow its established or disclosed cost accounting practices when estimating, accumulating or reporting the costs of Federal awards, and the aggregate cost impact on Federal awards is material. The cost adjustment must normally be made on an aggregate basis for all af- fected Federal awards through an ad- justment of the IHE’s future F&A costs rates or other means considered appro- priate by the cognizant agency for indi- rect costs. Under the terms of CAS cov- ered contracts, adjustments in the amount of funding provided may also be required when the estimated pro- posal costs were not determined in ac- cordance with established cost ac- counting practices. (4) Overpayments. Excess amounts paid in the aggregate by the Federal Government under Federal awards due to a noncompliant cost accounting practice used to estimate, accumulate, or report costs must be credited or re- funded, as deemed appropriate by the cognizant agency for indirect costs. In- terest applicable to the excess amounts paid in the aggregate during the period of noncompliance must also be deter- mined and collected in accordance with applicable Federal agency regulations. (5) Compliant cost accounting practice changes. Changes from one compliant cost accounting practice to another compliant practice that are approved by the cognizant agency for indirect costs may require cost adjustments if the change has a material effect on Federal awards and the changes are deemed appropriate by the cognizant agency for indirect costs. (6) Responsibilities. The cognizant agency for indirect cost must: (i) Determine cost adjustments for all Federal awards in the aggregate on behalf of the Federal Government. Ac- tions of the cognizant agency for indi- rect cost in making cost adjustment determinations must be coordinated with all affected Federal awarding agencies to the extent necessary. (ii) Prescribe guidelines and establish internal procedures to promptly deter- mine on behalf of the Federal Govern- ment that a DS–2 adequately discloses the IHE’s cost accounting practices and that the disclosed practices are compliant with applicable CAS and the requirements of this part. (iii) Distribute to all affected Federal awarding agencies any DS–2 determina- tion of adequacy or noncompliance. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75886, Dec. 19, 2014; 85 FR 49564, Aug. 13, 2020] VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00175 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 164 2 CFR Ch. II (1–1–21 Edition) §200.420 GENERAL PROVISIONS FOR SELECTED ITEMS OF COST §200.420 Considerations for selected items of cost. This section provides principles to be applied in establishing the allowability of certain items involved in deter- mining cost, in addition to the require- ments of Subtitle II of this subpart. These principles apply whether or not a particular item of cost is properly treated as direct cost or indirect (F&A) cost. Failure to mention a particular item of cost is not intended to imply that it is either allowable or unallow- able; rather, determination as to allow- ability in each case should be based on the treatment provided for similar or related items of cost, and based on the principles described in §§200.402 through 200.411. In case of a discrep- ancy between the provisions of a spe- cific Federal award and the provisions below, the Federal award governs. Cri- teria outlined in §200.403 must be ap- plied in determining allowability. See also §200.102. [85 FR 49564, Aug. 13, 2020] §200.421 Advertising and public rela- tions. (a) The term advertising costs means the costs of advertising media and cor- ollary administrative costs. Adver- tising media include magazines, news- papers, radio and television, direct mail, exhibits, electronic or computer transmittals, and the like. (b) The only allowable advertising costs are those which are solely for: (1) The recruitment of personnel re- quired by the non-Federal entity for performance of a Federal award (See also §200.463); (2) The procurement of goods and services for the performance of a Fed- eral award; (3) The disposal of scrap or surplus materials acquired in the performance of a Federal award except when non- Federal entities are reimbursed for dis- posal costs at a predetermined amount; or (4) Program outreach and other spe- cific purposes necessary to meet the re- quirements of the Federal award. (c) The term ‘‘public relations’’ in- cludes community relations and means those activities dedicated to maintain- ing the image of the non-Federal entity or maintaining or promoting under- standing and favorable relations with the community or public at large or any segment of the public. (d) The only allowable public rela- tions costs are: (1) Costs specifically required by the Federal award; (2) Costs of communicating with the public and press pertaining to specific activities or accomplishments which result from performance of the Federal award (these costs are considered nec- essary as part of the outreach effort for the Federal award); or (3) Costs of conducting general liai- son with news media and government public relations officers, to the extent that such activities are limited to com- munication and liaison necessary to keep the public informed on matters of public concern, such as notices of fund- ing opportunities, financial matters, etc. (e) Unallowable advertising and pub- lic relations costs include the fol- lowing: (1) All advertising and public rela- tions costs other than as specified in paragraphs (b) and (d) of this section; (2) Costs of meetings, conventions, convocations, or other events related to other activities of the entity (see also §200.432), including: (i) Costs of displays, demonstrations, and exhibits; (ii) Costs of meeting rooms, hospi- tality suites, and other special facili- ties used in conjunction with shows and other special events; and (iii) Salaries and wages of employees engaged in setting up and displaying exhibits, making demonstrations, and providing briefings; (3) Costs of promotional items and memorabilia, including models, gifts, and souvenirs; (4) Costs of advertising and public re- lations designed solely to promote the non-Federal entity. [78 FR 76808, Dec. 26, 2013, as amended at 85 FR 49564, Aug. 13, 2020] §200.422 Advisory councils. Costs incurred by advisory councils or committees are unallowable unless authorized by statute, the Federal VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00176 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 165 OMB Guidance §200.428 awarding agency or as an indirect cost where allocable to Federal awards. See §200.444, applicable to States, local gov- ernments, and Indian tribes. [85 FR 49564, Aug. 13, 2020] §200.423 Alcoholic beverages. Costs of alcoholic beverages are unal- lowable. §200.424 Alumni/ae activities. Costs incurred by IHEs for, or in sup- port of, alumni/ae activities are unal- lowable. §200.425 Audit services. (a) A reasonably proportionate share of the costs of audits required by, and performed in accordance with, the Sin- gle Audit Act Amendments of 1996 (31 U.S.C. 7501–7507), as implemented by re- quirements of this part, are allowable. However, the following audit costs are unallowable: (1) Any costs when audits required by the Single Audit Act and subpart F of this part have not been conducted or have been conducted but not in accord- ance therewith; and (2) Any costs of auditing a non-Fed- eral entity that is exempted from hav- ing an audit conducted under the Sin- gle Audit Act and subpart F of this part because its expenditures under Federal awards are less than $750,000 during the non-Federal entity’s fiscal year. (b) The costs of a financial statement audit of a non-Federal entity that does not currently have a Federal award may be included in the indirect cost pool for a cost allocation plan or indi- rect cost proposal. (c) Pass-through entities may charge Federal awards for the cost of agreed- upon-procedures engagements to mon- itor subrecipients (in accordance with subpart D, §§200.331–333) who are ex- empted from the requirements of the Single Audit Act and subpart F of this part. This cost is allowable only if the agreed-upon-procedures engagements are: (1) Conducted in accordance with GAGAS attestation standards; (2) Paid for and arranged by the pass- through entity; and (3) Limited in scope to one or more of the following types of compliance re- quirements: activities allowed or unallowed; allowable costs/cost prin- ciples; eligibility; and reporting. [78 FR 78608, Dec. 26, 2013, as amended at 85 FR 49564, Aug. 13, 2020] §200.426 Bad debts. Bad debts (debts which have been de- termined to be uncollectable), includ- ing losses (whether actual or esti- mated) arising from uncollectable ac- counts and other claims, are unallow- able. Related collection costs, and re- lated legal costs, arising from such debts after they have been determined to be uncollectable are also unallow- able. See also §200.428. [85 FR 49565, Aug. 13, 2020] §200.427 Bonding costs. (a) Bonding costs arise when the Fed- eral awarding agency requires assur- ance against financial loss to itself or others by reason of the act or default of the non-Federal entity. They arise also in instances where the non-Fed- eral entity requires similar assurance, including: bonds as bid, performance, payment, advance payment, infringe- ment, and fidelity bonds for employees and officials. (b) Costs of bonding required pursu- ant to the terms and conditions of the Federal award are allowable. (c) Costs of bonding required by the non-Federal entity in the general con- duct of its operations are allowable as an indirect cost to the extent that such bonding is in accordance with sound business practice and the rates and pre- miums are reasonable under the cir- cumstances. §200.428 Collections of improper pay- ments. The costs incurred by a non-Federal entity to recover improper payments are allowable as either direct or indi- rect costs, as appropriate. Amounts collected may be used by the non-Fed- eral entity in accordance with cash management standards set forth in §200.305. [85 FR 49565, Aug. 13, 2020] VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00177 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 166 2 CFR Ch. II (1–1–21 Edition) §200.429 §200.429 Commencement and convoca- tion costs. For IHEs, costs incurred for com- mencements and convocations are un- allowable, except as provided for in (B)(9) Student Administration and Services, in appendix III to this part, as activity costs. [85 FR 49565, Aug. 13, 2020] §200.430 Compensation—personal services. (a) General. Compensation for per- sonal services includes all remunera- tion, paid currently or accrued, for services of employees rendered during the period of performance under the Federal award, including but not nec- essarily limited to wages and salaries. Compensation for personal services may also include fringe benefits which are addressed in §200.431. Costs of com- pensation are allowable to the extent that they satisfy the specific require- ments of this part, and that the total compensation for individual employ- ees: (1) Is reasonable for the services ren- dered and conforms to the established written policy of the non-Federal enti- ty consistently applied to both Federal and non-Federal activities; (2) Follows an appointment made in accordance with a non-Federal entity’s laws and/or rules or written policies and meets the requirements of Federal statute, where applicable; and (3) Is determined and supported as provided in paragraph (i) of this sec- tion, when applicable. (b) Reasonableness. Compensation for employees engaged in work on Federal awards will be considered reasonable to the extent that it is consistent with that paid for similar work in other ac- tivities of the non-Federal entity. In cases where the kinds of employees re- quired for Federal awards are not found in the other activities of the non-Fed- eral entity, compensation will be con- sidered reasonable to the extent that it is comparable to that paid for similar work in the labor market in which the non-Federal entity competes for the kind of employees involved. (c) Professional activities outside the non-Federal entity. Unless an arrange- ment is specifically authorized by a Federal awarding agency, a non-Fed- eral entity must follow its written non- Federal entity-wide policies and prac- tices concerning the permissible extent of professional services that can be pro- vided outside the non-Federal entity for non-organizational compensation. Where such non-Federal entity-wide written policies do not exist or do not adequately define the permissible ex- tent of consulting or other non-organi- zational activities undertaken for extra outside pay, the Federal Govern- ment may require that the effort of professional staff working on Federal awards be allocated between: (1) Non-Federal entity activities, and (2) Non-organizational professional activities. If the Federal awarding agency considers the extent of non-or- ganizational professional effort exces- sive or inconsistent with the conflicts- of-interest terms and conditions of the Federal award, appropriate arrange- ments governing compensation will be negotiated on a case-by-case basis. (d) Unallowable costs. (1) Costs which are unallowable under other sections of these principles must not be allowable under this section solely on the basis that they constitute personnel com- pensation. (2) The allowable compensation for certain employees is subject to a ceil- ing in accordance with statute. For the amount of the ceiling for cost-reim- bursement contracts, the covered com- pensation subject to the ceiling, the covered employees, and other relevant provisions, see 10 U.S.C. 2324(e)(1)(P), and 41 U.S.C. 1127 and 4304(a)(16). For other types of Federal awards, other statutory ceilings may apply. (e) Special considerations. Special con- siderations in determining allowability of compensation will be given to any change in a non-Federal entity’s com- pensation policy resulting in a substan- tial increase in its employees’ level of compensation (particularly when the change was concurrent with an in- crease in the ratio of Federal awards to other activities) or any change in the treatment of allowability of specific types of compensation due to changes in Federal policy. (f) Incentive compensation. Incentive compensation to employees based on VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00178 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 167 OMB Guidance §200.430 cost reduction, or efficient perform- ance, suggestion awards, safety awards, etc., is allowable to the extent that the overall compensation is determined to be reasonable and such costs are paid or accrued pursuant to an agreement entered into in good faith between the non-Federal entity and the employees before the services were rendered, or pursuant to an established plan fol- lowed by the non-Federal entity so consistently as to imply, in effect, an agreement to make such payment. (g) Nonprofit organizations. For com- pensation to members of nonprofit or- ganizations, trustees, directors, associ- ates, officers, or the immediate fami- lies thereof, determination must be made that such compensation is rea- sonable for the actual personal services rendered rather than a distribution of earnings in excess of costs. This may include director’s and executive com- mittee member’s fees, incentive awards, allowances for off-site pay, in- centive pay, location allowances, hard- ship pay, and cost-of-living differen- tials. (h) Institutions of Higher Education (IHEs). (1) Certain conditions require special consideration and possible limi- tations in determining allowable per- sonnel compensation costs under Fed- eral awards. Among such conditions are the following: (i) Allowable activities. Charges to Federal awards may include reasonable amounts for activities contributing and directly related to work under an agreement, such as delivering special lectures about specific aspects of the ongoing activity, writing reports and articles, developing and maintaining protocols (human, animals, etc.), man- aging substances/chemicals, managing and securing project-specific data, co- ordinating research subjects, partici- pating in appropriate seminars, con- sulting with colleagues and graduate students, and attending meetings and conferences. (ii) Incidental activities. Incidental activities for which supplemental com- pensation is allowable under written institutional policy (at a rate not to exceed institutional base salary) need not be included in the records described in paragraph (i) of this section to di- rectly charge payments of incidental activities, such activities must either be specifically provided for in the Fed- eral award budget or receive prior writ- ten approval by the Federal awarding agency. (2) Salary basis. Charges for work per- formed on Federal awards by faculty members during the academic year are allowable at the IBS rate. Except as noted in paragraph (h)(1)(ii) of this sec- tion, in no event will charges to Fed- eral awards, irrespective of the basis of computation, exceed the proportionate share of the IBS for that period. This principle applies to all members of fac- ulty at an institution. IBS is defined as the annual compensation paid by an IHE for an individual’s appointment, whether that individual’s time is spent on research, instruction, administra- tion, or other activities. IBS excludes any income that an individual earns outside of duties performed for the IHE. Unless there is prior approval by the Federal awarding agency, charges of a faculty member’s salary to a Fed- eral award must not exceed the propor- tionate share of the IBS for the period during which the faculty member worked on the award. (3) Intra-Institution of Higher Edu- cation (IHE) consulting. Intra-IHE con- sulting by faculty should be under- taken as an IHE responsibility requir- ing no compensation in addition to IBS. However, in unusual cases where consultation is across departmental lines or involves a separate or remote operation, and the work performed by the faculty member is in addition to his or her regular responsibilities, any charges for such work representing ad- ditional compensation above IBS are allowable provided that such con- sulting arrangements are specifically provided for in the Federal award or approved in writing by the Federal awarding agency. (4) Extra Service Pay normally rep- resents overload compensation, subject to institutional compensation policies for services above and beyond IBS. Where extra service pay is a result of Intra-IHE consulting, it is subject to the same requirements of paragraph (b) above. It is allowable if all of the fol- lowing conditions are met: (i) The non-Federal entity estab- lishes consistent written policies which VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00179 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 168 2 CFR Ch. II (1–1–21 Edition) §200.430 apply uniformly to all faculty mem- bers, not just those working on Federal awards. (ii) The non-Federal entity estab- lishes a consistent written definition of work covered by IBS which is specific enough to determine conclusively when work beyond that level has occurred. This may be described in appointment letters or other documentations. (iii) The supplementation amount paid is commensurate with the IBS rate of pay and the amount of addi- tional work performed. See paragraph (h)(2) of this section. (iv) The salaries, as supplemented, fall within the salary structure and pay ranges established by and docu- mented in writing or otherwise applica- ble to the non-Federal entity. (v) The total salaries charged to Fed- eral awards including extra service pay are subject to the Standards of Docu- mentation as described in paragraph (i) of this section. (5) Periods outside the academic year. (i) Except as specified for teaching ac- tivity in paragraph (h)(5)(ii) of this sec- tion, charges for work performed by faculty members on Federal awards during periods not included in the base salary period will be at a rate not in excess of the IBS. (ii) Charges for teaching activities performed by faculty members on Fed- eral awards during periods not included in IBS period will be based on the nor- mal written policy of the IHE gov- erning compensation to faculty mem- bers for teaching assignments during such periods. (6) Part-time faculty. Charges for work performed on Federal awards by fac- ulty members having only part-time appointments will be determined at a rate not in excess of that regularly paid for part-time assignments. (7) Sabbatical leave costs. Rules for sabbatical leave are as follow: (i) Costs of leaves of absence by em- ployees for performance of graduate work or sabbatical study, travel, or re- search are allowable provided the IHE has a uniform written policy on sab- batical leave for persons engaged in in- struction and persons engaged in re- search. Such costs will be allocated on an equitable basis among all related activities of the IHE. (ii) Where sabbatical leave is in- cluded in fringe benefits for which a cost is determined for assessment as a direct charge, the aggregate amount of such assessments applicable to all work of the institution during the base period must be reasonable in relation to the IHE’s actual experience under its sabbatical leave policy. (8) Salary rates for non-faculty mem- bers. Non-faculty full-time professional personnel may also earn ‘‘extra service pay’’ in accordance with the non-Fed- eral entity’s written policy and con- sistent with paragraph (h)(1)(i) of this section. (i) Standards for Documentation of Per- sonnel Expenses (1) Charges to Federal awards for salaries and wages must be based on records that accurately re- flect the work performed. These records must: (i) Be supported by a system of inter- nal control which provides reasonable assurance that the charges are accu- rate, allowable, and properly allocated; (ii) Be incorporated into the official records of the non-Federal entity; (iii) Reasonably reflect the total ac- tivity for which the employee is com- pensated by the non-Federal entity, not exceeding 100% of compensated ac- tivities (for IHE, this per the IHE’s def- inition of IBS); (iv) Encompass federally-assisted and all other activities compensated by the non-Federal entity on an integrated basis, but may include the use of sub- sidiary records as defined in the non- Federal entity’s written policy; (v) Comply with the established ac- counting policies and practices of the non-Federal entity (See paragraph (h)(1)(ii) above for treatment of inci- dental work for IHEs.); and (vi) [Reserved] (vii) Support the distribution of the employee’s salary or wages among spe- cific activities or cost objectives if the employee works on more than one Fed- eral award; a Federal award and non- Federal award; an indirect cost activ- ity and a direct cost activity; two or more indirect activities which are allo- cated using different allocation bases; or an unallowable activity and a direct or indirect cost activity. (viii) Budget estimates (i.e., esti- mates determined before the services VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00180 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 169 OMB Guidance §200.430 are performed) alone do not qualify as support for charges to Federal awards, but may be used for interim accounting purposes, provided that: (A) The system for establishing the estimates produces reasonable approxi- mations of the activity actually per- formed; (B) Significant changes in the cor- responding work activity (as defined by the non-Federal entity’s written poli- cies) are identified and entered into the records in a timely manner. Short term (such as one or two months) fluctua- tion between workload categories need not be considered as long as the dis- tribution of salaries and wages is rea- sonable over the longer term; and (C) The non-Federal entity’s system of internal controls includes processes to review after-the-fact interim charges made to a Federal award based on budget estimates. All necessary ad- justment must be made such that the final amount charged to the Federal award is accurate, allowable, and prop- erly allocated. (ix) Because practices vary as to the activity constituting a full workload (for IHEs, IBS), records may reflect categories of activities expressed as a percentage distribution of total activi- ties. (x) It is recognized that teaching, re- search, service, and administration are often inextricably intermingled in an academic setting. When recording sala- ries and wages charged to Federal awards for IHEs, a precise assessment of factors that contribute to costs is therefore not always feasible, nor is it expected. (2) For records which meet the stand- ards required in paragraph (i)(1) of this section, the non-Federal entity will not be required to provide additional sup- port or documentation for the work performed, other than that referenced in paragraph (i)(3) of this section. (3) In accordance with Department of Labor regulations implementing the Fair Labor Standards Act (FLSA) (29 CFR part 516), charges for the salaries and wages of nonexempt employees, in addition to the supporting documenta- tion described in this section, must also be supported by records indicating the total number of hours worked each day. (4) Salaries and wages of employees used in meeting cost sharing or match- ing requirements on Federal awards must be supported in the same manner as salaries and wages claimed for reim- bursement from Federal awards. (5) For states, local governments and Indian tribes, substitute processes or systems for allocating salaries and wages to Federal awards may be used in place of or in addition to the records described in paragraph (1) if approved by the cognizant agency for indirect cost. Such systems may include, but are not limited to, random moment sampling, ‘‘rolling’’ time studies, case counts, or other quantifiable measures of work performed. (i) Substitute systems which use sampling methods (primarily for Tem- porary Assistance for Needy Families (TANF), the Supplemental Nutrition Assistance Program (SNAP), Medicaid, and other public assistance programs) must meet acceptable statistical sam- pling standards including: (A) The sampling universe must in- clude all of the employees whose sala- ries and wages are to be allocated based on sample results except as pro- vided in paragraph (i)(5)(iii) of this sec- tion; (B) The entire time period involved must be covered by the sample; and (C) The results must be statistically valid and applied to the period being sampled. (ii) Allocating charges for the sam- pled employees’ supervisors, clerical and support staffs, based on the results of the sampled employees, will be ac- ceptable. (iii) Less than full compliance with the statistical sampling standards noted in subsection (5)(i) may be ac- cepted by the cognizant agency for in- direct costs if it concludes that the amounts to be allocated to Federal awards will be minimal, or if it con- cludes that the system proposed by the non-Federal entity will result in lower costs to Federal awards than a system which complies with the standards. (6) Cognizant agencies for indirect costs are encouraged to approve alter- native proposals based on outcomes and milestones for program perform- ance where these are clearly docu- mented. Where approved by the Federal VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00181 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 170 2 CFR Ch. II (1–1–21 Edition) §200.431 cognizant agency for indirect costs, these plans are acceptable as an alter- native to the requirements of para- graph (i)(1) of this section. (7) For Federal awards of similar pur- pose activity or instances of approved blended funding, a non-Federal entity may submit performance plans that in- corporate funds from multiple Federal awards and account for their combined use based on performance-oriented metrics, provided that such plans are approved in advance by all involved Federal awarding agencies. In these in- stances, the non-Federal entity must submit a request for waiver of the re- quirements based on documentation that describes the method of charging costs, relates the charging of costs to the specific activity that is applicable to all fund sources, and is based on quantifiable measures of the activity in relation to time charged. (8) For a non-Federal entity where the records do not meet the standards described in this section, the Federal Government may require personnel ac- tivity reports, including prescribed cer- tifications, or equivalent documenta- tion that support the records as re- quired in this section. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75886, Dec. 19, 2014; 85 FR 49565, Aug. 13, 2020] §200.431 Compensation—fringe bene- fits. (a) General. Fringe benefits are allow- ances and services provided by employ- ers to their employees as compensation in addition to regular salaries and wages. Fringe benefits include, but are not limited to, the costs of leave (vaca- tion, family-related, sick or military), employee insurance, pensions, and un- employment benefit plans. Except as provided elsewhere in these principles, the costs of fringe benefits are allow- able provided that the benefits are rea- sonable and are required by law, non- Federal entity-employee agreement, or an established policy of the non-Fed- eral entity. (b) Leave. The cost of fringe benefits in the form of regular compensation paid to employees during periods of au- thorized absences from the job, such as for annual leave, family-related leave, sick leave, holidays, court leave, mili- tary leave, administrative leave, and other similar benefits, are allowable if all of the following criteria are met: (1) They are provided under estab- lished written leave policies; (2) The costs are equitably allocated to all related activities, including Fed- eral awards; and, (3) The accounting basis (cash or ac- crual) selected for costing each type of leave is consistently followed by the non-Federal entity or specified group- ing of employees. (i) When a non-Federal entity uses the cash basis of accounting, the cost of leave is recognized in the period that the leave is taken and paid for. Pay- ments for unused leave when an em- ployee retires or terminates employ- ment are allowable in the year of pay- ment. (ii) The accrual basis may be only used for those types of leave for which a liability as defined by GAAP exists when the leave is earned. When a non- Federal entity uses the accrual basis of accounting, allowable leave costs are the lesser of the amount accrued or funded. (c) Fringe benefits. The cost of fringe benefits in the form of employer con- tributions or expenses for social secu- rity; employee life, health, unemploy- ment, and worker’s compensation in- surance (except as indicated in §200.447); pension plan costs (see para- graph (i) of this section); and other similar benefits are allowable, provided such benefits are granted under estab- lished written policies. Such benefits, must be allocated to Federal awards and all other activities in a manner consistent with the pattern of benefits attributable to the individuals or group(s) of employees whose salaries and wages are chargeable to such Fed- eral awards and other activities, and charged as direct or indirect costs in accordance with the non-Federal enti- ty’s accounting practices. (d) Cost objectives. Fringe benefits may be assigned to cost objectives by identifying specific benefits to specific individual employees or by allocating on the basis of entity-wide salaries and wages of the employees receiving the benefits. When the allocation method is used, separate allocations must be VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00182 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 171 OMB Guidance §200.431 made to selective groupings of employ- ees, unless the non-Federal entity dem- onstrates that costs in relationship to salaries and wages do not differ signifi- cantly for different groups of employ- ees. (e) Insurance. See also §200.447(d)(1) and (2). (1) Provisions for a reserve under a self-insurance program for unemploy- ment compensation or workers’ com- pensation are allowable to the extent that the provisions represent reason- able estimates of the liabilities for such compensation, and the types of coverage, extent of coverage, and rates and premiums would have been allow- able had insurance been purchased to cover the risks. However, provisions for self-insured liabilities which do not be- come payable for more than one year after the provision is made must not exceed the present value of the liabil- ity. (2) Costs of insurance on the lives of trustees, officers, or other employees holding positions of similar responsi- bility are allowable only to the extent that the insurance represents addi- tional compensation. The costs of such insurance when the non-Federal entity is named as beneficiary are unallow- able. (3) Actual claims paid to or on behalf of employees or former employees for workers’ compensation, unemployment compensation, severance pay, and simi- lar employee benefits (e.g., post-retire- ment health benefits), are allowable in the year of payment provided that the non-Federal entity follows a consistent costing policy. (f) Automobiles. That portion of auto- mobile costs furnished by the non-Fed- eral entity that relates to personal use by employees (including transportation to and from work) is unallowable as fringe benefit or indirect (F&A) costs regardless of whether the cost is re- ported as taxable income to the em- ployees. (g) Pension plan costs. Pension plan costs which are incurred in accordance with the established policies of the non-Federal entity are allowable, pro- vided that: (1) Such policies meet the test of rea- sonableness. (2) The methods of cost allocation are not discriminatory. (3) Except for State and Local Gov- ernments, the cost assigned to each fis- cal year should be determined in ac- cordance with GAAP. (4) The costs assigned to a given fis- cal year are funded for all plan partici- pants within six months after the end of that year. However, increases to nor- mal and past service pension costs caused by a delay in funding the actu- arial liability beyond 30 calendar days after each quarter of the year to which such costs are assignable are unallow- able. Non-Federal entity may elect to follow the ‘‘Cost Accounting Standard for Composition and Measurement of Pension Costs’’ (48 CFR 9904.412). (5) Pension plan termination insur- ance premiums paid pursuant to the Employee Retirement Income Security Act (ERISA) of 1974 (29 U.S.C. 1301–1461) are allowable. Late payment charges on such premiums are unallowable. Ex- cise taxes on accumulated funding defi- ciencies and other penalties imposed under ERISA are unallowable. (6) Pension plan costs may be com- puted using a pay-as-you-go method or an acceptable actuarial cost method in accordance with established written policies of the non-Federal entity. (i) For pension plans financed on a pay-as-you-go method, allowable costs will be limited to those representing actual payments to retirees or their beneficiaries. (ii) Pension costs calculated using an actuarial cost-based method recognized by GAAP are allowable for a given fis- cal year if they are funded for that year within six months after the end of that year. Costs funded after the six- month period (or a later period agreed to by the cognizant agency for indirect costs) are allowable in the year funded. The cognizant agency for indirect costs may agree to an extension of the six- month period if an appropriate adjust- ment is made to compensate for the timing of the charges to the Federal Government and related Federal reim- bursement and the non-Federal enti- ty’s contribution to the pension fund. Adjustments may be made by cash re- fund or other equitable procedures to compensate the Federal Government VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00183 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 172 2 CFR Ch. II (1–1–21 Edition) §200.431 for the time value of Federal reim- bursements in excess of contributions to the pension fund. (iii) Amounts funded by the non-Fed- eral entity in excess of the actuarially determined amount for a fiscal year may be used as the non-Federal enti- ty’s contribution in future periods. (iv) When a non-Federal entity con- verts to an acceptable actuarial cost method, as defined by GAAP, and funds pension costs in accordance with this method, the unfunded liability at the time of conversion is allowable if am- ortized over a period of years in accord- ance with GAAP. (v) The Federal Government must re- ceive an equitable share of any pre- viously allowed pension costs (includ- ing earnings thereon) which revert or inure to the non-Federal entity in the form of a refund, withdrawal, or other credit. (h) Post-retirement health. Post-retire- ment health plans (PRHP) refers to costs of health insurance or health services not included in a pension plan covered by paragraph (g) of this section for retirees and their spouses, depend- ents, and survivors. PRHP costs may be computed using a pay-as-you-go method or an acceptable actuarial cost method in accordance with established written policies of the non-Federal en- tity. (1) For PRHP financed on a pay-as- you-go method, allowable costs will be limited to those representing actual payments to retirees or their bene- ficiaries. (2) PRHP costs calculated using an actuarial cost method recognized by GAAP are allowable if they are funded for that year within six months after the end of that year. Costs funded after the six-month period (or a later period agreed to by the cognizant agency) are allowable in the year funded. The Fed- eral cognizant agency for indirect costs may agree to an extension of the six- month period if an appropriate adjust- ment is made to compensate for the timing of the charges to the Federal Government and related Federal reim- bursements and the non-Federal enti- ty’s contributions to the PRHP fund. Adjustments may be made by cash re- fund, reduction in current year’s PRHP costs, or other equitable procedures to compensate the Federal Government for the time value of Federal reim- bursements in excess of contributions to the PRHP fund. (3) Amounts funded in excess of the actuarially determined amount for a fiscal year may be used as the non-Fed- eral entity contribution in a future pe- riod. (4) When a non-Federal entity con- verts to an acceptable actuarial cost method and funds PRHP costs in ac- cordance with this method, the initial unfunded liability attributable to prior years is allowable if amortized over a period of years in accordance with GAAP, or, if no such GAAP period ex- ists, over a period negotiated with the cognizant agency for indirect costs. (5) To be allowable in the current year, the PRHP costs must be paid ei- ther to: (i) An insurer or other benefit pro- vider as current year costs or pre- miums, or (ii) An insurer or trustee to maintain a trust fund or reserve for the sole pur- pose of providing post-retirement bene- fits to retirees and other beneficiaries. (6) The Federal Government must re- ceive an equitable share of any amounts of previously allowed post-re- tirement benefit costs (including earn- ings thereon) which revert or inure to the non-Federal entity in the form of a refund, withdrawal, or other credit. (i) Severance pay. (1) Severance pay, also commonly referred to as dismissal wages, is a payment in addition to reg- ular salaries and wages, by non-Federal entities to workers whose employment is being terminated. Costs of severance pay are allowable only to the extent that in each case, it is required by (i) Law; (ii) Employer-employee agreement; (iii) Established policy that con- stitutes, in effect, an implied agree- ment on the non-Federal entity’s part; or (iv) Circumstances of the particular employment. (2) Costs of severance payments are divided into two categories as follows: (i) Actual normal turnover severance payments must be allocated to all ac- tivities; or, where the non-Federal en- tity provides for a reserve for normal VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00184 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 173 OMB Guidance §200.432 severances, such method will be ac- ceptable if the charge to current oper- ations is reasonable in light of pay- ments actually made for normal severances over a representative past period, and if amounts charged are al- located to all activities of the non-Fed- eral entity. (ii) Measurement of costs of abnor- mal or mass severance pay by means of an accrual will not achieve equity to both parties. Thus, accruals for this purpose are not allowable. However, the Federal Government recognizes its responsibility to participate, to the ex- tent of its fair share, in any specific payment. Prior approval by the Fed- eral awarding agency or cognizant agency for indirect cost, as appro- priate, is required. (3) Costs incurred in certain sever- ance pay packages which are in an amount in excess of the normal sever- ance pay paid by the non-Federal enti- ty to an employee upon termination of employment and are paid to the em- ployee contingent upon a change in management control over, or owner- ship of, the non-Federal entity’s assets, are unallowable. (4) Severance payments to foreign na- tionals employed by the non-Federal entity outside the United States, to the extent that the amount exceeds the customary or prevailing practices for the non-Federal entity in the United States, are unallowable, unless they are necessary for the performance of Federal programs and approved by the Federal awarding agency. (5) Severance payments to foreign na- tionals employed by the non-Federal entity outside the United States due to the termination of the foreign national as a result of the closing of, or curtail- ment of activities by, the non-Federal entity in that country, are unallow- able, unless they are necessary for the performance of Federal programs and approved by the Federal awarding agency. (j) For IHEs only. (1) Fringe benefits in the form of undergraduate and grad- uate tuition or remission of tuition for individual employees are allowable, provided such benefits are granted in accordance with established non-Fed- eral entity policies, and are distributed to all non-Federal entity activities on an equitable basis. Tuition benefits for family members other than the em- ployee are unallowable. (2) Fringe benefits in the form of tui- tion or remission of tuition for indi- vidual employees not employed by IHEs are limited to the tax-free amount allowed per section 127 of the Internal Revenue Code as amended. (3) IHEs may offer employees tuition waivers or tuition reductions, provided that the benefit does not discriminate in favor of highly compensated employ- ees. Employees can exercise these ben- efits at other institutions according to institutional policy. See §200.466, for treatment of tuition remission pro- vided to students. (k) Fringe benefit programs and other benefit costs. For IHEs whose costs are paid by state or local governments, fringe benefit programs (such as pen- sion costs and FICA) and any other benefits costs specifically incurred on behalf of, and in direct benefit to, the non-Federal entity, are allowable costs of such non-Federal entities whether or not these costs are recorded in the ac- counting records of the non-Federal en- tities, subject to the following: (1) The costs meet the requirements of Basic Considerations in §§200.402 through 200.411; (2) The costs are properly supported by approved cost allocation plans in ac- cordance with applicable Federal cost accounting principles; and (3) The costs are not otherwise borne directly or indirectly by the Federal Government. [85 FR 49565, Aug. 13, 2020] §200.432 Conferences. A conference is defined as a meeting, retreat, seminar, symposium, work- shop or event whose primary purpose is the dissemination of technical infor- mation beyond the non-Federal entity and is necessary and reasonable for successful performance under the Fed- eral award. Allowable conference costs paid by the non-Federal entity as a sponsor or host of the conference may include rental of facilities, speakers’ fees, costs of meals and refreshments, local transportation, and other items incidental to such conferences unless further restricted by the terms and conditions of the Federal award. As VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00185 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 174 2 CFR Ch. II (1–1–21 Edition) §200.433 needed, the costs of identifying, but not providing, locally available depend- ent-care resources are allowable. Con- ference hosts/sponsors must exercise discretion and judgment in ensuring that conference costs are appropriate, necessary and managed in a manner that minimizes costs to the Federal award. The Federal awarding agency may authorize exceptions where appro- priate for programs including Indian tribes, children, and the elderly. See also §§200.438, 200.456, and 200.475. [85 FR 49567, Aug. 13, 2020] §200.433 Contingency provisions. (a) Contingency is that part of a budget estimate of future costs (typi- cally of large construction projects, IT systems, or other items as approved by the Federal awarding agency) which is associated with possible events or con- ditions arising from causes the precise outcome of which is indeterminable at the time of estimate, and that experi- ence shows will likely result, in aggre- gate, in additional costs for the ap- proved activity or project. Amounts for major project scope changes, unfore- seen risks, or extraordinary events may not be included. (b) It is permissible for contingency amounts other than those excluded in paragraph (a) of this section to be ex- plicitly included in budget estimates, to the extent they are necessary to im- prove the precision of those estimates. Amounts must be estimated using broadly-accepted cost estimating methodologies, specified in the budget documentation of the Federal award, and accepted by the Federal awarding agency. As such, contingency amounts are to be included in the Federal award. In order for actual costs in- curred to be allowable, they must com- ply with the cost principles and other requirements in this part (see also §§200.300 and 200.403 of this part); be necessary and reasonable for proper and efficient accomplishment of project or program objectives, and be verifiable from the non-Federal enti- ty’s records. (c) Payments made by the Federal awarding agency to the non-Federal entity’s ‘‘contingency reserve’’ or any similar payment made for events the occurrence of which cannot be foretold with certainty as to the time or inten- sity, or with an assurance of their hap- pening, are unallowable, except as noted in §§200.431 and 200.447. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75886, Dec. 19, 2014; 85 FR 49567, Aug. 13, 2020] §200.434 Contributions and donations. (a) Costs of contributions and dona- tions, including cash, property, and services, from the non-Federal entity to other entities, are unallowable. (b) It is permissible for contingency amounts other than those excluded in paragraph (a) of this section to be ex- plicitly included in budget estimates, to the extent they are necessary to im- prove the precision of those estimates. Amounts must be estimated using broadly-accepted cost estimating methodologies, specified in the budget documentation of the Federal award, and accepted by the Federal awarding agency. As such, contingency amounts are to be included in the Federal award. In order for actual costs in- curred to be allowable, they must com- ply with the cost principles and other requirements in this part (see also §§200.300 and 200.403 of this part); be necessary and reasonable for proper and efficient accomplishment of project or program objectives, and be verifiable from the non-Federal enti- ty’s records. (c) Payments made by the Federal awarding agency to the non-Federal entity’s ‘‘contingency reserve’’ or any similar payment made for events the occurrence of which cannot be foretold with certainty as to the time or inten- sity, or with an assurance of their hap- pening, are unallowable, except as noted in §§200.431 and 200.447. (d) To the extent feasible, services donated to the non-Federal entity will be supported by the same methods used to support the allocability of regular personnel services. (e) The following provisions apply to nonprofit organizations. The value of services donated to the nonprofit orga- nization utilized in the performance of a direct cost activity must be consid- ered in the determination of the non- Federal entity’s indirect cost rate(s) and, accordingly, must be allocated a VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00186 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 175 OMB Guidance §200.435 proportionate share of applicable indi- rect costs when the following cir- cumstances exist: (1) The aggregate value of the serv- ices is material; (2) The services are supported by a significant amount of the indirect costs incurred by the non-Federal enti- ty; (i) In those instances where there is no basis for determining the fair mar- ket value of the services rendered, the non-Federal entity and the cognizant agency for indirect costs must nego- tiate an appropriate allocation of indi- rect cost to the services. (ii) Where donated services directly benefit a project supported by the Fed- eral award, the indirect costs allocated to the services will be considered as a part of the total costs of the project. Such indirect costs may be reimbursed under the Federal award or used to meet cost sharing or matching require- ments. (f) Fair market value of donated services must be computed as described in §200.306. (g) Personal Property and Use of Space. (1) Donated personal property and use of space may be furnished to a non- Federal entity. The value of the per- sonal property and space may not be charged to the Federal award either as a direct or indirect cost. (2) The value of the donations may be used to meet cost sharing or matching share requirements under the condi- tions described in §200.300 of this part. The value of the donations must be de- termined in accordance with §200.300. Where donations are treated as indirect costs, indirect cost rates will separate the value of the donations so that re- imbursement will not be made. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75886, Dec. 19, 2014; 85 FR 49567, Aug. 13, 2020] §200.435 Defense and prosecution of criminal and civil proceedings, claims, appeals and patent infringe- ments. (a) Definitions for the purposes of this section. (1) Conviction means a judgment or conviction of a criminal offense by any court of competent jurisdiction, whether entered upon verdict or a plea, including a conviction due to a plea of nolo contendere. (2) Costs include the services of in- house or private counsel, accountants, consultants, or others engaged to as- sist the non-Federal entity before, dur- ing, and after commencement of a judi- cial or administrative proceeding, that bear a direct relationship to the pro- ceeding. (3) Fraud means: (i) Acts of fraud or corruption or at- tempts to defraud the Federal Govern- ment or to corrupt its agents, (ii) Acts that constitute a cause for debarment or suspension (as specified in agency regulations), and (iii) Acts which violate the False Claims Act (31 U.S.C. 3729–3732) or the Anti-kickback Act (41 U.S.C. 1320a– 7b(b)). (4) Penalty does not include restitu- tion, reimbursement, or compensatory damages. (5) Proceeding includes an investiga- tion. (b) Costs. (1) Except as otherwise de- scribed herein, costs incurred in con- nection with any criminal, civil or ad- ministrative proceeding (including fil- ing of a false certification) commenced by the Federal Government, a state, local government, or foreign govern- ment, or joined by the Federal Govern- ment (including a proceeding under the False Claims Act), against the non- Federal entity, (or commenced by third parties or a current or former em- ployee of the non-Federal entity who submits a whistleblower complaint of reprisal in accordance with 10 U.S.C. 2409 or 41 U.S.C. 4712), are not allowable if the proceeding: (i) Relates to a violation of, or failure to comply with, a Federal, state, local or foreign statute, regulation or the terms and conditions of the Federal award, by the non-Federal entity (in- cluding its agents and employees); and (ii) Results in any of the following dispositions: (A) In a criminal proceeding, a con- viction. (B) In a civil or administrative pro- ceeding involving an allegation of fraud or similar misconduct, a deter- mination of non-Federal entity liabil- ity. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00187 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 176 2 CFR Ch. II (1–1–21 Edition) §200.435 (C) In the case of any civil or admin- istrative proceeding, the disallowance of costs or the imposition of a mone- tary penalty, or an order issued by the Federal awarding agency head or dele- gate to the non-Federal entity to take corrective action under 10 U.S.C. 2409 or 41 U.S.C. 4712. (D) A final decision by an appropriate Federal official to debar or suspend the non-Federal entity, to rescind or void a Federal award, or to terminate a Fed- eral award by reason of a violation or failure to comply with a statute, regu- lation, or the terms and conditions of the Federal award. (E) A disposition by consent or com- promise, if the action could have re- sulted in any of the dispositions de- scribed in paragraphs (b)(1)(ii)(A) through (D) of this section. (2) If more than one proceeding in- volves the same alleged misconduct, the costs of all such proceedings are unallowable if any results in one of the dispositions shown in paragraph (b) of this section. (c) If a proceeding referred to in para- graph (b) of this section is commenced by the Federal Government and is re- solved by consent or compromise pur- suant to an agreement by the non-Fed- eral entity and the Federal Govern- ment, then the costs incurred may be allowed to the extent specifically pro- vided in such agreement. (d) If a proceeding referred to in para- graph (b) of this section is commenced by a state, local or foreign government, the authorized Federal official may allow the costs incurred if such author- ized official determines that the costs were incurred as a result of: (1) A specific term or condition of the Federal award, or (2) Specific written direction of an authorized official of the Federal awarding agency. (e) Costs incurred in connection with proceedings described in paragraph (b) of this section, which are not made un- allowable by that subsection, may be allowed but only to the extent that: (1) The costs are reasonable and nec- essary in relation to the administra- tion of the Federal award and activi- ties required to deal with the pro- ceeding and the underlying cause of ac- tion; (2) Payment of the reasonable, nec- essary, allocable and otherwise allow- able costs incurred is not prohibited by any other provision(s) of the Federal award; (3) The costs are not recovered from the Federal Government or a third party, either directly as a result of the proceeding or otherwise; and, (4) An authorized Federal official must determine the percentage of costs allowed considering the complexity of litigation, generally accepted prin- ciples governing the award of legal fees in civil actions involving the United States, and such other factors as may be appropriate. Such percentage must not exceed 80 percent. However, if an agreement reached under paragraph (c) of this section has explicitly consid- ered this 80 percent limitation and per- mitted a higher percentage, then the full amount of costs resulting from that agreement are allowable. (f) Costs incurred by the non-Federal entity in connection with the defense of suits brought by its employees or ex- employees under section 2 of the Major Fraud Act of 1988 (18 U.S.C. 1031), in- cluding the cost of all relief necessary to make such employee whole, where the non-Federal entity was found liable or settled, are unallowable. (g) Costs of prosecution of claims against the Federal Government, in- cluding appeals of final Federal agency decisions, are unallowable. (h) Costs of legal, accounting, and consultant services, and related costs, incurred in connection with patent in- fringement litigation, are unallowable unless otherwise provided for in the Federal award. (i) Costs which may be unallowable under this section, including directly associated costs, must be segregated and accounted for separately. During the pendency of any proceeding covered by paragraphs (b) and (f) of this sec- tion, the Federal Government must generally withhold payment of such costs. However, if in its best interests, the Federal Government may provide for conditional payment upon provision of adequate security, or other adequate assurance, and agreement to repay all unallowable costs, plus interest, if the VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00188 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 177 OMB Guidance §200.436 costs are subsequently determined to be unallowable. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75886, Dec. 19, 2014] §200.436 Depreciation. (a) Depreciation is the method for al- locating the cost of fixed assets to peri- ods benefitting from asset use. The non-Federal entity may be com- pensated for the use of its buildings, capital improvements, equipment, and software projects capitalized in accord- ance with GAAP, provided that they are used, needed in the non-Federal en- tity’s activities, and properly allocated to Federal awards. Such compensation must be made by computing deprecia- tion. (b) The allocation for depreciation must be made in accordance with Ap- pendices III through IX. (c) Depreciation is computed apply- ing the following rules. The computa- tion of depreciation must be based on the acquisition cost of the assets in- volved. For an asset donated to the non-Federal entity by a third party, its fair market value at the time of the do- nation must be considered as the acqui- sition cost. Such assets may be depre- ciated or claimed as matching but not both. For the computation of deprecia- tion, the acquisition cost will exclude: (1) The cost of land; (2) Any portion of the cost of build- ings and equipment borne by or do- nated by the Federal Government, irre- spective of where title was originally vested or where it is presently located; (3) Any portion of the cost of build- ings and equipment contributed by or for the non-Federal entity that are al- ready claimed as matching or where law or agreement prohibits recovery; (4) Any asset acquired solely for the performance of a non-Federal award; and (d) When computing depreciation charges, the following must be ob- served: (1) The period of useful service or useful life established in each case for usable capital assets must take into consideration such factors as type of construction, nature of the equipment, technological developments in the par- ticular area, historical data, and the renewal and replacement policies fol- lowed for the individual items or class- es of assets involved. (2) The depreciation method used to charge the cost of an asset (or group of assets) to accounting periods must re- flect the pattern of consumption of the asset during its useful life. In the ab- sence of clear evidence indicating that the expected consumption of the asset will be significantly greater in the early portions than in the later por- tions of its useful life, the straight-line method must be presumed to be the ap- propriate method. Depreciation meth- ods once used may not be changed un- less approved in advance by the cog- nizant agency. The depreciation meth- ods used to calculate the depreciation amounts for indirect (F&A) rate pur- poses must be the same methods used by the non-Federal entity for its finan- cial statements. (3) The entire building, including the shell and all components, may be treat- ed as a single asset and depreciated over a single useful life. A building may also be divided into multiple com- ponents. Each component item may then be depreciated over its estimated useful life. The building components must be grouped into three general components of a building: building shell (including construction and de- sign costs), building services systems (e.g., elevators, HVAC, plumbing sys- tem and heating and air-conditioning system) and fixed equipment (e.g., sterilizers, casework, fume hoods, cold rooms and glassware/washers). In ex- ceptional cases, a cognizant agency may authorize a non-Federal entity to use more than these three groupings. When a non-Federal entity elects to de- preciate its buildings by its compo- nents, the same depreciation methods must be used for indirect (F&A) pur- poses and financial statements pur- poses, as described in paragraphs (d)(1) and (2) of this section. (4) No depreciation may be allowed on any assets that have outlived their depreciable lives. (5) Where the depreciation method is introduced to replace the use allow- ance method, depreciation must be computed as if the asset had been de- preciated over its entire life (i.e., from the date the asset was acquired and ready for use to the date of disposal or VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00189 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 178 2 CFR Ch. II (1–1–21 Edition) §200.437 withdrawal from service). The total amount of use allowance and deprecia- tion for an asset (including imputed de- preciation applicable to periods prior to the conversion from the use allow- ance method as well as depreciation after the conversion) may not exceed the total acquisition cost of the asset. (e) Charges for depreciation must be supported by adequate property records, and physical inventories must be taken at least once every two years to ensure that the assets exist and are usable, used, and needed. Statistical sampling techniques may be used in taking these inventories. In addition, adequate depreciation records showing the amount of depreciation must be maintained. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75886, Dec. 19, 2014; 85 FR 49568, Aug. 13, 2020] §200.437 Employee health and welfare costs. (a) Costs incurred in accordance with the non-Federal entity’s documented policies for the improvement of work- ing conditions, employer-employee re- lations, employee health, and employee performance are allowable. (b) Such costs will be equitably ap- portioned to all activities of the non- Federal entity. Income generated from any of these activities will be credited to the cost thereof unless such income has been irrevocably sent to employee welfare organizations. (c) Losses resulting from operating food services are allowable only if the non-Federal entity’s objective is to op- erate such services on a break-even basis. Losses sustained because of oper- ating objectives other than the above are allowable only: (1) Where the non-Federal entity can demonstrate unusual circumstances; and (2) With the approval of the cog- nizant agency for indirect costs. §200.438 Entertainment costs. Costs of entertainment, including amusement, diversion, and social ac- tivities and any associated costs are unallowable, except where specific costs that might otherwise be consid- ered entertainment have a pro- grammatic purpose and are authorized either in the approved budget for the Federal award or with prior written ap- proval of the Federal awarding agency. §200.439 Equipment and other capital expenditures. (a) See §200.1 for the definitions of capital expenditures, equipment, special purpose equipment, general purpose equipment, acquisition cost, and capital assets. (b) The following rules of allow- ability must apply to equipment and other capital expenditures: (1) Capital expenditures for general purpose equipment, buildings, and land are unallowable as direct charges, ex- cept with the prior written approval of the Federal awarding agency or pass- through entity. (2) Capital expenditures for special purpose equipment are allowable as di- rect costs, provided that items with a unit cost of $5,000 or more have the prior written approval of the Federal awarding agency or pass-through enti- ty. (3) Capital expenditures for improve- ments to land, buildings, or equipment which materially increase their value or useful life are unallowable as a di- rect cost except with the prior written approval of the Federal awarding agen- cy, or pass-through entity. See §200.436, for rules on the allowability of depre- ciation on buildings, capital improve- ments, and equipment. See also §200.465. (4) When approved as a direct charge pursuant to paragraphs (b)(1) through (3) of this section, capital expenditures will be charged in the period in which the expenditure is incurred, or as oth- erwise determined appropriate and ne- gotiated with the Federal awarding agency. (5) The unamortized portion of any equipment written off as a result of a change in capitalization levels may be recovered by continuing to claim the otherwise allowable depreciation on the equipment, or by amortizing the amount to be written off over a period of years negotiated with the Federal cognizant agency for indirect cost. (6) Cost of equipment disposal. If the non-Federal entity is instructed by the Federal awarding agency to otherwise dispose of or transfer the equipment VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00190 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 179 OMB Guidance §200.443 the costs of such disposal or transfer are allowable. (7) Equipment and other capital ex- penditures are unallowable as indirect costs. See §200.436. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75886, Dec. 19, 2014; 85 FR 49568, Aug. 13, 2020] §200.440 Exchange rates. (a) Cost increases for fluctuations in exchange rates are allowable costs sub- ject to the availability of funding. Prior approval of exchange rate fluc- tuations is required only when the change results in the need for addi- tional Federal funding, or the in- creased costs result in the need to sig- nificantly reduce the scope of the project. The Federal awarding agency must however ensure that adequate funds are available to cover currency fluctuations in order to avoid a viola- tion of the Anti-Deficiency Act. (b) The non-Federal entity is re- quired to make reviews of local cur- rency gains to determine the need for additional federal funding before the expiration date of the Federal award. Subsequent adjustments for currency increases may be allowable only when the non-Federal entity provides the Federal awarding agency with ade- quate source documentation from a commonly used source in effect at the time the expense was made, and to the extent that sufficient Federal funds are available. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75886, Dec. 19, 2014] §200.441 Fines, penalties, damages and other settlements. Costs resulting from non-Federal en- tity violations of, alleged violations of, or failure to comply with, Federal, state, tribal, local or foreign laws and regulations are unallowable, except when incurred as a result of compli- ance with specific provisions of the Federal award, or with prior written approval of the Federal awarding agen- cy. See also §200.435. [85 FR 49568, Aug. 13, 2020] §200.442 Fund raising and investment management costs. (a) Costs of organized fund raising, including financial campaigns, endow- ment drives, solicitation of gifts and bequests, and similar expenses incurred to raise capital or obtain contributions are unallowable. Fund raising costs for the purposes of meeting the Federal program objectives are allowable with prior written approval from the Fed- eral awarding agency. Proposal costs are covered in §200.460. (b) Costs of investment counsel and staff and similar expenses incurred to enhance income from investments are unallowable except when associated with investments covering pension, self-insurance, or other funds which in- clude Federal participation allowed by this part. (c) Costs related to the physical cus- tody and control of monies and securi- ties are allowable. (d) Both allowable and unallowable fund-raising and investment activities must be allocated as an appropriate share of indirect costs under the condi- tions described in §200.413. [85 FR 49568, Aug. 13, 2020] §200.443 Gains and losses on disposi- tion of depreciable assets. (a) Gains and losses on the sale, re- tirement, or other disposition of depre- ciable property must be included in the year in which they occur as credits or charges to the asset cost grouping(s) in which the property was included. The amount of the gain or loss to be in- cluded as a credit or charge to the ap- propriate asset cost grouping(s) is the difference between the amount realized on the property and the undepreciated basis of the property. (b) Gains and losses from the disposi- tion of depreciable property must not be recognized as a separate credit or charge under the following conditions: (1) The gain or loss is processed through a depreciation account and is reflected in the depreciation allowable under §§200.436 and 200.439. (2) The property is given in exchange as part of the purchase price of a simi- lar item and the gain or loss is taken into account in determining the depre- ciation cost basis of the new item. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00191 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 180 2 CFR Ch. II (1–1–21 Edition) §200.444 (3) A loss results from the failure to maintain permissible insurance, except as otherwise provided in §200.447. (4) Compensation for the use of the property was provided through use al- lowances in lieu of depreciation. (5) Gains and losses arising from mass or extraordinary sales, retire- ments, or other dispositions must be considered on a case-by-case basis. (c) Gains or losses of any nature aris- ing from the sale or exchange of prop- erty other than the property covered in paragraph (a) of this section, e.g., land, must be excluded in computing Federal award costs. (d) When assets acquired with Fed- eral funds, in part or wholly, are dis- posed of, the distribution of the pro- ceeds must be made in accordance with §§200.310 through 200.316 of this part. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75886, Dec. 19, 2014; 85 FR 49568, Aug. 13, 2020] §200.444 General costs of government. (a) For states, local governments, and Indian Tribes, the general costs of government are unallowable (except as provided in §200.475). Unallowable costs include: (1) Salaries and expenses of the Office of the Governor of a state or the chief executive of a local government or the chief executive of an Indian tribe; (2) Salaries and other expenses of a state legislature, tribal council, or similar local governmental body, such as a county supervisor, city council, school board, etc., whether incurred for purposes of legislation or executive di- rection; (3) Costs of the judicial branch of a government; (4) Costs of prosecutorial activities unless treated as a direct cost to a spe- cific program if authorized by statute or regulation (however, this does not preclude the allowability of other legal activities of the Attorney General as described in §200.435); and (5) Costs of other general types of government services normally provided to the general public, such as fire and police, unless provided for as a direct cost under a program statute or regula- tion. (b) For Indian tribes and Councils of Governments (COGs) (see definition for Local government in §200.1 of this part), up to 50% of salaries and expenses di- rectly attributable to managing and operating Federal programs by the chief executive and his or her staff can be included in the indirect cost cal- culation without documentation. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75886, Dec. 19, 2014; 85 FR 49568, Aug. 13, 2020] §200.445 Goods or services for per- sonal use. (a) Costs of goods or services for per- sonal use of the non-Federal entity’s employees are unallowable regardless of whether the cost is reported as tax- able income to the employees. (b) Costs of housing (e.g., deprecia- tion, maintenance, utilities, fur- nishings, rent), housing allowances and personal living expenses are only al- lowable as direct costs regardless of whether reported as taxable income to the employees. In addition, to be allow- able direct costs must be approved in advance by a Federal awarding agency. §200.446 Idle facilities and idle capac- ity. (a) As used in this section the fol- lowing terms have the meanings set forth in this section: (1) Facilities means land and build- ings or any portion thereof, equipment individually or collectively, or any other tangible capital asset, wherever located, and whether owned or leased by the non-Federal entity. (2) Idle facilities means completely unused facilities that are excess to the non-Federal entity’s current needs. (3) Idle capacity means the unused capacity of partially used facilities. It is the difference between: (i) That which a facility could achieve under 100 percent operating time on a one-shift basis less operating interruptions resulting from time lost for repairs, setups, unsatisfactory ma- terials, and other normal delays and; (ii) The extent to which the facility was actually used to meet demands during the accounting period. A multi- shift basis should be used if it can be shown that this amount of usage would normally be expected for the type of fa- cility involved. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00192 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 181 OMB Guidance §200.447 (4) Cost of idle facilities or idle ca- pacity means costs such as mainte- nance, repair, housing, rent, and other related costs, e.g., insurance, interest, and depreciation. These costs could in- clude the costs of idle public safety emergency facilities, telecommuni- cations, or information technology sys- tem capacity that is built to withstand major fluctuations in load, e.g., con- solidated data centers. (b) The costs of idle facilities are un- allowable except to the extent that: (1) They are necessary to meet work- load requirements which may fluctuate and are allocated appropriately to all benefiting programs; or (2) Although not necessary to meet fluctuations in workload, they were necessary when acquired and are now idle because of changes in program re- quirements, efforts to achieve more ec- onomical operations, reorganization, termination, or other causes which could not have been reasonably fore- seen. Under the exception stated in this subsection, costs of idle facilities are allowable for a reasonable period of time, ordinarily not to exceed one year, depending on the initiative taken to use, lease, or dispose of such facili- ties. (c) The costs of idle capacity are nor- mal costs of doing business and are a factor in the normal fluctuations of usage or indirect cost rates from period to period. Such costs are allowable, provided that the capacity is reason- ably anticipated to be necessary to carry out the purpose of the Federal award or was originally reasonable and is not subject to reduction or elimi- nation by use on other Federal awards, subletting, renting, or sale, in accord- ance with sound business, economic, or security practices. Widespread idle ca- pacity throughout an entire facility or among a group of assets having sub- stantially the same function may be considered idle facilities. §200.447 Insurance and indemnifica- tion. (a) Costs of insurance required or ap- proved and maintained, pursuant to the Federal award, are allowable. (b) Costs of other insurance in con- nection with the general conduct of ac- tivities are allowable subject to the following limitations: (1) Types and extent and cost of cov- erage are in accordance with the non- Federal entity’s policy and sound busi- ness practice. (2) Costs of insurance or of contribu- tions to any reserve covering the risk of loss of, or damage to, Federal Gov- ernment property are unallowable ex- cept to the extent that the Federal awarding agency has specifically re- quired or approved such costs. (3) Costs allowed for business inter- ruption or other similar insurance must exclude coverage of management fees. (4) Costs of insurance on the lives of trustees, officers, or other employees holding positions of similar respon- sibilities are allowable only to the ex- tent that the insurance represents ad- ditional compensation (see §200.431). The cost of such insurance when the non-Federal entity is identified as the beneficiary is unallowable. (5) Insurance against defects. Costs of insurance with respect to any costs in- curred to correct defects in the non- Federal entity’s materials or work- manship are unallowable. (6) Medical liability (malpractice) in- surance. Medical liability insurance is an allowable cost of Federal research programs only to the extent that the Federal research programs involve human subjects or training of partici- pants in research techniques. Medical liability insurance costs must be treat- ed as a direct cost and must be as- signed to individual projects based on the manner in which the insurer allo- cates the risk to the population cov- ered by the insurance. (c) Actual losses which could have been covered by permissible insurance (through a self-insurance program or otherwise) are unallowable, unless ex- pressly provided for in the Federal award. However, costs incurred because of losses not covered under nominal de- ductible insurance coverage provided in keeping with sound management practice, and minor losses not covered by insurance, such as spoilage, break- age, and disappearance of small hand tools, which occur in the ordinary course of operations, are allowable. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00193 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 182 2 CFR Ch. II (1–1–21 Edition) §200.448 (d) Contributions to a reserve for cer- tain self-insurance programs including workers’ compensation, unemployment compensation, and severance pay are allowable subject to the following pro- visions: (1) The type of coverage and the ex- tent of coverage and the rates and pre- miums would have been allowed had in- surance (including reinsurance) been purchased to cover the risks. However, provision for known or reasonably esti- mated self-insured liabilities, which do not become payable for more than one year after the provision is made, must not exceed the discounted present value of the liability. The rate used for discounting the liability must be deter- mined by giving consideration to such factors as the non-Federal entity’s set- tlement rate for those liabilities and its investment rate of return. (2) Earnings or investment income on reserves must be credited to those re- serves. (3)(i) Contributions to reserves must be based on sound actuarial principles using historical experience and reason- able assumptions. Reserve levels must be analyzed and updated at least bien- nially for each major risk being in- sured and take into account any rein- surance, coinsurance, etc. Reserve lev- els related to employee-related cov- erages will normally be limited to the value of claims: (A) Submitted and adjudicated but not paid; (B) Submitted but not adjudicated; and (C) Incurred but not submitted. (ii) Reserve levels in excess of the amounts based on the above must be identified and justified in the cost allo- cation plan or indirect cost rate pro- posal. (4) Accounting records, actuarial studies, and cost allocations (or bil- lings) must recognize any significant differences due to types of insured risk and losses generated by the various in- sured activities or agencies of the non- Federal entity. If individual depart- ments or agencies of the non-Federal entity experience significantly dif- ferent levels of claims for a particular risk, those differences are to be recog- nized by the use of separate allocations or other techniques resulting in an eq- uitable allocation. (5) Whenever funds are transferred from a self-insurance reserve to other accounts (e.g., general fund or unre- stricted account), refunds must be made to the Federal Government for its share of funds transferred, including earned or imputed interest from the date of transfer and debt interest, if ap- plicable, chargeable in accordance with applicable Federal cognizant agency for indirect cost, claims collection reg- ulations. (e) Insurance refunds must be cred- ited against insurance costs in the year the refund is received. (f) Indemnification includes securing the non-Federal entity against liabil- ities to third persons and other losses not compensated by insurance or oth- erwise. The Federal Government is ob- ligated to indemnify the non-Federal entity only to the extent expressly pro- vided for in the Federal award, except as provided in paragraph (c) of this sec- tion. [78 FR 78608, Dec. 26, 2013, as amended at 85 FR 49568, Aug. 13, 2020] §200.448 Intellectual property. (a) Patent costs. (1) The following costs related to securing patents and copyrights are allowable: (i) Costs of preparing disclosures, re- ports, and other documents required by the Federal award, and of searching the art to the extent necessary to make such disclosures; (ii) Costs of preparing documents and any other patent costs in connection with the filing and prosecution of a United States patent application where title or royalty-free license is required by the Federal Government to be con- veyed to the Federal Government; and (iii) General counseling services re- lating to patent and copyright matters, such as advice on patent and copyright laws, regulations, clauses, and em- ployee intellectual property agree- ments (See also §200.459). (2) The following costs related to se- curing patents and copyrights are unal- lowable: (i) Costs of preparing disclosures, re- ports, and other documents, and of searching the art to make disclosures not required by the Federal award; VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00194 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 183 OMB Guidance §200.449 (ii) Costs in connection with filing and prosecuting any foreign patent ap- plication, or any United States patent application, where the Federal award does not require conveying title or a royalty-free license to the Federal Government. (b) Royalties and other costs for use of patents and copyrights. (1) Royalties on a patent or copyright or amortization of the cost of acquiring by purchase a copyright, patent, or rights thereto, necessary for the proper performance of the Federal award are allowable un- less: (i) The Federal Government already has a license or the right to free use of the patent or copyright. (ii) The patent or copyright has been adjudicated to be invalid, or has been administratively determined to be in- valid. (iii) The patent or copyright is con- sidered to be unenforceable. (iv) The patent or copyright is ex- pired. (2) Special care should be exercised in determining reasonableness where the royalties may have been arrived at as a result of less-than-arm’s-length bar- gaining, such as: (i) Royalties paid to persons, includ- ing corporations, affiliated with the non-Federal entity. (ii) Royalties paid to unaffiliated parties, including corporations, under an agreement entered into in con- templation that a Federal award would be made. (iii) Royalties paid under an agree- ment entered into after a Federal award is made to a non-Federal entity. (3) In any case involving a patent or copyright formerly owned by the non- Federal entity, the amount of royalty allowed must not exceed the cost which would have been allowed had the non- Federal entity retained title thereto. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75886, Dec. 19, 2014; 85 FR 49569, Aug. 13, 2020] §200.449 Interest. (a) General. Costs incurred for inter- est on borrowed capital, temporary use of endowment funds, or the use of the non-Federal entity’s own funds, how- ever represented, are unallowable. Fi- nancing costs (including interest) to acquire, construct, or replace capital assets are allowable, subject to the conditions in this section. (b) Capital assets. (1) Capital assets is defined as noted in §200.1 of this part. An asset cost includes (as applicable) acquisition costs, construction costs, and other costs capitalized in accord- ance with GAAP. (2) For non-Federal entity fiscal years beginning on or after January 1, 2016, intangible assets include patents and computer software. For software development projects, only interest at- tributable to the portion of the project costs capitalized in accordance with GAAP is allowable. (c) Conditions for all non-Federal enti- ties. (1) The non-Federal entity uses the capital assets in support of Federal awards; (2) The allowable asset costs to ac- quire facilities and equipment are lim- ited to a fair market value available to the non-Federal entity from an unre- lated (arm’s length) third party. (3) The non-Federal entity obtains the financing via an arm’s-length transaction (that is, a transaction with an unrelated third party); or claims re- imbursement of actual interest cost at a rate available via such a transaction. (4) The non-Federal entity limits claims for Federal reimbursement of interest costs to the least expensive al- ternative. For example, a lease con- tract that transfers ownership by the end of the contract may be determined less costly than purchasing through other types of debt financing, in which case reimbursement must be limited to the amount of interest determined if leasing had been used. (5) The non-Federal entity expenses or capitalizes allowable interest cost in accordance with GAAP. (6) Earnings generated by the invest- ment of borrowed funds pending their disbursement for the asset costs are used to offset the current period’s al- lowable interest cost, whether that cost is expensed or capitalized. Earn- ings subject to being reported to the Federal Internal Revenue Service under arbitrage requirements are ex- cludable. (7) The following conditions must apply to debt arrangements over $1 VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00195 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 184 2 CFR Ch. II (1–1–21 Edition) §200.450 million to purchase or construct facili- ties, unless the non-Federal entity makes an initial equity contribution to the purchase of 25 percent or more. For this purpose, ‘‘initial equity contribu- tion’’ means the amount or value of contributions made by the non-Federal entity for the acquisition of facilities prior to occupancy. (i) The non-Federal entity must re- duce claims for reimbursement of in- terest cost by an amount equal to im- puted interest earnings on excess cash flow attributable to the portion of the facility used for Federal awards. (ii) The non-Federal entity must im- pute interest on excess cash flow as fol- lows: (A) Annually, the non-Federal entity must prepare a cumulative (from the inception of the project) report of monthly cash inflows and outflows, re- gardless of the funding source. For this purpose, inflows consist of Federal re- imbursement for depreciation, amorti- zation of capitalized construction in- terest, and annual interest cost. Out- flows consist of initial equity contribu- tions, debt principal payments (less the pro-rata share attributable to the cost of land), and interest payments. (B) To compute monthly cash inflows and outflows, the non-Federal entity must divide the annual amounts deter- mined in step (i) by the number of months in the year (usually 12) that the building is in service. (C) For any month in which cumu- lative cash inflows exceed cumulative outflows, interest must be calculated on the excess inflows for that month and be treated as a reduction to allow- able interest cost. The rate of interest to be used must be the three-month Treasury bill closing rate as of the last business day of that month. (8) Interest attributable to a fully de- preciated asset is unallowable. (d) Additional conditions for states, local governments and Indian tribes. For costs to be allowable, the non-Fed- eral entity must have incurred the in- terest costs for buildings after October 1, 1980, or for land and equipment after September 1, 1995. (1) The requirement to offset interest earned on borrowed funds against cur- rent allowable interest cost (paragraph (c)(5), above) also applies to earnings on debt service reserve funds. (2) The non-Federal entity will nego- tiate the amount of allowable interest cost related to the acquisition of facili- ties with asset costs of $1 million or more, as outlined in paragraph (c)(7) of this section. For this purpose, a non- Federal entity must consider only cash inflows and outflows attributable to that portion of the real property used for Federal awards. (e) Additional conditions for IHEs. For costs to be allowable, the IHE must have incurred the interest costs after July 1, 1982, in connection with acquisitions of capital assets that oc- curred after that date. (f) Additional condition for nonprofit organizations. For costs to be allow- able, the nonprofit organization in- curred the interest costs after Sep- tember 29, 1995, in connection with ac- quisitions of capital assets that oc- curred after that date. (g) The interest allowability provi- sions of this section do not apply to a nonprofit organization subject to ‘‘full coverage’’ under the Cost Accounting Standards (CAS), as defined at 48 CFR 9903.201–2(a). The non-Federal entity’s Federal awards are instead subject to CAS 414 (48 CFR 9904.414), ‘‘Cost of Money as an Element of the Cost of Fa- cilities Capital’’, and CAS 417 (48 CFR 9904.417), ‘‘Cost of Money as an Element of the Cost of Capital Assets Under Construction’’. [78 FR 78608, Dec. 26, 2013, as amended at 80 FR 54409, Sept. 10, 2015; 85 FR 49569, Aug. 13, 2020] §200.450 Lobbying. (a) The cost of certain influencing ac- tivities associated with obtaining grants, contracts, or cooperative agree- ments, or loans is an unallowable cost. Lobbying with respect to certain grants, contracts, cooperative agree- ments, and loans is governed by rel- evant statutes, including among oth- ers, the provisions of 31 U.S.C. 1352, as well as the common rule, ‘‘New Re- strictions on Lobbying’’ published on February 26, 1990, including definitions, and the Office of Management and Budget ‘‘Governmentwide Guidance for New Restrictions on Lobbying’’ and no- tices published on December 20, 1989, VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00196 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 185 OMB Guidance §200.450 June 15, 1990, January 15, 1992, and Jan- uary 19, 1996. (b) Executive lobbying costs. Costs in- curred in attempting to improperly in- fluence either directly or indirectly, an employee or officer of the executive branch of the Federal Government to give consideration or to act regarding a Federal award or a regulatory matter are unallowable. Improper influence means any influence that induces or tends to induce a Federal employee or officer to give consideration or to act regarding a Federal award or regu- latory matter on any basis other than the merits of the matter. (c) In addition to the above, the fol- lowing restrictions are applicable to nonprofit organizations and IHEs: (1) Costs associated with the fol- lowing activities are unallowable: (i) Attempts to influence the out- comes of any Federal, state, or local election, referendum, initiative, or similar procedure, through in-kind or cash contributions, endorsements, pub- licity, or similar activity; (ii) Establishing, administering, con- tributing to, or paying the expenses of a political party, campaign, political action committee, or other organiza- tion established for the purpose of in- fluencing the outcomes of elections in the United States; (iii) Any attempt to influence: (A) The introduction of Federal or state legislation; (B) The enactment or modification of any pending Federal or state legisla- tion through communication with any member or employee of the Congress or state legislature (including efforts to influence state or local officials to en- gage in similar lobbying activity); (C) The enactment or modification of any pending Federal or state legisla- tion by preparing, distributing, or using publicity or propaganda, or by urging members of the general public, or any segment thereof, to contribute to or participate in any mass dem- onstration, march, rally, fund raising drive, lobbying campaign or letter writing or telephone campaign; or (D) Any government official or em- ployee in connection with a decision to sign or veto enrolled legislation; (iv) Legislative liaison activities, in- cluding attendance at legislative ses- sions or committee hearings, gathering information regarding legislation, and analyzing the effect of legislation, when such activities are carried on in support of or in knowing preparation for an effort to engage in unallowable lobbying. (2) The following activities are ex- cepted from the coverage of paragraph (c)(1) of this section: (i) Technical and factual presen- tations on topics directly related to the performance of a grant, contract, or other agreement (through hearing testimony, statements, or letters to the Congress or a state legislature, or subdivision, member, or cognizant staff member thereof), in response to a docu- mented request (including a Congres- sional Record notice requesting testi- mony or statements for the record at a regularly scheduled hearing) made by the non-Federal entity’s member of congress, legislative body or a subdivi- sion, or a cognizant staff member thereof, provided such information is readily obtainable and can be readily put in deliverable form, and further provided that costs under this section for travel, lodging or meals are unal- lowable unless incurred to offer testi- mony at a regularly scheduled Congres- sional hearing pursuant to a written request for such presentation made by the Chairman or Ranking Minority Member of the Committee or Sub- committee conducting such hearings; (ii) Any lobbying made unallowable by paragraph (c)(1)(iii) of this section to influence state legislation in order to directly reduce the cost, or to avoid material impairment of the non-Fed- eral entity’s authority to perform the grant, contract, or other agreement; or (iii) Any activity specifically author- ized by statute to be undertaken with funds from the Federal award. (iv) Any activity excepted from the definitions of ‘‘lobbying’’ or ‘‘influ- encing legislation’’ by the Internal Revenue Code provisions that require nonprofit organizations to limit their participation in direct and ‘‘grass roots’’ lobbying activities in order to retain their charitable deduction sta- tus and avoid punitive excise taxes, I.R.C. §§501(c)(3), 501(h), 4911(a), includ- ing: VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00197 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 186 2 CFR Ch. II (1–1–21 Edition) §200.451 (A) Nonpartisan analysis, study, or research reports; (B) Examinations and discussions of broad social, economic, and similar problems; and (C) Information provided upon re- quest by a legislator for technical ad- vice and assistance, as defined by I.R.C. §4911(d)(2) and 26 CFR 56.4911–2(c)(1)– (c)(3). (v) When a non-Federal entity seeks reimbursement for indirect (F&A) costs, total lobbying costs must be sep- arately identified in the indirect (F&A) cost rate proposal, and thereafter treated as other unallowable activity costs in accordance with the proce- dures of §200.413. (vi) The non-Federal entity must sub- mit as part of its annual indirect (F&A) cost rate proposal a certification that the requirements and standards of this section have been complied with. (See also §200.415.) (vii)(A) Time logs, calendars, or simi- lar records are not required to be cre- ated for purposes of complying with the record keeping requirements in §200.302 with respect to lobbying costs during any particular calendar month when: (1) The employee engages in lobbying (as defined in paragraphs (c)(1) and (c)(2) of this section) 25 percent or less of the employee’s compensated hours of employment during that calendar month; and (2) Within the preceding five-year pe- riod, the non-Federal entity has not materially misstated allowable or un- allowable costs of any nature, includ- ing legislative lobbying costs. (B) When conditions in paragraph (c)(2)(vii)(A)(1) and (2) of this section are met, non-Federal entities are not required to establish records to support the allowability of claimed costs in ad- dition to records already required or maintained. Also, when conditions in paragraphs (c)(2)(vii)(A)(1) and (2) of this section are met, the absence of time logs, calendars, or similar records will not serve as a basis for disallowing costs by contesting estimates of lob- bying time spent by employees during a calendar month. (viii) The Federal awarding agency must establish procedures for resolving in advance, in consultation with OMB, any significant questions or disagree- ments concerning the interpretation or application of this section. Any such advance resolutions must be binding in any subsequent settlements, audits, or investigations with respect to that grant or contract for purposes of inter- pretation of this part, provided, how- ever, that this must not be construed to prevent a contractor or non-Federal entity from contesting the lawfulness of such a determination. [78 FR 78608, Dec. 26, 2013, as amended at 85 FR 49569, Aug. 13, 2020] §200.451 Losses on other awards or contracts. Any excess of costs over income under any other award or contract of any nature is unallowable. This in- cludes, but is not limited to, the non- Federal entity’s contributed portion by reason of cost-sharing agreements or any under-recoveries through negotia- tion of flat amounts for indirect (F&A) costs. Also, any excess of costs over au- thorized funding levels transferred from any award or contract to another award or contract is unallowable. All losses are not allowable indirect (F&A) costs and are required to be included in the appropriate indirect cost rate base for allocation of indirect costs. §200.452 Maintenance and repair costs. Costs incurred for utilities, insur- ance, security, necessary maintenance, janitorial services, repair, or upkeep of buildings and equipment (including Federal property unless otherwise pro- vided for) which neither add to the per- manent value of the property nor ap- preciably prolong its intended life, but keep it in an efficient operating condi- tion, are allowable. Costs incurred for improvements which add to the perma- nent value of the buildings and equip- ment or appreciably prolong their in- tended life must be treated as capital expenditures (see §200.439). These costs are only allowable to the extent not paid through rental or other agree- ments. [85 FR 49569, Aug. 13, 2020] VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00198 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 187 OMB Guidance §200.458 §200.453 Materials and supplies costs, including costs of computing de- vices. (a) Costs incurred for materials, sup- plies, and fabricated parts necessary to carry out a Federal award are allow- able. (b) Purchased materials and supplies must be charged at their actual prices, net of applicable credits. Withdrawals from general stores or stockrooms must be charged at their actual net cost under any recognized method of pricing inventory withdrawals, consist- ently applied. Incoming transportation charges are a proper part of materials and supplies costs. (c) Materials and supplies used for the performance of a Federal award may be charged as direct costs. In the specific case of computing devices, charging as direct costs is allowable for devices that are essential and allo- cable, but not solely dedicated, to the performance of a Federal award. (d) Where federally-donated or fur- nished materials are used in per- forming the Federal award, such mate- rials will be used without charge. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75887, Dec. 19, 2014] §200.454 Memberships, subscriptions, and professional activity costs. (a) Costs of the non-Federal entity’s membership in business, technical, and professional organizations are allow- able. (b) Costs of the non-Federal entity’s subscriptions to business, professional, and technical periodicals are allowable. (c) Costs of membership in any civic or community organization are allow- able with prior approval by the Federal awarding agency or pass-through enti- ty. (d) Costs of membership in any coun- try club or social or dining club or or- ganization are unallowable. (e) Costs of membership in organiza- tions whose primary purpose is lob- bying are unallowable. See also §200.450. [78 FR 78608, Dec. 26, 2013, as amended at 85 FR 49569, Aug. 13, 2020] §200.455 Organization costs. Costs such as incorporation fees, bro- kers’ fees, fees to promoters, organizers or management consultants, attorneys, accountants, or investment counselor, whether or not employees of the non- Federal entity in connection with es- tablishment or reorganization of an or- ganization, are unallowable except with prior approval of the Federal awarding agency. §200.456 Participant support costs. Participant support costs as defined in §200.1 are allowable with the prior approval of the Federal awarding agen- cy. [85 FR 49569, Aug. 13, 2020] §200.457 Plant and security costs. Necessary and reasonable expenses incurred for protection and security of facilities, personnel, and work products are allowable. Such costs include, but are not limited to, wages and uniforms of personnel engaged in security activi- ties; equipment; barriers; protective (non-military) gear, devices, and equip- ment; contractual security services; and consultants. Capital expenditures for plant security purposes are subject to §200.439. [85 FR 49569, Aug. 13, 2020] §200.458 Pre-award costs. Pre-award costs are those incurred prior to the effective date of the Fed- eral award or subaward directly pursu- ant to the negotiation and in anticipa- tion of the Federal award where such costs are necessary for efficient and timely performance of the scope of work. Such costs are allowable only to the extent that they would have been allowable if incurred after the date of the Federal award and only with the written approval of the Federal award- ing agency. If charged to the award, these costs must be charged to the ini- tial budget period of the award, unless otherwise specified by the Federal awarding agency or pass-through enti- ty. [85 FR 49569, Aug. 13, 2020] VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00199 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 188 2 CFR Ch. II (1–1–21 Edition) §200.459 §200.459 Professional service costs. (a) Costs of professional and consult- ant services rendered by persons who are members of a particular profession or possess a special skill, and who are not officers or employees of the non- Federal entity, are allowable, subject to paragraphs (b) and (c) of this section when reasonable in relation to the services rendered and when not contin- gent upon recovery of the costs from the Federal Government. In addition, legal and related services are limited under §200.435. (b) In determining the allowability of costs in a particular case, no single fac- tor or any special combination of fac- tors is necessarily determinative. How- ever, the following factors are relevant: (1) The nature and scope of the serv- ice rendered in relation to the service required. (2) The necessity of contracting for the service, considering the non-Fed- eral entity’s capability in the par- ticular area. (3) The past pattern of such costs, particularly in the years prior to Fed- eral awards. (4) The impact of Federal awards on the non-Federal entity’s business (i.e., what new problems have arisen). (5) Whether the proportion of Federal work to the non-Federal entity’s total business is such as to influence the non-Federal entity in favor of incur- ring the cost, particularly where the services rendered are not of a con- tinuing nature and have little relation- ship to work under Federal awards. (6) Whether the service can be per- formed more economically by direct employment rather than contracting. (7) The qualifications of the indi- vidual or concern rendering the service and the customary fees charged, espe- cially on non-federally funded activi- ties. (8) Adequacy of the contractual agreement for the service (e.g., descrip- tion of the service, estimate of time re- quired, rate of compensation, and ter- mination provisions). (c) In addition to the factors in para- graph (b) of this section, to be allow- able, retainer fees must be supported by evidence of bona fide services avail- able or rendered. [78 FR 78608, Dec. 26, 2013, as amended at 85 FR 49569, Aug. 13, 2020] §200.460 Proposal costs. Proposal costs are the costs of pre- paring bids, proposals, or applications on potential Federal and non-Federal awards or projects, including the devel- opment of data necessary to support the non-Federal entity’s bids or pro- posals. Proposal costs of the current accounting period of both successful and unsuccessful bids and proposals normally should be treated as indirect (F&A) costs and allocated currently to all activities of the non-Federal entity. No proposal costs of past accounting periods will be allocable to the current period. §200.461 Publication and printing costs. (a) Publication costs for electronic and print media, including distribu- tion, promotion, and general handling are allowable. If these costs are not identifiable with a particular cost ob- jective, they should be allocated as in- direct costs to all benefiting activities of the non-Federal entity. (b) Page charges for professional journal publications are allowable where: (1) The publications report work sup- ported by the Federal Government; and (2) The charges are levied impartially on all items published by the journal, whether or not under a Federal award. (3) The non-Federal entity may charge the Federal award during close- out for the costs of publication or shar- ing of research results if the costs are not incurred during the period of per- formance of the Federal award. If charged to the award, these costs must be charged to the final budget period of the award, unless otherwise specified by the Federal awarding agency. [78 FR 78608, Dec. 26, 2013, as amended at 85 FR 49569, Aug. 13, 2020] §200.462 Rearrangement and recon- version costs. (a) Costs incurred for ordinary and normal rearrangement and alteration of facilities are allowable as indirect VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00200 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 189 OMB Guidance §200.464 costs. Special arrangements and alter- ations costs incurred specifically for a Federal award are allowable as a direct cost with the prior approval of the Fed- eral awarding agency or pass-through entity. (b) Costs incurred in the restoration or rehabilitation of the non-Federal en- tity’s facilities to approximately the same condition existing immediately prior to commencement of Federal awards, less costs related to normal wear and tear, are allowable. §200.463 Recruiting costs. (a) Subject to paragraphs (b) and (c) of this section, and provided that the size of the staff recruited and main- tained is in keeping with workload re- quirements, costs of ‘‘help wanted’’ ad- vertising, operating costs of an em- ployment office necessary to secure and maintain an adequate staff, costs of operating an aptitude and edu- cational testing program, travel costs of employees while engaged in recruit- ing personnel, travel costs of appli- cants for interviews for prospective employment, and relocation costs in- curred incident to recruitment of new employees, are allowable to the extent that such costs are incurred pursuant to the non-Federal entity’s standard recruitment program. Where the non- Federal entity uses employment agen- cies, costs not in excess of standard commercial rates for such services are allowable. (b) Special emoluments, fringe bene- fits, and salary allowances incurred to attract professional personnel that do not meet the test of reasonableness or do not conform with the established practices of the non-Federal entity, are unallowable. (c) Where relocation costs incurred incident to recruitment of a new em- ployee have been funded in whole or in part to a Federal award, and the newly hired employee resigns for reasons within the employee’s control within 12 months after hire, the non-Federal en- tity will be required to refund or credit the Federal share of such relocation costs to the Federal Government. See also §200.464. (d) Short-term, travel visa costs (as opposed to longer-term, immigration visas) are generally allowable expenses that may be proposed as a direct cost. Since short-term visas are issued for a specific period and purpose, they can be clearly identified as directly connected to work performed on a Federal award. For these costs to be directly charged to a Federal award, they must: (1) Be critical and necessary for the conduct of the project; (2) Be allowable under the applicable cost principles; (3) Be consistent with the non-Fed- eral entity’s cost accounting practices and non-Federal entity policy; and (4) Meet the definition of ‘‘direct cost’’ as described in the applicable cost principles. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75887, Dec. 19, 2014; 85 FR 49569, Aug. 13, 2020] §200.464 Relocation costs of employ- ees. (a) Relocation costs are costs inci- dent to the permanent change of duty assignment (for an indefinite period or for a stated period of not less than 12 months) of an existing employee or upon recruitment of a new employee. Relocation costs are allowable, subject to the limitations described in para- graphs (b), (c), and (d) of this section, provided that: (1) The move is for the benefit of the employer. (2) Reimbursement to the employee is in accordance with an established written policy consistently followed by the employer. (3) The reimbursement does not ex- ceed the employee’s actual (or reason- ably estimated) expenses. (b) Allowable relocation costs for current employees are limited to the following: (1) The costs of transportation of the employee, members of his or her imme- diate family and his household, and personal effects to the new location. (2) The costs of finding a new home, such as advance trips by employees and spouses to locate living quarters and temporary lodging during the transi- tion period, up to maximum period of 30 calendar days. (3) Closing costs, such as brokerage, legal, and appraisal fees, incident to the disposition of the employee’s former home. These costs, together VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00201 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 190 2 CFR Ch. II (1–1–21 Edition) §200.465 with those described in (4), are limited to 8 per cent of the sales price of the employee’s former home. (4) The continuing costs of ownership (for up to six months) of the vacant former home after the settlement or lease date of the employee’s new per- manent home, such as maintenance of buildings and grounds (exclusive of fix- ing-up expenses), utilities, taxes, and property insurance. (5) Other necessary and reasonable expenses normally incident to reloca- tion, such as the costs of canceling an unexpired lease, transportation of per- sonal property, and purchasing insur- ance against loss of or damages to per- sonal property. The cost of canceling an unexpired lease is limited to three times the monthly rental. (c) Allowable relocation costs for new employees are limited to those de- scribed in paragraphs (b)(1) and (2) of this section. When relocation costs in- curred incident to the recruitment of new employees have been charged to a Federal award and the employee re- signs for reasons within the employee’s control within 12 months after hire, the non-Federal entity must refund or credit the Federal Government for its share of the cost. If dependents are not permitted at the location for any rea- son and the costs do not include costs of transporting household goods, the costs of travel to an overseas location must be considered travel costs in ac- cordance with §200.474 Travel costs, and not this relocations costs of em- ployees (See also §200.464). (d) The following costs related to re- location are unallowable: (1) Fees and other costs associated with acquiring a new home. (2) A loss on the sale of a former home. (3) Continuing mortgage principal and interest payments on a home being sold. (4) Income taxes paid by an employee related to reimbursed relocation costs. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75887, Dec. 19, 2014; 85 FR 49570, Aug. 13, 2020] §200.465 Rental costs of real property and equipment. (a) Subject to the limitations de- scribed in paragraphs (b) through (d) of this section, rental costs are allowable to the extent that the rates are reason- able in light of such factors as: rental costs of comparable property, if any; market conditions in the area; alter- natives available; and the type, life ex- pectancy, condition, and value of the property leased. Rental arrangements should be reviewed periodically to de- termine if circumstances have changed and other options are available. (b) Rental costs under ‘‘sale and lease back’’ arrangements are allowable only up to the amount that would be al- lowed had the non-Federal entity con- tinued to own the property. This amount would include expenses such as depreciation, maintenance, taxes, and insurance. (c) Rental costs under ‘‘less-than- arm’s-length’’ leases are allowable only up to the amount (as explained in para- graph (b) of this section). For this pur- pose, a less-than-arm’s-length lease is one under which one party to the lease agreement is able to control or sub- stantially influence the actions of the other. Such leases include, but are not limited to those between: (1) Divisions of the non-Federal enti- ty; (2) The non-Federal entity under common control through common offi- cers, directors, or members; and (3) The non-Federal entity and a di- rector, trustee, officer, or key em- ployee of the non-Federal entity or an immediate family member, either di- rectly or through corporations, trusts, or similar arrangements in which they hold a controlling interest. For exam- ple, the non-Federal entity may estab- lish a separate corporation for the sole purpose of owning property and leasing it back to the non-Federal entity. (4) Family members include one party with any of the following rela- tionships to another party: (i) Spouse, and parents thereof; (ii) Children, and spouses thereof; (iii) Parents, and spouses thereof; (iv) Siblings, and spouses thereof; (v) Grandparents and grandchildren, and spouses thereof; (vi) Domestic partner and parents thereof, including domestic partners of any individual in 2 through 5 of this definition; and VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00202 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 191 OMB Guidance §200.466 (vii) Any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship. (5) Rental costs under leases which are required to be treated as capital leases under GAAP are allowable only up to the amount (as explained in para- graph (b) of this section) that would be allowed had the non-Federal entity purchased the property on the date the lease agreement was executed. The pro- visions of GAAP must be used to deter- mine whether a lease is a capital lease. Interest costs related to capital leases are allowable to the extent they meet the criteria in §200.449 Interest. Unal- lowable costs include amounts paid for profit, management fees, and taxes that would not have been incurred had the non-Federal entity purchased the property. (6) The rental of any property owned by any individuals or entities affiliated with the non-Federal entity, to include commercial or residential real estate, for purposes such as the home office workspace is unallowable. (d) Rental costs under leases which are required to be accounted for as a fi- nanced purchase under GASB stand- ards or a finance lease under FASB standards under GAAP are allowable only up to the amount (as explained in paragraph (b) of this section) that would be allowed had the non-Federal entity purchased the property on the date the lease agreement was executed. Interest costs related to these leases are allowable to the extent they meet the criteria in §200.449. Unallowable costs include amounts paid for profit, management fees, and taxes that would not have been incurred had the non- Federal entity purchased the property. (e) Rental or lease payments are al- lowable under lease contracts where the non-Federal entity is required to recognize an intangible right-to-use lease asset (per GASB) or right of use operating lease asset (per FASB) for purposes of financial reporting in ac- cordance with GAAP. (f) The rental of any property owned by any individuals or entities affiliated with the non-Federal entity, to include commercial or residential real estate, for purposes such as the home office workspace is unallowable. [78 FR 78608, Dec. 26, 2013, as amended at 85 FR 49569, Aug. 13, 2020] §200.466 Scholarships and student aid costs. (a) Costs of scholarships, fellowships, and other programs of student aid at IHEs are allowable only when the pur- pose of the Federal award is to provide training to selected participants and the charge is approved by the Federal awarding agency. However, tuition re- mission and other forms of compensa- tion paid as, or in lieu of, wages to stu- dents performing necessary work are allowable provided that: (1) The individual is conducting ac- tivities necessary to the Federal award; (2) Tuition remission and other sup- port are provided in accordance with established policy of the IHE and con- sistently provided in a like manner to students in return for similar activities conducted under Federal awards as well as other activities; and (3) During the academic period, the student is enrolled in an advanced de- gree program at a non-Federal entity or affiliated institution and the activi- ties of the student in relation to the Federal award are related to the degree program; (4) The tuition or other payments are reasonable compensation for the work performed and are conditioned explic- itly upon the performance of necessary work; and (5) It is the IHE’s practice to simi- larly compensate students under Fed- eral awards as well as other activities. (b) Charges for tuition remission and other forms of compensation paid to students as, or in lieu of, salaries and wages must be subject to the reporting requirements in §200.430, and must be treated as direct or indirect cost in ac- cordance with the actual work being performed. Tuition remission may be charged on an average rate basis. See also §200.431. [78 FR 78608, Dec. 26, 2013, as amended at 85 FR 49569, Aug. 13, 2020] VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00203 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 192 2 CFR Ch. II (1–1–21 Edition) §200.467 §200.467 Selling and marketing costs. Costs of selling and marketing any products or services of the non-Federal entity (unless allowed under §200.421) are unallowable, except as direct costs, with prior approval by the Federal awarding agency when necessary for the performance of the Federal award. [85 FR 49570, Aug. 13, 2020] §200.468 Specialized service facilities. (a) The costs of services provided by highly complex or specialized facilities operated by the non-Federal entity, such as computing facilities, wind tun- nels, and reactors are allowable, pro- vided the charges for the services meet the conditions of either paragraph (b) or (c) of this section, and, in addition, take into account any items of income or Federal financing that qualify as ap- plicable credits under §200.406. (b) The costs of such services, when material, must be charged directly to applicable awards based on actual usage of the services on the basis of a schedule of rates or established meth- odology that: (1) Does not discriminate between ac- tivities under Federal awards and other activities of the non-Federal entity, in- cluding usage by the non-Federal enti- ty for internal purposes, and (2) Is designed to recover only the ag- gregate costs of the services. The costs of each service must consist normally of both its direct costs and its allocable share of all indirect (F&A) costs. Rates must be adjusted at least biennially, and must take into consideration over/ under-applied costs of the previous pe- riod(s). (c) Where the costs incurred for a service are not material, they may be allocated as indirect (F&A) costs. (d) Under some extraordinary cir- cumstances, where it is in the best in- terest of the Federal Government and the non-Federal entity to establish al- ternative costing arrangements, such arrangements may be worked out with the Federal cognizant agency for indi- rect costs. [78 FR 78608, Dec. 26, 2013, as amended at 85 FR 49569, Aug. 13, 2020] §200.469 Student activity costs. Costs incurred for intramural activi- ties, student publications, student clubs, and other student activities, are unallowable, unless specifically pro- vided for in the Federal award. §200.470 Taxes (including Value Added Tax). (a) For states, local governments and Indian tribes: (1) Taxes that a governmental unit is legally required to pay are allowable, except for self-assessed taxes that dis- proportionately affect Federal pro- grams or changes in tax policies that disproportionately affect Federal pro- grams. (2) Gasoline taxes, motor vehicle fees, and other taxes that are in effect user fees for benefits provided to the Federal Government are allowable. (3) This provision does not restrict the authority of the Federal awarding agency to identify taxes where Federal participation is inappropriate. Where the identification of the amount of un- allowable taxes would require an inor- dinate amount of effort, the cognizant agency for indirect costs may accept a reasonable approximation thereof. (b) For nonprofit organizations and IHEs: (1) In general, taxes which the non- Federal entity is required to pay and which are paid or accrued in accord- ance with GAAP, and payments made to local governments in lieu of taxes which are commensurate with the local government services received are al- lowable, except for: (i) Taxes from which exemptions are available to the non-Federal entity di- rectly or which are available to the non-Federal entity based on an exemp- tion afforded the Federal Government and, in the latter case, when the Fed- eral awarding agency makes available the necessary exemption certificates, (ii) Special assessments on land which represent capital improvements, and (iii) Federal income taxes. (2) Any refund of taxes, and any pay- ment to the non-Federal entity of in- terest thereon, which were allowed as Federal award costs, will be credited either as a cost reduction or cash re- fund, as appropriate, to the Federal VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00204 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 193 OMB Guidance §200.472 Government. However, any interest ac- tually paid or credited to an non-Fed- eral entity incident to a refund of tax, interest, and penalty will be paid or credited to the Federal Government only to the extent that such interest accrued over the period during which the non-Federal entity has been reim- bursed by the Federal Government for the taxes, interest, and penalties. (c) Value Added Tax (VAT) Foreign taxes charged for the purchase of goods or services that a non-Federal entity is legally required to pay in country is an allowable expense under Federal awards. Foreign tax refunds or applica- ble credits under Federal awards refer to receipts, or reduction of expendi- tures, which operate to offset or reduce expense items that are allocable to Federal awards as direct or indirect costs. To the extent that such credits accrued or received by the non-Federal entity relate to allowable cost, these costs must be credited to the Federal awarding agency either as costs or cash refunds. If the costs are credited back to the Federal award, the non-Federal entity may reduce the Federal share of costs by the amount of the foreign tax reimbursement, or where Federal award has not expired, use the foreign government tax refund for approved ac- tivities under the Federal award with prior approval of the Federal awarding agency. §200.471 Telecommunication costs and video surveillance costs. (a) Costs incurred for telecommuni- cations and video surveillance services or equipment such as phones, internet, video surveillance, cloud servers are al- lowable except for the following cir- cumstances: (b) Obligating or expending covered telecommunications and video surveil- lance services or equipment or services as described in §200.216 to: (1) Procure or obtain, extend or renew a contract to procure or obtain; (2) Enter into a contract (or extend or renew a contract) to procure; or (3) Obtain the equipment, services, or systems. [85 FR 49570, Aug. 13, 2020] §200.472 Termination costs. Termination of a Federal award gen- erally gives rise to the incurrence of costs, or the need for special treatment of costs, which would not have arisen had the Federal award not been termi- nated. Cost principles covering these items are set forth in this section. They are to be used in conjunction with the other provisions of this part in termination situations. (a) The cost of items reasonably usa- ble on the non-Federal entity’s other work must not be allowable unless the non-Federal entity submits evidence that it would not retain such items at cost without sustaining a loss. In de- ciding whether such items are reason- ably usable on other work of the non- Federal entity, the Federal awarding agency should consider the non-Federal entity’s plans and orders for current and scheduled activity. Contempora- neous purchases of common items by the non-Federal entity must be re- garded as evidence that such items are reasonably usable on the non-Federal entity’s other work. Any acceptance of common items as allocable to the ter- minated portion of the Federal award must be limited to the extent that the quantities of such items on hand, in transit, and on order are in excess of the reasonable quantitative require- ments of other work. (b) If in a particular case, despite all reasonable efforts by the non-Federal entity, certain costs cannot be discon- tinued immediately after the effective date of termination, such costs are generally allowable within the limita- tions set forth in this part, except that any such costs continuing after termi- nation due to the negligent or willful failure of the non-Federal entity to dis- continue such costs must be unallow- able. (c) Loss of useful value of special tooling, machinery, and equipment is generally allowable if: (1) Such special tooling, special ma- chinery, or equipment is not reason- ably capable of use in the other work of the non-Federal entity, (2) The interest of the Federal Gov- ernment is protected by transfer of title or by other means deemed appro- priate by the Federal awarding agency (see also §200.313 (d)), and VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00205 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 194 2 CFR Ch. II (1–1–21 Edition) §200.473 (3) The loss of useful value for any one terminated Federal award is lim- ited to that portion of the acquisition cost which bears the same ratio to the total acquisition cost as the termi- nated portion of the Federal award bears to the entire terminated Federal award and other Federal awards for which the special tooling, machinery, or equipment was acquired. (d) Rental costs under unexpired leases are generally allowable where clearly shown to have been reasonably necessary for the performance of the terminated Federal award less the re- sidual value of such leases, if: (1) The amount of such rental claimed does not exceed the reasonable use value of the property leased for the period of the Federal award and such further period as may be reasonable, and (2) The non-Federal entity makes all reasonable efforts to terminate, assign, settle, or otherwise reduce the cost of such lease. There also may be included the cost of alterations of such leased property, provided such alterations were necessary for the performance of the Federal award, and of reasonable restoration required by the provisions of the lease. (e) Settlement expenses including the following are generally allowable: (1) Accounting, legal, clerical, and similar costs reasonably necessary for: (i) The preparation and presentation to the Federal awarding agency of set- tlement claims and supporting data with respect to the terminated portion of the Federal award, unless the termi- nation is for cause (see subpart D, in- cluding §§200.339–200.343); and (ii) The termination and settlement of subawards. (2) Reasonable costs for the storage, transportation, protection, and disposi- tion of property provided by the Fed- eral Government or acquired or pro- duced for the Federal award. (f) Claims under subawards, including the allocable portion of claims which are common to the Federal award and to other work of the non-Federal enti- ty, are generally allowable. An appro- priate share of the non-Federal entity’s indirect costs may be allocated to the amount of settlements with contrac- tors and/or subrecipients, provided that the amount allocated is otherwise con- sistent with the basic guidelines con- tained in §200.414. The indirect costs so allocated must exclude the same and similar costs claimed directly or indi- rectly as settlement expenses. [78 FR 78608, Dec. 26, 2013. Redesignated and amended at 85 FR 49570, Aug. 13, 2020] §200.473 Training and education costs. The cost of training and education provided for employee development is allowable. [78 FR 78608, Dec. 26, 2013. Redesignated at 85 FR 49570, Aug. 13, 2020] §200.474 Transportation costs. Costs incurred for freight, express, cartage, postage, and other transpor- tation services relating either to goods purchased, in process, or delivered, are allowable. When such costs can readily be identified with the items involved, they may be charged directly as trans- portation costs or added to the cost of such items. Where identification with the materials received cannot readily be made, inbound transportation cost may be charged to the appropriate in- direct (F&A) cost accounts if the non- Federal entity follows a consistent, eq- uitable procedure in this respect. Out- bound freight, if reimbursable under the terms and conditions of the Federal award, should be treated as a direct cost. [78 FR 78608, Dec. 26, 2013. Redesignated at 85 FR 49570, Aug. 13, 2020] §200.475 Travel costs. (a) General. Travel costs are the ex- penses for transportation, lodging, sub- sistence, and related items incurred by employees who are in travel status on official business of the non-Federal en- tity. Such costs may be charged on an actual cost basis, on a per diem or mileage basis in lieu of actual costs in- curred, or on a combination of the two, provided the method used is applied to an entire trip and not to selected days of the trip, and results in charges con- sistent with those normally allowed in like circumstances in the non-Federal entity’s non-federally-funded activities and in accordance with non-Federal en- tity’s written travel reimbursement VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00206 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 195 OMB Guidance §200.500 policies. Notwithstanding the provi- sions of §200.444, travel costs of offi- cials covered by that section are allow- able with the prior written approval of the Federal awarding agency or pass- through entity when they are specifi- cally related to the Federal award. (b) Lodging and subsistence. Costs in- curred by employees and officers for travel, including costs of lodging, other subsistence, and incidental expenses, must be considered reasonable and oth- erwise allowable only to the extent such costs do not exceed charges nor- mally allowed by the non-Federal enti- ty in its regular operations as the re- sult of the non-Federal entity’s written travel policy. In addition, if these costs are charged directly to the Federal award documentation must justify that: (1) Participation of the individual is necessary to the Federal award; and (2) The costs are reasonable and con- sistent with non-Federal entity’s es- tablished travel policy. (c)(1) Temporary dependent care costs (as dependent is defined in 26 U.S.C. 152) above and beyond regular dependent care that directly results from travel to conferences is allowable provided that: (i) The costs are a direct result of the individual’s travel for the Federal award; (ii) The costs are consistent with the non-Federal entity’s documented trav- el policy for all entity travel; and (iii) Are only temporary during the travel period. (2) Travel costs for dependents are unallowable, except for travel of dura- tion of six months or more with prior approval of the Federal awarding agen- cy. See also §200.432. (d) In the absence of an acceptable, written non-Federal entity policy re- garding travel costs, the rates and amounts established under 5 U.S.C. 5701–11, (‘‘Travel and Subsistence Ex- penses; Mileage Allowances’’), or by the Administrator of General Services, or by the President (or his or her des- ignee) pursuant to any provisions of such subchapter must apply to travel under Federal awards (48 CFR 31.205– 46(a)). (e) Commercial air travel. (1) Airfare costs in excess of the basic least expen- sive unrestricted accommodations class offered by commercial airlines are unallowable except when such ac- commodations would: (i) Require circuitous routing; (ii) Require travel during unreason- able hours; (iii) Excessively prolong travel; (iv) Result in additional costs that would offset the transportation sav- ings; or (v) Offer accommodations not reason- ably adequate for the traveler’s med- ical needs. The non-Federal entity must justify and document these condi- tions on a case-by-case basis in order for the use of first-class or business- class airfare to be allowable in such cases. (2) Unless a pattern of avoidance is detected, the Federal Government will generally not question a non-Federal entity’s determinations that cus- tomary standard airfare or other dis- count airfare is unavailable for specific trips if the non-Federal entity can demonstrate that such airfare was not available in the specific case. (f) Air travel by other than commercial carrier. Costs of travel by non-Federal entity-owned, -leased, or -chartered aircraft include the cost of lease, char- ter, operation (including personnel costs), maintenance, depreciation, in- surance, and other related costs. The portion of such costs that exceeds the cost of airfare as provided for in para- graph (d) of this section, is unallow- able. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75887, Dec. 19, 2014. Redesignated and amended at 85 FR 49570, Aug. 13, 2020] §200.476 Trustees. Travel and subsistence costs of trust- ees (or directors) at IHEs and nonprofit organizations are allowable. See also §200.475. [85 FR 49571, Aug. 13, 2020] Subpart F—Audit Requirements GENERAL §200.500 Purpose. This part sets forth standards for ob- taining consistency and uniformity among Federal agencies for the audit VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00207 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 196 2 CFR Ch. II (1–1–21 Edition) §200.501 of non-Federal entities expending Fed- eral awards. AUDITS §200.501 Audit requirements. (a) Audit required. A non-Federal enti- ty that expends $750,000 or more during the non-Federal entity’s fiscal year in Federal awards must have a single or program-specific audit conducted for that year in accordance with the provi- sions of this part. (b) Single audit. A non-Federal entity that expends $750,000 or more during the non-Federal entity’s fiscal year in Federal awards must have a single audit conducted in accordance with §200.514 except when it elects to have a program-specific audit conducted in ac- cordance with paragraph (c) of this sec- tion. (c) Program-specific audit election. When an auditee expends Federal awards under only one Federal pro- gram (excluding R&D) and the Federal program’s statutes, regulations, or the terms and conditions of the Federal award do not require a financial state- ment audit of the auditee, the auditee may elect to have a program-specific audit conducted in accordance with §200.507. A program-specific audit may not be elected for R&D unless all of the Federal awards expended were received from the same Federal agency, or the same Federal agency and the same pass-through entity, and that Federal agency, or pass-through entity in the case of a subrecipient, approves in ad- vance a program-specific audit. (d) Exemption when Federal awards ex- pended are less than $750,000. A non-Fed- eral entity that expends less than $750,000 during the non-Federal entity’s fiscal year in Federal awards is exempt from Federal audit requirements for that year, except as noted in §200.503, but records must be available for re- view or audit by appropriate officials of the Federal agency, pass-through en- tity, and Government Accountability Office (GAO). (e) Federally Funded Research and De- velopment Centers (FFRDC). Manage- ment of an auditee that owns or oper- ates a FFRDC may elect to treat the FFRDC as a separate entity for pur- poses of this part. (f) Subrecipients and contractors. An auditee may simultaneously be a re- cipient, a subrecipient, and a con- tractor. Federal awards expended as a recipient or a subrecipient are subject to audit under this part. The payments received for goods or services provided as a contractor are not Federal awards. Section §200.331 sets forth the consider- ations in determining whether pay- ments constitute a Federal award or a payment for goods or services provided as a contractor. (g) Compliance responsibility for con- tractors. In most cases, the auditee’s compliance responsibility for contrac- tors is only to ensure that the procure- ment, receipt, and payment for goods and services comply with Federal stat- utes, regulations, and the terms and conditions of Federal awards. Federal award compliance requirements nor- mally do not pass through to contrac- tors. However, the auditee is respon- sible for ensuring compliance for pro- curement transactions which are struc- tured such that the contractor is re- sponsible for program compliance or the contractor’s records must be re- viewed to determine program compli- ance. Also, when these procurement transactions relate to a major pro- gram, the scope of the audit must in- clude determining whether these trans- actions are in compliance with Federal statutes, regulations, and the terms and conditions of Federal awards. (h) For-profit subrecipient. Since this part does not apply to for-profit sub- recipients, the pass-through entity is responsible for establishing require- ments, as necessary, to ensure compli- ance by for-profit subrecipients. The agreement with the for-profit sub- recipient must describe applicable compliance requirements and the for- profit subrecipient’s compliance re- sponsibility. Methods to ensure compli- ance for Federal awards made to for- profit subrecipients may include pre- award audits, monitoring during the agreement, and post-award audits. See also §200.332. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75887, Dec. 19, 2014; 85 FR 49571, Aug. 13, 2020] VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00208 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 197 OMB Guidance §200.503 §200.502 Basis for determining Fed- eral awards expended. (a) Determining Federal awards ex- pended. The determination of when a Federal award is expended must be based on when the activity related to the Federal award occurs. Generally, the activity pertains to events that re- quire the non-Federal entity to comply with Federal statutes, regulations, and the terms and conditions of Federal awards, such as: expenditure/expense transactions associated with awards in- cluding grants, cost-reimbursement contracts under the FAR, compacts with Indian Tribes, cooperative agree- ments, and direct appropriations; the disbursement of funds to subrecipients; the use of loan proceeds under loan and loan guarantee programs; the receipt of property; the receipt of surplus prop- erty; the receipt or use of program in- come; the distribution or use of food commodities; the disbursement of amounts entitling the non-Federal en- tity to an interest subsidy; and the pe- riod when insurance is in force. (b) Loan and loan guarantees (loans). Since the Federal Government is at risk for loans until the debt is repaid, the following guidelines must be used to calculate the value of Federal awards expended under loan programs, except as noted in paragraphs (c) and (d) of this section: (1) Value of new loans made or re- ceived during the audit period; plus (2) Beginning of the audit period bal- ance of loans from previous years for which the Federal Government imposes continuing compliance requirements; plus (3) Any interest subsidy, cash, or ad- ministrative cost allowance received. (c) Loan and loan guarantees (loans) at IHEs. When loans are made to students of an IHE but the IHE does not make the loans, then only the value of loans made during the audit period must be considered Federal awards expended in that audit period. The balance of loans for previous audit periods is not in- cluded as Federal awards expended be- cause the lender accounts for the prior balances. (d) Prior loan and loan guarantees (loans). Loans, the proceeds of which were received and expended in prior years, are not considered Federal awards expended under this part when the Federal statutes, regulations, and the terms and conditions of Federal awards pertaining to such loans impose no continuing compliance require- ments other than to repay the loans. (e) Endowment funds. The cumulative balance of Federal awards for endow- ment funds that are federally re- stricted are considered Federal awards expended in each audit period in which the funds are still restricted. (f) Free rent. Free rent received by itself is not considered a Federal award expended under this part. However, free rent received as part of a Federal award to carry out a Federal program must be included in determining Fed- eral awards expended and subject to audit under this part. (g) Valuing non-cash assistance. Fed- eral non-cash assistance, such as free rent, food commodities, donated prop- erty, or donated surplus property, must be valued at fair market value at the time of receipt or the assessed value provided by the Federal agency. (h) Medicare. Medicare payments to a non-Federal entity for providing pa- tient care services to Medicare-eligible individuals are not considered Federal awards expended under this part. (i) Medicaid. Medicaid payments to a subrecipient for providing patient care services to Medicaid-eligible individ- uals are not considered Federal awards expended under this part unless a state requires the funds to be treated as Fed- eral awards expended because reim- bursement is on a cost-reimbursement basis. (j) Certain loans provided by the Na- tional Credit Union Administration. For purposes of this part, loans made from the National Credit Union Share Insur- ance Fund and the Central Liquidity Facility that are funded by contribu- tions from insured non-Federal entities are not considered Federal awards ex- pended. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75887, Dec. 19, 2014] §200.503 Relation to other audit re- quirements. (a) An audit conducted in accordance with this part must be in lieu of any fi- nancial audit of Federal awards which VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00209 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 198 2 CFR Ch. II (1–1–21 Edition) §200.504 a non-Federal entity is required to un- dergo under any other Federal statute or regulation. To the extent that such audit provides a Federal agency with the information it requires to carry out its responsibilities under Federal statute or regulation, a Federal agency must rely upon and use that informa- tion. (b) Notwithstanding subsection (a), a Federal agency, Inspectors General, or GAO may conduct or arrange for addi- tional audits which are necessary to carry out its responsibilities under Federal statute or regulation. The pro- visions of this part do not authorize any non-Federal entity to constrain, in any manner, such Federal agency from carrying out or arranging for such ad- ditional audits, except that the Federal agency must plan such audits to not be duplicative of other audits of Federal awards. Prior to commencing such an audit, the Federal agency or pass- through entity must review the FAC for recent audits submitted by the non- Federal entity, and to the extent such audits meet a Federal agency or pass- through entity’s needs, the Federal agency or pass-through entity must rely upon and use such audits. Any ad- ditional audits must be planned and performed in such a way as to build upon work performed, including the audit documentation, sampling, and testing already performed, by other auditors. (c) The provisions of this part do not limit the authority of Federal agencies to conduct, or arrange for the conduct of, audits and evaluations of Federal awards, nor limit the authority of any Federal agency Inspector General or other Federal official. For example, re- quirements that may be applicable under the FAR or CAS and the terms and conditions of a cost-reimbursement contract may include additional appli- cable audits to be conducted or ar- ranged for by Federal agencies. (d) Federal agency to pay for additional audits. A Federal agency that conducts or arranges for additional audits must, consistent with other applicable Fed- eral statutes and regulations, arrange for funding the full cost of such addi- tional audits. (e) Request for a program to be audited as a major program. A Federal awarding agency may request that an auditee have a particular Federal program au- dited as a major program in lieu of the Federal awarding agency conducting or arranging for the additional audits. To allow for planning, such requests should be made at least 180 calendar days prior to the end of the fiscal year to be audited. The auditee, after con- sultation with its auditor, should promptly respond to such a request by informing the Federal awarding agency whether the program would otherwise be audited as a major program using the risk-based audit approach de- scribed in §200.518 and, if not, the esti- mated incremental cost. The Federal awarding agency must then promptly confirm to the auditee whether it wants the program audited as a major program. If the program is to be au- dited as a major program based upon this Federal awarding agency request, and the Federal awarding agency agrees to pay the full incremental costs, then the auditee must have the program audited as a major program. A pass-through entity may use the provi- sions of this paragraph for a sub- recipient. [78 FR 78608, Dec. 26, 2013, as amended at 85 FR 49570, Aug. 13, 2020] §200.504 Frequency of audits. Except for the provisions for biennial audits provided in paragraphs (a) and (b) of this section, audits required by this part must be performed annually. Any biennial audit must cover both years within the biennial period. (a) A state, local government, or In- dian tribe that is required by constitu- tion or statute, in effect on January 1, 1987, to undergo its audits less fre- quently than annually, is permitted to undergo its audits pursuant to this part biennially. This requirement must still be in effect for the biennial period. (b) Any nonprofit organization that had biennial audits for all biennial pe- riods ending between July 1, 1992, and January 1, 1995, is permitted to under- go its audits pursuant to this part bi- ennially. §200.505 Sanctions. In cases of continued inability or un- willingness to have an audit conducted in accordance with this part, Federal VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00210 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 199 OMB Guidance §200.507 agencies and pass-through entities must take appropriate action as pro- vided in §200.339. [85 FR 49571, Aug. 13, 2020] §200.506 Audit costs. See §200.425. [85 FR 49571, Aug. 13, 2020] §200.507 Program-specific audits. (a) Program-specific audit guide avail- able. In some cases, a program-specific audit guide will be available to provide specific guidance to the auditor with respect to internal controls, compli- ance requirements, suggested audit procedures, and audit reporting re- quirements. A listing of current pro- gram-specific audit guides can be found in the compliance supplement, Part 8, Appendix VI, Program-Specific Audit Guides, which includes a website where a copy of the guide can be obtained. When a current program-specific audit guide is available, the auditor must follow GAGAS and the guide when per- forming a program-specific audit. (b) Program-specific audit guide not available. (1) When a current program- specific audit guide is not available, the auditee and auditor must have ba- sically the same responsibilities for the Federal program as they would have for an audit of a major program in a single audit. (2) The auditee must prepare the fi- nancial statement(s) for the Federal program that includes, at a minimum, a schedule of expenditures of Federal awards for the program and notes that describe the significant accounting policies used in preparing the schedule, a summary schedule of prior audit find- ings consistent with the requirements of §200.511(b), and a corrective action plan consistent with the requirements of §200.511(c). (3) The auditor must: (i) Perform an audit of the financial statement(s) for the Federal program in accordance with GAGAS; (ii) Obtain an understanding of inter- nal controls and perform tests of inter- nal controls over the Federal program consistent with the requirements of §200.514(c) for a major program; (iii) Perform procedures to determine whether the auditee has complied with Federal statutes, regulations, and the terms and conditions of Federal awards that could have a direct and material effect on the Federal program con- sistent with the requirements of §200.514(d) for a major program; (iv) Follow up on prior audit findings, perform procedures to assess the rea- sonableness of the summary schedule of prior audit findings prepared by the auditee in accordance with the require- ments of §200.511, and report, as a cur- rent year audit finding, when the audi- tor concludes that the summary sched- ule of prior audit findings materially misrepresents the status of any prior audit finding; and (v) Report any audit findings con- sistent with the requirements of §200.516. (4) The auditor’s report(s) may be in the form of either combined or sepa- rate reports and may be organized dif- ferently from the manner presented in this section. The auditor’s report(s) must state that the audit was con- ducted in accordance with this part and include the following: (i) An opinion (or disclaimer of opin- ion) as to whether the financial state- ment(s) of the Federal program is pre- sented fairly in all material respects in accordance with the stated accounting policies; (ii) A report on internal control re- lated to the Federal program, which must describe the scope of testing of internal control and the results of the tests; (iii) A report on compliance which in- cludes an opinion (or disclaimer of opinion) as to whether the auditee complied with laws, regulations, and the terms and conditions of Federal awards which could have a direct and material effect on the Federal pro- gram; and (iv) A schedule of findings and ques- tioned costs for the Federal program that includes a summary of the audi- tor’s results relative to the Federal program in a format consistent with §200.515(d)(1) and findings and ques- tioned costs consistent with the re- quirements of §200.515(d)(3). (c) Report submission for program-spe- cific audits. (1) The audit must be com- pleted and the reporting required by paragraph (c)(2) or (c)(3) of this section VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00211 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 200 2 CFR Ch. II (1–1–21 Edition) §200.508 submitted within the earlier of 30 cal- endar days after receipt of the audi- tor’s report(s), or nine months after the end of the audit period, unless a different period is specified in a pro- gram-specific audit guide. Unless re- stricted by Federal law or regulation, the auditee must make report copies available for public inspection. Auditees and auditors must ensure that their respective parts of the re- porting package do not include pro- tected personally identifiable informa- tion. (2) When a program-specific audit guide is available, the auditee must electronically submit to the FAC the data collection form prepared in ac- cordance with §200.512(b), as applicable to a program-specific audit, and the re- porting required by the program-spe- cific audit guide. (3) When a program-specific audit guide is not available, the reporting package for a program-specific audit must consist of the financial state- ment(s) of the Federal program, a sum- mary schedule of prior audit findings, and a corrective action plan as de- scribed in paragraph (b)(2) of this sec- tion, and the auditor’s report(s) de- scribed in paragraph (b)(4) of this sec- tion. The data collection form prepared in accordance with §200.512(b), as appli- cable to a program-specific audit, and one copy of this reporting package must be electronically submitted to the FAC. (d) Other sections of this part may apply. Program-specific audits are sub- ject to: (1) 200.500 Purpose through 200.503 Re- lation to other audit requirements, paragraph (d); (2) 200.504 Frequency of audits through 200.506 Audit costs; (3) 200.508 Auditee responsibilities through 200.509 Auditor selection; (4) 200.511 Audit findings follow-up; (5) 200.512 Report submission, para- graphs (e) through (h); (6) 200.513 Responsibilities; (7) 200.516 Audit findings through 200.517 Audit documentation; (8) 200.521 Management decision; and (9) Other referenced provisions of this part unless contrary to the provisions of this section, a program-specific audit guide, or program statutes and regulations. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75887, Dec. 19, 2014; 85 FR 49571, Aug. 13, 2020] AUDITEES §200.508 Auditee responsibilities. The auditee must: (a) Procure or otherwise arrange for the audit required by this part in ac- cordance with §200.509, and ensure it is properly performed and submitted when due in accordance with §200.512. (b) Prepare appropriate financial statements, including the schedule of expenditures of Federal awards in ac- cordance with §200.510. (c) Promptly follow up and take cor- rective action on audit findings, in- cluding preparation of a summary schedule of prior audit findings and a corrective action plan in accordance with §200.511(b) and (c), respectively. (d) Provide the auditor with access to personnel, accounts, books, records, supporting documentation, and other information as needed for the auditor to perform the audit required by this part. [78 FR 78608, Dec. 26, 2013, as amended at 85 FR 49572, Aug. 13, 2020] §200.509 Auditor selection. (a) Auditor procurement. In procuring audit services, the auditee must follow the procurement standards prescribed by the Procurement Standards in §§200.317 through 200.326 of subpart D of this part or the FAR (48 CFR part 42), as applicable. When procuring audit services, the objective is to obtain high-quality audits. In requesting pro- posals for audit services, the objectives and scope of the audit must be made clear and the non-Federal entity must request a copy of the audit organiza- tion’s peer review report which the auditor is required to provide under GAGAS. Factors to be considered in evaluating each proposal for audit services include the responsiveness to the request for proposal, relevant expe- rience, availability of staff with profes- sional qualifications and technical abilities, the results of peer and exter- nal quality control reviews, and price. Whenever possible, the auditee must VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00212 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 201 OMB Guidance §200.511 make positive efforts to utilize small businesses, minority-owned firms, and women’s business enterprises, in pro- curing audit services as stated in §200.321, or the FAR (48 CFR part 42), as applicable. (b) Restriction on auditor preparing in- direct cost proposals. An auditor who prepares the indirect cost proposal or cost allocation plan may not also be se- lected to perform the audit required by this part when the indirect costs recov- ered by the auditee during the prior year exceeded $1 million. This restric- tion applies to the base year used in the preparation of the indirect cost proposal or cost allocation plan and any subsequent years in which the re- sulting indirect cost agreement or cost allocation plan is used to recover costs. (c) Use of Federal auditors. Federal auditors may perform all or part of the work required under this part if they comply fully with the requirements of this part. [78 FR 78608, Dec. 26, 2013, as amended at 85 FR 49572, Aug. 13, 2020] §200.510 Financial statements. (a) Financial statements. The auditee must prepare financial statements that reflect its financial position, results of operations or changes in net assets, and, where appropriate, cash flows for the fiscal year audited. The financial statements must be for the same orga- nizational unit and fiscal year that is chosen to meet the requirements of this part. However, non-Federal entity- wide financial statements may also in- clude departments, agencies, and other organizational units that have separate audits in accordance with §200.514(a) and prepare separate financial state- ments. (b) Schedule of expenditures of Federal awards. The auditee must also prepare a schedule of expenditures of Federal awards for the period covered by the auditee’s financial statements which must include the total Federal awards expended as determined in accordance with §200.502. While not required, the auditee may choose to provide infor- mation requested by Federal awarding agencies and pass-through entities to make the schedule easier to use. For example, when a Federal program has multiple Federal award years, the auditee may list the amount of Federal awards expended for each Federal award year separately. At a minimum, the schedule must: (1) List individual Federal programs by Federal agency. For a cluster of pro- grams, provide the cluster name, list individual Federal programs within the cluster of programs, and provide the applicable Federal agency name. For R&D, total Federal awards expended must be shown either by individual Federal award or by Federal agency and major subdivision within the Fed- eral agency. For example, the National Institutes of Health is a major subdivi- sion in the Department of Health and Human Services. (2) For Federal awards received as a subrecipient, the name of the pass- through entity and identifying number assigned by the pass-through entity must be included. (3) Provide total Federal awards ex- pended for each individual Federal pro- gram and the Assistance Listings Num- ber or other identifying number when the Assistance Listings information is not available. For a cluster of pro- grams also provide the total for the cluster. (4) Include the total amount provided to subrecipients from each Federal pro- gram. (5) For loan or loan guarantee pro- grams described in §200.502(b), identify in the notes to the schedule the bal- ances outstanding at the end of the audit period. This is in addition to in- cluding the total Federal awards ex- pended for loan or loan guarantee pro- grams in the schedule. (6) Include notes that describe that significant accounting policies used in preparing the schedule, and note whether or not the auditee elected to use the 10% de minimis cost rate as covered in §200.414. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75887, Dec. 19, 2014; 85 FR 49572, Aug. 13, 2020] §200.511 Audit findings follow-up. (a) General. The auditee is responsible for follow-up and corrective action on all audit findings. As part of this re- sponsibility, the auditee must prepare a summary schedule of prior audit find- ings. The auditee must also prepare a VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00213 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 202 2 CFR Ch. II (1–1–21 Edition) §200.512 corrective action plan for current year audit findings. The summary schedule of prior audit findings and the correc- tive action plan must include the ref- erence numbers the auditor assigns to audit findings under §200.516(c). Since the summary schedule may include audit findings from multiple years, it must include the fiscal year in which the finding initially occurred. The cor- rective action plan and summary schedule of prior audit findings must include findings relating to the finan- cial statements which are required to be reported in accordance with GAGAS. (b) Summary schedule of prior audit findings. The summary schedule of prior audit findings must report the status of all audit findings included in the prior audit’s schedule of findings and questioned costs. The summary schedule must also include audit find- ings reported in the prior audit’s sum- mary schedule of prior audit findings except audit findings listed as cor- rected in accordance with paragraph (b)(1) of this section, or no longer valid or not warranting further action in ac- cordance with paragraph (b)(3) of this section. (1) When audit findings were fully corrected, the summary schedule need only list the audit findings and state that corrective action was taken. (2) When audit findings were not cor- rected or were only partially corrected, the summary schedule must describe the reasons for the finding’s recurrence and planned corrective action, and any partial corrective action taken. When corrective action taken is significantly different from corrective action pre- viously reported in a corrective action plan or in the Federal agency’s or pass- through entity’s management decision, the summary schedule must provide an explanation. (3) When the auditee believes the audit findings are no longer valid or do not warrant further action, the reasons for this position must be described in the summary schedule. A valid reason for considering an audit finding as not warranting further action is that all of the following have occurred: (i) Two years have passed since the audit report in which the finding oc- curred was submitted to the FAC; (ii) The Federal agency or pass- through entity is not currently fol- lowing up with the auditee on the audit finding; and (iii) A management decision was not issued. (c) Corrective action plan. At the com- pletion of the audit, the auditee must prepare, in a document separate from the auditor’s findings described in §200.516, a corrective action plan to ad- dress each audit finding included in the current year auditor’s reports. The cor- rective action plan must provide the name(s) of the contact person(s) re- sponsible for corrective action, the cor- rective action planned, and the antici- pated completion date. If the auditee does not agree with the audit findings or believes corrective action is not re- quired, then the corrective action plan must include an explanation and spe- cific reasons. [78 FR 78608, Dec. 26, 2013, as amended at 85 FR 49572, Aug. 13, 2020] §200.512 Report submission. (a) General. (1) The audit must be completed and the data collection form described in paragraph (b) of this sec- tion and reporting package described in paragraph (c) of this section must be submitted within the earlier of 30 cal- endar days after receipt of the audi- tor’s report(s), or nine months after the end of the audit period. If the due date falls on a Saturday, Sunday, or Federal holiday, the reporting package is due the next business day. (2) Unless restricted by Federal stat- utes or regulations, the auditee must make copies available for public in- spection. Auditees and auditors must ensure that their respective parts of the reporting package do not include protected personally identifiable infor- mation. (b) Data collection. The FAC is the re- pository of record for subpart F of this part reporting packages and the data collection form. All Federal agencies, pass-through entities and others inter- ested in a reporting package and data collection form must obtain it by ac- cessing the FAC. (1) The auditee must submit required data elements described in Appendix X to Part 200, which state whether the audit was completed in accordance VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00214 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 203 OMB Guidance §200.512 with this part and provides informa- tion about the auditee, its Federal pro- grams, and the results of the audit. The data must include information available from the audit required by this part that is necessary for Federal agencies to use the audit to ensure in- tegrity for Federal programs. The data elements and format must be approved by OMB, available from the FAC, and include collections of information from the reporting package described in paragraph (c) of this section. A senior level representative of the auditee (e.g., state controller, director of finance, chief executive officer, or chief finan- cial officer) must sign a statement to be included as part of the data collec- tion that says that the auditee com- plied with the requirements of this part, the data were prepared in accord- ance with this part (and the instruc- tions accompanying the form), the re- porting package does not include pro- tected personally identifiable informa- tion, the information included in its entirety is accurate and complete, and that the FAC is authorized to make the reporting package and the form pub- licly available on a website. (2) Exception for Indian Tribes and Tribal Organizations. An auditee that is an Indian tribe or a tribal organization (as defined in the Indian Self-Deter- mination, Education and Assistance Act (ISDEAA), 25 U.S.C. 450b(l)) may opt not to authorize the FAC to make the reporting package publicly avail- able on a Web site, by excluding the au- thorization for the FAC publication in the statement described in paragraph (b)(1) of this section. If this option is exercised, the auditee becomes respon- sible for submitting the reporting package directly to any pass-through entities through which it has received a Federal award and to pass-through entities for which the summary sched- ule of prior audit findings reported the status of any findings related to Fed- eral awards that the pass-through enti- ty provided. Unless restricted by Fed- eral statute or regulation, if the auditee opts not to authorize publica- tion, it must make copies of the report- ing package available for public inspec- tion. (3) Using the information included in the reporting package described in paragraph (c) of this section, the audi- tor must complete the applicable data elements of the data collection form. The auditor must sign a statement to be included as part of the data collec- tion form that indicates, at a min- imum, the source of the information included in the form, the auditor’s re- sponsibility for the information, that the form is not a substitute for the re- porting package described in paragraph (c) of this section, and that the content of the form is limited to the collection of information prescribed by OMB. (c) Reporting package. The reporting package must include the: (1) Financial statements and sched- ule of expenditures of Federal awards discussed in §200.510(a) and (b), respec- tively; (2) Summary schedule of prior audit findings discussed in §200.511(b); (3) Auditor’s report(s) discussed in §200.515; and (4) Corrective action plan discussed in §200.511(c). (d) Submission to FAC. The auditee must electronically submit to the FAC the data collection form described in paragraph (b) of this section and the reporting package described in para- graph (c) of this section. (e) Requests for management letters issued by the auditor. In response to re- quests by a Federal agency or pass- through entity, auditees must submit a copy of any management letters issued by the auditor. (f) Report retention requirements. Auditees must keep one copy of the data collection form described in para- graph (b) of this section and one copy of the reporting package described in paragraph (c) of this section on file for three years from the date of submis- sion to the FAC. (g) FAC responsibilities. The FAC must make available the reporting packages received in accordance with paragraph (c) of this section and §200.507(c) to the public, except for Indian tribes exer- cising the option in (b)(2) of this sec- tion, and maintain a data base of com- pleted audits, provide appropriate in- formation to Federal agencies, and fol- low up with known auditees that have not submitted the required data collec- tion forms and reporting packages. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00215 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 204 2 CFR Ch. II (1–1–21 Edition) §200.513 (h) Electronic filing. Nothing in this part must preclude electronic submis- sions to the FAC in such manner as may be approved by OMB. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75887, Dec. 19, 2014; 85 FR 49573, Aug. 13, 2020] FEDERAL AGENCIES §200.513 Responsibilities. (a)(1) Cognizant agency for audit re- sponsibilities. A non-Federal entity ex- pending more than $50 million a year in Federal awards must have a cognizant agency for audit. The designated cog- nizant agency for audit must be the Federal awarding agency that provides the predominant amount of funding di- rectly (direct funding) (as listed on the Schedule of expenditures of Federal awards, see §200.510(b)) to a non-Fed- eral entity unless OMB designates a specific cognizant agency for audit. When the direct funding represents less than 25 percent of the total expendi- tures (as direct and subawards) by the non-Federal entity, then the Federal agency with the predominant amount of total funding is the designated cog- nizant agency for audit. (2) To provide for continuity of cog- nizance, the determination of the pre- dominant amount of direct funding must be based upon direct Federal awards expended in the non-Federal en- tity’s fiscal years ending in 2019, and every fifth year thereafter. (3) Notwithstanding the manner in which audit cognizance is determined, a Federal awarding agency with cog- nizance for an auditee may reassign cognizance to another Federal award- ing agency that provides substantial funding and agrees to be the cognizant agency for audit. Within 30 calendar days after any reassignment, both the old and the new cognizant agency for audit must provide notice of the change to the FAC, the auditee, and, if known, the auditor. The cognizant agency for audit must: (i) Provide technical audit advice and liaison assistance to auditees and audi- tors. (ii) Obtain or conduct quality control reviews on selected audits made by non-Federal auditors, and provide the results to other interested organiza- tions. Cooperate and provide support to the Federal agency designated by OMB to lead a governmentwide project to determine the quality of single audits by providing a reliable estimate of the extent that single audits conform to applicable requirements, standards, and procedures; and to make rec- ommendations to address noted audit quality issues, including recommenda- tions for any changes to applicable re- quirements, standards and procedures indicated by the results of the project. The governmentwide project can rely on the current and on-going quality control review work performed by the agencies, State auditors, and profes- sional audit associations. This govern- mentwide audit quality project must be performed once every 6 years (or at such other interval as determined by OMB), and the results must be public. (iii) Promptly inform other affected Federal agencies and appropriate Fed- eral law enforcement officials of any direct reporting by the auditee or its auditor required by GAGAS or statutes and regulations. (iv) Advise the community of inde- pendent auditors of any noteworthy or important factual trends related to the quality of audits stemming from qual- ity control reviews. Significant prob- lems or quality issues consistently identified through quality control re- views of audit reports must be referred to appropriate state licensing agencies and professional bodies. (v) Advise the auditor, Federal awarding agencies, and, where appro- priate, the auditee of any deficiencies found in the audits when the defi- ciencies require corrective action by the auditor. When advised of defi- ciencies, the auditee must work with the auditor to take corrective action. If corrective action is not taken, the cognizant agency for audit must notify the auditor, the auditee, and applicable Federal awarding agencies and pass- through entities of the facts and make recommendations for follow-up action. Major inadequacies or repetitive sub- standard performance by auditors must be referred to appropriate state licens- ing agencies and professional bodies for disciplinary action. (vi) Coordinate, to the extent prac- tical, audits or reviews made by or for VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00216 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 205 OMB Guidance §200.513 Federal agencies that are in addition to the audits made pursuant to this part, so that the additional audits or reviews build upon rather than dupli- cate audits performed in accordance with this part. (vii) Coordinate a management deci- sion for cross-cutting audit findings (see in §200.1 of this part) that affect the Federal programs of more than one agency when requested by any Federal awarding agency whose awards are in- cluded in the audit finding of the auditee. (viii) Coordinate the audit work and reporting responsibilities among audi- tors to achieve the most cost-effective audit. (ix) Provide advice to auditees as to how to handle changes in fiscal years. (b) Oversight agency for audit respon- sibilities. An auditee who does not have a designated cognizant agency for audit will be under the general over- sight of the Federal agency determined in accordance with §200.1 oversight agency for audit. A Federal agency with oversight for an auditee may reassign oversight to another Federal agency that agrees to be the oversight agency for audit. Within 30 calendar days after any reassignment, both the old and the new oversight agency for audit must provide notice of the change to the FAC, the auditee, and, if known, the auditor. The oversight agency for audit: (1) Must provide technical advice to auditees and auditors as requested. (2) May assume all or some of the re- sponsibilities normally performed by a cognizant agency for audit. (c) Federal awarding agency respon- sibilities. The Federal awarding agency must perform the following for the Federal awards it makes (See also the requirements of §200.211): (1) Ensure that audits are completed and reports are received in a timely manner and in accordance with the re- quirements of this part. (2) Provide technical advice and counsel to auditees and auditors as re- quested. (3) Follow-up on audit findings to en- sure that the recipient takes appro- priate and timely corrective action. As part of audit follow-up, the Federal awarding agency must: (i) Issue a management decision as prescribed in §200.521; (ii) Monitor the recipient taking ap- propriate and timely corrective action; (iii) Use cooperative audit resolution mechanisms (see the definition of coop- erative audit resolution in §200.1 of this part) to improve Federal program out- comes through better audit resolution, follow-up, and corrective action; and (iv) Develop a baseline, metrics, and targets to track, over time, the effec- tiveness of the Federal agency’s proc- ess to follow-up on audit findings and on the effectiveness of Single Audits in improving non-Federal entity account- ability and their use by Federal award- ing agencies in making award deci- sions. (4) Provide OMB annual updates to the compliance supplement and work with OMB to ensure that the compli- ance supplement focuses the auditor to test the compliance requirements most likely to cause improper payments, fraud, waste, abuse or generate audit finding for which the Federal awarding agency will take sanctions. (5) Provide OMB with the name of a single audit accountable official from among the senior policy officials of the Federal awarding agency who must be: (i) Responsible for ensuring that the agency fulfills all the requirements of paragraph (c) of this section and effec- tively uses the single audit process to reduce improper payments and improve Federal program outcomes. (ii) Held accountable to improve the effectiveness of the single audit process based upon metrics as described in paragraph (c)(3)(iv) of this section. (iii) Responsible for designating the Federal agency’s key management sin- gle audit liaison. (6) Provide OMB with the name of a key management single audit liaison who must: (i) Serve as the Federal awarding agency’s management point of contact for the single audit process both within and outside the Federal Government. (ii) Promote interagency coordina- tion, consistency, and sharing in areas such as coordinating audit follow-up; identifying higher-risk non-Federal en- tities; providing input on single audit and follow-up policy; enhancing the utility of the FAC; and studying ways VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00217 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 206 2 CFR Ch. II (1–1–21 Edition) §200.514 to use single audit results to improve Federal award accountability and best practices. (iii) Oversee training for the Federal awarding agency’s program manage- ment personnel related to the single audit process. (iv) Promote the Federal awarding agency’s use of cooperative audit reso- lution mechanisms. (v) Coordinate the Federal awarding agency’s activities to ensure appro- priate and timely follow-up and correc- tive action on audit findings. (vi) Organize the Federal cognizant agency for audit’s follow-up on cross- cutting audit findings that affect the Federal programs of more than one Federal awarding agency. (vii) Ensure the Federal awarding agency provides annual updates of the compliance supplement to OMB. (viii) Support the Federal awarding agency’s single audit accountable offi- cial’s mission. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75887, Dec. 19, 2014; 85 FR 49573, Aug. 13, 2020] AUDITORS §200.514 Scope of audit. (a) General. The audit must be con- ducted in accordance with GAGAS. The audit must cover the entire operations of the auditee, or, at the option of the auditee, such audit must include a se- ries of audits that cover departments, agencies, and other organizational units that expended or otherwise ad- ministered Federal awards during such audit period, provided that each such audit must encompass the financial statements and schedule of expendi- tures of Federal awards for each such department, agency, and other organi- zational unit, which must be consid- ered to be a non-Federal entity. The fi- nancial statements and schedule of ex- penditures of Federal awards must be for the same audit period. (b) Financial statements. The auditor must determine whether the financial statements of the auditee are presented fairly in all material respects in ac- cordance with generally accepted ac- counting principles. The auditor must also determine whether the schedule of expenditures of Federal awards is stat- ed fairly in all material respects in re- lation to the auditee’s financial state- ments as a whole. (c) Internal control. (1) The compli- ance supplement provides guidance on internal controls over Federal pro- grams based upon the guidance in Standards for Internal Control in the Federal Government issued by the Comptroller General of the United States and the Internal Control—Inte- grated Framework, issued by the Com- mittee of Sponsoring Organizations of the Treadway Commission (COSO). (2) In addition to the requirements of GAGAS, the auditor must perform pro- cedures to obtain an understanding of internal control over Federal programs sufficient to plan the audit to support a low assessed level of control risk of noncompliance for major programs. (3) Except as provided in paragraph (c)(4) of this section, the auditor must: (i) Plan the testing of internal con- trol over compliance for major pro- grams to support a low assessed level of control risk for the assertions rel- evant to the compliance requirements for each major program; and (ii) Perform testing of internal con- trol as planned in paragraph (c)(3)(i) of this section. (4) When internal control over some or all of the compliance requirements for a major program are likely to be in- effective in preventing or detecting noncompliance, the planning and per- forming of testing described in para- graph (c)(3) of this section are not re- quired for those compliance require- ments. However, the auditor must re- port a significant deficiency or mate- rial weakness in accordance with §200.516 Audit findings, assess the re- lated control risk at the maximum, and consider whether additional com- pliance tests are required because of ineffective internal control. (d) Compliance. (1) In addition to the requirements of GAGAS, the auditor must determine whether the auditee has complied with Federal statutes, regulations, and the terms and condi- tions of Federal awards that may have a direct and material effect on each of its major programs. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00218 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 207 OMB Guidance §200.515 (2) The principal compliance require- ments applicable to most Federal pro- grams and the compliance require- ments of the largest Federal programs are included in the compliance supple- ment. (3) For the compliance requirements related to Federal programs contained in the compliance supplement, an audit of these compliance requirements will meet the requirements of this part. Where there have been changes to the compliance requirements and the changes are not reflected in the com- pliance supplement, the auditor must determine the current compliance re- quirements and modify the audit proce- dures accordingly. For those Federal programs not covered in the compli- ance supplement, the auditor must fol- low the compliance supplement’s guid- ance for programs not included in the supplement. (4) When internal control over some or all of the compliance requirements for a major program are likely to be in- effective in preventing or detecting noncompliance, the planning and per- forming of testing described in para- graph (c)(3) of this section are not re- quired for those compliance require- ments. However, the auditor must re- port a significant deficiency or mate- rial weakness in accordance with §200.516, assess the related control risk at the (e) Audit follow-up. The auditor must follow-up on prior audit findings, per- form procedures to assess the reason- ableness of the summary schedule of prior audit findings prepared by the auditee in accordance with §200.511(b), and report, as a current year audit finding, when the auditor concludes that the summary schedule of prior audit findings materially misrepre- sents the status of any prior audit find- ing. The auditor must perform audit follow-up procedures regardless of whether a prior audit finding relates to a major program in the current year. (f) Data collection form. As required in §200.512(b)(3), the auditor must com- plete and sign specified sections of the data collection form. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75887, Dec. 19, 2014; 85 FR 49574, Aug. 13, 2020] §200.515 Audit reporting. The auditor’s report(s) may be in the form of either combined or separate re- ports and may be organized differently from the manner presented in this sec- tion. The auditor’s report(s) must state that the audit was conducted in ac- cordance with this part and include the following: (a) Financial statements. The auditor must determine and provide an opinion (or disclaimer of opinion) whether the financial statements of the auditee are presented fairly in all materials re- spects in accordance with generally ac- cepted accounting principles (or a spe- cial purpose framework such as cash, modified cash, or regulatory as re- quired by state law). The auditor must also decide whether the schedule of ex- penditures of Federal awards is stated fairly in all material respects in rela- tion to the auditee’s financial state- ments as a whole. (b) A report on internal control over financial reporting and compliance with provisions of laws, regulations, contracts, and award agreements, non- compliance with which could have a material effect on the financial state- ments. This report must describe the scope of testing of internal control and compliance and the results of the tests, and, where applicable, it will refer to the separate schedule of findings and questioned costs described in para- graph (d) of this section. (c) A report on compliance for each major program and a report on internal control over compliance. This report must describe the scope of testing of internal control over compliance, in- clude an opinion or disclaimer of opin- ion as to whether the auditee complied with Federal statutes, regulations, and the terms and conditions of Federal awards which could have a direct and material effect on each major program and refer to the separate schedule of findings and questioned costs described in paragraph (d) of this section. (d) A schedule of findings and ques- tioned costs which must include the following three components: (1) A summary of the auditor’s re- sults, which must include: VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00219 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 208 2 CFR Ch. II (1–1–21 Edition) §200.516 (i) The type of report the auditor issued on whether the financial state- ments audited were prepared in accord- ance with GAAP (i.e., unmodified opin- ion, qualified opinion, adverse opinion, or disclaimer of opinion); (ii) Where applicable, a statement about whether significant deficiencies or material weaknesses in internal con- trol were disclosed by the audit of the financial statements; (iii) A statement as to whether the audit disclosed any noncompliance that is material to the financial state- ments of the auditee; (iv) Where applicable, a statement about whether significant deficiencies or material weaknesses in internal con- trol over major programs were dis- closed by the audit; (v) The type of report the auditor issued on compliance for major pro- grams (i.e., unmodified opinion, quali- fied opinion, adverse opinion, or dis- claimer of opinion); (vi) A statement as to whether the audit disclosed any audit findings that the auditor is required to report under §200.516(a); (vii) An identification of major pro- grams by listing each individual major program; however, in the case of a clus- ter of programs, only the cluster name as shown on the Schedule of Expendi- tures of Federal Awards is required; (viii) The dollar threshold used to distinguish between Type A and Type B programs, as described in §200.518(b)(1) or (3) when a recalculation of the Type A threshold is required for large loan or loan guarantees; and (ix) A statement as to whether the auditee qualified as a low-risk auditee under §200.520. (2) Findings relating to the financial statements which are required to be re- ported in accordance with GAGAS. (3) Findings and questioned costs for Federal awards which must include audit findings as defined in §200.516(a). (i) Audit findings (e.g., internal con- trol findings, compliance findings, questioned costs, or fraud) that relate to the same issue must be presented as a single audit finding. Where practical, audit findings should be organized by Federal agency or pass-through entity. (ii) Audit findings that relate to both the financial statements and Federal awards, as reported under paragraphs (d)(2) and (d)(3) of this section, respec- tively, must be reported in both sec- tions of the schedule. However, the re- porting in one section of the schedule may be in summary form with a ref- erence to a detailed reporting in the other section of the schedule. (e) Nothing in this part precludes combining of the audit reporting re- quired by this section with the report- ing required by §200.512(b) when al- lowed by GAGAS and appendix X to this part. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75887, Dec. 19, 2014; 85 FR 49574, Aug. 13, 2020] §200.516 Audit findings. (a) Audit findings reported. The audi- tor must report the following as audit findings in a schedule of findings and questioned costs: (1) Significant deficiencies and mate- rial weaknesses in internal control over major programs and significant instances of abuse relating to major programs. The auditor’s determination of whether a deficiency in internal con- trol is a significant deficiency or a ma- terial weakness for the purpose of re- porting an audit finding is in relation to a type of compliance requirement for a major program identified in the Compliance Supplement. (2) Material noncompliance with the provisions of Federal statutes, regula- tions, or the terms and conditions of Federal awards related to a major pro- gram. The auditor’s determination of whether a noncompliance with the pro- visions of Federal statutes, regula- tions, or the terms and conditions of Federal awards is material for the pur- pose of reporting an audit finding is in relation to a type of compliance re- quirement for a major program identi- fied in the compliance supplement. (3) Known questioned costs that are greater than $25,000 for a type of com- pliance requirement for a major pro- gram. Known questioned costs are those specifically identified by the auditor. In evaluating the effect of questioned costs on the opinion on compliance, the auditor considers the best estimate of total costs questioned (likely questioned costs), not just the questioned costs specifically identified VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00220 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 209 OMB Guidance §200.516 (known questioned costs). The auditor must also report known questioned costs when likely questioned costs are greater than $25,000 for a type of com- pliance requirement for a major pro- gram. In reporting questioned costs, the auditor must include information to provide proper perspective for judg- ing the prevalence and consequences of the questioned costs. (4) Known questioned costs that are greater than $25,000 for a Federal pro- gram which is not audited as a major program. Except for audit follow-up, the auditor is not required under this part to perform audit procedures for such a Federal program; therefore, the auditor will normally not find ques- tioned costs for a program that is not audited as a major program. However, if the auditor does become aware of questioned costs for a Federal program that is not audited as a major program (e.g., as part of audit follow-up or other audit procedures) and the known ques- tioned costs are greater than $25,000, then the auditor must report this as an audit finding. (5) The circumstances concerning why the auditor’s report on compliance for each major program is other than an unmodified opinion, unless such cir- cumstances are otherwise reported as audit findings in the schedule of find- ings and questioned costs for Federal awards. (6) Known or likely fraud affecting a Federal award, unless such fraud is otherwise reported as an audit finding in the schedule of findings and ques- tioned costs for Federal awards. This paragraph does not require the auditor to report publicly information which could compromise investigative or legal proceedings or to make an addi- tional reporting when the auditor con- firms that the fraud was reported out- side the auditor’s reports under the di- rect reporting requirements of GAGAS. (7) Instances where the results of audit follow-up procedures disclosed that the summary schedule of prior audit findings prepared by the auditee in accordance with §200.511(b) materi- ally misrepresents the status of any prior audit finding. (b) Audit finding detail and clarity. Audit findings must be presented in sufficient detail and clarity for the auditee to prepare a corrective action plan and take corrective action, and for Federal agencies and pass-through entities to arrive at a management de- cision. The following specific informa- tion must be included, as applicable, in audit findings: (1) Federal program and specific Fed- eral award identification including the Assistance Listings title and number, Federal award identification number and year, name of Federal agency, and name of the applicable pass-through entity. When information, such as the Assistance Listings title and number or Federal award identification num- ber, is not available, the auditor must provide the best information available to describe the Federal award. (2) The criteria or specific require- ment upon which the audit finding is based, including the Federal statutes, regulations, or the terms and condi- tions of the Federal awards. Criteria generally identify the required or de- sired state or expectation with respect to the program or operation. Criteria provide a context for evaluating evi- dence and understanding findings. (3) The condition found, including facts that support the deficiency iden- tified in the audit finding. (4) A statement of cause that identi- fies the reason or explanation for the condition or the factors responsible for the difference between the situation that exists (condition) and the required or desired state (criteria), which may also serve as a basis for recommenda- tions for corrective action. (5) The possible asserted effect to provide sufficient information to the auditee and Federal agency, or pass- through entity in the case of a sub- recipient, to permit them to determine the cause and effect to facilitate prompt and proper corrective action. A statement of the effect or potential ef- fect should provide a clear, logical link to establish the impact or potential impact of the difference between the condition and the criteria. (6) Identification of questioned costs and how they were computed. Known questioned costs must be identified by applicable Assistance Listings num- ber(s) and applicable Federal award identification number(s). VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00221 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 210 2 CFR Ch. II (1–1–21 Edition) §200.517 (7) Information to provide proper per- spective for judging the prevalence and consequences of the audit findings, such as whether the audit findings rep- resent an isolated instance or a sys- temic problem. Where appropriate, in- stances identified must be related to the universe and the number of cases examined and be quantified in terms of dollar value. The auditor should report whether the sampling was a statis- tically valid sample. (8) Identification of whether the audit finding was a repeat of a finding in the immediately prior audit and if so any applicable prior year audit find- ing numbers. (9) Recommendations to prevent fu- ture occurrences of the deficiency iden- tified in the audit finding. (10) Views of responsible officials of the auditee. (c) Reference numbers. Each audit finding in the schedule of findings and questioned costs must include a ref- erence number in the format meeting the requirements of the data collection form submission required by §200.512(b) to allow for easy referencing of the audit findings during follow-up. [78 FR 78608, Dec. 26, 2013, as amended at 85 FR 49574, Aug. 13, 2020] §200.517 Audit documentation. (a) Retention of audit documentation. The auditor must retain audit docu- mentation and reports for a minimum of three years after the date of issuance of the auditor’s report(s) to the auditee, unless the auditor is noti- fied in writing by the cognizant agency for audit, oversight agency for audit, cognizant agency for indirect costs, or pass-through entity to extend the re- tention period. When the auditor is aware that the Federal agency, pass- through entity, or auditee is con- testing an audit finding, the auditor must contact the parties contesting the audit finding for guidance prior to destruction of the audit documentation and reports. (b) Access to audit documentation. Audit documentation must be made available upon request to the cognizant or oversight agency for audit or its des- ignee, cognizant agency for indirect cost, a Federal agency, or GAO at the completion of the audit, as part of a quality review, to resolve audit find- ings, or to carry out oversight respon- sibilities consistent with the purposes of this part. Access to audit docu- mentation includes the right of Federal agencies to obtain copies of audit docu- mentation, as is reasonable and nec- essary. §200.518 Major program determina- tion. (a) General. The auditor must use a risk-based approach to determine which Federal programs are major pro- grams. This risk-based approach must include consideration of: current and prior audit experience, oversight by Federal agencies and pass-through en- tities, and the inherent risk of the Fed- eral program. The process in para- graphs (b) through (h) of this section must be followed. (b) Step one. (1) The auditor must identify the larger Federal programs, which must be labeled Type A pro- grams. Type A programs are defined as Federal programs with Federal awards expended during the audit period ex- ceeding the levels outlined in the table in this paragraph (b)(1): Total Federal awards ex- pended Type A/B threshold Equal to or exceed $750,000 but less than or equal to $25 million. $750,000. Exceed $25 million but less than or equal to $100 mil- lion. Total Federal awards ex- pended times .03. Exceed $100 million but less than or equal to $1 billion. $3 million. Exceed $1 billion but less than or equal to $10 billion. Total Federal awards ex- pended times .003. Exceed $10 billion but less than or equal to $20 billion. $30 million. Exceed $20 billion ................. Total Federal awards ex- pended times .0015. (2) Federal programs not labeled Type A under paragraph (b)(1) of this section must be labeled Type B pro- grams. (3) The inclusion of large loan and loan guarantees (loans) must not result in the exclusion of other programs as Type A programs. When a Federal pro- gram providing loans exceeds four times the largest non-loan program it is considered a large loan program, and the auditor must consider this Federal program as a Type A program and ex- clude its values in determining other VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00222 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 211 OMB Guidance §200.518 Type A programs. This recalculation of the Type A program is performed after removing the total of all large loan programs. For the purposes of this paragraph a program is only considered to be a Federal program providing loans if the value of Federal awards ex- pended for loans within the program comprises fifty percent or more of the total Federal awards expended for the program. A cluster of programs is treated as one program and the value of Federal awards expended under a loan program is determined as de- scribed in §200.502. (4) For biennial audits permitted under §200.504, the determination of Type A and Type B programs must be based upon the Federal awards ex- pended during the two-year period. (c) Step two. (1) The auditor must identify Type A programs which are low-risk. In making this determina- tion, the auditor must consider wheth- er the requirements in §200.519(c), the results of audit follow-up, or any changes in personnel or systems affect- ing the program indicate significantly increased risk and preclude the pro- gram from being low risk. For a Type A program to be considered low-risk, it must have been audited as a major pro- gram in at least one of the two most recent audit periods (in the most re- cent audit period in the case of a bien- nial audit), and, in the most recent audit period, the program must have not had: (i) Internal control deficiencies which were identified as material weaknesses in the auditor’s report on internal control for major programs as required under §200.515(c); (ii) A modified opinion on the pro- gram in the auditor’s report on major programs as required under §200.515(c); or (iii) Known or likely questioned costs that exceed five percent of the total Federal awards expended for the pro- gram. (2) Notwithstanding paragraph (c)(1) of this section, OMB may approve a Federal awarding agency’s request that a Type A program may not be consid- ered low risk for a certain recipient. For example, it may be necessary for a large Type A program to be audited as a major program each year at a par- ticular recipient to allow the Federal awarding agency to comply with 31 U.S.C. 3515. The Federal awarding agency must notify the recipient and, if known, the auditor of OMB’s ap- proval at least 180 calendar days prior to the end of the fiscal year to be au- dited. (d) Step three. (1) The auditor must identify Type B programs which are high-risk using professional judgment and the criteria in §200.519. However, the auditor is not required to identify more high-risk Type B programs than at least one fourth the number of low- risk Type A programs identified as low- risk under Step 2 (paragraph (c) of this section). Except for known material weakness in internal control or compli- ance problems as discussed in §200.519(b)(1) and (2) and (c)(1), a single criterion in risk would seldom cause a Type B program to be considered high- risk. When identifying which Type B programs to risk assess, the auditor is encouraged to use an approach which provides an opportunity for different high-risk Type B programs to be au- dited as major over a period of time. (2) The auditor is not expected to per- form risk assessments on relatively small Federal programs. Therefore, the auditor is only required to perform risk assessments on Type B programs that exceed twenty-five percent (0.25) of the Type A threshold determined in Step 1 (paragraph (b) of this section). (e) Step four. At a minimum, the auditor must audit all of the following as major programs: (1) All Type A programs not identi- fied as low risk under step two (para- graph (c)(1) of this section). (2) All Type B programs identified as high-risk under step three (paragraph (d) of this section). (3) Such additional programs as may be necessary to comply with the per- centage of coverage rule discussed in paragraph (f) of this section. This may require the auditor to audit more pro- grams as major programs than the number of Type A programs. (f) Percentage of coverage rule. If the auditee meets the criteria in §200.520, the auditor need only audit the major programs identified in Step 4 (para- graphs (e)(1) and (2) of this section) and such additional Federal programs with VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00223 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 212 2 CFR Ch. II (1–1–21 Edition) §200.519 Federal awards expended that, in ag- gregate, all major programs encompass at least 20 percent (0.20) of total Fed- eral awards expended. Otherwise, the auditor must audit the major programs identified in Step 4 (paragraphs (e)(1) and (2) of this section) and such addi- tional Federal programs with Federal awards expended that, in aggregate, all major programs encompass at least 40 percent (0.40) of total Federal awards expended. (g) Documentation of risk. The auditor must include in the audit documenta- tion the risk analysis process used in determining major programs. (h) Auditor’s judgment. When the major program determination was per- formed and documented in accordance with this Subpart, the auditor’s judg- ment in applying the risk-based ap- proach to determine major programs must be presumed correct. Challenges by Federal agencies and pass-through entities must only be for clearly im- proper use of the requirements in this part. However, Federal agencies and pass-through entities may provide auditors guidance about the risk of a particular Federal program and the auditor must consider this guidance in determining major programs in audits not yet completed. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75887, Dec. 19, 2014; 85 FR 49574, Aug. 13, 2020] §200.519 Criteria for Federal program risk. (a) General. The auditor’s determina- tion should be based on an overall eval- uation of the risk of noncompliance oc- curring that could be material to the Federal program. The auditor must consider criteria, such as described in paragraphs (b), (c), and (d) of this sec- tion, to identify risk in Federal pro- grams. Also, as part of the risk anal- ysis, the auditor may wish to discuss a particular Federal program with auditee management and the Federal agency or pass-through entity. (b) Current and prior audit experience. (1) Weaknesses in internal control over Federal programs would indicate high- er risk. Consideration should be given to the control environment over Fed- eral programs and such factors as the expectation of management’s adher- ence to Federal statutes, regulations, and the terms and conditions of Fed- eral awards and the competence and experience of personnel who administer the Federal programs. (i) A Federal program administered under multiple internal control struc- tures may have higher risk. When as- sessing risk in a large single audit, the auditor must consider whether weak- nesses are isolated in a single oper- ating unit (e.g., one college campus) or pervasive throughout the entity. (ii) When significant parts of a Fed- eral program are passed through to subrecipients, a weak system for moni- toring subrecipients would indicate higher risk. (2) Prior audit findings would indi- cate higher risk, particularly when the situations identified in the audit find- ings could have a significant impact on a Federal program or have not been corrected. (3) Federal programs not recently au- dited as major programs may be of higher risk than Federal programs re- cently audited as major programs with- out audit findings. (c) Oversight exercised by Federal agen- cies and pass-through entities. (1) Over- sight exercised by Federal agencies or pass-through entities could be used to assess risk. For example, recent moni- toring or other reviews performed by an oversight entity that disclosed no significant problems would indicate lower risk, whereas monitoring that disclosed significant problems would indicate higher risk. (2) Federal agencies, with the concur- rence of OMB, may identify Federal programs that are higher risk. OMB will provide this identification in the compliance supplement. (d) Inherent risk of the Federal pro- gram. (1) The nature of a Federal pro- gram may indicate risk. Consideration should be given to the complexity of the program and the extent to which the Federal program contracts for goods and services. For example, Fed- eral programs that disburse funds through third-party contracts or have eligibility criteria may be of higher risk. Federal programs primarily in- volving staff payroll costs may have VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00224 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 213 OMB Guidance §200.521 high risk for noncompliance with re- quirements of §200.430, but otherwise be at low risk. (2) The phase of a Federal program in its life cycle at the Federal agency may indicate risk. For example, a new Federal program with new or interim regulations may have higher risk than an established program with time-test- ed regulations. Also, significant changes in Federal programs, statutes, regulations, or the terms and condi- tions of Federal awards may increase risk. (3) The phase of a Federal program in its life cycle at the auditee may indi- cate risk. For example, during the first and last years that an auditee partici- pates in a Federal program, the risk may be higher due to start-up or close- out of program activities and staff. (4) Type B programs with larger Fed- eral awards expended would be of high- er risk than programs with substan- tially smaller Federal awards ex- pended. [78 FR 78608, Dec. 26, 2013, as amended at 85 FR 49575, Aug. 13, 2020] §200.520 Criteria for a low-risk auditee. An auditee that meets all of the fol- lowing conditions for each of the pre- ceding two audit periods must qualify as a low-risk auditee and be eligible for reduced audit coverage in accordance with §200.518. (a) Single audits were performed on an annual basis in accordance with the provisions of this Subpart, including submitting the data collection form and the reporting package to the FAC within the timeframe specified in §200.512. A non-Federal entity that has biennial audits does not qualify as a low-risk auditee. (b) The auditor’s opinion on whether the financial statements were prepared in accordance with GAAP, or a basis of accounting required by state law, and the auditor’s in relation to opinion on the schedule of expenditures of Federal awards were unmodified. (c) There were no deficiencies in in- ternal control which were identified as material weaknesses under the require- ments of GAGAS. (d) The auditor did not report a sub- stantial doubt about the auditee’s abil- ity to continue as a going concern. (e) None of the Federal programs had audit findings from any of the fol- lowing in either of the preceding two audit periods in which they were classi- fied as Type A programs: (1) Internal control deficiencies that were identified as material weaknesses in the auditor’s report on internal con- trol for major programs as required under §200.515(c); (2) A modified opinion on a major program in the auditor’s report on major programs as required under §200.515(c); or (3) Known or likely questioned costs that exceeded five percent of the total Federal awards expended for a Type A program during the audit period. [78 FR 78608, Dec. 26, 2013, as amended at 85 FR 49575, Aug. 13, 2020] MANAGEMENT DECISIONS §200.521 Management decision. (a) General. The management deci- sion must clearly state whether or not the audit finding is sustained, the rea- sons for the decision, and the expected auditee action to repay disallowed costs, make financial adjustments, or take other action. If the auditee has not completed corrective action, a timetable for follow-up should be given. Prior to issuing the manage- ment decision, the Federal agency or pass-through entity may request addi- tional information or documentation from the auditee, including a request for auditor assurance related to the documentation, as a way of mitigating disallowed costs. The management de- cision should describe any appeal proc- ess available to the auditee. While not required, the Federal agency or pass- through entity may also issue a man- agement decision on findings relating to the financial statements which are required to be reported in accordance with GAGAS. (b) Federal agency. As provided in §200.513(a)(3)(vii), the cognizant agency for audit must be responsible for co- ordinating a management decision for audit findings that affect the programs of more than one Federal agency. As provided in §200.513(c)(3)(i), a Federal VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00225 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 214 2 CFR Ch. II (1–1–21 Edition) Pt. 200, App. I awarding agency is responsible for issuing a management decision for findings that relate to Federal awards it makes to non-Federal entities. (c) Pass-through entity. As provided in §200.332(d), the pass-through entity must be responsible for issuing a man- agement decision for audit findings that relate to Federal awards it makes to subrecipients. (d) Time requirements. The Federal awarding agency or pass-through enti- ty responsible for issuing a manage- ment decision must do so within six months of acceptance of the audit re- port by the FAC. The auditee must ini- tiate and proceed with corrective ac- tion as rapidly as possible and correc- tive action should begin no later than upon receipt of the audit report. (e) Reference numbers. Management decisions must include the reference numbers the auditor assigned to each audit finding in accordance with §200.516(c). [78 FR 78608, Dec. 26, 2013, as amended at 85 FR 49575, Aug. 13, 2020] APPENDIX I TO PART 200—FULL TEXT OF NOTICE OF FUNDING OPPORTUNITY The full text of the notice of funding op- portunity is organized in sections. The re- quired format outlined in this appendix indi- cates immediately following the title of each section whether that section is required in every announcement or is a Federal award- ing agency option. The format is designed so that similar types of information will appear in the same sections in announcements of different Federal funding opportunities. To- ward that end, there is text in each of the following sections to describe the types of in- formation that a Federal awarding agency would include in that section of an actual announcement. A Federal awarding agency that wishes to include information that the format does not specifically discuss may address that subject in whatever section(s) is most appropriate. For example, if a Federal awarding agency chooses to address performance goals in the announcement, it might do so in the funding opportunity description, the application con- tent, or the reporting requirements. Similarly, when this format calls for a type of information to be in a particular sec- tion, a Federal awarding agency wishing to address that subject in other sections may elect to repeat the information in those sec- tions or use cross references between the sec- tions (there should be hyperlinks for cross- references in any electronic versions of the announcement). For example, a Federal awarding agency may want to include Sec- tion A information about the types of non- Federal entities who are eligible to apply. The format specifies a standard location for that information in Section C.1 but does not preclude repeating the information in Sec- tion A or creating a cross reference between Section A and C.1, as long as a potential ap- plicant can find the information quickly and easily from the standard location. The sections of the full text of the an- nouncement are described in the following paragraphs. A. PROGRAM DESCRIPTION—REQUIRED This section contains the full program de- scription of the funding opportunity. It may be as long as needed to adequately commu- nicate to potential applicants the areas in which funding may be provided. It describes the Federal awarding agency’s funding prior- ities or the technical or focus areas in which the Federal awarding agency intends to pro- vide assistance. As appropriate, it may in- clude any program history (e.g., whether this is a new program or a new or changed area of program emphasis). This section must in- clude program goals and objectives, a ref- erence to the relevant Assistance Listings, a description of how the award will contribute to the achievement of the program’s goals and objectives, and the expected perform- ance goals, indicators, targets, baseline data, data collection, and other outcomes such Federal awarding agency expects to achieve, and may include examples of successful projects that have been funded previously. This section also may include other informa- tion the Federal awarding agency deems nec- essary, and must at a minimum include cita- tions for authorizing statutes and regula- tions for the funding opportunity. B. FEDERAL AWARD INFORMATION—REQUIRED This section provides sufficient informa- tion to help an applicant make an informed decision about whether to submit a proposal. Relevant information could include the total amount of funding that the Federal awarding agency expects to award through the an- nouncement; the expected performance indi- cators, targets, baseline data, and data col- lection; the anticipated number of Federal awards; the expected amounts of individual Federal awards (which may be a range); the amount of funding per Federal award, on av- erage, experienced in previous years; and the anticipated start dates and periods of per- formance for new Federal awards. This sec- tion also should address whether applica- tions for renewal or supplementation of ex- isting projects are eligible to compete with applications for new Federal awards. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00226 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 215 OMB Guidance Pt. 200, App. I This section also must indicate the type(s) of assistance instrument (e.g., grant, cooper- ative agreement) that may be awarded if ap- plications are successful. If cooperative agreements may be awarded, this section ei- ther should describe the ‘‘substantial in- volvement’’ that the Federal awarding agen- cy expects to have or should reference where the potential applicant can find that infor- mation (e.g., in the funding opportunity de- scription in Section A. or Federal award ad- ministration information in Section D. If procurement contracts also may be awarded, this must be stated. C. ELIGIBILITY INFORMATION This section addresses the considerations or factors that determine applicant or appli- cation eligibility. This includes the eligi- bility of particular types of applicant organi- zations, any factors affecting the eligibility of the principal investigator or project direc- tor, and any criteria that make particular projects ineligible. Federal agencies should make clear whether an applicant’s failure to meet an eligibility criterion by the time of an application deadline will result in the Federal awarding agency returning the ap- plication without review or, even though an application may be reviewed, will preclude the Federal awarding agency from making a Federal award. Key elements to be addressed are: 1. Eligible Applicants—Required. Announce- ments must clearly identify the types of en- tities that are eligible to apply. If there are no restrictions on eligibility, this section may simply indicate that all potential appli- cants are eligible. If there are restrictions on eligibility, it is important to be clear about the specific types of entities that are eligi- ble, not just the types that are ineligible. For example, if the program is limited to nonprofit organizations subject to 26 U.S.C. 501(c)(3) of the tax code (26 U.S.C. 501(c)(3)), the announcement should say so. Similarly, it is better to state explicitly that Native American tribal organizations are eligible than to assume that they can unambiguously infer that from a statement that nonprofit organizations may apply. Eligibility also can be expressed by exception, (e.g., open to all types of domestic applicants other than indi- viduals). This section should refer to any portion of Section D specifying documenta- tion that must be submitted to support an eligibility determination (e.g., proof of 501(c)(3) status as determined by the Internal Revenue Service or an authorizing tribal res- olution). To the extent that any funding re- striction in Section D.6 could affect the eli- gibility of an applicant or project, the an- nouncement must either restate that restric- tion in this section or provide a cross-ref- erence to its description in Section D.6. 2. Cost Sharing or Matching—Required. An- nouncements must state whether there is re- quired cost sharing, matching, or cost par- ticipation without which an application would be ineligible (if cost sharing is not re- quired, the announcement must explicitly say so). Required cost sharing may be a cer- tain percentage or amount, or may be in the form of contributions of specified items or activities (e.g., provision of equipment). It is important that the announcement be clear about any restrictions on the types of cost (e.g., in-kind contributions) that are accept- able as cost sharing. Cost sharing as an eligi- bility criterion includes requirements based in statute or regulation, as described in §200.306 of this Part. This section should refer to the appropriate portion(s) of section D. stating any pre-award requirements for submission of letters or other documentation to verify commitments to meet cost-sharing requirements if a Federal award is made. 3. Other—Required, if applicable. If there are other eligibility criteria (i.e., criteria that have the effect of making an application or project ineligible for Federal awards, wheth- er referred to as ‘‘responsiveness’’ criteria, ‘‘go-no go’’ criteria, ‘‘threshold’’ criteria, or in other ways), must be clearly stated and must include a reference to the regulation of requirement that describes the restriction, as applicable. For example, if entities that have been found to be in violation of a par- ticular Federal statute are ineligible, it is important to say so. This section must also state any limit on the number of applica- tions an applicant may submit under the an- nouncement and make clear whether the limitation is on the submitting organization, individual investigator/program director, or both. This section should also address any eligibility criteria for beneficiaries or for program participants other than Federal award recipients. D. APPLICATION AND SUBMISSION INFORMATION 1. Address to Request Application Package— Required. Potential applicants must be told how to get application forms, kits, or other materials needed to apply (if this announce- ment contains everything needed, this sec- tion need only say so). An Internet address where the materials can be accessed is ac- ceptable. However, since high-speed Internet access is not yet universally available for downloading documents, and applicants may have additional accessibility requirements, there also should be a way for potential ap- plicants to request paper copies of materials, such as a U.S. Postal Service mailing ad- dress, telephone or FAX number, Telephone Device for the Deaf (TDD), Text Telephone (TTY) number, and/or Federal Information Relay Service (FIRS) number. 2. Content and Form of Application Submis- sion—Required. This section must identify VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00227 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 216 2 CFR Ch. II (1–1–21 Edition) Pt. 200, App. I the required content of an application and the forms or formats that an applicant must use to submit it. If any requirements are stated elsewhere because they are general re- quirements that apply to multiple programs or funding opportunities, this section should refer to where those requirements may be found. This section also should include re- quired forms or formats as part of the an- nouncement or state where the applicant may obtain them. This section should specifically address content and form or format requirements for: i. Pre-applications, letters of intent, or white papers required or encouraged (see Section D.4), including any limitations on the number of pages or other formatting re- quirements similar to those for full applica- tions. ii. The application as a whole. For all sub- missions, this would include any limitations on the number of pages, font size and type- face, margins, paper size, number of copies, and sequence or assembly requirements. If electronic submission is permitted or re- quired, this could include special require- ments for formatting or signatures. iii. Component pieces of the application (e.g., if all copies of the application must bear original signatures on the face page or the program narrative may not exceed 10 pages). This includes any pieces that may be submitted separately by third parties (e.g., references or letters confirming commit- ments from third parties that will be con- tributing a portion of any required cost shar- ing). iv. Information that successful applicants must submit after notification of intent to make a Federal award, but prior to a Federal award. This could include evidence of com- pliance with requirements relating to human subjects or information needed to comply with the National Environmental Policy Act (NEPA) (42 U.S.C. 4321–4370h). 3. Unique entity identifier and System for Award Management (SAM)—Required. This paragraph must state clearly that each ap- plicant (unless the applicant is an individual or Federal awarding agency that is excepted from those requirements under 2 CFR 25.110(b) or (c), or has an exception approved by the Federal awarding agency under 2 CFR 25.110(d)) is required to: (i) Be registered in SAM before submitting its application; (ii) Provide a valid unique entity identifier in its application; and (iii) Continue to maintain an active SAM registration with current in- formation at all times during which it has an active Federal award or an application or plan under consideration by a Federal award- ing agency. It also must state that the Fed- eral awarding agency may not make a Fed- eral award to an applicant until the appli- cant has complied with all applicable unique entity identifier and SAM requirements and, if an applicant has not fully complied with the requirements by the time the Federal awarding agency is ready to make a Federal award, the Federal awarding agency may de- termine that the applicant is not qualified to receive a Federal award and use that deter- mination as a basis for making a Federal award to another applicant. 4. Submission Dates and Times—Required. Announcements must identify due dates and times for all submissions. This includes not only the full applications but also any pre- liminary submissions (e.g., letters of intent, white papers, or pre-applications). It also in- cludes any other submissions of information before Federal award that are separate from the full application. If the funding oppor- tunity is a general announcement that is open for a period of time with no specific due dates for applications, this section should say so. Note that the information on dates that is included in this section also must ap- pear with other overview information in a lo- cation preceding the full text of the an- nouncement (see §200.204 of this part). 5. Intergovernmental Review—Required, if ap- plicable. If the funding opportunity is subject to Executive Order 12372, ‘‘Intergovern- mental Review of Federal Programs,’’ the notice must say so and applicants must con- tact their state’s Single Point of Contact (SPOC) to find out about and comply with the state’s process under Executive Order 12372, it may be useful to inform potential applicants that the names and addresses of the SPOCs are listed in the Office of Manage- ment and Budget’s website. 6. Funding Restrictions—Required. Notices must include information on funding restric- tions in order to allow an applicant to de- velop an application and budget consistent with program requirements. Examples are whether construction is an allowable activ- ity, if there are any limitations on direct costs such as foreign travel or equipment purchases, and if there are any limits on in- direct costs (or facilities and administrative costs). Applicants must be advised if Federal awards will not allow reimbursement of pre- Federal award costs. 7. Other Submission Requirements— Required. This section must address any other submis- sion requirements not included in the other paragraphs of this section. This might in- clude the format of submission, i.e., paper or electronic, for each type of required submis- sion. Applicants should not be required to submit in more than one format and this sec- tion should indicate whether they may choose whether to submit applications in hard copy or electronically, may submit only in hard copy, or may submit only electroni- cally. This section also must indicate where ap- plications (and any pre-applications) must be submitted if sent by postal mail, electronic means, or hand-delivery. For postal mail VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00228 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 217 OMB Guidance Pt. 200, App. I 1 With respect to electronic methods for providing information about funding oppor- tunities or accepting applicants’ submissions of information, each Federal awarding agen- cy is responsible for compliance with Section 508 of the Rehabilitation Act of 1973 (29 U.S.C. 794d). submission, this must include the name of an office, official, individual or function (e.g., application receipt center) and a complete mailing address. For electronic submission, this must include the URL or email address; whether a password(s) is required; whether particular software or other electronic capa- bilities are required; what to do in the event of system problems and a point of contact who will be available in the event the appli- cant experiences technical difficulties.1 E. APPLICATION REVIEW INFORMATION 1. Criteria—Required. This section must ad- dress the criteria that the Federal awarding agency will use to evaluate applications. This includes the merit and other review cri- teria that evaluators will use to judge appli- cations, including any statutory, regulatory, or other preferences (e.g., minority status or Native American tribal preferences) that will be applied in the review process. These criteria are distinct from eligibility criteria that are addressed before an application is accepted for review and any program policy or other factors that are applied during the selection process, after the review process is completed. The intent is to make the appli- cation process transparent so applicants can make informed decisions when preparing their applications to maximize fairness of the process. The announcement should clear- ly describe all criteria, including any sub- criteria. If criteria vary in importance, the announcement should specify the relative percentages, weights, or other means used to distinguish among them. For statutory, reg- ulatory, or other preferences, the announce- ment should provide a detailed explanation of those preferences with an explicit indica- tion of their effect (e.g., whether they result in additional points being assigned). If an applicant’s proposed cost sharing will be considered in the review process (as op- posed to being an eligibility criterion de- scribed in Section C.2), the announcement must specifically address how it will be con- sidered (e.g., to assign a certain number of additional points to applicants who offer cost sharing, or to break ties among applica- tions with equivalent scores after evaluation against all other factors). If cost sharing will not be considered in the evaluation, the an- nouncement should say so, so that there is no ambiguity for potential applicants. Vague statements that cost sharing is encouraged, without clarification as to what that means, are unhelpful to applicants. It also is impor- tant that the announcement be clear about any restrictions on the types of cost (e.g., in- kind contributions) that are acceptable as cost sharing. 2. Review and Selection Process—Required. This section may vary in the level of detail provided. The announcement must list any program policy or other factors or elements, other than merit criteria, that the selecting official may use in selecting applications for Federal award (e.g., geographical dispersion, program balance, or diversity). The Federal awarding agency may also include other ap- propriate details. For example, this section may indicate who is responsible for evalua- tion against the merit criteria (e.g., peers ex- ternal to the Federal awarding agency or Federal awarding agency personnel) and/or who makes the final selections for Federal awards. If there is a multi-phase review proc- ess (e.g., an external panel advising internal Federal awarding agency personnel who make final recommendations to the deciding official), the announcement may describe the phases. It also may include: the number of people on an evaluation panel and how it op- erates, the way reviewers are selected, re- viewer qualifications, and the way that con- flicts of interest are avoided. With respect to electronic methods for providing informa- tion about funding opportunities or accept- ing applicants’ submissions of information, each Federal awarding agency is responsible for compliance with Section 508 of the Reha- bilitation Act of 1973 (29 U.S.C. 794d). In addition, if the Federal awarding agency permits applicants to nominate suggested re- viewers of their applications or suggest those they feel may be inappropriate due to a con- flict of interest, that information should be included in this section. 3. For any Federal award under a notice of funding opportunity, if the Federal awarding agency anticipates that the total Federal share will be greater than the simplified ac- quisition threshold on any Federal award under a notice of funding opportunity may include, over the period of performance, this section must also inform applicants: i. That the Federal awarding agency, prior to making a Federal award with a total amount of Federal share greater than the simplified acquisition threshold, is required to review and consider any information about the applicant that is in the designated integrity and performance system accessible through SAM (currently FAPIIS) (see 41 U.S.C. 2313); ii. That an applicant, at its option, may re- view information in the designated integrity and performance systems accessible through SAM and comment on any information about itself that a Federal awarding agency pre- viously entered and is currently in the des- ignated integrity and performance system accessible through SAM; VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00229 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 218 2 CFR Ch. II (1–1–21 Edition) Pt. 200, App. I iii. That the Federal awarding agency will consider any comments by the applicant, in addition to the other information in the des- ignated integrity and performance system, in making a judgment about the applicant’s integrity, business ethics, and record of per- formance under Federal awards when com- pleting the review of risk posed by appli- cants as described in §200.206. 4. Anticipated Announcement and Federal Award Dates—Optional. This section is in- tended to provide applicants with informa- tion they can use for planning purposes. If there is a single application deadline fol- lowed by the simultaneous review of all ap- plications, the Federal awarding agency can include in this section information about the anticipated dates for announcing or noti- fying successful and unsuccessful applicants and for having Federal awards in place. If ap- plications are received and evaluated on a ‘‘rolling’’ basis at different times during an extended period, it may be appropriate to give applicants an estimate of the time need- ed to process an application and notify the applicant of the Federal awarding agency’s decision. F. FEDERAL AWARD ADMINISTRATION INFORMATION 1. Federal Award Notices—Required. This section must address what a successful appli- cant can expect to receive following selec- tion. If the Federal awarding agency’s prac- tice is to provide a separate notice stating that an application has been selected before it actually makes the Federal award, this section would be the place to indicate that the letter is not an authorization to begin performance (to the extent that it allows charging to Federal awards of pre-award costs at the non-Federal entity’s own risk). This section should indicate that the notice of Federal award signed by the grants officer (or equivalent) is the authorizing document, and whether it is provided through postal mail or by electronic means and to whom. It also may address the timing, form, and con- tent of notifications to unsuccessful appli- cants. See also §200.211. 2. Administrative and National Policy Re- quirements—Required. This section must iden- tify the usual administrative and national policy requirements the Federal awarding agency’s Federal awards may include. Pro- viding this information lets a potential ap- plicant identify any requirements with which it would have difficulty complying if its application is successful. In those cases, early notification about the requirements al- lows the potential applicant to decide not to apply or to take needed actions before re- ceiving the Federal award. The announce- ment need not include all of the terms and conditions of the Federal award, but may refer to a document (with information about how to obtain it) or Internet site where ap- plicants can see the terms and conditions. If this funding opportunity will lead to Federal awards with some special terms and condi- tions that differ from the Federal awarding agency’s usual (sometimes called ‘‘general’’) terms and conditions, this section should highlight those special terms and conditions. Doing so will alert applicants that have re- ceived Federal awards from the Federal awarding agency previously and might not otherwise expect different terms and condi- tions. For the same reason, the announce- ment should inform potential applicants about special requirements that could apply to particular Federal awards after the review of applications and other information, based on the particular circumstances of the effort to be supported (e.g., if human subjects were to be involved or if some situations may jus- tify special terms on intellectual property, data sharing or security requirements). 3. Reporting—Required. This section must include general information about the type (e.g., financial or performance), frequency, and means of submission (paper or elec- tronic) of post-Federal award reporting re- quirements. Highlight any special reporting requirements for Federal awards under this funding opportunity that differ (e.g., by re- port type, frequency, form/format, or cir- cumstances for use) from what the Federal awarding agency’s Federal awards usually require. Federal awarding agencies must also describe in this section all relevant require- ments such as those at 2 CFR 180.335 and 180.350. If the Federal share of any Federal award may include more than $500,000 over the pe- riod of performance, this section must in- form potential applicants about the post award reporting requirements reflected in appendix XII to this part. G. FEDERAL AWARDING AGENCY CONTACT(S)— REQUIRED The announcement must give potential ap- plicants a point(s) of contact for answering questions or helping with problems while the funding opportunity is open. The intent of this requirement is to be as helpful as pos- sible to potential applicants, so the Federal awarding agency should consider approaches such as giving: i. Points of contact who may be reached in multiple ways (e.g., by telephone, FAX, and/ or email, as well as regular mail). ii. A fax or email address that multiple people access, so that someone will respond even if others are unexpectedly absent dur- ing critical periods. iii. Different contacts for distinct kinds of help (e.g., one for questions of programmatic content and a second for administrative questions). VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00230 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 219 OMB Guidance Pt. 200, App. II H. OTHER INFORMATION—OPTIONAL This section may include any additional information that will assist a potential ap- plicant. For example, the section might: i. Indicate whether this is a new program or a one-time initiative. ii. Mention related programs or other up- coming or ongoing Federal awarding agency funding opportunities for similar activities. iii. Include current Internet addresses for Federal awarding agency Web sites that may be useful to an applicant in understanding the program. iv. Alert applicants to the need to identify proprietary information and inform them about the way the Federal awarding agency will handle it. v. Include certain routine notices to appli- cants (e.g., that the Federal Government is not obligated to make any Federal award as a result of the announcement or that only grants officers can bind the Federal Govern- ment to the expenditure of funds). [78 FR 78608, Dec. 26, 2013, as amended at 80 FR 43310, July 22, 2015; 85 FR 49575, Aug. 13, 2020] APPENDIX II TO PART 200—CONTRACT PROVISIONS FOR NON-FEDERAL ENTI- TY CONTRACTS UNDER FEDERAL AWARDS In addition to other provisions required by the Federal agency or non-Federal entity, all contracts made by the non-Federal entity under the Federal award must contain provi- sions covering the following, as applicable. (A) Contracts for more than the simplified acquisition threshold, which is the inflation adjusted amount determined by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) as authorized by 41 U.S.C. 1908, must address administrative, contractual, or legal rem- edies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as appropriate. (B) All contracts in excess of $10,000 must address termination for cause and for con- venience by the non-Federal entity including the manner by which it will be effected and the basis for settlement. (C) Equal Employment Opportunity. Ex- cept as otherwise provided under 41 CFR Part 60, all contracts that meet the defini- tion of ‘‘federally assisted construction con- tract’’ in 41 CFR Part 60–1.3 must include the equal opportunity clause provided under 41 CFR 60–1.4(b), in accordance with Executive Order 11246, ‘‘Equal Employment Oppor- tunity’’ (30 FR 12319, 12935, 3 CFR Part, 1964– 1965 Comp., p. 339), as amended by Executive Order 11375, ‘‘Amending Executive Order 11246 Relating to Equal Employment Oppor- tunity,’’ and implementing regulations at 41 CFR part 60, ‘‘Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.’’ (D) Davis-Bacon Act, as amended (40 U.S.C. 3141–3148). When required by Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non-Federal entities must include a provision for compli- ance with the Davis-Bacon Act (40 U.S.C. 3141–3144, and 3146–3148) as supplemented by Department of Labor regulations (29 CFR Part 5, ‘‘Labor Standards Provisions Appli- cable to Contracts Covering Federally Fi- nanced and Assisted Construction’’). In ac- cordance with the statute, contractors must be required to pay wages to laborers and me- chanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non-Federal entity must place a copy of the current pre- vailing wage determination issued by the De- partment of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non-Federal en- tity must report all suspected or reported violations to the Federal awarding agency. The contracts must also include a provision for compliance with the Copeland ‘‘Anti- Kickback’’ Act (40 U.S.C. 3145), as supple- mented by Department of Labor regulations (29 CFR Part 3, ‘‘Contractors and Sub- contractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States’’). The Act provides that each contractor or sub- recipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensa- tion to which he or she is otherwise entitled. The non-Federal entity must report all sus- pected or reported violations to the Federal awarding agency. (E) Contract Work Hours and Safety Standards Act (40 U.S.C. 3701–3708). Where applicable, all contracts awarded by the non- Federal entity in excess of $100,000 that in- volve the employment of mechanics or labor- ers must include a provision for compliance with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5). Under 40 U.S.C. 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is com- pensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or mechanic must be re- quired to work in surroundings or under working conditions which are unsanitary, VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00231 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 220 2 CFR Ch. II (1–1–21 Edition) Pt. 200, App. III hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transpor- tation or transmission of intelligence. (F) Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets the definition of ‘‘funding agreement’’ under 37 CFR §401.2 (a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit orga- nization regarding the substitution of par- ties, assignment or performance of experi- mental, developmental, or research work under that ‘‘funding agreement,’’ the recipi- ent or subrecipient must comply with the re- quirements of 37 CFR Part 401, ‘‘Rights to In- ventions Made by Nonprofit Organizations and Small Business Firms Under Govern- ment Grants, Contracts and Cooperative Agreements,’’ and any implementing regula- tions issued by the awarding agency. (G) Clean Air Act (42 U.S.C. 7401–7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251–1387), as amended—Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non-Federal award to agree to comply with all applicable standards, orders or regula- tions issued pursuant to the Clean Air Act (42 U.S.C. 7401–7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251–1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA). (H) Debarment and Suspension (Executive Orders 12549 and 12689)—A contract award (see 2 CFR 180.220) must not be made to par- ties listed on the governmentwide exclusions in the System for Award Management (SAM), in accordance with the OMB guide- lines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), ‘‘Debarment and Suspension.’’ SAM Exclu- sions contains the names of parties debarred, suspended, or otherwise excluded by agen- cies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. (I) Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)—Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or at- tempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with ob- taining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in con- nection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non-Federal award. (J) See §200.323. (K) See §200.216. (L) See §200.322. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75888, Dec. 19, 2014; 85 FR 49577, Aug. 13, 2020] APPENDIX III TO PART 200—INDIRECT (F&A) COSTS IDENTIFICATION AND ASSIGNMENT, AND RATE DETERMINA- TION FOR INSTITUTIONS OF HIGHER EDUCATION (IHES) A. GENERAL This appendix provides criteria for identi- fying and computing indirect (or indirect (F&A)) rates at IHEs (institutions). Indirect (F&A) costs are those that are incurred for common or joint objectives and therefore cannot be identified readily and specifically with a particular sponsored project, an in- structional activity, or any other institu- tional activity. See subsection B.1 for a dis- cussion of the components of indirect (F&A) costs. 1. Major Functions of an Institution Refers to instruction, organized research, other sponsored activities and other institu- tional activities as defined in this section: a. Instruction means the teaching and training activities of an institution. Except for research training as provided in sub- section b, this term includes all teaching and training activities, whether they are offered for credits toward a degree or certificate or on a non-credit basis, and whether they are offered through regular academic depart- ments or separate divisions, such as a sum- mer school division or an extension division. Also considered part of this major function are departmental research, and, where agreed to, university research. (1) Sponsored instruction and training means specific instructional or training activity es- tablished by grant, contract, or cooperative agreement. For purposes of the cost prin- ciples, this activity may be considered a major function even though an institution’s accounting treatment may include it in the instruction function. (2) Departmental research means research, development and scholarly activities that are not organized research and, con- sequently, are not separately budgeted and accounted for. Departmental research, for purposes of this document, is not considered as a major function, but as a part of the in- struction function of the institution. (3) Only mandatory cost sharing or cost sharing specifically committed in the project budget must be included in the organized re- search base for computing the indirect (F&A) VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00232 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 221 OMB Guidance Pt. 200, App. III cost rate or reflected in any allocation of in- direct costs. Salary costs above statutory limits are not considered cost sharing. b. Organized research means all research and development activities of an institution that are separately budgeted and accounted for. It includes: (1) Sponsored research means all research and development activities that are spon- sored by Federal and non-Federal agencies and organizations. This term includes activi- ties involving the training of individuals in research techniques (commonly called re- search training) where such activities utilize the same facilities as other research and de- velopment activities and where such activi- ties are not included in the instruction func- tion. (2) University research means all research and development activities that are sepa- rately budgeted and accounted for by the in- stitution under an internal application of in- stitutional funds. University research, for purposes of this document, must be com- bined with sponsored research under the function of organized research. c. Other sponsored activities means programs and projects financed by Federal and non- Federal agencies and organizations which in- volve the performance of work other than in- struction and organized research. Examples of such programs and projects are health service projects and community service pro- grams. However, when any of these activities are undertaken by the institution without outside support, they may be classified as other institutional activities. d. Other institutional activities means all ac- tivities of an institution except for instruc- tion, departmental research, organized re- search, and other sponsored activities, as de- fined in this section; indirect (F&A) cost ac- tivities identified in this Appendix para- graph B, Identification and assignment of in- direct (F&A) costs; and specialized services facilities described in §200.468 of this part. 2. Criteria for Distribution a. Base period. A base period for distribu- tion of indirect (F&A) costs is the period during which the costs are incurred. The base period normally should coincide with the fiscal year established by the institution, but in any event the base period should be so selected as to avoid inequities in the dis- tribution of costs. b. Need for cost groupings. The overall ob- jective of the indirect (F&A) cost allocation process is to distribute the indirect (F&A) costs described in Section B, Identification and assignment of indirect (F&A) costs, to the major functions of the institution in pro- portions reasonably consistent with the na- ture and extent of their use of the institu- tion’s resources. In order to achieve this ob- jective, it may be necessary to provide for selective distribution by establishing sepa- rate groupings of cost within one or more of the indirect (F&A) cost categories referred to in subsection B.1. In general, the cost groupings established within a category should constitute, in each case, a pool of those items of expense that are considered to be of like nature in terms of their relative contribution to (or degree of remoteness from) the particular cost objectives to which distribution is appropriate. Cost groupings should be established considering the general guides provided in subsection c of this sec- tion. Each such pool or cost grouping should then be distributed individually to the re- lated cost objectives, using the distribution base or method most appropriate in light of the guidelines set forth in subsection d of this section. c. General considerations on cost groupings. The extent to which separate cost groupings and selective distribution would be appro- priate at an institution is a matter of judg- ment to be determined on a case-by-case basis. Typical situations which may warrant the establishment of two or more separate cost groupings (based on account classifica- tion or analysis) within an indirect (F&A) cost category include but are not limited to the following: (1) If certain items or categories of expense relate solely to one of the major functions of the institution or to less than all functions, such expenses should be set aside as a sepa- rate cost grouping for direct assignment or selective allocation in accordance with the guides provided in subsections b and d. (2) If any types of expense ordinarily treat- ed as general administration or depart- mental administration are charged to Fed- eral awards as direct costs, expenses applica- ble to other activities of the institution when incurred for the same purposes in like circumstances must, through separate cost groupings, be excluded from the indirect (F&A) costs allocable to those Federal awards and included in the direct cost of other activities for cost allocation purposes. (3) If it is determined that certain expenses are for the support of a service unit or facil- ity whose output is susceptible of measure- ment on a workload or other quantitative basis, such expenses should be set aside as a separate cost grouping for distribution on such basis to organized research, instruc- tional, and other activities at the institution or within the department. (4) If activities provide their own pur- chasing, personnel administration, building maintenance or similar service, the distribu- tion of general administration and general expenses, or operation and maintenance ex- penses to such activities should be accom- plished through cost groupings which include only that portion of central indirect (F&A) costs (such as for overall management) which are properly allocable to such activi- ties. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00233 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 222 2 CFR Ch. II (1–1–21 Edition) Pt. 200, App. III (5) If the institution elects to treat fringe benefits as indirect (F&A) charges, such costs should be set aside as a separate cost grouping for selective distribution to related cost objectives. (6) The number of separate cost groupings within a category should be held within practical limits, after taking into consider- ation the materiality of the amounts in- volved and the degree of precision attainable through less selective methods of distribu- tion. d. Selection of distribution method. (1) Actual conditions must be taken into account in selecting the method or base to be used in distributing individual cost groupings. The essential consideration in se- lecting a base is that it be the one best suit- ed for assigning the pool of costs to cost ob- jectives in accordance with benefits derived; with a traceable cause-and-effect relation- ship; or with logic and reason, where neither benefit nor a cause-and-effect relationship is determinable. (2) If a cost grouping can be identified di- rectly with the cost objective benefitted, it should be assigned to that cost objective. (3) If the expenses in a cost grouping are more general in nature, the distribution may be based on a cost analysis study which re- sults in an equitable distribution of the costs. Such cost analysis studies may take into consideration weighting factors, popu- lation, or space occupied if appropriate. Cost analysis studies, however, must (a) be appro- priately documented in sufficient detail for subsequent review by the cognizant agency for indirect costs, (b) distribute the costs to the related cost objectives in accordance with the relative benefits derived, (c) be sta- tistically sound, (d) be performed specifically at the institution at which the results are to be used, and (e) be reviewed periodically, but not less frequently than rate negotiations, updated if necessary, and used consistently. Any assumptions made in the study must be stated and explained. The use of cost anal- ysis studies and periodic changes in the method of cost distribution must be fully justified. (4) If a cost analysis study is not per- formed, or if the study does not result in an equitable distribution of the costs, the dis- tribution must be made in accordance with the appropriate base cited in Section B, un- less one of the following conditions is met: (a) It can be demonstrated that the use of a different base would result in a more equi- table allocation of the costs, or that a more readily available base would not increase the costs charged to Federal awards, or (b) The institution qualifies for, and elects to use, the simplified method for computing indirect (F&A) cost rates described in Sec- tion D. (5) Notwithstanding subsection (3), effec- tive July 1, 1998, a cost analysis or base other than that in Section B must not be used to distribute utility or student services costs. Instead, subsection B.4.c, may be used in the recovery of utility costs. e. Order of distribution. (1) Indirect (F&A) costs are the broad cat- egories of costs discussed in Section B.1. (2) Depreciation, interest expenses, oper- ation and maintenance expenses, and general administrative and general expenses should be allocated in that order to the remaining indirect (F&A) cost categories as well as to the major functions and specialized service facilities of the institution. Other cost cat- egories may be allocated in the order deter- mined to be most appropriate by the institu- tions. When cross allocation of costs is made as provided in subsection (3), this order of al- location does not apply. (3) Normally an indirect (F&A) cost cat- egory will be considered closed once it has been allocated to other cost objectives, and costs may not be subsequently allocated to it. However, a cross allocation of costs be- tween two or more indirect (F&A) cost cat- egories may be used if such allocation will result in a more equitable allocation of costs. If a cross allocation is used, an appro- priate modification to the composition of the indirect (F&A) cost categories described in Section B is required. B. IDENTIFICATION AND ASSIGNMENT OF INDIRECT (F&A) COSTS 1. Definition of Facilities and Administration See §200.414 which provides the basis for these indirect cost requirements. 2. Depreciation a. The expenses under this heading are the portion of the costs of the institution’s buildings, capital improvements to land and buildings, and equipment which are com- puted in accordance with §200.436. b. In the absence of the alternatives pro- vided for in Section A.2.d, the expenses in- cluded in this category must be allocated in the following manner: (1) Depreciation on buildings used exclu- sively in the conduct of a single function, and on capital improvements and equipment used in such buildings, must be assigned to that function. (2) Depreciation on buildings used for more than one function, and on capital improve- ments and equipment used in such buildings, must be allocated to the individual functions performed in each building on the basis of usable square feet of space, excluding com- mon areas such as hallways, stairwells, and rest rooms. (3) Depreciation on buildings, capital im- provements and equipment related to space (e.g., individual rooms, laboratories) used jointly by more than one function (as deter- mined by the users of the space) must be VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00234 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 223 OMB Guidance Pt. 200, App. III treated as follows. The cost of each jointly used unit of space must be allocated to bene- fitting functions on the basis of: (a) The employee full-time equivalents (FTEs) or salaries and wages of those indi- vidual functions benefitting from the use of that space; or (b) Institution-wide employee FTEs or sal- aries and wages applicable to the benefitting major functions (see Section A.1) of the in- stitution. (4) Depreciation on certain capital im- provements to land, such as paved parking areas, fences, sidewalks, and the like, not in- cluded in the cost of buildings, must be allo- cated to user categories of students and em- ployees on a full-time equivalent basis. The amount allocated to the student category must be assigned to the instruction function of the institution. The amount allocated to the employee category must be further allo- cated to the major functions of the institu- tion in proportion to the salaries and wages of all employees applicable to those func- tions. 3. Interest Interest on debt associated with certain buildings, equipment and capital improve- ments, as defined in §200.449, must be classi- fied as an expenditure under the category Facilities. These costs must be allocated in the same manner as the depreciation on the buildings, equipment and capital improve- ments to which the interest relates. 4. Operation and Maintenance Expenses a. The expenses under this heading are those that have been incurred for the admin- istration, supervision, operation, mainte- nance, preservation, and protection of the in- stitution’s physical plant. They include ex- penses normally incurred for such items as janitorial and utility services; repairs and ordinary or normal alterations of buildings, furniture and equipment; care of grounds; maintenance and operation of buildings and other plant facilities; security; earthquake and disaster preparedness; environmental safety; hazardous waste disposal; property, liability and all other insurance relating to property; space and capital leasing; facility planning and management; and central re- ceiving. The operation and maintenance ex- pense category should also include its allo- cable share of fringe benefit costs, deprecia- tion, and interest costs. b. In the absence of the alternatives pro- vided for in Section A.2.d, the expenses in- cluded in this category must be allocated in the same manner as described in subsection 2.b for depreciation. c. A utility cost adjustment of up to 1.3 percentage points may be included in the ne- gotiated indirect cost rate of the IHE for or- ganized research, per the computation alter- natives in paragraphs (c)(1) and (2) of this section: (1) Where space is devoted to a single func- tion and metering allows unambiguous meas- urement of usage related to that space, costs must be assigned to the function located in that space. (2) Where space is allocated to different functions and metering does not allow unam- biguous measurement of usage by function, costs must be allocated as follows: (i) Utilities costs should be apportioned to functions in the same manner as deprecia- tion, based on the calculated difference be- tween the site or building actual square foot- age for monitored research laboratory space (site, building, floor, or room), and a sepa- rate calculation prepared by the IHE using the ‘‘effective square footage’’ described in subsection (c)(2)(ii) of this section. (ii) ‘‘Effective square footage’’ allocated to research laboratory space must be calculated as the actual square footage times the rel- ative energy utilization index (REUI) posted on the OMB Web site at the time of a rate determination. A. This index is the ratio of a laboratory energy use index (lab EUI) to the cor- responding index for overall average college or university space (college EUI). B. In July 2012, values for these two indices (taken respectively from the Lawrence Berkeley Laboratory ‘‘Labs for the 21st Cen- tury’’ benchmarking tool and the US Depart- ment of Energy ‘‘Buildings Energy Databook’’ and were 310 kBtu/sq ft-yr. and 155 kBtu/sq ft-yr., so that the adjustment ratio is 2.0 by this methodology. To retain currency, OMB will adjust the EUI numbers from time to time (no more often than annu- ally nor less often than every 5 years), using reliable and publicly disclosed data. Current values of both the EUIs and the REUI will be posted on the OMB website. 5. General Administration and General Expenses a. The expenses under this heading are those that have been incurred for the general executive and administrative offices of edu- cational institutions and other expenses of a general character which do not relate solely to any major function of the institution; i.e., solely to (1) instruction, (2) organized re- search, (3) other sponsored activities, or (4) other institutional activities. The general administration and general expense category should also include its allocable share of fringe benefit costs, operation and mainte- nance expense, depreciation, and interest costs. Examples of general administration and general expenses include: Those expenses incurred by administrative offices that serve the entire university system of which the in- stitution is a part; central offices of the in- stitution such as the President’s or Chancellor’s office, the offices for institu- tion-wide financial management, business VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00235 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 224 2 CFR Ch. II (1–1–21 Edition) Pt. 200, App. III services, budget and planning, personnel management, and safety and risk manage- ment; the office of the General Counsel; and the operations of the central administrative management information systems. General administration and general expenses must not include expenses incurred within non- university-wide deans’ offices, academic de- partments, organized research units, or simi- lar organizational units. (See subsection 6.) b. In the absence of the alternatives pro- vided for in Section A.2.d, the expenses in- cluded in this category must be grouped first according to common major functions of the institution to which they render services or provide benefits. The aggregate expenses of each group must then be allocated to serv- iced or benefitted functions on the modified total cost basis. Modified total costs consist of the same elements as those in Section C.2. When an activity included in this indirect (F&A) cost category provides a service or product to another institution or organiza- tion, an appropriate adjustment must be made to either the expenses or the basis of allocation or both, to assure a proper alloca- tion of costs. 6. Departmental Administration Expenses a. The expenses under this heading are those that have been incurred for adminis- trative and supporting services that benefit common or joint departmental activities or objectives in academic deans’ offices, aca- demic departments and divisions, and orga- nized research units. Organized research units include such units as institutes, study centers, and research centers. Departmental administration expenses are subject to the following limitations. (1) Academic deans’ offices. Salaries and operating expenses are limited to those at- tributable to administrative functions. (2) Academic departments: (a) Salaries and fringe benefits attrib- utable to the administrative work (including bid and proposal preparation) of faculty (in- cluding department heads) and other profes- sional personnel conducting research and/or instruction, must be allowed at a rate of 3.6 percent of modified total direct costs. This category does not include professional busi- ness or professional administrative officers. This allowance must be added to the com- putation of the indirect (F&A) cost rate for major functions in Section C; the expenses covered by the allowance must be excluded from the departmental administration cost pool. No documentation is required to sup- port this allowance. (b) Other administrative and supporting expenses incurred within academic depart- ments are allowable provided they are treat- ed consistently in like circumstances. This would include expenses such as the salaries of secretarial and clerical staffs, the salaries of administrative officers and assistants, travel, office supplies, stockrooms, and the like. (3) Other fringe benefit costs applicable to the salaries and wages included in sub- sections (1) and (2) are allowable, as well as an appropriate share of general administra- tion and general expenses, operation and maintenance expenses, and depreciation. (4) Federal agencies may authorize reim- bursement of additional costs for department heads and faculty only in exceptional cases where an institution can demonstrate undue hardship or detriment to project perform- ance. b. The following guidelines apply to the de- termination of departmental administrative costs as direct or indirect (F&A) costs. (1) In developing the departmental admin- istration cost pool, special care should be ex- ercised to ensure that costs incurred for the same purpose in like circumstances are treated consistently as either direct or indi- rect (F&A) costs. For example, salaries of technical staff, laboratory supplies (e.g., chemicals), telephone toll charges, animals, animal care costs, computer costs, travel costs, and specialized shop costs must be treated as direct costs wherever identifiable to a particular cost objective. Direct charg- ing of these costs may be accomplished through specific identification of individual costs to benefitting cost objectives, or through recharge centers or specialized serv- ice facilities, as appropriate under the cir- cumstances. See §§200.413(c) and 200.468. (2) Items such as office supplies, postage, local telephone costs, and memberships must normally be treated as indirect (F&A) costs. c. In the absence of the alternatives pro- vided for in Section A.2.d, the expenses in- cluded in this category must be allocated as follows: (1) The administrative expenses of the dean’s office of each college and school must be allocated to the academic departments within that college or school on the modified total cost basis. (2) The administrative expenses of each academic department, and the department’s share of the expenses allocated in subsection (1) must be allocated to the appropriate func- tions of the department on the modified total cost basis. 7. Sponsored Projects Administration a. The expenses under this heading are lim- ited to those incurred by a separate organi- zation(s) established primarily to administer sponsored projects, including such functions as grant and contract administration (Fed- eral and non-Federal), special security, pur- chasing, personnel, administration, and edit- ing and publishing of research and other re- ports. They include the salaries and expenses of the head of such organization, assistants, and immediate staff, together with the sala- ries and expenses of personnel engaged in VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00236 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 225 OMB Guidance Pt. 200, App. III supporting activities maintained by the or- ganization, such as stock rooms, print shops, and the like. This category also includes an allocable share of fringe benefit costs, gen- eral administration and general expenses, operation and maintenance expenses, and de- preciation. Appropriate adjustments will be made for services provided to other functions or organizations. b. In the absence of the alternatives pro- vided for in Section A.2.d, the expenses in- cluded in this category must be allocated to the major functions of the institution under which the sponsored projects are conducted on the basis of the modified total cost of sponsored projects. c. An appropriate adjustment must be made to eliminate any duplicate charges to Federal awards when this category includes similar or identical activities as those in- cluded in the general administration and general expense category or other indirect (F&A) cost items, such as accounting, pro- curement, or personnel administration. 8. Library Expenses a. The expenses under this heading are those that have been incurred for the oper- ation of the library, including the cost of books and library materials purchased for the library, less any items of library income that qualify as applicable credits under §200.406. The library expense category should also include the fringe benefits applicable to the salaries and wages included therein, an appropriate share of general administration and general expense, operation and mainte- nance expense, and depreciation. Costs in- curred in the purchases of rare books (mu- seum-type books) with no value to Federal awards should not be allocated to them. b. In the absence of the alternatives pro- vided for in Section A.2.d, the expenses in- cluded in this category must be allocated first on the basis of primary categories of users, including students, professional em- ployees, and other users. (1) The student category must consist of full-time equivalent students enrolled at the institution, regardless of whether they earn credits toward a degree or certificate. (2) The professional employee category must consist of all faculty members and other professional employees of the institu- tion, on a full-time equivalent basis. This category may also include post-doctorate fellows and graduate students. (3) The other users category must consist of a reasonable factor as determined by insti- tutional records to account for all other users of library facilities. c. Amount allocated in paragraph b of this section must be assigned further as follows: (1) The amount in the student category must be assigned to the instruction function of the institution. (2) The amount in the professional em- ployee category must be assigned to the major functions of the institution in propor- tion to the salaries and wages of all faculty members and other professional employees applicable to those functions. (3) The amount in the other users category must be assigned to the other institutional activities function of the institution. 9. Student Administration and Services a. The expenses under this heading are those that have been incurred for the admin- istration of student affairs and for services to students, including expenses of such ac- tivities as deans of students, admissions, reg- istrar, counseling and placement services, student advisers, student health and infir- mary services, catalogs, and commence- ments and convocations. The salaries of members of the academic staff whose respon- sibilities to the institution require adminis- trative work that benefits sponsored projects may also be included to the extent that the portion charged to student administration is determined in accordance with subpart E of this Part. This expense category also in- cludes the fringe benefit costs applicable to the salaries and wages included therein, an appropriate share of general administration and general expenses, operation and mainte- nance, interest expense, and depreciation. b. In the absence of the alternatives pro- vided for in Section A.2.d, the expenses in this category must be allocated to the in- struction function, and subsequently to Fed- eral awards in that function. 10. Offset for Indirect (F&A) Expenses Other- wise Provided for by the Federal Govern- ment a. The items to be accumulated under this heading are the reimbursements and other payments from the Federal Government which are made to the institution to support solely, specifically, and directly, in whole or in part, any of the administrative or service activities described in subsections 2 through 9. b. The items in this group must be treated as a credit to the affected individual indirect (F&A) cost category before that category is allocated to benefitting functions. C. DETERMINATION AND APPLICATION OF INDIRECT (F&A) COST RATE OR RATES 1. Indirect (F&A) Cost Pools a. (1) Subject to subsection b, the separate categories of indirect (F&A) costs allocated to each major function of the institution as prescribed in Section B, must be aggregated and treated as a common pool for that func- tion. The amount in each pool must be di- vided by the distribution base described in VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00237 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 226 2 CFR Ch. II (1–1–21 Edition) Pt. 200, App. III subsection 2 to arrive at a single indirect (F&A) cost rate for each function. (2) The rate for each function is used to distribute indirect (F&A) costs to individual Federal awards of that function. Since a common pool is established for each major function of the institution, a separate indi- rect (F&A) cost rate would be established for each of the major functions described in Sec- tion A.1 under which Federal awards are car- ried out. (3) Each institution’s indirect (F&A) cost rate process must be appropriately designed to ensure that Federal sponsors do not in any way subsidize the indirect (F&A) costs of other sponsors, specifically activities spon- sored by industry and foreign governments. Accordingly, each allocation method used to identify and allocate the indirect (F&A) cost pools, as described in Sections A.2 and B.2 through B.9, must contain the full amount of the institution’s modified total costs or other appropriate units of measurement used to make the computations. In addition, the final rate distribution base (as defined in subsection 2) for each major function (orga- nized research, instruction, etc., as described in Section A.1 functions of an institution) must contain all the programs or activities which utilize the indirect (F&A) costs allo- cated to that major function. At the time an indirect (F&A) cost proposal is submitted to a cognizant agency for indirect costs, each institution must describe the process it uses to ensure that Federal funds are not used to subsidize industry and foreign government funded programs. 2. The Distribution Basis Indirect (F&A) costs must be distributed to applicable Federal awards and other benefit- ting activities within each major function (see section A.1) on the basis of modified total direct costs (MTDC), consisting of all salaries and wages, fringe benefits, materials and supplies, services, travel, and up to the first $25,000 of each subaward (regardless of the period covered by the subaward). MTDC is defined in §200.1. For this purpose, an indi- rect (F&A) cost rate should be determined for each of the separate indirect (F&A) cost pools developed pursuant to subsection 1. The rate in each case should be stated as the percentage which the amount of the par- ticular indirect (F&A) cost pool is of the modified total direct costs identified with such pool. 3. Negotiated Lump Sum for Indirect (F&A) Costs A negotiated fixed amount in lieu of indi- rect (F&A) costs may be appropriate for self- contained, off-campus, or primarily subcon- tracted activities where the benefits derived from an institution’s indirect (F&A) services cannot be readily determined. Such nego- tiated indirect (F&A) costs will be treated as an offset before allocation to instruction, or- ganized research, other sponsored activities, and other institutional activities. The base on which such remaining expenses are allo- cated should be appropriately adjusted. 4. Predetermined Rates for Indirect (F&A) Costs Public Law 87–638 (76 Stat. 437) as amended (41 U.S.C. 4708) authorizes the use of pre- determined rates in determining the ‘‘indi- rect costs’’ (indirect (F&A) costs) applicable under research agreements with educational institutions. The stated objectives of the law are to simplify the administration of cost- type research and development contracts (in- cluding grants) with educational institu- tions, to facilitate the preparation of their budgets, and to permit more expeditious closeout of such contracts when the work is completed. In view of the potential advan- tages offered by this procedure, negotiation of predetermined rates for indirect (F&A) costs for a period of two to four years should be the norm in those situations where the cost experience and other pertinent facts available are deemed sufficient to enable the parties involved to reach an informed judg- ment as to the probable level of indirect (F&A) costs during the ensuing accounting periods. 5. Negotiated Fixed Rates and Carry-Forward Provisions When a fixed rate is negotiated in advance for a fiscal year (or other time period), the over- or under-recovery for that year may be included as an adjustment to the indirect (F&A) cost for the next rate negotiation. When the rate is negotiated before the carry- forward adjustment is determined, the carry- forward amount may be applied to the next subsequent rate negotiation. When such ad- justments are to be made, each fixed rate ne- gotiated in advance for a given period will be computed by applying the expected indirect (F&A) costs allocable to Federal awards for the forecast period plus or minus the carry- forward adjustment (over- or under-recovery) from the prior period, to the forecast dis- tribution base. Unrecovered amounts under lump-sum agreements or cost-sharing provi- sions of prior years must not be carried for- ward for consideration in the new rate nego- tiation. There must, however, be an advance understanding in each case between the in- stitution and the cognizant agency for indi- rect costs as to whether these differences will be considered in the rate negotiation rather than making the determination after the differences are known. Further, institu- tions electing to use this carry-forward pro- vision may not subsequently change without prior approval of the cognizant agency for indirect costs. In the event that an institu- tion returns to a post-determined rate, any VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00238 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 227 OMB Guidance Pt. 200, App. III over- or under-recovery during the period in which negotiated fixed rates and carry-for- ward provisions were followed will be in- cluded in the subsequent post-determined rates. Where multiple rates are used, the same procedure will be applicable for deter- mining each rate. 6. Provisional and Final Rates for Indirect (F&A) Costs Where the cognizant agency for indirect costs determines that cost experience and other pertinent facts do not justify the use of predetermined rates, or a fixed rate with a carry-forward, or if the parties cannot agree on an equitable rate, a provisional rate must be established. To prevent substantial overpayment or underpayment, the provi- sional rate may be adjusted by the cognizant agency for indirect costs during the institu- tion’s fiscal year. Predetermined or fixed rates may replace provisional rates at any time prior to the close of the institution’s fiscal year. If a provisional rate is not re- placed by a predetermined or fixed rate prior to the end of the institution’s fiscal year, a final rate will be established and upward or downward adjustments will be made based on the actual allowable costs incurred for the period involved. 7. Fixed Rates for the Life of the Sponsored Agreement a. Except as provided in paragraph (c)(1) of §200.414, Federal agencies must use the nego- tiated rates in effect at the time of the ini- tial award throughout the life of the Federal award. Award levels for Federal awards may not be adjusted in future years as a result of changes in negotiated rates. ‘‘Negotiated rates’’ per the rate agreement include final, fixed, and predetermined rates and exclude provisional rates. ‘‘Life’’ for the purpose of this subsection means each competitive seg- ment of a project. A competitive segment is a period of years approved by the Federal awarding agency at the time of the Federal award. If negotiated rate agreements do not extend through the life of the Federal award at the time of the initial award, then the ne- gotiated rate for the last year of the Federal award must be extended through the end of the life of the Federal award. b. Except as provided in §200.414, when an educational institution does not have a nego- tiated rate with the Federal Government at the time of an award (because the edu- cational institution is a new recipient or the parties cannot reach agreement on a rate), the provisional rate used at the time of the award must be adjusted once a rate is nego- tiated and approved by the cognizant agency for indirect costs. 8. Limitation on Reimbursement of Administrative Costs a. Notwithstanding the provisions of sub- section C.1.a, the administrative costs charged to Federal awards awarded or amended (including continuation and re- newal awards) with effective dates beginning on or after the start of the institution’s first fiscal year which begins on or after October 1, 1991, must be limited to 26% of modified total direct costs (as defined in subsection 2) for the total of General Administration and General Expenses, Departmental Adminis- tration, Sponsored Projects Administration, and Student Administration and Services (including their allocable share of deprecia- tion, interest costs, operation and mainte- nance expenses, and fringe benefits costs, as provided by Section B, and all other types of expenditures not listed specifically under one of the subcategories of facilities in Sec- tion B. b. Institutions should not change their ac- counting or cost allocation methods if the ef- fect is to change the charging of a particular type of cost from F&A to direct, or to reclas- sify costs, or increase allocations from the administrative pools identified in paragraph B.1 of this Appendix to the other F&A cost pools or fringe benefits. Cognizant agencies for indirect cost are authorized to allow changes where an institution’s charging practices are at variance with acceptable practices followed by a substantial majority of other institutions. 9. Alternative Method for Administrative Costs a. Notwithstanding the provisions of sub- section C.1.a, an institution may elect to claim a fixed allowance for the ‘‘Adminis- tration’’ portion of indirect (F&A) costs. The allowance could be either 24% of modified total direct costs or a percentage equal to 95% of the most recently negotiated fixed or predetermined rate for the cost pools in- cluded under ‘‘Administration’’ as defined in Section B.1, whichever is less. Under this al- ternative, no cost proposal need be prepared for the ‘‘Administration’’ portion of the indi- rect (F&A) cost rate nor is further identifica- tion or documentation of these costs re- quired (see subsection c). Where a negotiated indirect (F&A) cost agreement includes this alternative, an institution must make no further charges for the expenditure cat- egories described in Section B.5, Section B.6, Section B.7, and Section B.9. b. In negotiations of rates for subsequent periods, an institution that has elected the option of subsection a may continue to exer- cise it at the same rate without further iden- tification or documentation of costs. c. If an institution elects to accept a threshold rate as defined in subsection a of this section, it is not required to perform a detailed analysis of its administrative costs. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00239 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 228 2 CFR Ch. II (1–1–21 Edition) Pt. 200, App. III However, in order to compute the facilities components of its indirect (F&A) cost rate, the institution must reconcile its indirect (F&A) cost proposal to its financial state- ments and make appropriate adjustments and reclassifications to identify the costs of each major function as defined in Section A.1, as well as to identify and allocate the fa- cilities components. Administrative costs that are not identified as such by the insti- tution’s accounting system (such as those in- curred in academic departments) will be classified as instructional costs for purposes of reconciling indirect (F&A) cost proposals to financial statements and allocating facili- ties costs. 10. Individual Rate Components In order to provide mutually agreed-upon information for management purposes, each indirect (F&A) cost rate negotiation or de- termination must include development of a rate for each indirect (F&A) cost pool as well as the overall indirect (F&A) cost rate. 11. Negotiation and Approval of Indirect (F&A) Rate a. Cognizant agency for indirect costs is defined in Subpart A. (1) Cost negotiation cognizance is assigned to the Department of Health and Human Services (HHS) or the Department of De- fense’s Office of Naval Research (DOD), nor- mally depending on which of the two agen- cies (HHS or DOD) provides more funds di- rectly to the educational institution for the most recent three years. Information on funding must be derived from relevant data gathered by the National Science Founda- tion. In cases where neither HHS nor DOD provides Federal funding directly to an edu- cational institution, the cognizant agency for indirect costs assignment must default to HHS. Notwithstanding the method for cog- nizance determination described in this sec- tion, other arrangements for cognizance of a particular educational institution may also be based in part on the types of research per- formed at the educational institution and must be decided based on mutual agreement between HHS and DOD. Where a non-Federal entity only receives funds as a subrecipient, see §200.332. (2) After cognizance is established, it must continue for a five-year period. b. Acceptance of rates. See §200.414. c. Correcting deficiencies. The cognizant agency for indirect costs must negotiate changes needed to correct systems defi- ciencies relating to accountability for Fed- eral awards. Cognizant agencies for indirect costs must address the concerns of other af- fected agencies, as appropriate, and must ne- gotiate special rates for Federal agencies that are required to limit recovery of indi- rect costs by statute. d. Resolving questioned costs. The cog- nizant agency for indirect costs must con- duct any necessary negotiations with an edu- cational institution regarding amounts ques- tioned by audit that are due the Federal Government related to costs covered by a ne- gotiated agreement. e. Reimbursement. Reimbursement to cog- nizant agencies for indirect costs for work performed under this Part may be made by reimbursement billing under the Economy Act, 31 U.S.C. 1535. f. Procedure for establishing facilities and administrative rates must be established by one of the following methods: (1) Formal negotiation. The cognizant agency for indirect costs is responsible for negotiating and approving rates for an edu- cational institution on behalf of all Federal agencies. Federal awarding agencies that do not have cognizance for indirect costs must notify the cognizant agency for indirect costs of specific concerns (i.e., a need to es- tablish special cost rates) which could affect the negotiation process. The cognizant agen- cy for indirect costs must address the con- cerns of all interested agencies, as appro- priate. A pre-negotiation conference may be scheduled among all interested agencies, if necessary. The cognizant agency for indirect costs must then arrange a negotiation con- ference with the educational institution. (2) Other than formal negotiation. The cog- nizant agency for indirect costs and edu- cational institution may reach an agreement on rates without a formal negotiation con- ference; for example, through correspond- ence or use of the simplified method de- scribed in this section D of this Appendix. g. Formalizing determinations and agree- ments. The cognizant agency for indirect costs must formalize all determinations or agreements reached with an educational in- stitution and provide copies to other agen- cies having an interest. Determinations should include a description of any adjust- ments, the actual amount, both dollar and percentage adjusted, and the reason for mak- ing adjustments. h. Disputes and disagreements. Where the cognizant agency for indirect costs is unable to reach agreement with an educational in- stitution with regard to rates or audit reso- lution, the appeal system of the cognizant agency for indirect costs must be followed for resolution of the disagreement. 12. Standard Format for Submission For facilities and administrative (indirect (F&A)) rate proposals, educational institu- tions must use the standard format, shown in section E of this appendix, to submit their indirect (F&A) rate proposal to the cog- nizant agency for indirect costs. The cog- nizant agency for indirect costs may, on an institution-by-institution basis, grant excep- tions from all or portions of Part II of the VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00240 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 229 OMB Guidance Pt. 200, App. III standard format requirement. This require- ment does not apply to educational institu- tions that use the simplified method for cal- culating indirect (F&A) rates, as described in Section D of this Appendix. As provided in section C.10 of this appen- dix, each F&A cost rate negotiation or deter- mination must include development of a rate for each F&A cost pool as well as the overall F&A rate. D. SIMPLIFIED METHOD FOR SMALL INSTITUTIONS 1. General a. Where the total direct cost of work cov- ered by this Part at an institution does not exceed $10 million in a fiscal year, the sim- plified procedure described in subsections 2 or 3 may be used in determining allowable indirect (F&A) costs. Under this simplified procedure, the institution’s most recent an- nual financial report and immediately avail- able supporting information must be utilized as a basis for determining the indirect (F&A) cost rate applicable to all Federal awards. The institution may use either the salaries and wages (see subsection 2) or modified total direct costs (see subsection 3) as the distribution basis. b. The simplified procedure should not be used where it produces results which appear inequitable to the Federal Government or the institution. In any such case, indirect (F&A) costs should be determined through use of the regular procedure. 2. Simplified Procedure—Salaries and Wages Base a. Establish the total amount of salaries and wages paid to all employees of the insti- tution. b. Establish an indirect (F&A) cost pool consisting of the expenditures (exclusive of capital items and other costs specifically identified as unallowable) which customarily are classified under the following titles or their equivalents: (1) General administration and general ex- penses (exclusive of costs of student adminis- tration and services, student activities, stu- dent aid, and scholarships). (2) Operation and maintenance of physical plant and depreciation (after appropriate ad- justment for costs applicable to other insti- tutional activities). (3) Library. (4) Department administration expenses, which will be computed as 20 percent of the salaries and expenses of deans and heads of departments. In those cases where expenditures classi- fied under subsection (1) have previously been allocated to other institutional activi- ties, they may be included in the indirect (F&A) cost pool. The total amount of sala- ries and wages included in the indirect (F&A) cost pool must be separately identified. c. Establish a salary and wage distribution base, determined by deducting from the total of salaries and wages as established in sub- section a from the amount of salaries and wages included under subsection b. d. Establish the indirect (F&A) cost rate, determined by dividing the amount in the in- direct (F&A) cost pool, subsection b, by the amount of the distribution base, subsection c. e. Apply the indirect (F&A) cost rate to di- rect salaries and wages for individual agree- ments to determine the amount of indirect (F&A) costs allocable to such agreements. 3. Simplified Procedure—Modified Total Direct Cost Base a. Establish the total costs incurred by the institution for the base period. b. Establish an indirect (F&A) cost pool consisting of the expenditures (exclusive of capital items and other costs specifically identified as unallowable) which customarily are classified under the following titles or their equivalents: (1) General administration and general ex- penses (exclusive of costs of student adminis- tration and services, student activities, stu- dent aid, and scholarships). (2) Operation and maintenance of physical plant and depreciation (after appropriate ad- justment for costs applicable to other insti- tutional activities). (3) Library. (4) Department administration expenses, which will be computed as 20 percent of the salaries and expenses of deans and heads of departments. In those cases where expendi- tures classified under subsection (1) have previously been allocated to other institu- tional activities, they may be included in the indirect (F&A) cost pool. The modified total direct costs amount included in the indirect (F&A) cost pool must be separately identi- fied. c. Establish a modified total direct cost distribution base, as defined in Section C.2, The distribution basis, that consists of all institution’s direct functions. d. Establish the indirect (F&A) cost rate, determined by dividing the amount in the in- direct (F&A) cost pool, subsection b, by the amount of the distribution base, subsection c. e. Apply the indirect (F&A) cost rate to the modified total direct costs for individual agreements to determine the amount of indi- rect (F&A) costs allocable to such agree- ments. E. DOCUMENTATION REQUIREMENTS The standard format for documentation re- quirements for indirect (indirect (F&A)) rate VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00241 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 230 2 CFR Ch. II (1–1–21 Edition) Pt. 200, App. IV proposals for claiming costs under the reg- ular method is available on the OMB website. F. CERTIFICATION 1. Certification of Charges To assure that expenditures for Federal awards are proper and in accordance with the agreement documents and approved project budgets, the annual and/or final fis- cal reports or vouchers requesting payment under the agreements will include a certifi- cation, signed by an authorized official of the university, which reads ‘‘By signing this report, I certify to the best of my knowledge and belief that the report is true, complete, and accurate, and the expenditures, disburse- ments and cash receipts are for the purposes and intent set forth in the award documents. I am aware that any false, fictitious, or fraudulent information, or the omission of any material fact, may subject me to crimi- nal, civil or administrative penalties for fraud, false statements, false claims or oth- erwise. (U.S. Code, Title 18, Section 1001 and Title 31, Sections 3729–3733 and 3801–3812)’’. 2. Certification of Indirect (F&A) Costs a. Policy. Cognizant agencies must not ac- cept a proposed indirect cost rate unless such costs have been certified by the edu- cational institution using the Certificate of indirect (F&A) Costs set forth in subsection F.2.c b. The certificate must be signed on behalf of the institution by the chief financial offi- cer or an individual designated by an indi- vidual at a level no lower than vice president or chief financial officer. An indirect (F&A) cost rate is not binding upon the Federal Government if the most re- cent required proposal from the institution has not been certified. Where it is necessary to establish indirect (F&A) cost rates, and the institution has not submitted a certified proposal for establishing such rates in ac- cordance with the requirements of this sec- tion, the Federal Government must unilater- ally establish such rates. Such rates may be based upon audited historical data or such other data that have been furnished to the cognizant agency for indirect costs and for which it can be demonstrated that all unal- lowable costs have been excluded. When indi- rect (F&A) cost rates are unilaterally estab- lished by the Federal Government because of failure of the institution to submit a cer- tified proposal for establishing such rates in accordance with this section, the rates es- tablished will be set at a level low enough to ensure that potentially unallowable costs will not be reimbursed. c. Certificate. The certificate required by this section must be in the following form: Certificate of Indirect (F&A) Costs This is to certify that to the best of my knowledge and belief: (1) I have reviewed the indirect (F&A) cost proposal submitted herewith; (2) All costs included in this proposal [iden- tify date] to establish billing or final indi- rect (F&A) costs rate for [identify period covered by rate] are allowable in accordance with the requirements of the Federal agree- ment(s) to which they apply and with the cost principles applicable to those agree- ments. (3) This proposal does not include any costs which are unallowable under subpart E of this part such as (without limitation): Public relations costs, contributions and donations, entertainment costs, fines and penalties, lob- bying costs, and defense of fraud pro- ceedings; and (4) All costs included in this proposal are properly allocable to Federal agreements on the basis of a beneficial or causal relation- ship between the expenses incurred and the agreements to which they are allocated in accordance with applicable requirements. I declare that the foregoing is true and cor- rect. Institution of Higher Education: Signature: llllllllllllllllll Name of Official: llllllllllllll Title: llllllllllllllllllll Date of Execution: lllllllllllll [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75888, Dec. 19, 2014; 80 FR 54409, Sept. 10, 2015; 85 FR 49577, Aug. 13, 2020] APPENDIX IV TO PART 200—INDIRECT (F&A) COSTS IDENTIFICATION AND ASSIGNMENT, AND RATE DETERMINA- TION FOR NONPROFIT ORGANIZA- TIONS A. GENERAL 1. Indirect costs are those that have been incurred for common or joint objectives and cannot be readily identified with a par- ticular final cost objective. Direct cost of minor amounts may be treated as indirect costs under the conditions described in §200.413(d). After direct costs have been de- termined and assigned directly to awards or other work as appropriate, indirect costs are those remaining to be allocated to benefit- ting cost objectives. A cost may not be allo- cated to a Federal award as an indirect cost if any other cost incurred for the same pur- pose, in like circumstances, has been as- signed to a Federal award as a direct cost. 2. ‘‘Major nonprofit organizations’’ are de- fined in paragraph (a) of §200.414. See indi- rect cost rate reporting requirements in sec- tions B.2.e and B.3.g of this Appendix. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00242 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 231 OMB Guidance Pt. 200, App. IV B. ALLOCATION OF INDIRECT COSTS AND DETERMINATION OF INDIRECT COST RATES 1. General a. If a nonprofit organization has only one major function, or where all its major func- tions benefit from its indirect costs to ap- proximately the same degree, the allocation of indirect costs and the computation of an indirect cost rate may be accomplished through simplified allocation procedures, as described in section B.2 of this Appendix. b. If an organization has several major functions which benefit from its indirect costs in varying degrees, allocation of indi- rect costs may require the accumulation of such costs into separate cost groupings which then are allocated individually to ben- efitting functions by means of a base which best measures the relative degree of benefit. The indirect costs allocated to each function are then distributed to individual Federal awards and other activities included in that function by means of an indirect cost rate(s). c. The determination of what constitutes an organization’s major functions will de- pend on its purpose in being; the types of services it renders to the public, its clients, and its members; and the amount of effort it devotes to such activities as fundraising, public information and membership activi- ties. d. Specific methods for allocating indirect costs and computing indirect cost rates along with the conditions under which each method should be used are described in sec- tion B.2 through B.5 of this Appendix. e. The base period for the allocation of in- direct costs is the period in which such costs are incurred and accumulated for allocation to work performed in that period. The base period normally should coincide with the or- ganization’s fiscal year but, in any event, must be so selected as to avoid inequities in the allocation of the costs. 2. Simplified Allocation Method a. Where an organization’s major functions benefit from its indirect costs to approxi- mately the same degree, the allocation of in- direct costs may be accomplished by (i) sepa- rating the organization’s total costs for the base period as either direct or indirect, and (ii) dividing the total allowable indirect costs (net of applicable credits) by an equi- table distribution base. The result of this process is an indirect cost rate which is used to distribute indirect costs to individual Federal awards. The rate should be expressed as the percentage which the total amount of allowable indirect costs bears to the base se- lected. This method should also be used where an organization has only one major function encompassing a number of indi- vidual projects or activities, and may be used where the level of Federal awards to an organization is relatively small. b. Both the direct costs and the indirect costs must exclude capital expenditures and unallowable costs. However, unallowable costs which represent activities must be in- cluded in the direct costs under the condi- tions described in §200.413(e). c. The distribution base may be total di- rect costs (excluding capital expenditures and other distorting items, such as sub- awards for $25,000 or more), direct salaries and wages, or other base which results in an equitable distribution. The distribution base must exclude participant support costs as de- fined in §200.1. d. Except where a special rate(s) is re- quired in accordance with section B.5 of this Appendix, the indirect cost rate developed under the above principles is applicable to all Federal awards of the organization. If a special rate(s) is required, appropriate modi- fications must be made in order to develop the special rate(s). e. For an organization that receives more than $10 million in direct Federal funding in a fiscal year, a breakout of the indirect cost component into two broad categories, Facili- ties and Administration as defined in para- graph (a) of §200.414, is required. The rate in each case must be stated as the percentage which the amount of the particular indirect cost category (i.e., Facilities or Administra- tion) is of the distribution base identified with that category. 3. Multiple Allocation Base Method a. General. Where an organization’s indi- rect costs benefit its major functions in varying degrees, indirect costs must be accu- mulated into separate cost groupings, as de- scribed in subparagraph b. Each grouping must then be allocated individually to bene- fitting functions by means of a base which best measures the relative benefits. The de- fault allocation bases by cost pool are de- scribed in section B.3.c of this Appendix. b. Identification of indirect costs. Cost groupings must be established so as to per- mit the allocation of each grouping on the basis of benefits provided to the major func- tions. Each grouping must constitute a pool of expenses that are of like character in terms of functions they benefit and in terms of the allocation base which best measures the relative benefits provided to each func- tion. The groupings are classified within the two broad categories: ‘‘Facilities’’ and ‘‘Ad- ministration,’’ as described in section A.3 of this Appendix. The indirect cost pools are de- fined as follows: (1) Depreciation. The expenses under this heading are the portion of the costs of the organization’s buildings, capital improve- ments to land and buildings, and equipment which are computed in accordance with §200.436. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00243 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 232 2 CFR Ch. II (1–1–21 Edition) Pt. 200, App. IV (2) Interest. Interest on debt associated with certain buildings, equipment and cap- ital improvements are computed in accord- ance with §200.449. (3) Operation and maintenance expenses. The expenses under this heading are those that have been incurred for the administra- tion, operation, maintenance, preservation, and protection of the organization’s physical plant. They include expenses normally in- curred for such items as: janitorial and util- ity services; repairs and ordinary or normal alterations of buildings, furniture and equip- ment; care of grounds; maintenance and op- eration of buildings and other plant facili- ties; security; earthquake and disaster pre- paredness; environmental safety; hazardous waste disposal; property, liability and other insurance relating to property; space and capital leasing; facility planning and man- agement; and central receiving. The oper- ation and maintenance expenses category must also include its allocable share of fringe benefit costs, depreciation, and inter- est costs. (4) General administration and general ex- penses. The expenses under this heading are those that have been incurred for the overall general executive and administrative offices of the organization and other expenses of a general nature which do not relate solely to any major function of the organization. This category must also include its allocable share of fringe benefit costs, operation and maintenance expense, depreciation, and in- terest costs. Examples of this category in- clude central offices, such as the director’s office, the office of finance, business serv- ices, budget and planning, personnel, safety and risk management, general counsel, man- agement information systems, and library costs. In developing this cost pool, special care should be exercised to ensure that costs in- curred for the same purpose in like cir- cumstances are treated consistently as ei- ther direct or indirect costs. For example, salaries of technical staff, project supplies, project publication, telephone toll charges, computer costs, travel costs, and specialized services costs must be treated as direct costs wherever identifiable to a particular pro- gram. The salaries and wages of administra- tive and pooled clerical staff should nor- mally be treated as indirect costs. Direct charging of these costs may be appropriate as described in §200.413. Items such as office supplies, postage, local telephone costs, peri- odicals and memberships should normally be treated as indirect costs. c. Allocation bases. Actual conditions must be taken into account in selecting the base to be used in allocating the expenses in each grouping to benefitting functions. The essential consideration in selecting a method or a base is that it is the one best suited for assigning the pool of costs to cost objectives in accordance with benefits derived; a trace- able cause and effect relationship; or logic and reason, where neither the cause nor the effect of the relationship is determinable. When an allocation can be made by assign- ment of a cost grouping directly to the func- tion benefitted, the allocation must be made in that manner. When the expenses in a cost grouping are more general in nature, the al- location must be made through the use of a selected base which produces results that are equitable to both the Federal Government and the organization. The distribution must be made in accordance with the bases de- scribed herein unless it can be demonstrated that the use of a different base would result in a more equitable allocation of the costs, or that a more readily available base would not increase the costs charged to Federal awards. The results of special cost studies (such as an engineering utility study) must not be used to determine and allocate the in- direct costs to Federal awards. (1) Depreciation. Depreciation expenses must be allocated in the following manner: (a) Depreciation on buildings used exclu- sively in the conduct of a single function, and on capital improvements and equipment used in such buildings, must be assigned to that function. (b) Depreciation on buildings used for more than one function, and on capital improve- ments and equipment used in such buildings, must be allocated to the individual functions performed in each building on the basis of usable square feet of space, excluding com- mon areas, such as hallways, stairwells, and restrooms. (c) Depreciation on buildings, capital im- provements and equipment related space (e.g., individual rooms, and laboratories) used jointly by more than one function (as determined by the users of the space) must be treated as follows. The cost of each joint- ly used unit of space must be allocated to the benefitting functions on the basis of: (i) the employees and other users on a full- time equivalent (FTE) basis or salaries and wages of those individual functions benefit- ting from the use of that space; or (ii) organization-wide employee FTEs or salaries and wages applicable to the benefit- ting functions of the organization. (d) Depreciation on certain capital im- provements to land, such as paved parking areas, fences, sidewalks, and the like, not in- cluded in the cost of buildings, must be allo- cated to user categories on a FTE basis and distributed to major functions in proportion to the salaries and wages of all employees applicable to the functions. (2) Interest. Interest costs must be allo- cated in the same manner as the deprecia- tion on the buildings, equipment and capital equipment to which the interest relates. (3) Operation and maintenance expenses. Operation and maintenance expenses must VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00244 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 233 OMB Guidance Pt. 200, App. IV be allocated in the same manner as the de- preciation. (4) General administration and general ex- penses. General administration and general expenses must be allocated to benefitting functions based on modified total costs (MTC). The MTC is the modified total direct costs (MTDC), as described in §200.1, plus the allocated indirect cost proportion. The ex- penses included in this category could be grouped first according to major functions of the organization to which they render serv- ices or provide benefits. The aggregate ex- penses of each group must then be allocated to benefitting functions based on MTC. d. Order of distribution. (1) Indirect cost categories consisting of depreciation, interest, operation and mainte- nance, and general administration and gen- eral expenses must be allocated in that order to the remaining indirect cost categories as well as to the major functions of the organi- zation. Other cost categories should be allo- cated in the order determined to be most ap- propriate by the organization. This order of allocation does not apply if cross allocation of costs is made as provided in section B.3.d.2 of this Appendix. (2) Normally, an indirect cost category will be considered closed once it has been allo- cated to other cost objectives, and costs must not be subsequently allocated to it. However, a cross allocation of costs between two or more indirect costs categories could be used if such allocation will result in a more equitable allocation of costs. If a cross allocation is used, an appropriate modifica- tion to the composition of the indirect cost categories is required. e. Application of indirect cost rate or rates. Except where a special indirect cost rate(s) is required in accordance with section B.5 of this Appendix, the separate groupings of indirect costs allocated to each major function must be aggregated and treated as a common pool for that function. The costs in the common pool must then be distributed to individual Federal awards included in that function by use of a single indirect cost rate. f. Distribution basis. Indirect costs must be distributed to applicable Federal awards and other benefitting activities within each major function on the basis of MTDC (see definition in §200.1). g. Individual Rate Components. An indi- rect cost rate must be determined for each separate indirect cost pool developed. The rate in each case must be stated as the per- centage which the amount of the particular indirect cost pool is of the distribution base identified with that pool. Each indirect cost rate negotiation or determination agreement must include development of the rate for each indirect cost pool as well as the overall indirect cost rate. The indirect cost pools must be classified within two broad cat- egories: ‘‘Facilities’’ and ‘‘Administration,’’ as described in §200.414(a). 4. Direct Allocation Method a. Some nonprofit organizations treat all costs as direct costs except general adminis- tration and general expenses. These organi- zations generally separate their costs into three basic categories: (i) General adminis- tration and general expenses, (ii) fund- raising, and (iii) other direct functions (in- cluding projects performed under Federal awards). Joint costs, such as depreciation, rental costs, operation and maintenance of facilities, telephone expenses, and the like are prorated individually as direct costs to each category and to each Federal award or other activity using a base most appropriate to the particular cost being prorated. b. This method is acceptable, provided each joint cost is prorated using a base which ac- curately measures the benefits provided to each Federal award or other activity. The bases must be established in accordance with reasonable criteria and be supported by cur- rent data. This method is compatible with the Standards of Accounting and Financial Reporting for Voluntary Health and Welfare Organizations issued jointly by the National Health Council, Inc., the National Assembly of Voluntary Health and Social Welfare Or- ganizations, and the United Way of America. c. Under this method, indirect costs con- sist exclusively of general administration and general expenses. In all other respects, the organization’s indirect cost rates must be computed in the same manner as that de- scribed in section B.2 of this Appendix. 5. Special Indirect Cost Rates In some instances, a single indirect cost rate for all activities of an organization or for each major function of the organization may not be appropriate, since it would not take into account those different factors which may substantially affect the indirect costs applicable to a particular segment of work. For this purpose, a particular segment of work may be that performed under a sin- gle Federal award or it may consist of work under a group of Federal awards performed in a common environment. These factors may include the physical location of the work, the level of administrative support re- quired, the nature of the facilities or other resources employed, the scientific disciplines or technical skills involved, the organiza- tional arrangements used, or any combina- tion thereof. When a particular segment of work is performed in an environment which appears to generate a significantly different level of indirect costs, provisions should be made for a separate indirect cost pool appli- cable to such work. The separate indirect cost pool should be developed during the course of the regular allocation process, and VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00245 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 234 2 CFR Ch. II (1–1–21 Edition) Pt. 200, App. IV the separate indirect cost rate resulting therefrom should be used, provided it is de- termined that (i) the rate differs signifi- cantly from that which would have been ob- tained under sections B.2, B.3, and B.4 of this Appendix, and (ii) the volume of work to which the rate would apply is material. C. NEGOTIATION AND APPROVAL OF INDIRECT COST RATES 1. Definitions As used in this section, the following terms have the meanings set forth in this section: a. Cognizant agency for indirect costs means the Federal agency responsible for negoti- ating and approving indirect cost rates for a nonprofit organization on behalf of all Fed- eral agencies. b. Predetermined rate means an indirect cost rate, applicable to a specified current or fu- ture period, usually the organization’s fiscal year. The rate is based on an estimate of the costs to be incurred during the period. A pre- determined rate is not subject to adjust- ment. c. Fixed rate means an indirect cost rate which has the same characteristics as a pre- determined rate, except that the difference between the estimated costs and the actual costs of the period covered by the rate is car- ried forward as an adjustment to the rate computation of a subsequent period. d. Final rate means an indirect cost rate applicable to a specified past period which is based on the actual costs of the period. A final rate is not subject to adjustment. e. Provisional rate or billing rate means a temporary indirect cost rate applicable to a specified period which is used for funding, in- terim reimbursement, and reporting indirect costs on Federal awards pending the estab- lishment of a final rate for the period. f. Indirect cost proposal means the docu- mentation prepared by an organization to substantiate its claim for the reimbursement of indirect costs. This proposal provides the basis for the review and negotiation leading to the establishment of an organization’s in- direct cost rate. g. Cost objective means a function, organiza- tional subdivision, contract, Federal award, or other work unit for which cost data are desired and for which provision is made to accumulate and measure the cost of proc- esses, projects, jobs and capitalized projects. 2. Negotiation and Approval of Rates a. Unless different arrangements are agreed to by the Federal agencies concerned, the Federal agency with the largest dollar value of Federal awards directly funded to an organization will be designated as the cog- nizant agency for indirect costs for the nego- tiation and approval of the indirect cost rates and, where necessary, other rates such as fringe benefit and computer charge-out rates. Once an agency is assigned cognizance for a particular nonprofit organization, the assignment will not be changed unless there is a shift in the dollar volume of the Federal awards directly funded to the organization for at least three years. All concerned Fed- eral agencies must be given the opportunity to participate in the negotiation process but, after a rate has been agreed upon, it will be accepted by all Federal agencies. When a Federal agency has reason to believe that special operating factors affecting its Fed- eral awards necessitate special indirect cost rates in accordance with section B.5 of this Appendix, it will, prior to the time the rates are negotiated, notify the cognizant agency for indirect costs. (See also §200.414.) If the nonprofit does not receive any funding from any Federal agency, the pass-through entity is responsible for the negotiation of the indi- rect cost rates in accordance with §200.332(a)(4). b. Except as otherwise provided in §200.414(f), a nonprofit organization which has not previously established an indirect cost rate with a Federal agency must submit its initial indirect cost proposal immediately after the organization is advised that a Fed- eral award will be made and, in no event, later than three months after the effective date of the Federal award. c. Unless approved by the cognizant agency for indirect costs in accordance with §200.414(g), organizations that have pre- viously established indirect cost rates must submit a new indirect cost proposal to the cognizant agency for indirect costs within six months after the close of each fiscal year. d. A predetermined rate may be negotiated for use on Federal awards where there is rea- sonable assurance, based on past experience and reliable projection of the organization’s costs, that the rate is not likely to exceed a rate based on the organization’s actual costs. e. Fixed rates may be negotiated where predetermined rates are not considered ap- propriate. A fixed rate, however, must not be negotiated if (i) all or a substantial portion of the organization’s Federal awards are ex- pected to expire before the carry-forward ad- justment can be made; (ii) the mix of Federal and non-Federal work at the organization is too erratic to permit an equitable carry-for- ward adjustment; or (iii) the organization’s operations fluctuate significantly from year to year. f. Provisional and final rates must be nego- tiated where neither predetermined nor fixed rates are appropriate. Predetermined or fixed rates may replace provisional rates at any time prior to the close of the organiza- tion’s fiscal year. If that event does not occur, a final rate will be established and up- ward or downward adjustments will be made based on the actual allowable costs incurred for the period involved. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00246 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 235 OMB Guidance Pt. 200, App. V g. The results of each negotiation must be formalized in a written agreement between the cognizant agency for indirect costs and the nonprofit organization. The cognizant agency for indirect costs must make avail- able copies of the agreement to all concerned Federal agencies. h. If a dispute arises in a negotiation of an indirect cost rate between the cognizant agency for indirect costs and the nonprofit organization, the dispute must be resolved in accordance with the appeals procedures of the cognizant agency for indirect costs. i. To the extent that problems are encoun- tered among the Federal agencies in connec- tion with the negotiation and approval proc- ess, OMB will lend assistance as required to resolve such problems in a timely manner. D. Certification of Indirect (F&A) Costs (1) Required Certification. No proposal to establish indirect (F&A) cost rates must be acceptable unless such costs have been cer- tified by the nonprofit organization using the Certificate of Indirect (F&A) Costs set forth in section j. of this appendix. The cer- tificate must be signed on behalf of the orga- nization by an individual at a level no lower than vice president or chief financial officer for the organization. (2) Each indirect cost rate proposal must be accompanied by a certification in the fol- lowing form: Certificate of Indirect (F&A) Costs This is to certify that to the best of my knowledge and belief: (1) I have reviewed the indirect (F&A) cost proposal submitted herewith; (2) All costs included in this proposal [iden- tify date] to establish billing or final indi- rect (F&A) costs rate for [identify period covered by rate] are allowable in accordance with the requirements of the Federal awards to which they apply and with subpart E of this part. (3) This proposal does not include any costs which are unallowable under subpart E of this part such as (without limitation): Public relations costs, contributions and donations, entertainment costs, fines and penalties, lob- bying costs, and defense of fraud pro- ceedings; and (4) All costs included in this proposal are properly allocable to Federal awards on the basis of a beneficial or causal relationship between the expenses incurred and the Fed- eral awards to which they are allocated in accordance with applicable requirements. I declare that the foregoing is true and cor- rect. Nonprofit Organization: lllllllllll Signature: llllllllllllllllll Name of Official: llllllllllllll Title: llllllllllllllllllll Date of Execution: lllllllllllll [78 FR 78608, Dec. 26, 2013, as amended at 80 FR 54410, Sept. 10, 2015; 85 FR 49579, Aug. 13, 2020] APPENDIX V TO PART 200—STATE/LOCAL GOVERNMENTWIDE CENTRAL SERVICE COST ALLOCATION PLANS A. GENERAL 1. Most governmental units provide certain services, such as motor pools, computer cen- ters, purchasing, accounting, etc., to oper- ating agencies on a centralized basis. Since federally-supported awards are performed within the individual operating agencies, there needs to be a process whereby these central service costs can be identified and assigned to benefitted activities on a reason- able and consistent basis. The central service cost allocation plan provides that process. All costs and other data used to distribute the costs included in the plan should be sup- ported by formal accounting and other records that will support the propriety of the costs assigned to Federal awards. 2. Guidelines and illustrations of central service cost allocation plans are provided in a brochure published by the Department of Health and Human Services entitled ‘‘A Guide for State, Local and Indian Tribal Gov- ernments: Cost Principles and Procedures for Developing Cost Allocation Plans and Indirect Cost Rates for Agreements with the Federal Government.’’ A copy of this brochure may be obtained from the HHS Cost Allocation Serv- ices or at their website. B. DEFINITIONS 1. Agency or operating agency means an or- ganizational unit or sub-division within a governmental unit that is responsible for the performance or administration of Federal awards or activities of the governmental unit. 2. Allocated central services means central services that benefit operating agencies but are not billed to the agencies on a fee-for- service or similar basis. These costs are allo- cated to benefitted agencies on some reason- able basis. Examples of such services might include general accounting, personnel ad- ministration, purchasing, etc. 3. Billed central services means central serv- ices that are billed to benefitted agencies or programs on an individual fee-for-service or similar basis. Typical examples of billed cen- tral services include computer services, transportation services, insurance, and fringe benefits. 4. Cognizant agency for indirect costs is de- fined in §200.1. The determination of cog- nizant agency for indirect costs for states and local governments is described in section F.1. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00247 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 236 2 CFR Ch. II (1–1–21 Edition) Pt. 200, App. V 5. Major local government means local gov- ernment that receives more than $100 million in direct Federal awards subject to this Part. C. SCOPE OF THE CENTRAL SERVICE COST ALLOCATION PLANS The central service cost allocation plan will include all central service costs that will be claimed (either as a billed or an allo- cated cost) under Federal awards and will be documented as described in section E. omit- ted from the plan will not be reimbursed. D. SUBMISSION REQUIREMENTS 1. Each state will submit a plan to the De- partment of Health and Human Services for each year in which it claims central service costs under Federal awards. The plan should include (a) a projection of the next year’s al- located central service cost (based either on actual costs for the most recently completed year or the budget projection for the coming year), and (b) a reconciliation of actual allo- cated central service costs to the estimated costs used for either the most recently com- pleted year or the year immediately pre- ceding the most recently completed year. 2. Each major local government is also re- quired to submit a plan to its cognizant agency for indirect costs annually. 3. All other local governments claiming central service costs must develop a plan in accordance with the requirements described in this Part and maintain the plan and re- lated supporting documentation for audit. These local governments are not required to submit their plans for Federal approval un- less they are specifically requested to do so by the cognizant agency for indirect costs. Where a local government only receives funds as a subrecipient, the pass-through en- tity will be responsible for monitoring the subrecipient’s plan. 4. All central service cost allocation plans will be prepared and, when required, sub- mitted within six months prior to the begin- ning of each of the governmental unit’s fis- cal years in which it proposes to claim cen- tral service costs. Extensions may be grant- ed by the cognizant agency for indirect costs on a case-by-case basis. E. DOCUMENTATION REQUIREMENTS FOR SUBMITTED PLANS The documentation requirements described in this section may be modified, expanded, or reduced by the cognizant agency for indirect costs on a case-by-case basis. For example, the requirements may be reduced for those central services which have little or no im- pact on Federal awards. Conversely, if a re- view of a plan indicates that certain addi- tional information is needed, and will likely be needed in future years, it may be rou- tinely requested in future plan submissions. Items marked with an asterisk (*) should be submitted only once; subsequent plans should merely indicate any changes since the last plan. 1. General All proposed plans must be accompanied by the following: an organization chart suffi- ciently detailed to show operations including the central service activities of the state/ local government whether or not they are shown as benefitting from central service functions; a copy of the Comprehensive An- nual Financial Report (or a copy of the Exec- utive Budget if budgeted costs are being pro- posed) to support the allowable costs of each central service activity included in the plan; and, a certification (see subsection 4.) that the plan was prepared in accordance with this Part, contains only allowable costs, and was prepared in a manner that treated simi- lar costs consistently among the various Federal awards and between Federal and non-Federal awards/activities. 2. Allocated Central Services For each allocated central service*, the plan must also include the following: a brief description of the service, an identification of the unit rendering the service and the op- erating agencies receiving the service, the items of expense included in the cost of the service, the method used to distribute the cost of the service to benefitted agencies, and a summary schedule showing the alloca- tion of each service to the specific benefitted agencies. If any self-insurance funds or fringe benefits costs are treated as allocated (rather than billed) central services, docu- mentation discussed in subsections 3.b. and c. must also be included. 3. Billed Services a. General. The information described in this section must be provided for all billed central services, including internal service funds, self-insurance funds, and fringe ben- efit funds. b. Internal service funds. (1) For each internal service fund or simi- lar activity with an operating budget of $5 million or more, the plan must include: A brief description of each service; a balance sheet for each fund based on individual ac- counts contained in the governmental unit’s accounting system; a revenue/expenses state- ment, with revenues broken out by source, e.g., regular billings, interest earned, etc.; a listing of all non-operating transfers (as de- fined by GAAP) into and out of the fund; a description of the procedures (methodology) used to charge the costs of each service to users, including how billing rates are deter- mined; a schedule of current rates; and, a schedule comparing total revenues (includ- ing imputed revenues) generated by the serv- ice to the allowable costs of the service, as VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00248 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 237 OMB Guidance Pt. 200, App. V determined under this part, with an expla- nation of how variances will be handled. (2) Revenues must consist of all revenues generated by the service, including unbilled and uncollected revenues. If some users were not billed for the services (or were not billed at the full rate for that class of users), a schedule showing the full imputed revenues associated with these users must be pro- vided. Expenses must be broken out by ob- ject cost categories (e.g., salaries, supplies, etc.). c. Self-insurance funds. For each self-insur- ance fund, the plan must include: the fund balance sheet; a statement of revenue and expenses including a summary of billings and claims paid by agency; a listing of all non-operating transfers into and out of the fund; the type(s) of risk(s) covered by the fund (e.g., automobile liability, workers’ compensation, etc.); an explanation of how the level of fund contributions are deter- mined, including a copy of the current actu- arial report (with the actuarial assumptions used) if the contributions are determined on an actuarial basis; and, a description of the procedures used to charge or allocate fund contributions to benefitted activities. Re- serve levels in excess of claims (1) submitted and adjudicated but not paid, (2) submitted but not adjudicated, and (3) incurred but not submitted must be identified and explained. d. Fringe benefits. For fringe benefit costs, the plan must include: a listing of fringe ben- efits provided to covered employees, and the overall annual cost of each type of benefit; current fringe benefit policies; and proce- dures used to charge or allocate the costs of the benefits to benefitted activities. In addi- tion, for pension and post-retirement health insurance plans, the following information must be provided: the governmental unit’s funding policies, e.g., legislative bills, trust agreements, or state-mandated contribution rules, if different from actuarially deter- mined rates; the pension plan’s costs accrued for the year; the amount funded, and date(s) of funding; a copy of the current actuarial report (including the actuarial assumptions); the plan trustee’s report; and, a schedule from the activity showing the value of the interest cost associated with late funding. 4. Required Certification Each central service cost allocation plan will be accompanied by a certification in the following form: CERTIFICATE OF COST ALLOCATION PLAN This is to certify that I have reviewed the cost allocation plan submitted herewith and to the best of my knowledge and belief: (1) All costs included in this proposal [iden- tify date] to establish cost allocations or bil- lings for [identify period covered by plan] are allowable in accordance with the require- ments of this Part and the Federal award(s) to which they apply. Unallowable costs have been adjusted for in allocating costs as indi- cated in the cost allocation plan. (2) All costs included in this proposal are properly allocable to Federal awards on the basis of a beneficial or causal relationship between the expenses incurred and the Fed- eral awards to which they are allocated in accordance with applicable requirements. Further, the same costs that have been treated as indirect costs have not been claimed as direct costs. Similar types of costs have been accounted for consistently. I declare that the foregoing is true and cor- rect. Governmental Unit: lllllllllllll Signature: llllllllllllllllll Name of Official: llllllllllllll Title: llllllllllllllllllll Date of Execution: lllllllllllll F. NEGOTIATION AND APPROVAL OF CENTRAL SERVICE PLANS 1. Federal Cognizant Agency for Indirect Costs Assignments for Cost Negotiation In general, unless different arrangements are agreed to by the concerned Federal agen- cies, for central service cost allocation plans, the cognizant agency responsible for review and approval is the Federal agency with the largest dollar value of total Federal awards with a governmental unit. For indi- rect cost rates and departmental indirect cost allocation plans, the cognizant agency is the Federal agency with the largest dollar value of direct Federal awards with a govern- mental unit or component, as appropriate. Once designated as the cognizant agency for indirect costs, the Federal agency must re- main so for a period of five years. In addi- tion, the following Federal agencies continue to be responsible for the indicated govern- mental entities: Department of Health and Human Services— Public assistance and state-wide cost alloca- tion plans for all states (including the Dis- trict of Columbia and Puerto Rico), state and local hospitals, libraries and health dis- tricts. Department of the Interior—Indian tribal governments, territorial governments, and state and local park and recreational dis- tricts. Department of Labor—State and local labor departments. Department of Education—School districts and state and local education agencies. Department of Agriculture—State and local agriculture departments. Department of Transportation—State and local airport and port authorities and transit districts. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00249 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 238 2 CFR Ch. II (1–1–21 Edition) Pt. 200, App. V Department of Commerce—State and local economic development districts. Department of Housing and Urban Develop- ment—State and local housing and develop- ment districts. Environmental Protection Agency—State and local water and sewer districts. 2. Review All proposed central service cost allocation plans that are required to be submitted will be reviewed, negotiated, and approved by the cognizant agency for indirect costs on a timely basis. The cognizant agency for indi- rect costs will review the proposal within six months of receipt of the proposal and either negotiate/approve the proposal or advise the governmental unit of the additional docu- mentation needed to support/evaluate the proposed plan or the changes required to make the proposal acceptable. Once an agreement with the governmental unit has been reached, the agreement will be accepted and used by all Federal agencies, unless pro- hibited or limited by statute. Where a Fed- eral awarding agency has reason to believe that special operating factors affecting its Federal awards necessitate special consider- ation, the funding agency will, prior to the time the plans are negotiated, notify the cognizant agency for indirect costs. 3. Agreement The results of each negotiation must be formalized in a written agreement between the cognizant agency for indirect costs and the governmental unit. This agreement will be subject to re-opening if the agreement is subsequently found to violate a statute or the information upon which the plan was ne- gotiated is later found to be materially in- complete or inaccurate. The results of the negotiation must be made available to all Federal agencies for their use. 4. Adjustments Negotiated cost allocation plans based on a proposal later found to have included costs that: (a) are unallowable (i) as specified by law or regulation, (ii) as identified in subpart F, General Provisions for selected Items of Cost of this Part, or (iii) by the terms and conditions of Federal awards, or (b) are unal- lowable because they are clearly not allo- cable to Federal awards, must be adjusted, or a refund must be made at the option of the cognizant agency for indirect costs, includ- ing earned or imputed interest from the date of transfer and debt interest, if applicable, chargeable in accordance with applicable Federal cognizant agency for indirect costs regulations. Adjustments or cash refunds may include, at the option of the cognizant agency for indirect costs, earned or imputed interest from the date of expenditure and de- linquent debt interest, if applicable, charge- able in accordance with applicable cognizant agency claims collection regulations. These adjustments or refunds are designed to cor- rect the plans and do not constitute a re- opening of the negotiation. G. OTHER POLICIES 1. Billed Central Service Activities Each billed central service activity must separately account for all revenues (includ- ing imputed revenues) generated by the serv- ice, expenses incurred to furnish the service, and profit/loss. 2. Working Capital Reserves Internal service funds are dependent upon a reasonable level of working capital reserve to operate from one billing cycle to the next. Charges by an internal service activity to provide for the establishment and mainte- nance of a reasonable level of working cap- ital reserve, in addition to the full recovery of costs, are allowable. A working capital re- serve as part of retained earnings of up to 60 calendar days cash expenses for normal oper- ating purposes is considered reasonable. A working capital reserve exceeding 60 cal- endar days may be approved by the cog- nizant agency for indirect costs in excep- tional cases. 3. Carry-Forward Adjustments of Allocated Central Service Costs Allocated central service costs are usually negotiated and approved for a future fiscal year on a ‘‘fixed with carry-forward’’ basis. Under this procedure, the fixed amounts for the future year covered by agreement are not subject to adjustment for that year. However, when the actual costs of the year involved become known, the differences be- tween the fixed amounts previously approved and the actual costs will be carried forward and used as an adjustment to the fixed amounts established for a later year. This ‘‘carry-forward’’ procedure applies to all cen- tral services whose costs were fixed in the approved plan. However, a carry-forward ad- justment is not permitted, for a central serv- ice activity that was not included in the ap- proved plan, or for unallowable costs that must be reimbursed immediately. 4. Adjustments of Billed Central Services Billing rates used to charge Federal awards must be based on the estimated costs of pro- viding the services, including an estimate of the allocable central service costs. A com- parison of the revenue generated by each billed service (including total revenues whether or not billed or collected) to the ac- tual allowable costs of the service will be made at least annually, and an adjustment will be made for the difference between the VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00250 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 239 OMB Guidance Pt. 200, App. VI revenue and the allowable costs. These ad- justments will be made through one of the following adjustment methods: (a) a cash re- fund including earned or imputed interest from the date of transfer and debt interest, if applicable, chargeable in accordance with applicable Federal cognizant agency for indi- rect costs regulations to the Federal Govern- ment for the Federal share of the adjust- ment, (b) credits to the amounts charged to the individual programs, (c) adjustments to future billing rates, or (d) adjustments to al- located central service costs. Adjustments to allocated central services will not be per- mitted where the total amount of the adjust- ment for a particular service (Federal share and non-Federal) share exceeds $500,000. Ad- justment methods may include, at the option of the cognizant agency, earned or imputed interest from the date of expenditure and de- linquent debt interest, if applicable, charge- able in accordance with applicable cognizant agency claims collection regulations. 5. Records Retention All central service cost allocation plans and related documentation used as a basis for claiming costs under Federal awards must be retained for audit in accordance with the records retention requirements con- tained in subpart D of this part. 6. Appeals If a dispute arises in the negotiation of a plan between the cognizant agency for indi- rect costs and the governmental unit, the dispute must be resolved in accordance with the appeals procedures of the cognizant agency for indirect costs. 7. OMB Assistance To the extent that problems are encoun- tered among the Federal agencies or govern- mental units in connection with the negotia- tion and approval process, OMB will lend as- sistance, as required, to resolve such prob- lems in a timely manner. [78 FR 78608, Dec. 26, 2013, as amended at 80 FR 54410, Sept. 10, 2015; 85 FR 49581, Aug. 13, 2020] APPENDIX VI TO PART 200—PUBLIC ASSISTANCE COST ALLOCATION PLANS A. GENERAL Federally-financed programs administered by state public assistance agencies are fund- ed predominately by the Department of Health and Human Services (HHS). In sup- port of its stewardship requirements, HHS has published requirements for the develop- ment, documentation, submission, negotia- tion, and approval of public assistance cost allocation plans in Subpart E of 45 CFR Part 95. All administrative costs (direct and indi- rect) are normally charged to Federal awards by implementing the public assistance cost allocation plan. This Appendix extends these requirements to all Federal awarding agen- cies whose programs are administered by a state public assistance agency. Major feder- ally-financed programs typically adminis- tered by state public assistance agencies in- clude: Temporary Aid to Needy Families (TANF), Medicaid, Food Stamps, Child Sup- port Enforcement, Adoption Assistance and Foster Care, and Social Services Block Grant. B. DEFINITIONS 1. State public assistance agency means a state agency administering or supervising the administration of one or more public as- sistance programs operated by the state as identified in Subpart E of 45 CFR Part 95. For the purpose of this Appendix, these pro- grams include all programs administered by the state public assistance agency. 2. State public assistance agency costs means all costs incurred by, or allocable to, the state public assistance agency, except ex- penditures for financial assistance, medical contractor payments, food stamps, and pay- ments for services and goods provided di- rectly to program recipients. C. POLICY State public assistance agencies will de- velop, document and implement, and the Federal Government will review, negotiate, and approve, public assistance cost alloca- tion plans in accordance with Subpart E of 45 CFR Part 95. The plan will include all pro- grams administered by the state public as- sistance agency. Where a letter of approval or disapproval is transmitted to a state pub- lic assistance agency in accordance with Subpart E, the letter will apply to all Fed- eral agencies and programs. The remaining sections of this Appendix (except for the re- quirement for certification) summarize the provisions of Subpart E of 45 CFR Part 95. D. SUBMISSION, DOCUMENTATION, AND AP- PROVAL OF PUBLIC ASSISTANCE COST ALLO- CATION PLANS 1. State public assistance agencies are re- quired to promptly submit amendments to the cost allocation plan to HHS for review and approval. 2. Under the coordination process outlined in section E, affected Federal agencies will review all new plans and plan amendments and provide comments, as appropriate, to HHS. The effective date of the plan or plan amendment will be the first day of the cal- endar quarter following the event that re- quired the amendment, unless another date is specifically approved by HHS. HHS, as the cognizant agency for indirect costs acting on behalf of all affected Federal agencies, will, VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00251 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 240 2 CFR Ch. II (1–1–21 Edition) Pt. 200, App. VII as necessary, conduct negotiations with the state public assistance agency and will in- form the state agency of the action taken on the plan or plan amendment. E. REVIEW OF IMPLEMENTATION OF APPROVED PLANS 1. Since public assistance cost allocation plans are of a narrative nature, the review during the plan approval process consists of evaluating the appropriateness of the pro- posed groupings of costs (cost centers) and the related allocation bases. As such, the Federal Government needs some assurance that the cost allocation plan has been imple- mented as approved. This is accomplished by reviews by the Federal awarding agencies, single audits, or audits conducted by the cognizant agency for indirect costs. 2. Where inappropriate charges affecting more than one Federal awarding agency are identified, the cognizant HHS cost negotia- tion office will be advised and will take the lead in resolving the issue(s) as provided for in Subpart E of 45 CFR Part 95. 3. If a dispute arises in the negotiation of a plan or from a disallowance involving two or more Federal awarding agencies, the dis- pute must be resolved in accordance with the appeals procedures set out in 45 CFR Part 16. Disputes involving only one Federal award- ing agency will be resolved in accordance with the Federal awarding agency’s appeal process. 4. To the extent that problems are encoun- tered among the Federal awarding agencies or governmental units in connection with the negotiation and approval process, the Of- fice of Management and Budget will lend as- sistance, as required, to resolve such prob- lems in a timely manner. F. UNALLOWABLE COSTS Claims developed under approved cost allo- cation plans will be based on allowable costs as identified in this Part. Where unallowable costs have been claimed and reimbursed, they will be refunded to the program that re- imbursed the unallowable cost using one of the following methods: (a) a cash refund, (b) offset to a subsequent claim, or (c) credits to the amounts charged to individual Federal awards. Cash refunds, offsets, and credits may include at the option of the cognizant agency for indirect cost, earned or imputed interest from the date of expenditure and de- linquent debt interest, if applicable, charge- able in accordance with applicable cognizant agency for indirect cost claims collection regulations. [78 FR 78608, Dec. 26, 2013, as amended at 85 FR 49581, Aug. 13, 2020] APPENDIX VII TO PART 200—STATES AND LOCAL GOVERNMENT AND INDIAN TRIBE INDIRECT COST PROPOSALS A. GENERAL 1. Indirect costs are those that have been incurred for common or joint purposes. These costs benefit more than one cost ob- jective and cannot be readily identified with a particular final cost objective without ef- fort disproportionate to the results achieved. After direct costs have been determined and assigned directly to Federal awards and other activities as appropriate, indirect costs are those remaining to be allocated to bene- fitted cost objectives. A cost may not be al- located to a Federal award as an indirect cost if any other cost incurred for the same purpose, in like circumstances, has been as- signed to a Federal award as a direct cost. 2. Indirect costs include (a) the indirect costs originating in each department or agency of the governmental unit carrying out Federal awards and (b) the costs of cen- tral governmental services distributed through the central service cost allocation plan (as described in Appendix V to this part) and not otherwise treated as direct costs. 3. Indirect costs are normally charged to Federal awards by the use of an indirect cost rate. A separate indirect cost rate(s) is usu- ally necessary for each department or agen- cy of the governmental unit claiming indi- rect costs under Federal awards. Guidelines and illustrations of indirect cost proposals are provided in a brochure published by the Department of Health and Human Services entitled ‘‘A Guide for States and Local Govern- ment Agencies: Cost Principles and Procedures for Establishing Cost Allocation Plans and Indi- rect Cost Rates for Grants and Contracts with the Federal Government.’’ A copy of this bro- chure may be obtained from HHS Cost Allo- cation Services or at their website. 4. Because of the diverse characteristics and accounting practices of governmental units, the types of costs which may be classi- fied as indirect costs cannot be specified in all situations. However, typical examples of indirect costs may include certain state/ local-wide central service costs, general ad- ministration of the non-Federal entity ac- counting and personnel services performed within the non-Federal entity, depreciation on buildings and equipment, the costs of op- erating and maintaining facilities. 5. This Appendix does not apply to state public assistance agencies. These agencies should refer instead to Appendix VI to this part. B. DEFINITIONS 1. Base means the accumulated direct costs (normally either total direct salaries and wages or total direct costs exclusive of any extraordinary or distorting expenditures) VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00252 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 241 OMB Guidance Pt. 200, App. VII used to distribute indirect costs to indi- vidual Federal awards. The direct cost base selected should result in each Federal award bearing a fair share of the indirect costs in reasonable relation to the benefits received from the costs. 2. Base period for the allocation of indirect costs is the period in which such costs are in- curred and accumulated for allocation to ac- tivities performed in that period. The base period normally should coincide with the governmental unit’s fiscal year, but in any event, must be so selected as to avoid inequi- ties in the allocation of costs. 3. Cognizant agency for indirect costs means the Federal agency responsible for reviewing and approving the governmental unit’s indi- rect cost rate(s) on the behalf of the Federal Government. The cognizant agency for indi- rect costs assignment is described in Appen- dix V, section F. 4. Final rate means an indirect cost rate ap- plicable to a specified past period which is based on the actual allowable costs of the pe- riod. A final audited rate is not subject to adjustment. 5. Fixed rate means an indirect cost rate which has the same characteristics as a pre- determined rate, except that the difference between the estimated costs and the actual, allowable costs of the period covered by the rate is carried forward as an adjustment to the rate computation of a subsequent period. 6. Indirect cost pool is the accumulated costs that jointly benefit two or more pro- grams or other cost objectives. 7. Indirect cost rate is a device for deter- mining in a reasonable manner the propor- tion of indirect costs each program should bear. It is the ratio (expressed as a percent- age) of the indirect costs to a direct cost base. 8. Indirect cost rate proposal means the doc- umentation prepared by a governmental unit or subdivision thereof to substantiate its re- quest for the establishment of an indirect cost rate. 9. Predetermined rate means an indirect cost rate, applicable to a specified current or fu- ture period, usually the governmental unit’s fiscal year. This rate is based on an estimate of the costs to be incurred during the period. Except under very unusual circumstances, a predetermined rate is not subject to adjust- ment. (Because of legal constraints, pre- determined rates are not permitted for Fed- eral contracts; they may, however, be used for grants or cooperative agreements.) Pre- determined rates may not be used by govern- mental units that have not submitted and negotiated the rate with the cognizant agen- cy for indirect costs. In view of the potential advantages offered by this procedure, nego- tiation of predetermined rates for indirect costs for a period of two to four years should be the norm in those situations where the cost experience and other pertinent facts available are deemed sufficient to enable the parties involved to reach an informed judg- ment as to the probable level of indirect costs during the ensuing accounting periods. 10. Provisional rate means a temporary indi- rect cost rate applicable to a specified period which is used for funding, interim reimburse- ment, and reporting indirect costs on Fed- eral awards pending the establishment of a ‘‘final’’ rate for that period. C. ALLOCATION OF INDIRECT COSTS AND DETERMINATION OF INDIRECT COST RATES 1. General a. Where a governmental unit’s depart- ment or agency has only one major function, or where all its major functions benefit from the indirect costs to approximately the same degree, the allocation of indirect costs and the computation of an indirect cost rate may be accomplished through simplified alloca- tion procedures as described in subsection 2. b. Where a governmental unit’s depart- ment or agency has several major functions which benefit from its indirect costs in vary- ing degrees, the allocation of indirect costs may require the accumulation of such costs into separate cost groupings which then are allocated individually to benefitted func- tions by means of a base which best meas- ures the relative degree of benefit. The indi- rect costs allocated to each function are then distributed to individual Federal awards and other activities included in that function by means of an indirect cost rate(s). c. Specific methods for allocating indirect costs and computing indirect cost rates along with the conditions under which each method should be used are described in sub- sections 2, 3 and 4. 2. Simplified Method a. Where a non-Federal entity’s major functions benefit from its indirect costs to approximately the same degree, the alloca- tion of indirect costs may be accomplished by (1) classifying the non-Federal entity’s total costs for the base period as either di- rect or indirect, and (2) dividing the total al- lowable indirect costs (net of applicable credits) by an equitable distribution base. The result of this process is an indirect cost rate which is used to distribute indirect costs to individual Federal awards. The rate should be expressed as the percentage which the total amount of allowable indirect costs bears to the base selected. This method should also be used where a governmental unit’s department or agency has only one major function encompassing a number of in- dividual projects or activities, and may be used where the level of Federal awards to that department or agency is relatively small. b. Both the direct costs and the indirect costs must exclude capital expenditures and VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00253 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 242 2 CFR Ch. II (1–1–21 Edition) Pt. 200, App. VII unallowable costs. However, unallowable costs must be included in the direct costs if they represent activities to which indirect costs are properly allocable. c. The distribution base may be (1) total di- rect costs (excluding capital expenditures and other distorting items, such as pass- through funds, subcontracts in excess of $25,000, participant support costs, etc.), (2) direct salaries and wages, or (3) another base which results in an equitable distribution. 3. Multiple Allocation Base Method a. Where a non-Federal entity’s indirect costs benefit its major functions in varying degrees, such costs must be accumulated into separate cost groupings. Each grouping must then be allocated individually to bene- fitted functions by means of a base which best measures the relative benefits. b. The cost groupings should be established so as to permit the allocation of each group- ing on the basis of benefits provided to the major functions. Each grouping should con- stitute a pool of expenses that are of like character in terms of the functions they ben- efit and in terms of the allocation base which best measures the relative benefits provided to each function. The number of separate groupings should be held within practical limits, taking into consideration the materiality of the amounts involved and the degree of precision needed. c. Actual conditions must be taken into ac- count in selecting the base to be used in allo- cating the expenses in each grouping to ben- efitted functions. When an allocation can be made by assignment of a cost grouping di- rectly to the function benefitted, the alloca- tion must be made in that manner. When the expenses in a grouping are more general in nature, the allocation should be made through the use of a selected base which pro- duces results that are equitable to both the Federal Government and the governmental unit. In general, any cost element or related factor associated with the governmental unit’s activities is potentially adaptable for use as an allocation base provided that: (1) it can readily be expressed in terms of dollars or other quantitative measures (total direct costs, direct salaries and wages, staff hours applied, square feet used, hours of usage, number of documents processed, population served, and the like), and (2) it is common to the benefitted functions during the base pe- riod. d. Except where a special indirect cost rate(s) is required in accordance with para- graph (C)(4) of this Appendix, the separate groupings of indirect costs allocated to each major function must be aggregated and treated as a common pool for that function. The costs in the common pool must then be distributed to individual Federal awards in- cluded in that function by use of a single in- direct cost rate. e. The distribution base used in computing the indirect cost rate for each function may be (1) total direct costs (excluding capital ex- penditures and other distorting items such as pass-through funds, subawards in excess of $25,000, participant support costs, etc.), (2) direct salaries and wages, or (3) another base which results in an equitable distribution. An indirect cost rate should be developed for each separate indirect cost pool developed. The rate in each case should be stated as the percentage relationship between the par- ticular indirect cost pool and the distribu- tion base identified with that pool. 4. Special Indirect Cost Rates a. In some instances, a single indirect cost rate for all activities of a non-Federal entity or for each major function of the agency may not be appropriate. It may not take into ac- count those different factors which may sub- stantially affect the indirect costs applicable to a particular program or group of pro- grams. The factors may include the physical location of the work, the level of administra- tive support required, the nature of the fa- cilities or other resources employed, the or- ganizational arrangements used, or any com- bination thereof. When a particular Federal award is carried out in an environment which appears to generate a significantly different level of indirect costs, provisions should be made for a separate indirect cost pool applicable to that Federal award. The separate indirect cost pool should be devel- oped during the course of the regular alloca- tion process, and the separate indirect cost rate resulting therefrom should be used, pro- vided that: (1) The rate differs significantly from the rate which would have been devel- oped under paragraphs (C)(2) and (C)(3) of this Appendix, and (2) the Federal award to which the rate would apply is material in amount. b. Where Federal statutes restrict the re- imbursement of certain indirect costs, it may be necessary to develop a special rate for the affected Federal award. Where a ‘‘re- stricted rate’’ is required, the same proce- dure for developing a non-restricted rate will be used except for the additional step of the elimination from the indirect cost pool those costs for which the law prohibits reimburse- ment. D. SUBMISSION AND DOCUMENTATION OF PROPOSALS 1. Submission of Indirect Cost Rate Proposals a. All departments or agencies of the gov- ernmental unit desiring to claim indirect costs under Federal awards must prepare an indirect cost rate proposal and related docu- mentation to support those costs. The pro- posal and related documentation must be re- tained for audit in accordance with the VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00254 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 243 OMB Guidance Pt. 200, App. VII records retention requirements contained in §200.334. b. A governmental department or agency unit that receives more than $35 million in direct Federal funding must submit its indi- rect cost rate proposal to its cognizant agen- cy for indirect costs. Other governmental de- partment or agency must develop an indirect cost proposal in accordance with the require- ments of this Part and maintain the proposal and related supporting documentation for audit. These governmental departments or agencies are not required to submit their proposals unless they are specifically re- quested to do so by the cognizant agency for indirect costs. Where a non-Federal entity only receives funds as a subrecipient, the pass-through entity will be responsible for negotiating and/or monitoring the subrecipi- ent’s indirect costs. c. Each Indian tribal government desiring reimbursement of indirect costs must submit its indirect cost proposal to the Department of the Interior (its cognizant agency for indi- rect costs). d. Indirect cost proposals must be devel- oped (and, when required, submitted) within six months after the close of the govern- mental unit’s fiscal year, unless an exception is approved by the cognizant agency for indi- rect costs. If the proposed central service cost allocation plan for the same period has not been approved by that time, the indirect cost proposal may be prepared including an amount for central services that is based on the latest federally-approved central service cost allocation plan. The difference between these central service amounts and the amounts ultimately approved will be com- pensated for by an adjustment in a subse- quent period. 2. Documentation of Proposals The following must be included with each indirect cost proposal: a. The rates proposed, including subsidiary work sheets and other relevant data, cross referenced and reconciled to the financial data noted in subsection b. Allocated central service costs will be supported by the sum- mary table included in the approved central service cost allocation plan. This summary table is not required to be submitted with the indirect cost proposal if the central serv- ice cost allocation plan for the same fiscal year has been approved by the cognizant agency for indirect costs and is available to the funding agency. b. A copy of the financial data (financial statements, comprehensive annual financial report, executive budgets, accounting re- ports, etc.) upon which the rate is based. Ad- justments resulting from the use of unaudited data will be recognized, where ap- propriate, by the Federal cognizant agency for indirect costs in a subsequent proposal. c. The approximate amount of direct base costs incurred under Federal awards. These costs should be broken out between salaries and wages and other direct costs. d. A chart showing the organizational structure of the agency during the period for which the proposal applies, along with a functional statement(s) noting the duties and/or responsibilities of all units that com- prise the agency. (Once this is submitted, only revisions need be submitted with subse- quent proposals.) 3. Required certification. Each indirect cost rate proposal must be accompanied by a certification in the fol- lowing form: CERTIFICATE OF INDIRECT COSTS This is to certify that I have reviewed the indirect cost rate proposal submitted here- with and to the best of my knowledge and belief: (1) All costs included in this proposal [iden- tify date] to establish billing or final indi- rect costs rates for [identify period covered by rate] are allowable in accordance with the requirements of the Federal award(s) to which they apply and the provisions of this Part. Unallowable costs have been adjusted for in allocating costs as indicated in the in- direct cost proposal (2) All costs included in this proposal are properly allocable to Federal awards on the basis of a beneficial or causal relationship between the expenses incurred and the agree- ments to which they are allocated in accord- ance with applicable requirements. Further, the same costs that have been treated as in- direct costs have not been claimed as direct costs. Similar types of costs have been ac- counted for consistently and the Federal Government will be notified of any account- ing changes that would affect the predeter- mined rate. I declare that the foregoing is true and cor- rect. Governmental Unit: lllllllllllll Signature: llllllllllllllllll Name of Official: llllllllllllll Title: llllllllllllllllllll Date of Execution: lllllllllllll E. NEGOTIATION AND APPROVAL OF RATES 1. Indirect cost rates will be reviewed, ne- gotiated, and approved by the cognizant agency on a timely basis. Once a rate has been agreed upon, it will be accepted and used by all Federal agencies unless prohib- ited or limited by statute. Where a Federal awarding agency has reason to believe that special operating factors affecting its Fed- eral awards necessitate special indirect cost rates, the funding agency will, prior to the time the rates are negotiated, notify the cog- nizant agency for indirect costs. VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00255 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 244 2 CFR Ch. II (1–1–21 Edition) Pt. 200, App. VIII 2. The use of predetermined rates, if al- lowed, is encouraged where the cognizant agency for indirect costs has reasonable as- surance based on past experience and reli- able projection of the non-Federal entity’s costs, that the rate is not likely to exceed a rate based on actual costs. Long-term agree- ments utilizing predetermined rates extend- ing over two or more years are encouraged, where appropriate. 3. The results of each negotiation must be formalized in a written agreement between the cognizant agency for indirect costs and the governmental unit. This agreement will be subject to re-opening if the agreement is subsequently found to violate a statute, or the information upon which the plan was ne- gotiated is later found to be materially in- complete or inaccurate. The agreed upon rates must be made available to all Federal agencies for their use. 4. Refunds must be made if proposals are later found to have included costs that (a) are unallowable (i) as specified by law or reg- ulation, (ii) as identified in §200.420, or (iii) by the terms and conditions of Federal awards, or (b) are unallowable because they are clearly not allocable to Federal awards. These adjustments or refunds will be made regardless of the type of rate negotiated (predetermined, final, fixed, or provisional). F. OTHER POLICIES 1. Fringe Benefit Rates If overall fringe benefit rates are not ap- proved for the governmental unit as part of the central service cost allocation plan, these rates will be reviewed, negotiated and approved for individual recipient agencies during the indirect cost negotiation process. In these cases, a proposed fringe benefit rate computation should accompany the indirect cost proposal. If fringe benefit rates are not used at the recipient agency level (i.e., the agency specifically identifies fringe benefit costs to individual employees), the govern- mental unit should so advise the cognizant agency for indirect costs. 2. Billed Services Provided by the Recipient Agency In some cases, governmental departments or agencies (components of the govern- mental unit) provide and bill for services similar to those covered by central service cost allocation plans (e.g., computer cen- ters). Where this occurs, the governmental departments or agencies (components of the governmental unit)should be guided by the requirements in Appendix V relating to the development of billing rates and documenta- tion requirements, and should advise the cognizant agency for indirect costs of any billed services. Reviews of these types of services (including reviews of costing/billing methodology, profits or losses, etc.) will be made on a case-by-case basis as warranted by the circumstances involved. 3. Indirect Cost Allocations Not Using Rates In certain situations, governmental de- partments or agencies (components of the governmental unit), because of the nature of their Federal awards, may be required to de- velop a cost allocation plan that distributes indirect (and, in some cases, direct) costs to the specific funding sources. In these cases, a narrative cost allocation methodology should be developed, documented, main- tained for audit, or submitted, as appro- priate, to the cognizant agency for indirect costs for review, negotiation, and approval. 4. Appeals If a dispute arises in a negotiation of an in- direct cost rate (or other rate) between the cognizant agency for indirect costs and the governmental unit, the dispute must be re- solved in accordance with the appeals proce- dures of the cognizant agency for indirect costs. 5. Collection of Unallowable Costs and Erroneous Payments Costs specifically identified as unallowable and charged to Federal awards either di- rectly or indirectly will be refunded (includ- ing interest chargeable in accordance with applicable Federal cognizant agency for indi- rect costs regulations). 6. OMB Assistance To the extent that problems are encoun- tered among the Federal agencies or govern- mental units in connection with the negotia- tion and approval process, OMB will lend as- sistance, as required, to resolve such prob- lems in a timely manner. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75889, Dec. 19, 2014; 85 FR 49581, Aug. 13, 2020] APPENDIX VIII TO PART 200— NON- PROFIT ORGANIZATIONS EXEMPTED FROM SUBPART E OF PART 200 1. Advance Technology Institute (ATI), Charleston, South Carolina 2. Aerospace Corporation, El Segundo, Cali- fornia 3. American Institutes of Research (AIR), Washington, DC 4. Argonne National Laboratory, Chicago, Il- linois 5. Atomic Casualty Commission, Wash- ington, DC 6. Battelle Memorial Institute, Headquartered in Columbus, Ohio 7. Brookhaven National Laboratory, Upton, New York VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00256 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 245 OMB Guidance Pt. 200, App. XII 8. Charles Stark Draper Laboratory, Incor- porated, Cambridge, Massachusetts 9. CNA Corporation (CNAC), Alexandria, Vir- ginia 10. Environmental Institute of Michigan, Ann Arbor, Michigan 11. Georgia Institute of Technology/Georgia Tech Applied Research Corporation/Geor- gia Tech Research Institute, Atlanta, Georgia 12. Hanford Environmental Health Founda- tion, Richland, Washington 13. IIT Research Institute, Chicago, Illinois 14. Institute of Gas Technology, Chicago, Il- linois 15. Institute for Defense Analysis, Alexan- dria, Virginia 16. LMI, McLean, Virginia 17. Mitre Corporation, Bedford, Massachu- setts 18. Noblis, Inc., Falls Church, Virginia 19. National Radiological Astronomy Observ- atory, Green Bank, West Virginia 20. National Renewable Energy Laboratory, Golden, Colorado 21. Oak Ridge Associated Universities, Oak Ridge, Tennessee 22. Rand Corporation, Santa Monica, Cali- fornia 23. Research Triangle Institute, Research Triangle Park, North Carolina 24. Riverside Research Institute, New York, New York 25. South Carolina Research Authority (SCRA), Charleston, South Carolina 26. Southern Research Institute, Bir- mingham, Alabama 27. Southwest Research Institute, San Anto- nio, Texas 28. SRI International, Menlo Park, California 29. Syracuse Research Corporation, Syra- cuse, New York 30. Universities Research Association, Incor- porated (National Acceleration Lab), Ar- gonne, Illinois 31. Urban Institute, Washington DC 32. Nonprofit insurance companies, such as Blue Cross and Blue Shield Organizations 33. Other nonprofit organizations as nego- tiated with Federal awarding agencies [78 FR 78608, Dec. 26, 2013, as amended at 85 FR 49582, Aug. 13, 2020] APPENDIX IX TO PART 200—HOSPITAL COST PRINCIPLES Based on initial feedback, OMB proposes to establish a review process to consider exist- ing hospital cost determine how best to up- date and align them with this Part. Until such time as revised guidance is proposed and implemented for hospitals, the existing principles located at 45 CFR Part 75 Appen- dix E, entitled ‘‘Principles for Determining Cost Applicable to Research and Develop- ment Under Grants and Contracts with Hos- pitals,’’ remain in effect. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75889, Dec. 19, 2014] APPENDIX X TO PART 200—DATA COLLECTION FORM (FORM SF–SAC) The Data Collection Form SF–SAC is available on the FAC Web site. APPENDIX XI TO PART 200—COMPLIANCE SUPPLEMENT The compliance supplement is available on the OMB website. [85 FR 49582, Aug. 13, 2020] APPENDIX XII TO PART 200—AWARD TERM AND CONDITION FOR RECIPIENT INTEGRITY AND PERFORMANCE MAT- TERS A. REPORTING OF MATTERS RELATED TO RECIPIENT INTEGRITY AND PERFORMANCE 1. General Reporting Requirement If the total value of your currently active grants, cooperative agreements, and procure- ment contracts from all Federal awarding agencies exceeds $10,000,000 for any period of time during the period of performance of this Federal award, then you as the recipient dur- ing that period of time must maintain the currency of information reported to the Sys- tem for Award Management (SAM) that is made available in the designated integrity and performance system (currently the Fed- eral Awardee Performance and Integrity In- formation System (FAPIIS)) about civil, criminal, or administrative proceedings de- scribed in paragraph 2 of this award term and condition. This is a statutory require- ment under section 872 of Public Law 110–417, as amended (41 U.S.C. 2313). As required by section 3010 of Public Law 111–212, all infor- mation posted in the designated integrity and performance system on or after April 15, 2011, except past performance reviews re- quired for Federal procurement contracts, will be publicly available. 2. Proceedings About Which You Must Report Submit the information required about each proceeding that: a. Is in connection with the award or per- formance of a grant, cooperative agreement, or procurement contract from the Federal Government; b. Reached its final disposition during the most recent five-year period; and c. Is one of the following: (1) A criminal proceeding that resulted in a conviction, as defined in paragraph 5 of this award term and condition; VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00257 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 246 2 CFR Ch. II (1–1–21 Edition) Pt. 200, App. XII (2) A civil proceeding that resulted in a finding of fault and liability and payment of a monetary fine, penalty, reimbursement, restitution, or damages of $5,000 or more; (3) An administrative proceeding, as de- fined in paragraph 5. of this award term and condition, that resulted in a finding of fault and liability and your payment of either a monetary fine or penalty of $5,000 or more or reimbursement, restitution, or damages in excess of $100,000; or (4) Any other criminal, civil, or adminis- trative proceeding if: (i) It could have led to an outcome de- scribed in paragraph 2.c.(1), (2), or (3) of this award term and condition; (ii) It had a different disposition arrived at by consent or compromise with an acknowl- edgment of fault on your part; and (iii) The requirement in this award term and condition to disclose information about the proceeding does not conflict with appli- cable laws and regulations. 3. Reporting Procedures Enter in the SAM Entity Management area the information that SAM requires about each proceeding described in paragraph 2 of this award term and condition. You do not need to submit the information a second time under assistance awards that you re- ceived if you already provided the informa- tion through SAM because you were required to do so under Federal procurement con- tracts that you were awarded. 4. Reporting Frequency During any period of time when you are subject to the requirement in paragraph 1 of this award term and condition, you must re- port proceedings information through SAM for the most recent five year period, either to report new information about any pro- ceeding(s) that you have not reported pre- viously or affirm that there is no new infor- mation to report. Recipients that have Fed- eral contract, grant, and cooperative agree- ment awards with a cumulative total value greater than $10,000,000 must disclose semi- annually any information about the crimi- nal, civil, and administrative proceedings. 5. Definitions For purposes of this award term and condi- tion: a. Administrative proceeding means a non- judicial process that is adjudicatory in na- ture in order to make a determination of fault or liability (e.g., Securities and Ex- change Commission Administrative pro- ceedings, Civilian Board of Contract Appeals proceedings, and Armed Services Board of Contract Appeals proceedings). This includes proceedings at the Federal and State level but only in connection with performance of a Federal contract or grant. It does not in- clude audits, site visits, corrective plans, or inspection of deliverables. b. Conviction, for purposes of this award term and condition, means a judgment or conviction of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or a plea, and includes a con- viction entered upon a plea of nolo contendere. c. Total value of currently active grants, cooperative agreements, and procurement contracts includes— (1) Only the Federal share of the funding under any Federal award with a recipient cost share or match; and (2) The value of all expected funding incre- ments under a Federal award and options, even if not yet exercised. B. [Reserved] [80 FR 43310, July 22, 2015, as amended at 85 FR 49582, Aug. 13, 2020] PARTS 201–299 [RESERVED] VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00258 Fmt 8010 Sfmt 8006 Y:\SGML\253005.XXX 253005 13 ATTACHMENT C CONTINUED FEDERAL PROVISIONS Should funding be allocated through American Rescue Plan Act (ARPA; (Title VI of the Social Security Act Section 602 et seq.), the COUNTY will administer and distribute those funds in accordance with ARPA. ARPA requires that payments from the Coronavirus Fiscal Recovery Fund be used to respond to the public health emergency or its negative economic impacts, to respond to workers performing essential work during the COVID-19 public health emergency by providing premium pay, provide government services to the extent the reduction of revenue due to COVID-19 public health emergency, and to make necessary investments in water, sewer or broadband infrastructure. It is effective beginning May 17, 2021 and ends on December 31, 2026. Subrecipient acknowledges and agrees that this Agreement is subject to the federal requirements, including but not limited to the federal provisions provided below: 1. NON-DISCRIMINATION. Subrecipient shall not be discriminate in the provision of services, allocation of benefits, accommodation in facilities, or employment of personnel on the basis of ethnic group identification, race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status or sex in the performance of this Agreement; and, to the extent they shall be found to be applicable hereto, shall comply with the provisions of the California Fair Employment and Housing Act (Gov. Code 12900 et. seq), the Federal Civil Rights Act of 1964 (P.L. 88-352), the Americans with Disabilities Act of 1990 (42 U.S.C. S1210 et seq.) and all other applicable laws or regulations. 2. EQUAL EMPLOYMENT OPPORTUNITY/ FAIR EMPLOYMENT PRACTICES/ FEDERAL PROVISIONS. During the performance of this Agreement, the Subrecipient shall not deny benefits to any person on the basis of religion, color, ethnic group identification, sex, age, physical or mental disability, nor shall they discriminate unlawfully against any employee or applicant for employment because of race, religion, color, national origin, ancestry, physical handicap, mental disability, medical condition, marital status, age, or sex. Subrecipient shall ensure that the evaluation and treatment of employees and applicants for employment are free of such discrimination. A. Subrecipient shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.), the regulations promulgated thereunder (California Code of Regulations, Title 2, Section 11000 et seq.), the provisions of Executive Order 11246 of Sept. 23, 1965 and of the rules, regulations, and relevant orders of the Secretary of Labor, the provisions of Article 9.5, Chapter 1, Part 1, Division 3, Title 2 of the Government Code (Government Code, Sections 11135-11139.8), and of the rules, regulations or standards adopted by the County to implement such article. B. The Subrecipient shall comply with the provisions of the Copeland “Anti-Kickback” Act, 18 U.S.C. § 874, 40 U.S.C. § 3145, and the requirements of 29 C.F.R. pt. 3 as may be applicable, which are incorporated by reference into this Agreement. 3. CLEAN AIR ACT. The Subrecipient agrees to comply with all applicable standards, orders, or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. Section 7401 et seq. The Subrecipient agrees to report each violation to the County and understands and agrees that the County will, in turn, report each violation as required to assure notification to the California 14 Governor's Office of Emergency Services, Federal Emergency Management Agency (FEMA), and the appropriate Environmental Protection Agency Regional Office. The Subrecipient agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with Federal assistance provided by FEMA. 4. FEDERAL WATER POLLUTION CONTROL ACT The Subrecipient agrees to comply with all applicable standards, orders, or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. Sections 1251 et seq. The Subrecipient agrees to report each violation to the County and understands and agrees that the County will, in turn, report each violation as required to assure notification to the Federal Emergency Management Agency (FEMA), and the appropriate Environmental Protection Agency Regional Office. The Subrecipient agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with Federal assistance provided by FEMA. 5. DEBARMENT AND SUSPENSION CLAUSE This Agreement is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such the Subrecipient is required to verify that none of the Subrecipient, its principals (defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). The Subrecipient must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into. This certification is a material representation of fact relied upon by the County. If it is later determined that the Subrecipient did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the County, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. The bidder or proposer agrees to comply with the requirements of 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions. 6. BYRD ANTI- LOBBYING AMENDMENT, 31 U.S.C. § 1352 (AS AMENDED) Subrecipients who apply or bid for an award of $100,000 or more shall file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Each tier shall also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the County. APPENDIX A, 44 C.F.R. PART 18- CERTIFICATION REGARDING LOBBYING The undersigned [Subrecipient] certifies, to the best of his or her knowledge, that: A. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection 15 with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. B. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. C. The undersigned shall require that the language of this certification be included in the award documents for all sub-awards at all tiers (including subcontracts, sub-grants, and contracts under grants, loans, and cooperative agreements) and that all sub-recipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31, U.S.C. § 1352 (as amended by the Lobbying Disclosure Act of 1995). Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. The Subrecipient certifies or affirms the truthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, the Subrecipient understands and agrees that the provisions of 31 U.S.C. § 3801 et seq., apply to this certification and disclosure, if any. SUBRECIPIENT By Date 7. PROCUREMENT OF RECOVERED MATERIALS In the performance of this Agreement, the Subrecipient shall make maximum use of products containing recovered materials that are EPA-designated items unless the product cannot be acquired A. Competitively within a timeframe providing for compliance with the contract performance schedule; B. Meeting contract performance requirements; or C. At a reasonable price. Information about this requirement, along with the list of EPA-designated items, is available at EPA’s Comprehensive Procurement Guidelines web site, https://www.epa.gov/smm/comprehensive- procurement-guideline-cpg-program The Subrecipient also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act. 8. ACCESS TO RECORDS The following access to records requirements apply to this Agreement: A. The Subrecipient agrees to provide the County, the FEMA Administrator, the Comptroller General of the United States, or any of their authorized representatives access to any books, documents, papers, and records of the Subrecipient which are directly pertinent to this Agreement for the purposes of making audits, examinations, excerpts, and transcriptions B. The Subrecipient agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. 16 C. The Subrecipient agrees to provide the FEMA Administrator or his or her authorized representatives access to construction or other work sites pertaining to the work being completed under the contract. D. In compliance with the Disaster Recovery Act of 2018, the County and the Subrecipient acknowledge and agree that no language in this contract is intended to prohibit audits or internal reviews by the FEMA Administrator or the Comptroller General of the United States. 9. DEPARTMENT OF HOMELAND SECURITY SEAL, LOGO, FLAGS The Subrecipient shall not use the DHS seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials without specific FEMA pre-approval. 10. COMPLIANCE WITH FEDERAL LAW, REGULATIONS, AND EXECUTIVE ORDERS This is an acknowledgement that FEMA financial assistance will be used to fund all or a portion of the contract. The Subrecipient will comply with all applicable Federal law, regulations, executive orders, FEMA policies, procedures, and directives. 11. NO OBLIGATION BY FEDERAL GOVERNMENT The Federal Government is not a party to this Agreement and is not subject to any obligations or liabilities to the non-Federal entity, contractor, or any other party pertaining to any matter resulting from the contract. 12. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR RELATED ACTS The Subrecipient acknowledges that 31 U.S.C. Chapter 38 (Administrative Remedies for False Claims and Statements) applies to the Subrecipient’s actions pertaining to this Agreement. 13. FEDERAL PREVAILING WAGE DAVIS-BACON ACT COMPLIANCE (applicable to construction contracts in excess of $2,000 awarded by grantees and subgrantees when required by Federal grant program legislation) To the extent required by any Federal grant programs applicable to expected funding or reimbursement expenses incurred in connection with the services provided under this Agreement, Subrecipient agrees to comply with the Davis-Bacon Act (40 U.S.C. §§ 3141-3144 and 3146-3148) as supplemented by Department of Labor regulations (29 CFR Part 5) as set forth below. A. The Subrecipient shall be bound to the provisions of the Davis-Bacon Act, and agrees to be bound by all the provisions of Labor Code section 1771 regarding prevailing wages. All labor on this project shall be paid neither less than the greater of the minimum wage rates established by the U.S. Secretary of Labor (Federal Wage Rates), or by the State of California Director of Department of Industrial Relations (State Wage Rates). Current DIR requirements may be found at http://www.dir.ca.gov/lcp.asp. Additionally, wages are required to be paid not less than once a week. B. The general prevailing wage rates may be accessed at the Department of Labor Home Page at www.wdol.gov. Under the Davis Bacon heading, click on “Selecting DBA WDs.” In the drop down menu 17 for State, select, “California.” In the drop down menu for County, select “Riverside.” In the drop down menu for Construction Type, make the appropriate selection. Then, click Search. The Federal minimum wage rates for this project are predetermined by the United States Secretary of Labor. If there is a difference between the minimum wage rates predetermined by the Secretary of Labor and the general prevailing wage rates determined by the Director of the California DIR for similar classifications of labor, the Subrecipient and subcontractors shall pay not less than the higher wage rate. The County will not accept lower State wage rates not specifically included in the Federal minimum wage determinations. This includes “helper” (or other classifications based on hours of experience) or any other classification not appearing in the Federal wage determinations. Where Federal wage determinations do not contain the State wage rate determination otherwise available for use by the Subrecipient and subcontractors, the Subrecipient and subcontractors shall pay not less than the Federal minimum wage rate which most closely approximates the duties of the employees in question. 14. CONTRACT WORK HOURS AND SAFETY STANDARDS (applicable to all contracts in excess of $100,000 that involve the employment of mechanics or laborers, but not to purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence) A. Compliance: Subrecipient agrees that it shall comply with Sections 3702 and 3704 of the Contract Work Hours and Safety Standards Act (40 U.S.C. §§ 3701–3708) as supplemented by Department of Labor regulations (29 CFR Part 5), which are incorporated herein. B. Overtime: No contractor or subcontractor contracting for any part of the work under this Agreement which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. C. Violation; liability for unpaid wages; liquidated damages: In the event of any violation of the provisions of paragraph B of this section, the Subrecipient and any subcontractor responsible therefore shall be liable for the unpaid wages. In addition, such Subrecipient and subcontractor shall be liable to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic employed in violation of the provisions of paragraph B, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by paragraph B. D. Withholding for unpaid wages and liquidated damages: Subrecipient shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally- assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set for in paragraph C of this section. E. Subcontracts: The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs A through D of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs A through D of this section. 18 15. RIGHTS TO INVENTIONS MADE UNDER A CONTRACT OR AGREEMENT— Contracts or agreements for the performance of experimental, developmental, or research work shall provide for the rights of the Federal Government and the recipient in any resulting invention in accordance with 37 CFR part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by HUD. 16. RIGHTS TO DATA AND COPYRIGHTS – Subrecipients and consultants agree to comply with all applicable provisions pertaining to the use of data and copyrights pursuant to 48 CFR Part 27.4, Federal Acquisition Regulations (FAR). 17. PROHIBITION ON CONTRACTING FOR COVERED TELECOMMUNICATIONS EQUIPMENT OR SERVICES A. Definitions. As used in this clause, the terms backhaul; covered foreign country; covered telecommunications equipment or services; interconnection arrangements; roaming; substantial or essential component; and telecommunications equipment or services have the meaning as defined in FEMA Policy, #405-143-1 Prohibitions on Expending FEMA Award Funds for Covered Telecommunications Equipment or Services As used in this clause— B. Prohibitions. (1) Section 889(b) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232, and 2 C.F.R. § 200.216 prohibit the head of an executive agency on or after Aug.13, 2020, from obligating or expending grant, cooperative agreement, loan, or loan guarantee funds on certain telecommunications products or from certain entities for national security reasons. (2) Unless an exception in paragraph (c) of this clause applies, the contractor and its subcontractors may not use grant, cooperative agreement, loan, or loan guarantee funds from the Federal Emergency Management Agency to: (i) Procure or obtain any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology of any system; (ii) Enter into, extend, or renew a contract to procure or obtain any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology of any system; (iii) Enter into, extend, or renew contracts with entities that use covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system; or (iv)Provide, as part of its performance of this contract, subcontract, or other contractual instrument, any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. C. Exceptions. (1) This clause does not prohibit contractors from providing— a. A service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or b. Telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles. 19 (2) By necessary implication and regulation, the prohibitions also do not apply to: a. Covered telecommunications equipment or services that: i. Are not used as a substantial or essential component of any system; and ii. Are not used as critical technology of any system. b. Other telecommunications equipment or services that are not considered covered telecommunications equipment or services. D. Reporting requirement. (1) In the event the contractor identifies covered telecommunications equipment or services used as a substantial or essential component of any system, or as critical technology as part of any system, during contract performance, or the contractor is notified of such by a subcontractor at any tier or by any other source, the contractor shall report the information in paragraph (d)(2) of this clause to the recipient or subrecipient, unless elsewhere in this contract are established procedures for reporting the information. (2) The Subrecipient shall report the following information pursuant to paragraph (d)(1) of this clause: (i) Within one business day from the date of such identification or notification: The contract number; the order number(s), if applicable; supplier name; supplier unique entity identifier (if known); supplier Commercial and Government Entity (CAGE) code (if known); brand; model number (original equipment manufacturer number, manufacturer part number, or wholesaler number); item description; and any readily available information about mitigation actions undertaken or recommended. ii) Within 10 business days of submitting the information in paragraph (d)(2)(i) of this clause: Any further available information about mitigation actions undertaken or recommended. In addition, the contractor shall describe the efforts it undertook to prevent use or submission of covered telecommunications equipment or services, and any additional efforts that will be incorporated to prevent future use or submission of covered telecommunications equipment or services. Page 10 E. Subcontracts. The Subrecipient shall insert the substance of this clause, including this paragraph (e), in all subcontracts and other contractual instruments. 18. REPORTING OF MATTERS RELATED TO RECIPIENT INTEGRITY AND PERFORMANCE A. General Reporting Requirement If the total value of your currently active grants, cooperative agreements, and procurement contracts from all Federal awarding agencies exceeds $10,000,000 for any period of time during the period of performance of this Federal award, then you as the recipient during that period of time must maintain the currency of information reported to the System for Award Management (SAM) that is made available in the designated integrity and performance system (currently the Federal Awardee Performance and Integrity Information System (FAPIIS)) about civil, criminal, or administrative proceedings described in paragraph 2 of this award term and condition. This is a statutory requirement under section 872 of Public Law 110-417, as amended (41 U.S.C. 2313). As required by section 3010 of Public Law 111- 212, all information posted in the designated integrity and performance system on or after April 15, 2011, except past performance reviews required for Federal procurement contracts, will be publicly available. B. Proceedings About Which You Must Report Submit the information required about each proceeding that: a. Is in connection with the award or performance of a grant, cooperative agreement, or procurement contract from the Federal Government; b. Reached its final disposition during the most recent five-year period; and 20 c. Is one of the following: (1) A criminal proceeding that resulted in a conviction, as defined in paragraph 5 of this award term and condition; (2) A civil proceeding that resulted in a finding of fault and liability and payment of a monetary fine, penalty, reimbursement, restitution, or damages of $5,000 or more; (3) An administrative proceeding, as defined in paragraph 5. of this award term and condition, that resulted in a finding of fault and liability and your payment of either a monetary fine or penalty of $5,000 or more or reimbursement, restitution, or damages in excess of $100,000; or (4) Any other criminal, civil, or administrative proceeding if: (i) It could have led to an outcome described in paragraph 2.c.(1), (2), or (3) of this award term and condition; (ii) It had a different disposition arrived at by consent or compromise with an acknowledgment of fault on your part; and (iii) The requirement in this award term and condition to disclose information about the proceeding does not conflict with applicable laws and regulations. C. Reporting Procedures Enter in the SAM Entity Management area the information that SAM requires about each proceeding described in paragraph 2 of this award term and condition. You do not need to submit the information a second time under assistance awards that you received if you already provided the information through SAM because you were required to do so under Federal procurement contracts that you were awarded. D. Reporting Frequency During any period of time when you are subject to the requirement in paragraph 1 of this award term and condition, you must report proceedings information through SAM for the most recent five year period, either to report new information about any proceeding(s) that you have not reported previously or affirm that there is no new information to report. Recipients that have Federal contract, grant, and cooperative agreement awards with a cumulative total value greater than $10,000,000 must disclose semiannually any information about the criminal, civil, and administrative proceedings. E. Definitions For purposes of this award term and condition: a. Administrative proceeding means a non-judicial process that is adjudicatory in nature in order to make a determination of fault or liability (e.g., Securities and Exchange Commission Administrative proceedings, Civilian Board of Contract Appeals proceedings, and Armed Services Board of Contract Appeals proceedings). This includes proceedings at the Federal and State level but only in connection with performance of a Federal contract or grant. It does not include audits, site visits, corrective plans, or inspection of deliverables. b. Conviction, for purposes of this award term and condition, means a judgment or conviction of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or a plea, and includes a conviction entered upon a plea of nolo contendere. c. Total value of currently active grants, cooperative agreements, and procurement contracts includes - (1) Only the Federal share of the funding under any Federal award with a recipient cost share or match; and (2) The value of all expected funding increments under a Federal award and options, even if not yet exercised. 21 Attachment D – Indemnification and Insurance Requirements INDEMNIFICATION A. Basic Indemnity 1. To the fullest extent permitted by applicable law, Subrecipient agrees to indemnify, hold harmless and defend the County of Riverside, its Agencies, Districts, Departments and Special Districts, Board of Supervisors, elected and appointed officials, and each of their respective directors, members officers, employees, agents, volunteers and representatives ("Indemnitees") and each of them from any and all Losses that arise out of or relate to any act or omission constituting ordinary and not professional negligence (including, without limitation, negligent breach of contract), recklessness, or willful misconduct on the part of Subrecipient or its subconsultants or their respective employees, agents, representatives, or independent contractors. 2. "Losses" shall mean any and all economic and non-economic losses, costs, liabilities, claims, damages, actions, judgements, settlements and expenses, including, without limitation, full and actual attorney's fees (including, without limitation, attorney's fees for trial and on appeal), expert and non-expert witness fees, arbitrator and arbitration fees and mediator and mediation fees. 3. Subrecipient further agrees to and shall indemnify and hold harmless the Indemnitees from all liability arising from suits, claims, demands, actions, or proceedings made by agents, employees or subcontractors of Subrecipient for salary, wages, compensation, health benefits, insurance, retirement or any other benefit not explicitly set forth in this Agreement and arising out of work performed for County pursuant to this Agreement. The Indemnitees shall be entitled to the defense and indemnification provided for hereunder regardless of whether the Loss is in part caused or contributed to by the acts or omissions of an Indemnitee or any other person or entity; provided however, that nothing contained herein shall be construed as obligating Subrecipient to indemnify and hold harmless any Indemnitee to the extent not required under the provisions of Paragraph B below. B. Indemnity for Design Professionals 1. To the fullest extent permitted by Applicable Law, Subrecipient agrees to defend (through legal counsel reasonably acceptable to County), indemnify and hold harmless the Indemnitees, and each of them, against any and all Losses that arise out of, pertain to, or relate to, any negligence, recklessness or willful misconduct constituting professional negligence on the part of Subrecipient or its Subconsultants, or their respective employees, agents, representatives, or independent contractors. The Indemnitees shall be entitled to the defense, and indemnification provided for hereunder regardless of whether the Loss is, in part, caused or contributed to by the acts or omissions of an Indemnitee or any other person or entity; provided, however, that nothing contained herein shall be construed as obligating Subrecipient to indemnify and hold harmless any Indemnitee to the extent not required under the provisions of this section. Subrecipient shall defend and pay, all costs and fees, including but not limited to attorney fees, cost of investigation, and defense, in any loss, suits, claims, demands, actions, or proceedings to the extent and in proportion to the percentage, such costs and fees arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of Subrecipient arising out of or from the performance of professional design services under this Agreement. The duty to defend applies to any alleged or actual negligence, recklessness, willful misconduct of Subrecipient. The cost for defense shall apply whether or not Subrecipient is a party to the lawsuit and shall apply whether or not Subrecipient is directly liable to the plaintiffs in the lawsuit. The duty to defend applies even if Indemnitees are alleged or found to be actively negligent, but only in proportion to the percentage of fault or negligence of Subrecipient. 22 2. Without affecting the rights of County under any other provision of this Agreement, Subrecipient shall not be required to indemnify or hold harmless or provide defense or defense costs to an Indemnitee for a loss due to that Indemnitee's negligence, recklessness or willful misconduct; provided, however, that such negligence, recklessness or willful misconduct has been determined by agreement of Subrecipient and Indemnitee or has been adjudged by the findings of a court of competent jurisdiction. C. Subrecipient agrees to obtain or cause to be obtained executed defense and indemnity agreements with provisions identical to those set forth in this section from each and every Subconsultant, of every Tier. D. Subrecipient's indemnification obligations under this Agreement shall not be limited by the amount or type of damages, compensation or benefits payable under any policy of insurance, workers' compensation acts, disability benefit acts or other employee benefit acts. E. The Indemnitees shall be entitled to recover their attorneys' fees, costs and expert and consultant costs in pursuing or enforcing their right to defense and/or indemnification under this Agreement. INSURANCE REQUIREMENTS Without limiting or diminishing the Subrecipient’s obligation to indemnify or hold the County harmless, Subrecipient shall procure and maintain or cause to be maintained, at its sole cost and expense, the following insurance coverages during the term of this Agreement. As respects to the insurance section only, the County herein refers to the County of Riverside, its Agencies, Districts, Special Districts, and Departments, their respective directors, officers, Board of Supervisors, employees, elected or appointed officials, agents or representatives as Additional Insureds. A. Workers’ Compensation: If the Subrecipient has employees as defined by the State of California, the Subrecipient shall maintain statutory Workers Compensation Insurance (Coverage A) as prescribed by the laws of the State of California. Policy shall include Employers’ Liability (Coverage B) including Occupational Disease with limits not less than $1,000,000 per person per accident. The policy shall be endorsed to waive subrogation in favor of The County of Riverside. B. Commercial General Liability: Commercial General Liability insurance coverage, including but not limited to, premises liability, unmodified contractual liability, products and completed operations liability, personal and advertising injury, and cross liability coverage, covering claims which may arise from or out of Subrecipient’s performance of its obligations hereunder. Policy shall name the County as Additional Insured. Policy’s limit of liability shall not be less than $2,000,000 per occurrence combined single limit. If such insurance contains a general aggregate limit, it shall apply separately to this agreement or be no less than two (2) times the occurrence limit. Policy shall name the County as Additional Insureds. C. Vehicle Liability: If vehicles or mobile equipment are used in the performance of the obligations under this Agreement, then Subrecipient shall maintain liability insurance for all owned, non-owned or hired vehicles so used in an amount not less than $1,000,000 per occurrence combined single limit. If such insurance contains a general aggregate limit, it shall apply separately to this agreement or be no less than two (2) times the occurrence limit. Policy shall name the County as Additional Insureds. 23 D. Professional Liability: Subrecipient shall maintain Professional Liability Insurance providing coverage for the Subrecipient’s performance of work included within this Agreement, with a limit of liability of not less than $1,000,000 per occurrence and $2,000,000 annual aggregate. If Contractor’s Professional Liability Insurance is written on a claims made basis rather than an occurrence basis, such insurance shall continue through the term of this Agreement and Subrecipient shall purchase at his sole expense either 1) an Extended Reporting Endorsement (also, known as Tail Coverage); or 2) Prior Dates Coverage from new insurer with a retroactive date back to the date of, or prior to, the inception of this Agreement; or 3) demonstrate through Certificates of Insurance that Subrecipient has Maintained continuous coverage with the same or original insurer. Coverage provided under items 1), 2), or 3) will continue as long as the law allows. Policy shall name the County as Additional Insureds. E. General Insurance Provisions - All lines: 1. Any insurance carrier providing insurance coverage hereunder shall be admitted to the State of California and have an A M BEST rating of not less than A: VIII (A:8) unless such requirements are waived, in writing, by the County Risk Manager. If the County’s Risk Manager waives a requirement for a particular insurer such waiver is only valid for that specific insurer and only for one policy term. 2. The Subrecipient must declare its insurance self-insured retention for each coverage required herein. If any such self-insured retention exceed $500,000 per occurrence each such retention shall have the prior written consent of the County Risk Manager before the commencement of operations under this Agreement. Upon notification of self-insured retention unacceptable to the County, and at the election of the County’s Risk Manager, Subrecipient’s carriers shall either; 1) reduce or eliminate such self-insured retention as respects this Agreement with the County, or 2) procure a bond which guarantees payment of losses and related investigations, claims administration, and defense costs and expenses. 3. Subrecipient shall cause Subrecipient’s insurance carrier(s) to furnish the County of Riverside with either 1) a properly executed original Certificate(s) of Insurance and certified original copies of Endorsements effecting coverage as required herein, and 2) if requested to do so orally or in writing by the County Risk Manager, provide original Certified copies of policies including all Endorsements and all attachments thereto, showing such insurance is in full force and effect. Further, said Certificate(s) and policies of insurance shall contain the covenant of the insurance carrier(s) that a minimum of thirty (30) days written notice shall be given to the County of Riverside prior to any material modification, cancellation, expiration or reduction in coverage of such insurance. If Subrecipient insurance carrier(s) policies does not meet the minimum notice requirement found herein, Subrecipient shall cause Subrecipient’s insurance carrier(s) to furnish a 30 day Notice of Cancellation Endorsement. 4. In the event of a material modification, cancellation, expiration, or reduction in coverage, this Agreement shall terminate forthwith, unless the County of Riverside receives, prior to such effective date, another properly executed original Certificate of Insurance and 24 original copies of endorsements or certified original policies, including all endorsements and attachments thereto evidencing coverage’s set forth herein and the insurance required herein is in full force and effect. Subrecipient shall not commence operations until the County has been furnished original Certificate (s) of Insurance and certified original copies of endorsements and if requested, certified original policies of insurance including all endorsements and any and all other attachments as required in this Section. An individual authorized by the insurance carrier to do so on its behalf shall sign the original endorsements for each policy and the Certificate of Insurance. 5. It is understood and agreed to by the parties hereto that the Subrecipient’s insurance shall be construed as primary insurance, and the County's insurance and/or deductibles and/or self- insured retentions or self-insured programs shall not be construed as contributory. 6. If, during the term of this Agreement or any extension thereof, there is a material change in the scope of services; or, there is a material change in the equipment to be used in the performance of the scope of work; or, the term of this Agreement, including any extensions thereof, exceeds five (5) years; the County reserves the right to adjust the types of insurance and the monetary limits of liability required under this Agreement, if in the County Risk Management's reasonable judgment, the amount or type of insurance carried by the Subrecipient has become inadequate. 7. Subrecipient shall pass down the insurance obligations contained herein to all tiers of subcontractors working under this Agreement. 8. The insurance requirements contained in this Agreement may be met with a program(s) of self-insurance acceptable to the County. 9. Subrecipient agrees to notify County of any claim by a third party or any incident or event that may give rise to a claim arising from the performance of this Agreement 25 Attachment E - Project Monitoring Requirements Quarterly Progress Reports shall be submitted on the 21st of the month following the previous quarter. Quarterly reports shall be sent via e-mail to RIVCOARPA@RIVCO.ORG. The quarterly report shall include a brief description of the work performed during the reporting period, including photographs, construction status, milestones achieved, financial status report including cost incurred to date, cash flow projections, schedule updates, and any problems encountered in the performance of the work under this Agreement. The progress pay estimate for the reporting period shall be included as part of the quarterly progress report submittal. In addition to the above, project schedule and cashflow projection updates shall be emailed to the County on a monthly basis. 26 Attachment F - Construction Requirements Subrecipient shall: 1. Pursuant to the California Environmental Quality Act ("CEQA"), act as Lead Agency and assume responsibility for preparation, circulation and adoption of all necessary and appropriate CEQA documents pertaining to the construction, operation and maintenance of Neighborhood Revitalization Project. 2. To the extent that it has not already done so, the Subrecipient shall prepare or cause plans and specifications ("Plans") to be prepared for the Neighborhood Revitalization Project prior to advertising Neighborhood Revitalization Project for construction bids. 3. Provide County a copy of the engineering design cost proposal and associated design schedule for the Neighborhood Revitalization Project. 4. Advertise and award a public works construction contract for the Neighborhood Revitalization Project and begin construction per the schedules included in Attachment A of this Agreement. 5. Prior to advertising Neighborhood Revitalization Project for public works construction contract, obtain all necessary permits, approvals, or agreements as may be required by any federal, state and local resource or regulatory agencies pertaining to the construction, operation and maintenance of Neighborhood Revitalization Project. Assume sole responsibility for compliance with the requirements of all regulatory permits, including any amendments thereto, pertaining to the construction, operation and maintenance of Neighborhood Revitalization Project. 6. Implement or cause to be implemented, all environmental mitigation required in association with the construction, operation and maintenance of Neighborhood Revitalization Project. 7. Prior to advertising Neighborhood Revitalization Project for public works construction contract, obtain all necessary permits, licenses, agreements, approvals, rights of way, rights of entry, encroachment permits, and temporary construction easements as may be needed to construct, operate and maintain the Neighborhood Revitalization Project. 8. Advertise, award and administer a public works construction contract for the Neighborhood Revitalization Project pursuant to the provisions of applicable laws for public works of improvements, including but not limited to the California Public Contract Code, Government Code and Labor Code. 9. Shall certify and cause its contractor to certify, that it is not a target of economic sanctions imposed in response to Russia’s actions in Ukraine imposed by the United States government or the State of California. The Subrecipient and its Contractor are required to comply with the economic sanctions imposed in response to Russia’s actions in Ukraine, including with respect to, but not limited to, the federal executive orders identified in California Executive Order N-6-22, located at https://www.gov.ca.gov/wp- content/uploads/2022/03/3.4.22-Russia-Ukraine-Executive-Order.pdf and the sanctions identified on the United States Department of the Treasury website (https://home.treasury.gov/policy-issues/financial-sanctions/sanctions-programs-and-country- information/ukraine-russia-related-sanctions). The Subrecipient and its Contractor are required to comply with all applicable reporting requirements regarding compliance with the economic sanctions, including, but not limited to, those reporting requirements set forth in California 27 Executive Order N-6-22 for all parties with one or more agreements with the State of California, the County of Riverside, or any other local agency, with a value of Five Million Dollars ($5,000,000) or more. Notwithstanding any other provision in these documents, failure to comply with the economic sanctions and all applicable reporting requirements may result in disqualification or termination of the Construction Agreement, if awarded. For parties and contractors with an agreement value of Five Million Dollars ($5,000,000) or more with the State of California, the County of Riverside, or any other local agency, reporting requirements include, but are not limited to, information related to steps taken in response to Russia’s actions in Ukraine, including but not limited to: a. Desisting from making any new investments or engaging in financial transactions with Russian institutions or companies that are headquartered or have their principal place of business in Russia; b. Not transferring technology to Russia or companies that are headquartered or have their principal place of business in Russia; and c. Direct support to the government and people of Ukraine. To comply with this requirement, please insert your name and Federal ID Number (if available) on the Certification Form attached hereto, execute by a duly authorized representative for the contractor and return to the County. 10. The Subrecipient shall require, and the specifications, bid and contract documents shall require all contractors, subcontractors, vendors, equipment operators and owner operators, in each such case to the extent such individuals or entities are engaged to perform work on the Neighborhood Revitalization Project, to pay at least general prevailing wage rates to all workers employed in the execution of the contract, to post a copy of the general prevailing wage rates at the job-site in a conspicuous place available to all employees and applicants for employment, and to otherwise comply with applicable provisions of the California Labor Code and applicable laws relating to general prevailing wage rates. 11. Each contractor engaged to perform work on the Neighborhood Revitalization Project shall be required to furnish (i) labor and material payment bonds, and (ii) contract performance bonds, each in an amount equal to 100% of the contract price naming the Subrecipient as obligee and issued by a California admitted surety which complies with the provisions of Section 995.660 of the California Code of Civil Procedure. 12. Provide County with written notice that Subrecipient has awarded a public works construction contract for Neighborhood Revitalization Project. The written notice shall include the Contractor's actual bid amounts for Neighborhood Revitalization Project, setting forth herein the lowest responsible bid contract amount. 13. Prior to commencing Neighborhood Revitalization Project construction, provide to County: a. A construction schedule which shall show the order and dates in which Subrecipient or Subrecipient’s contractor proposes to carry on the various parts of work, including estimated start and completion dates, and b. A confined space procedure specific to Neighborhood Revitalization Project. The procedure shall comply with requirements contained in California Code of 28 Regulations, Title 8, Section 5156 et seq. and County's Confined Space Procedures, SOM-18. 14. Require its construction contractor(s) to comply with all Cal/OSHA safety regulations including regulations concerning confined space and maintain a safe working environment for all working on the site. 15. Order the relocation of all utilities within Subrecipient rights of way which conflict with the construction of Neighborhood Revitalization Project and which must be relocated at the expense of who may have superior property rights. 16. Procure or caused to be procured insurance coverages during the term of this Agreement. Subrecipient shall require its Neighborhood Revitalization Project construction contractor(s) to furnish original certificate(s) of insurance and original certified copies of endorsements and if requested, certified original policies of insurance including all endorsements and any and all other attachments. Prior to Subrecipient issuing a Notice to Proceed to its construction contractor(s) to begin construction of Neighborhood Revitalization Project, an original certificate of insurance evidencing the required insurance coverage shall be provided to County. At minimum, the procured insurance coverages should adhere to the County’s required insurance provided in Attachment D to this Agreement. 17. Construct, or cause to be constructed, Neighborhood Revitalization Project pursuant to a Subrecipient administered public works construction contract, in accordance with the Plans, and pay all costs associated therewith. 18. Inspect the Neighborhood Revitalization Project construction or cause the Neighborhood Revitalization Project's construction to be inspected by its construction manager and pay all costs associated therewith. 19. Provide County with a copy of the Subrecipient's recorded Notice of Completion. 20. Keep an accurate accounting of Neighborhood Revitalization Project cost and provide this accounting to County with Subrecipient’s Notice of Completion. The final accounting of construction cost shall include a detailed breakdown of all costs, including, but not limited to, payment vouchers, Subrecipient approved change orders and other such construction contract documents as may be necessary to establish the actual cost of construction for the PLANS. Subrecipient shall be responsible to pay any amounts in excess of Award amount provided in this Agreement. 21. Refund to County, at the time of providing a Notice of Completion, any unexpended portions of Award amount within thirty (30) days of the Notice of Completion is filed for recordation. 29 COMPLIANCE WITH ECONOMIC SANCTIONS IN RESPONSE TO RUSSIA’S ACTIONS IN UKRAINE Prior to bidding on, submitting a proposal, or executing a contract, a party/contractor must certify: 1) it is not a target of economic sanctions and 2) in compliance with economic sanctions imposed by the U.S. government in response to Russia’s actions in Ukraine, as well as any requirements related to the Russian sanctions imposed by the California Governor’s Executive Order N-6-22 issued on March 4, 2022 and under state law, if any. To comply with this requirement, please insert the party/contractor name and Federal ID Number (if available), complete the information described below and execute by an authorized representative of the contractor. CERTIFICATION I, the authorized representative for contractor named below, certify I am duly authorized to execute this certification on behalf of the contractor below, and the contractor identified below has conducted a good faith review of existing contracts. I attest that the contractor is not a target of economic sanctions, and that contractor is in compliance with the economic sanctions imposed by the U.S. government in response to Russia’s actions in Ukraine, as well as any requirements related to the Russian sanctions imposed by the California Governor’s Executive Order N-6-22 issued on March 4, 2022 and under state law, if any. Party/Contractor Name (Printed) Federal ID Number (or n/a) By (Authorized Signature) Printed Name and Title of Person Signing Date Item No. 10 CITY OF TEMECULA AGENDA REPORT TO: City Manager/City Council FROM: Patrick Thomas, Director of Public Works/City Engineer DATE: August 22, 2023 SUBJECT: Approve the Funding Agreement with the County of Riverside for the Michael "Mike" Naggar Park Dog Park Renovation Project, PW21-14 and Authorize the City Manager to Execute the Agreement PREPARED BY: Nino Abad, Senior Civil Engineer Kellen Freeman, Assistant Engineer RECOMMENDATION: That the City Council: 1. Approve the "Funding Agreement for City of Temecula Michael "Mike" Naggar Community Park Expansion Project" (Agreement) with the County of Riverside; and 2. Authorize the City Manager to execute the Agreement. BACKGROUND: The Michael "Mike" Naggar Community Park Dog Park Renovation project, PW21-14, is a parks/recreation project that includes construction of a new dog park, approximately 33,000 square foot in area, located at Michael "Mike" Naggar Park to replace the existing dog park currently located behind the Margarita Recreation Center site. The project is currently funded by a combination of Measure S and Proposition 68 Per Capita Grand funds. On May 23, 2023 the Temecula City Council authorized staff to bid the construction contract for the project. The bid advertisement was cancelled as the City was recently informed that additional grant funds has been allocated to the project. The City of Temecula previously applied for grant funding through the Coronavirus State and Local Fiscal Recovery Funds authorized under the American Rescue Plan Act (ARPA) to provide state, local and tribal governments with the resources needed to respond to the Covid-19 Pandemic, its economic effects, and to build a stronger, more equitable economy during the recovery. On July 26, 2023, the County of Riverside formally notified the City that it has committed $200,000 of its allotment of ARPA funds to the City. The City must execute the attached Funding Agreement with the County prior to use of the funds as well as incorporate any relevant terms regarding the use of funds into the construction contract documents prior to readvertising the project for bids. Staff recommends that the Temecula City Council approve the Agreement and authorize the City Manager to execute said Agreement. FISCAL IMPACT: The Michael "Mike" Naggar Community Park Dog Park Renovation project is identified in the City's Capital Improvement Program (CIP) budget for Fiscal Years 2024-2028, and is funded with Measure S and Proposition 68 Per Capita Grant funds. Executing the Agreement will increase the available project funds by $200,000 in ARPA funding. A separate City Council item to amend the current CIP Budget is also being considered on this August 22, 2023 City Council Agenda, includes amendment to the PW21-14 budget for the ARPA funding. ATTACHMENTS: 1. Funding Agreement 2. Project Description FUNDING AGREEMENT FOR CITY OF TEMECULA MIKE NAGGAR COMMUNITY PARK EXPANSION PROJECT This Funding Agreement ("Agreement") is entered into by and between the County of Riverside, a political subdivision of the State of California, ("County") and the City of Temecula, ("Subrecipient"). County and Subrecipient are sometimes individually referred to as "Party" and collectively as "Parties." RECITALS WHEREAS, on March 11, 2021, the American Rescue Plan Act (ARPA) was signed into law, amending Section 9901 of Title VI of the Social Security Act which establishes the Coronavirus State and Local Fiscal Recovery Funds (Fiscal Recovery Funds) to provide state, local and Tribal governments with the resources needed to respond to the pandemic and its economic effects and to build a stronger, more equitable economy during the recovery; and WHEREAS, on February 8, 2022, Minute Order 3.3, the Board of Supervisors of the County of Riverside approved allocation of ARPA funds to support eligible projects within Riverside County; and WHEREAS, on January 6, 2022, the U.S. Department of the Treasury (U.S. Treasury) adopted a final rule implementing the Fiscal Recovery Funds which took effect on April 1, 2022 (Final Rule); and WHEREAS, to respond to the negative effects of the pandemic, which in turn affect our community as a whole, the County has dedicated a portion of the allotted ARPA funds to local agencies for the delivery and implementation of eligible neighborhood revitalization projects; and WHEREAS, the County desires to reimburse and the Subrecipient desires to accept ARPA Fiscal Recovery Funds in a total amount not to exceed $200,000, for expenditures identified in Attachment A related to the Mike Naggar Community Park Expansion Project ("Neighborhood Revitalization Project"); and NOW THEREFORE, in consideration of the mutual benefits, covenants, terms and conditions contained herein, the Parties agree as follows: AGREEMENT 1. Incorporation of Recitals. The Recitals set forth above are incorporated herein and made an operative part of this Agreement. 2. Contract Documents. This Agreement consists of this Agreement and the following attachments, attached hereto and by this reference incorporated herein: 2.1 Attachment A — Neighborhood Revitalization Project Scope 2.2 Attachment B — U.S. Treasury ARPA Fiscal Recovery Funds Final Rule 2.3 Attachment C — Uniform Administrative Requirements, Cost Principles, Federal Provisions and Audit Requirements for Federal Awards -2 CFR Part 200 et seq 2.4 Attachment D — Indemnification and Insurance Requirements 2.5 Attachment E — Project Monitoring Requirements 2.6 Attachment F — Construction Requirements 3. Neighborhood Revitalization Project; Scope of Work. Subrecipient shall be responsible for completion of all activities associated with design, implementation, installation and construction of the Neighborhood Revitalization Project, as described in Attachment A, on or before December 31, 2026, by first using funds received from the County in the amount provided in Section 4 of this Agreement. The Subrecipient shall also furnish timely reporting and documentation assuring Subrecipient's compliance with the U.S. Treasury ARPA Guidelines (as stated in the Final Rule of the U.S. Department of the Treasury published in the Federal Register on January 27, 2022), and within the timelines and specifications provided in Attachment E. Under the provisions of the Agreement, the County shall bear no responsibility for the Neighborhood Revitalization Project, including without limitation any activities associated with implementation, installation and construction, or any future operation or maintenance of the Neighborhood Revitalization Project. 3.1 Project Signage. Subrecipient shall include appropriate acknowledgement of credit to the County for its support when promoting the Neighborhood Revitalization Project or using any data and/or information developed under this Agreement. Signage shall be posted in a prominent location at Neighborhood Revitalization Project site(s) and shall include the U.S. Department of Treasury's, and the County's color logos, along with the following disclosure statement: "Funding for this project has been provided in full or in part from the American Rescue Plan Act, and through an agreement with the County of Riverside." The Subrecipient shall also include in each of its contracts for work under this Agreement a provision that incorporates the requirements stated within this Paragraph. 4. Funding. 4.1 County shall provide funding to Subrecipient in a total amount not to exceed $200,000 ("Award"), in quarterly payments in accordance with progress pay estimates submittals, and in compliance with ARPA Guidelines as set forth in Attachment B, attached hereto and by this reference incorporated herein, for the completion of the Neighborhood Revitalization Project. In the event that there is a conflict in the terms for payment in this Agreement and the terms in Attachments B and C, the terms in Attachments B and C shall take precedence. Subrecipient shall provide other non-federal funding at least equal to the amounts shown in Attachment A, attached hereto and by this reference incorporated herein, as a match to the funds provided by the County for the Neighborhood Revitalization Project. 4.2 Except as expressly provided in Attachment A of this Agreement, Subrecipient shall not be entitled to, nor receive from County any additional funding or other type of remuneration for services rendered under this Agreement. The Award amounts described in this Section are specifically for the Neighborhood Revitalization Project and make up the entire amount which the County has approved to fund for the Neighborhood Revitalization Project. Subrecipient shall not be entitled by virtue of this Agreement to consideration in excess of specified per -project Award amounts, and Subrecipient shall be responsible for any and all costs incurred above any Award amount for its implementation and completion of the Neighborhood Revitalization Project. Any subsequent amendments to the Neighborhood Revitalization Project scope or description is not covered by this Agreement, and the funding for any such amendment or for any Neighborhood Revitalization Project cost overruns shall be the sole responsibility of Subrecipient, unless otherwise approved in writing by the County. 4.3 Should it be determined at any time by the Subrecipient or the County that the Subrecipient cannot, will not or is unable to complete the Neighborhood Revitalization Project subject to this Agreement in accordance with the applicable State and Federal requirements and the provisions of this Agreement on or before December 31, 2026, then the subrecipient shall return 100% of the Award amount reimbursed to Subrecipient for the uncompleted Neighborhood Revitalization Project as of the date of notification to the County, within thirty (30) days of notification. 2 4.4 In the event the actual cost for Neighborhood Revitalization Project is less than Award, Subrecipient shall refund the difference to County within thirty (30) days of filing the Notice of Completion for the Neighborhood Revitalization Project, or by June 30, 2026, whichever occurs first. Subrecipient shall return any reimbursed Award Funds that have not been expended or are not adequately supported by invoices and documentation to the County, within thirty (30) days of completion of construction of the Neighborhood Revitalization Project, or upon request by the County, whichever occurs first. 5. Invoicing and Billing 5.1 Invoices. 5.1.1 Invoices shall be submitted via e-mail to RIVCOARPAgRIVCO.ORG. The final invoice from the Subrecipient will be submitted with enough time for the County to reimburse the Subrecipient prior to December 31, 2026, per the final rule of ARPA. 5.1.2 Supporting documentation shall accompany each invoice: copies of paid receipts and invoices of all Neighborhood Revitalization Project costs incurred by Subrecipient. 5.1.3 To ensure compliance with Federal and State regulations, County may require additional supporting documentation or clarification of claimed expenses as follows: 5.1.3.1 County Executive Office staff shall notify Subrecipient to obtain necessary additional documentation or clarification. 5.1.3.2 Subrecipient shall respond within three (3) business days with required additional documentation or clarification to avoid disallowances/partial payment of invoice. 5.1.3.3 All invoices containing expenses that need additional documentation or clarification not provided to County within three (3) business days of request shall have those expenses disallowed and only the allowed expenses shall be paid. 5.1.3.4 Subrecipient may resubmit disallowed expenses as a supplemental invoice only and must be accompanied by required documentation. 5.2 Payments 5.2.1 If the conditions set forth in this Agreement are met, County shall pay, on/or before the thirtieth (30th) day after receipt of a complete and accurate invoice, the sum of money claimed by the approved invoice, (less any credit due County for adjustments of prior invoices). If the conditions are not met, County shall pay when the necessary processing is completed and/or proper backup documentation is provided. 5.2.2 County shall not pay for unauthorized costs incurred by Subrecipient or for the claimed work which County monitoring shows have not been provided as authorized. 5.2.3 County retains the right to withhold payment on disputed claims. 6. Term. The Term of this Agreement shall be from the date of approval of this Agreement until filing of notice of completion for the Neighborhood Revitalization Project, or on December 31, 2026, whichever is sooner, unless sooner terminated as provided herein. 3 7. Subrecipient Compliance Obligations. The Subrecipient agrees to comply with the terms and conditions of this Agreement. The Subrecipient also agrees to apply the terms and conditions of this Agreement to all of its subcontractors (if applicable) and to require their strict compliance therewith. If it is determined that the Subrecipient is noncompliant, County may temporarily withhold or disallow reimbursement of costs, under 2 C.F.R. Part 200, as supplemented by 2 C.F.R. Part 910. 7.1 Federal Provisions. Subrecipient and all of its subcontractors shall comply with the Uniform Administrative Requirements, Cost Principles, Federal Provisions and Audit Requirements for Federal Awards Provisions contained in Attachment C 8. Contract Representatives. 8.1 County Representative. The County Executive Officer, or designee, shall be the designated representative who shall administer this Agreement on behalf of the County. 8.2 Subrecipient Representative. The City Manager, or designee, shall be the designated representative who shall administer this Agreement on behalf of the Subrecipient. 8.3 The Contract Representatives may be contacted as described in Section 11, below. 9. Records and Audit. 9.1 Subrecipient shall store and maintain all writings, documents and records prepared or compiled in connection with the performance of this Agreement for a minimum of five (5) years from the termination or completion of this Agreement. This includes any handwriting, typewriting, printing, photostatic, photographing and every other means of recording upon any tangible thing, any form of communication or representation including letters, words, pictures, sounds or symbols or any combination thereof. Any authorized representative of County shall have access to any writings as defined above for the purposes of making a report, audit, evaluation, or examination Further, County has the right at all reasonable times to audit, inspect or otherwise evaluate the work performed or being performed under this Agreement. 9.2 If it is determined pursuant to an audit that any funds provided pursuant to this Agreement have been improperly expended, Subrecipient shall, at the direction of the agency performing the audit, reimburse the County within thirty (30) days the full amount of such improperly expended funds. The funds shall be reimbursed in accordance with the recommendations in the audit. 10. Monitoring of Contract Compliance and Infrastructure Progressports. 10.1 Contract Compliance. The Subrecipient shall comply with the monitoring arrangements set forth in Project Monitoring Requirements, and Construction Requirements, attached as Attachments E and F, respectively. 10.2 Neighborhood Revitalization Project Progress Reports and Progress Pay Estimates. Subrecipient shall, as specified herein, provide quarterly reports detailing Neighborhood Revitalization Project's progress, including a financial status report and milestone progress report as described in Attachment E. 11. Notices. As used in this Agreement, notice includes but is not limited to the communications of any notice, request, demand, approval, statement, report, acceptance, consent, waiver, and appointment. All notices must be in writing. All such notices from one party to another may be delivered in person, sent via reputable overnight courier, or served by first-class mail, certified or registered, postage prepaid, to each and all of the addresses set forth below. 4 If to County: If to Subrecipient: Riverside County Executive Office City of Temecula Attention: Rania Odenbaugh and Scott Bruckner Attention: Aaron Adams 4080 Lemon Street, 0' Floor, 41000 Main Street Riverside, CA. 92501 Temecula, CA 92590 12. Conflicts of Interest. Subrecipient covenants that it presently has no interest, including but not limited to, other projects or independent contracts, and shall not acquire any such interest, direct or indirect, which would conflict in any manner or degree with the performance of services required under this Agreement. Subrecipient further covenants that in the performance of this Agreement, no person having any such interest shall be employed or retained by it under this Agreement. In the event federal funds are used, in whole or in part, for this Neighborhood Revitalization Project, Subrecipient understands and agrees it must maintain a conflict of interest policy consistent with 2. C.F.R. section 200.318 (c) and that such conflict of interest policy is applicable to each activity funded under this award. Subrecipient must disclose in writing to the U.S. Treasury or through County, as appropriate, any potential conflict of interest affecting the awarded funds in accordance with 2. C.F.R. section 200.12. 13. Nondiscrimination. During any period in which Subrecipient is in receipt of funds from County, Subrecipient and its Board, officers, employees, agents, representatives or subcontractors shall not unlawfully discriminate in violation of any Federal, State or local law, rule or regulation against any employee, applicant for employment or person receiving services under this Agreement because of race, religious creed, color, national origin, ancestry, physical or mental disability including perception of disability, medical condition, genetic information, pregnancy related condition, marital status, gender/sex, sexual orientation, gender identity, gender expression, age (over 40), political affiliation or belief, or military and veteran status. Subrecipient and its officers, employees, agents, representatives or subcontractors shall comply with all applicable Federal, State and local laws and regulations related to non- discrimination and equal opportunity, including without limitation the County's non- discrimination policy; Title VI of the Civil Rights Act of 1964 (42 US.C. sections 2000d et seq.) and U.S. Treasury's implementing regulations at 31 C.F.R. Part 22, which prohibit discrimination on the basis of race, color, or national origin under programs or activities receiving federal financial assistance; The Fair Housing Act, Title VIII of the Civil Rights Act of 1968 (42 U.S.C. sections 3601 et seq.), which prohibits discrimination in housing on the basis of race, color, religion, national origin, sex, familial status, or disability; Section 504 of the Rehabilitation Act of 1973, as amended (42 U.S.C. sections 6101 et seq.), and the U.S. Treasury's implementing regulations at 31 C.F.R. part 23, which prohibit discrimination on the basis of age in programs or activities receiving federal financial assistance; and Title II of the Americans with Disabilities Act of 1990, as amended (42 U.S.C. sections 12101 et seq.)which prohibits discrimination on the basis of disability under programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto; The Fair Employment and Housing Act (Government Code sections 12900 et seq.); California Labor Code sections 1101, and 1102; the Federal Civil Rights Act of 1964 (P.L. 88-352), as amended; and all applicable regulations promulgated in the California Code of Regulations or the Code of Federal Regulations, and Riverside County's non-discrimination policy. Subrecipient shall include the non-discrimination and compliance provisions of this Section in all subcontracts to perform work under or as a derivative of this Agreement. 5 14. Indemnification. The Subrecipient shall be bound by the indemnification, hold harmless and defend provisions contained in Attachment D. 15. Insurance. Subrecipient shall obtain, and maintain, or caused to be obtained and maintained, at all times during the Term of this Agreement, insurance coverage in the amounts and coverage specified in Attachment D. 16. Termination. The County may terminate this agreement upon a determination that Subrecipient is not complying with AR -PA terms and conditions. The County may withhold additional planned distributions of funding to Subrecipient pending receipt of requisite reporting requirements by Subrecipient to the County as described herein. 17. Compliance with Laws. The Subrecipient is required to comply with all applicable federal, state and local laws and regulations for all work performed or funded by and through this Agreement. The Subrecipient is required to obtain all necessary federal, state and local permits, authorizations and approvals for all work performed under this Agreement. 18. Disputes. The parties shall attempt to resolve any disputes amicably at the working level. If that is not successful, the dispute shall be referred to the senior management of the parties. The Subrecipient shall proceed diligently with the Neighborhood Revitalization Project described in this Agreement pending the resolution of a dispute. The Parties reserve the right to pursue any remedies at law or in equity should any dispute relating to this Agreement not by resolved by the Parties. Notwithstanding the foregoing, prior to the filing of any legal action related to this Agreement, the Parties shall be obligated to attend a mediation session in Riverside County before a neutral third party mediator. A second mediation session shall be required if the first session is not successful. The parties shall share the cost of the mediations. 19. Status of Subrecipient. The Subrecipient is, for purposes relating to this Agreement, an independent contractor and shall not be deemed an employee of the County. It is expressly understood and agreed that the Subrecipient (including its employees, agents, and subcontractors) shall in no event be entitled to any benefits to which County employees are entitled, including but not limited to overtime, any retirement benefits, worker's compensation benefits, and injury leave or other leave benefits. There shall be no employer -employee relationship between the parties nor is there a joint venture; and Subrecipient shall indemnify and hold County harmless from any and all claims that may be made against County based upon any contention by a third party that an employer -employee relationship exists by reason of this Agreement. 19.1 All acts of Subrecipient and its officers, employees, agents, representatives, subcontractors, and all others acting on behalf of Subrecipient relating to the performance of this Agreement, shall be performed as independent contractors and not as agents, officers, or employees of County. Subrecipient, by virtue of this Agreement, has no authority to bind or incur any obligation on behalf of County. No agent, officer or employee of the County is to be considered an employee of Subrecipient. At all times during the term of this Agreement, the Subrecipient and its officers, employees, agents, representatives, or subcontractors are, and shall represent and conduct themselves as, independent contractors and not employees of County. 19.2 Subrecipient shall determine the method, details, and means of performing the work and services to be provided by Subrecipient under this Agreement. Subrecipient shall be responsible to County only for the requirements and results specified in this Agreement and, except as expressly 11 provided in this Agreement, shall not be subjected to County's control with respect to the physical action or activities of Subrecipient in fulfillment of this Agreement. Subrecipient has control over the manner and means for completion of the Neighborhood Revitalization Project described in this Agreement. If necessary, Subrecipient has the responsibility for employing or engaging other persons or firms to assist Subrecipient in fulfilling the terms and obligations under this Agreement. 19.3 If in the performance of this Agreement any third persons are employed by Subrecipient, such persons shall be entirely and exclusively under the direction, supervision, and control of Subrecipient. All terms of employment including hours, wages, working conditions, discipline, hiring and discharging or any other term of employment or requirements of law shall be determined by the Subrecipient. It is further understood and agreed that Subrecipient must issue W-2 forms or other forms as required by law for income and employment tax purposes for all Subrecipient's assigned personnel under the terms and conditions of this Agreement. 20. Entire Agreement. This Agreement is the result of negotiations between the Parties. This Agreement is intended by the Parties as a full and final expression of their understanding with respect to the matters contained in this Agreement and shall not be modified in any manner except by an instrument in writing executed by the Parties or their respective successors in interest. 21. Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 22. Governing Law and Venue. The interpretation and performance of this Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County, California. 23. Construction/Interpretation. Headings or captions to the provisions of this Agreement are solely for the convenience of the Parties, are not part of this Agreement, and shall not be used to interpret or determine the validity of this Agreement. Any ambiguity in this Agreement shall not be construed against the drafter, but rather the terms and provisions hereof shall be given a reasonable interpretation as if both parties had in fact drafted this Agreement. 24. No Waiver. Failure of the Parties to insist upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be deemed a waiver or relinquishment of such other right or power at any other time or times. 25. No Third -Party Beneficiaries. There are no intended third -party beneficiaries of any right or obligation assumed by the Parties. 26. Severability. It is intended that each paragraph of this Agreement shall be treated as separate and divisible, and in the event that any paragraphs are deemed unenforceable, the remainder shall continue to be in full force and effect so long as the primary purpose of this Agreement is unaffected. 27. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. 28. Use of Electronic (Digital) Signatures. This Agreement may be executed in any number of counterparts, each of which will be an original, but all of which together will constitute one instrument. Each party of this Agreement agrees to the use of electronic signatures, such as digital signatures that 7 meet the requirements of the California Uniform Electronic Transactions Act (("CUETA") Cal. Civ. Code §§ 1633.1 to 1633.17), for executing this Agreement. The parties further agree that the electronic signatures of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic signature means an electronic sound, symbol, or process attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the electronic record pursuant to the CUETA as amended from time to time. The CUETA authorizes use of an electronic signature for transactions and contracts among parties in California, including a government agency. Digital signature means an electronic identifier, created by computer, intended by the party using it to have the same force and effect as the use of a manual signature, and shall be reasonably relied upon by the parties. For purposes of this section, a digital signature is a type of "electronic signature" as defined in subdivision (i) of Section 1633.2 of the Civil Code [Signature Provisions on Following Page] 0 28. Authority to Enter Agreement. Each Party to this Agreement warrants to the other that it is duly organized and existing and that it and the respective signatories have full right and authority to enter into and consummate this Agreement and all related documents and bind the parties thereto. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date as indicated beside each Party's signature. COUNTY: COUNTY OF RIVERSIDE, a political subdivision of the State of California Chair, Board of Supervisors ATTEST: Clerk of the Board Kimberly Rector M. Deputy (Seal) APPROVED AS TO FORM County Counsel 01 SUBRECIPIENT: CITY OF TEMECULA Lo Aaron Adams, City Manager Date ATTEST: Randi Johl, City Clerk APPROVED AS TO FORM: Peter M. Thorson, City Attorney Attachment A — Neighborhood Revitalization Project Scope Doi Park Renovation at Michael "Mike" Na22ar Park Scope of Work The Subrecipient will complete all planning, design, and procurement necessary to construct the Project. The Subrecipient will construct a dog park at Michael "Mike" Naggar Community Park that includes a pen for small breed dogs and a pen for large breed dogs. In addition, there will be new water fountains, benches, trash receptacles, dog bag dispensers, trees and other landscape improvements, and shade structures. Project Budtet COUNTY OF RIVERSIDE SUBRECIPIENT ARPA NON-FEDERAL ESTIMATED ITEM DESCRIPTION PROJECT FUNDING PROJECT COST FUNDING AMOUNT AMOUNT of to Exceed 1 Facility Planning $0 $0 $0 2 Preliminary Design $0 $0 $0 3 Final Design $0 $71,516 $71,516 4 Spec Review, $0 $100,000 $100,000 Bid/Award 5 Construction $200,000 $593,484 $793,484 6 Admin Closeout $0 $75,000 $75,000 TOTAL: $200,000 $840,000 $1,040,000 Schedule ITEM DESCRIPTION OF SUBMITTAL ESTIMATED DUE DATE 1 Feasibility Report N/A 2 Preliminary Design Report N/A 3 Final Design August 21, 2023 4 1 Sec Review, Bid/Award August 21, 2023 5 Construction and Implementation January 31, 2024 6 Admin Closeout Aril 30, 2024 10 Attachment B — U.S. Treasury ARPA Fiscal Recovery Funds Final Rule 11 Attachment C — Uniform Administrative Requirements, Cost Principles, Federal Provisions and Audit Requirements for Federal Awards -2 CFR Part 200 et seq 2 CFR Part 200 attached hereto 12 ATTACHMENT C CONTINUED FEDERAL PROVISIONS Should funding be allocated through American Rescue Plan Act (ARPA; (Title VI of the Social Security Act Section 602 et seq.), the COUNTY will administer and distribute those funds in accordance with ARPA. ARPA requires that payments from the Coronavirus Fiscal Recovery Fund be used to respond to the public health emergency or its negative economic impacts, to respond to workers performing essential work during the COVID-19 public health emergency by providing premium pay, provide government services to the extent the reduction of revenue due to COVID-19 public health emergency, and to make necessary investments in water, sewer or broadband infrastructure. It is effective beginning May 17, 2021 and ends on December 31, 2026. Subrecipient acknowledges and agrees that this Agreement is subject to the federal requirements, including but not limited to the federal provisions provided below: 1. NON-DISCRIMINATION. Subrecipient shall not be discriminate in the provision of services, allocation of benefits, accommodation in facilities, or employment of personnel on the basis of ethnic group identification, race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status or sex in the performance of this Agreement; and, to the extent they shall be found to be applicable hereto, shall comply with the provisions of the California Fair Employment and Housing Act (Gov. Code 12900 et. seq), the Federal Civil Rights Act of 1964 (P.L. 88-352), the Americans with Disabilities Act of 1990 (42 U.S.C. S1210 et seq.) and all other applicable laws or regulations. 2. EQUAL EMPLOYMENT OPPORTUNITY/ FAIR EMPLOYMENT PRACTICES/ FEDERAL PROVISIONS. During the performance of this Agreement, the Subrecipient shall not deny benefits to any person on the basis of religion, color, ethnic group identification, sex, age, physical or mental disability, nor shall they discriminate unlawfully against any employee or applicant for employment because of race, religion, color, national origin, ancestry, physical handicap, mental disability, medical condition, marital status, age, or sex. Subrecipient shall ensure that the evaluation and treatment of employees and applicants for employment are free of such discrimination. A. Subrecipient shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.), the regulations promulgated thereunder (California Code of Regulations, Title 2, Section 11000 et seq.), the provisions of Executive Order 11246 of Sept. 23, 1965 and of the rules, regulations, and relevant orders of the Secretary of Labor, the provisions of Article 9.5, Chapter 1, Part 1, Division 3, Title 2 of the Government Code (Government Code, Sections 11135-11139.8), and of the rules, regulations or standards adopted by the County to implement such article. B. The Subrecipient shall comply with the provisions of the Copeland "Anti -Kickback" Act, 18 U.S.C. § 874, 40 U.S.C. § 3145, and the requirements of 29 C.F.R. pt. 3 as may be applicable, which are incorporated by reference into this Agreement. 3. CLEAN AIR ACT. The Subrecipient agrees to comply with all applicable standards, orders, or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. Section 7401 et seq. The Subrecipient agrees to report each violation to the County and understands and agrees that the County will, in turn, report each violation as required to assure notification to the California 13 Governor's Office of Emergency Services, Federal Emergency Management Agency (FEMA), and the appropriate Environmental Protection Agency Regional Office. The Subrecipient agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with Federal assistance provided by FEMA. 4. FEDERAL WATER POLLUTION CONTROL ACT The Subrecipient agrees to comply with all applicable standards, orders, or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. Sections 1251 et seq. The Subrecipient agrees to report each violation to the County and understands and agrees that the County will, in turn, report each violation as required to assure notification to the Federal Emergency Management Agency (FEMA), and the appropriate Environmental Protection Agency Regional Office. The Subrecipient agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with Federal assistance provided by FEMA. 5. DEBARMENT AND SUSPENSION CLAUSE This Agreement is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such the Subrecipient is required to verify that none of the Subrecipient, its principals (defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). The Subrecipient must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into. This certification is a material representation of fact relied upon by the County. If it is later determined that the Subrecipient did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the County, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. The bidder or proposer agrees to comply with the requirements of 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions. 6. BYRD ANTI- LOBBYING AMENDMENT, 31 U.S.C. § 1352 (AS AMENDED) Subrecipients who apply or bid for an award of $100,000 or more shall file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Each tier shall also disclose any lobbying with non -Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the County. APPENDIX A, 44 C.F.R. PART 18- CERTIFICATION REGARDING LOBBYING The undersigned [Subrecipient] certifies, to the best of his or her knowledge, that: A. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection 14 with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. B. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. C. The undersigned shall require that the language of this certification be included in the award documents for all sub -awards at all tiers (including subcontracts, sub -grants, and contracts under grants, loans, and cooperative agreements) and that all sub -recipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31, U.S.C. § 1352 (as amended by the Lobbying Disclosure Act of 1995). Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. The Subrecipient certifies or affirms the truthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, the Subrecipient understands and agrees that the provisions of 31 U.S.C. § 3801 et seq., apply to this certification and disclosure, if any. SUBRECIPIENT By Date 7. PROCUREMENT OF RECOVERED MATERIALS In the performance of this Agreement, the Subrecipient shall make maximum use of products containing recovered materials that are EPA -designated items unless the product cannot be acquired A. Competitively within a timeframe providing for compliance with the contract performance schedule; B. Meeting contract performance requirements; or C. At a reasonable price. Information about this requirement, along with the list of EPA -designated items, is available at EPA's Comprehensive Procurement Guidelines web site, https://www.epa.gov/smm/comprehensive- procurement-guideline-cpg-program The Subrecipient also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act. 8. ACCESS TO RECORDS The following access to records requirements apply to this Agreement: A. The Subrecipient agrees to provide the County, the FEMA Administrator, the Comptroller General of the United States, or any of their authorized representatives access to any books, documents, papers, and records of the Subrecipient which are directly pertinent to this Agreement for the purposes of making audits, examinations, excerpts, and transcriptions B. The Subrecipient agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. 15 C. The Subrecipient agrees to provide the FEMA Administrator or his or her authorized representatives access to construction or other work sites pertaining to the work being completed under the contract. D. In compliance with the Disaster Recovery Act of 2018, the County and the Subrecipient acknowledge and agree that no language in this contract is intended to prohibit audits or internal reviews by the FEMA Administrator or the Comptroller General of the United States. 9. DEPARTMENT OF HOMELAND SECURITY SEAL, LOGO, FLAGS The Subrecipient shall not use the DHS seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials without specific FEMA pre -approval. 10. COMPLIANCE WITH FEDERAL LAW, REGULATIONS, AND EXECUTIVE ORDERS This is an acknowledgement that FEMA financial assistance will be used to fund all or a portion of the contract. The Subrecipient will comply with all applicable Federal law, regulations, executive orders, FEMA policies, procedures, and directives. 11. NO OBLIGATION BY FEDERAL GOVERNMENT The Federal Government is not a party to this Agreement and is not subject to any obligations or liabilities to the non -Federal entity, contractor, or any other party pertaining to any matter resulting from the contract. 12. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR RELATED ACTS The Subrecipient acknowledges that 31 U.S.C. Chapter 38 (Administrative Remedies for False Claims and Statements) applies to the Subrecipient's actions pertaining to this Agreement. 13. FEDERAL PREVAILING WAGE DAVIS-BACON ACT COMPLIANCE (applicable to construction contracts in excess of $2,000 awarded by grantees and subgrantees when required by Federal grant program legislation) To the extent required by any Federal grant programs applicable to expected funding or reimbursement expenses incurred in connection with the services provided under this Agreement, Subrecipient agrees to comply with the Davis -Bacon Act (40 U.S.C. §§ 3141-3144 and 3146-3148) as supplemented by Department of Labor regulations (29 CFR Part 5) as set forth below. A. The Subrecipient shall be bound to the provisions of the Davis -Bacon Act, and agrees to be bound by all the provisions of Labor Code section 1771 regarding prevailing wages. All labor on this project shall be paid neither less than the greater of the minimum wage rates established by the U.S. Secretary of Labor (Federal Wage Rates), or by the State of California Director of Department of Industrial Relations (State Wage Rates). Current DIR requirements may be found at http://www.dir.ca.gov/lcp.asp. Additionally, wages are required to be paid not less than once a week. B. The general prevailing wage rates may be accessed at the Department of Labor Home Page at www.wdol.gov. Under the Davis Bacon heading, click on "Selecting DBA WDs." In the drop down menu 16 for State, select, "California." In the drop down menu for County, select "Riverside." In the drop down menu for Construction Type, make the appropriate selection. Then, click Search. The Federal minimum wage rates for this project are predetermined by the United States Secretary of Labor. If there is a difference between the minimum wage rates predetermined by the Secretary of Labor and the general prevailing wage rates determined by the Director of the California DIR for similar classifications of labor, the Subrecipient and subcontractors shall pay not less than the higher wage rate. The County will not accept lower State wage rates not specifically included in the Federal minimum wage determinations. This includes "helper" (or other classifications based on hours of experience) or any other classification not appearing in the Federal wage determinations. Where Federal wage determinations do not contain the State wage rate determination otherwise available for use by the Subrecipient and subcontractors, the Subrecipient and subcontractors shall pay not less than the Federal minimum wage rate which most closely approximates the duties of the employees in question. 14. CONTRACT WORK HOURS AND SAFETY STANDARDS (applicable to all contracts in excess of $100,000 that involve the employment of mechanics or laborers, but not to purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence) A. Compliance: Subrecipient agrees that it shall comply with Sections 3702 and 3704 of the Contract Work Hours and Safety Standards Act (40 U.S.C. §§ 3701-3708) as supplemented by Department of Labor regulations (29 CFR Part 5), which are incorporated herein. B. Overtime: No contractor or subcontractor contracting for any part of the work under this Agreement which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. C. Violation; liability for unpaid wages; liquidated damages: In the event of any violation of the provisions of paragraph B of this section, the Subrecipient and any subcontractor responsible therefore shall be liable for the unpaid wages. In addition, such Subrecipient and subcontractor shall be liable to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic employed in violation of the provisions of paragraph B, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by paragraph B. D. Withholding for unpaid wages and liquidated damages: Subrecipient shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally - assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set for in paragraph C of this section. E. Subcontracts: The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs A through D of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs A through D of this section. 17 15. RIGHTS TO INVENTIONS MADE UNDER A CONTRACT OR AGREEMENT— Contracts or agreements for the performance of experimental, developmental, or research work shall provide for the rights of the Federal Government and the recipient in any resulting invention in accordance with 37 CFR part 401, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," and any implementing regulations issued by HUD. 16. RIGHTS TO DATA AND COPYRIGHTS — Subrecipients and consultants agree to comply with all applicable provisions pertaining to the use of data and copyrights pursuant to 48 CFR Part 27.4, Federal Acquisition Regulations (FAR). 17. PROHIBITION ON CONTRACTING FOR COVERED TELECOMMUNICATIONS EQUIPMENT OR SERVICES A. Definitions. As used in this clause, the terms backhaul; covered foreign country; covered telecommunications equipment or services; interconnection arrangements; roaming; substantial or essential component; and telecommunications equipment or services have the meaning as defined in FEMA Policy, #405-143-1 Prohibitions on Expending FEMA Award Funds for Covered Telecommunications Equipment or Services As used in this clause B. Prohibitions. (1) Section 889(b) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232, and 2 C.F.R. § 200.216 prohibit the head of an executive agency on or after Aug.13, 2020, from obligating or expending grant, cooperative agreement, loan, or loan guarantee funds on certain telecommunications products or from certain entities for national security reasons. (2) Unless an exception in paragraph (c) of this clause applies, the contractor and its subcontractors may not use grant, cooperative agreement, loan, or loan guarantee funds from the Federal Emergency Management Agency to: (i) Procure or obtain any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology of any system; (ii) Enter into, extend, or renew a contract to procure or obtain any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology of any system; (iii) Enter into, extend, or renew contracts with entities that use covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system; or (iv)Provide, as part of its performance of this contract, subcontract, or other contractual instrument, any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. C. Exceptions. (1) This clause does not prohibit contractors from providing a. A service that connects to the facilities of a third -party, such as backhaul, roaming, or interconnection arrangements; or b. Telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles. 18 (2) By necessary implication and regulation, the prohibitions also do not apply to: a. Covered telecommunications equipment or services that: i. Are not used as a substantial or essential component of any system; and ii. Are not used as critical technology of any system. b. Other telecommunications equipment or services that are not considered covered telecommunications equipment or services. D. Reporting requirement. (1) In the event the contractor identifies covered telecommunications equipment or services used as a substantial or essential component of any system, or as critical technology as part of any system, during contract performance, or the contractor is notified of such by a subcontractor at any tier or by any other source, the contractor shall report the information in paragraph (d)(2) of this clause to the recipient or subrecipient, unless elsewhere in this contract are established procedures for reporting the information. (2) The Subrecipient shall report the following information pursuant to paragraph (d)(1) of this clause: (i) Within one business day from the date of such identification or notification: The contract number; the order number(s), if applicable; supplier name; supplier unique entity identifier (if known); supplier Commercial and Government Entity (CAGE) code (if known); brand; model number (original equipment manufacturer number, manufacturer part number, or wholesaler number); item description; and any readily available information about mitigation actions undertaken or recommended. ii) Within 10 business days of submitting the information in paragraph (d)(2)(i) of this clause: Any further available information about mitigation actions undertaken or recommended. In addition, the contractor shall describe the efforts it undertook to prevent use or submission of covered telecommunications equipment or services, and any additional efforts that will be incorporated to prevent future use or submission of covered telecommunications equipment or services. Page 10 E. Subcontracts. The Subrecipient shall insert the substance of this clause, including this paragraph (e), in all subcontracts and other contractual instruments. 18. REPORTING OF MATTERS RELATED TO RECIPIENT INTEGRITY AND PERFORMANCE A. General Reporting Requirement If the total value of your currently active grants, cooperative agreements, and procurement contracts from all Federal awarding agencies exceeds $10,000,000 for any period of time during the period of performance of this Federal award, then you as the recipient during that period of time must maintain the currency of information reported to the System for Award Management (SAM) that is made available in the designated integrity and performance system (currently the Federal Awardee Performance and Integrity Information System (FAPIIS)) about civil, criminal, or administrative proceedings described in paragraph 2 of this award term and condition. This is a statutory requirement under section 872 of Public Law 110-417, as amended (41 U.S.C. 2313). As required by section 3010 of Public Law I I I- 212, all information posted in the designated integrity and performance system on or after April 15, 2011, except past performance reviews required for Federal procurement contracts, will be publicly available. B. Proceedings About Which You Must Report Submit the information required about each proceeding that: a. Is in connection with the award or performance of a grant, cooperative agreement, or procurement contract from the Federal Government; b. Reached its final disposition during the most recent five-year period; and 19 c. Is one of the following: (1) A criminal proceeding that resulted in a conviction, as defined in paragraph 5 of this award term and condition; (2) A civil proceeding that resulted in a finding of fault and liability and payment of a monetary fine, penalty, reimbursement, restitution, or damages of $5,000 or more; (3) An administrative proceeding, as defined in paragraph 5. of this award term and condition, that resulted in a finding of fault and liability and your payment of either a monetary fine or penalty of $5,000 or more or reimbursement, restitution, or damages in excess of $100,000; or (4) Any other criminal, civil, or administrative proceeding if- (i) It could have led to an outcome described in paragraph 2.c.(1), (2), or (3) of this award term and condition; (ii) It had a different disposition arrived at by consent or compromise with an acknowledgment of fault on your part; and (iii) The requirement in this award term and condition to disclose information about the proceeding does not conflict with applicable laws and regulations. C. Reporting Procedures Enter in the SAM Entity Management area the information that SAM requires about each proceeding described in paragraph 2 of this award term and condition. You do not need to submit the information a second time under assistance awards that you received if you already provided the information through SAM because you were required to do so under Federal procurement contracts that you were awarded. D. Reporting Frequency During any period of time when you are subject to the requirement in paragraph 1 of this award term and condition, you must report proceedings information through SAM for the most recent five year period, either to report new information about any proceeding(s) that you have not reported previously or affirm that there is no new information to report. Recipients that have Federal contract, grant, and cooperative agreement awards with a cumulative total value greater than $10,000,000 must disclose semiannually any information about the criminal, civil, and administrative proceedings. E. Definitions For purposes of this award term and condition: a. Administrative proceeding means a non judicial process that is adjudicatory in nature in order to make a determination of fault or liability (e.g., Securities and Exchange Commission Administrative proceedings, Civilian Board of Contract Appeals proceedings, and Armed Services Board of Contract Appeals proceedings). This includes proceedings at the Federal and State level but only in connection with performance of a Federal contract or grant. It does not include audits, site visits, corrective plans, or inspection of deliverables. b. Conviction, for purposes of this award term and condition, means a judgment or conviction of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or a plea, and includes a conviction entered upon a plea of nolo contendere. c. Total value of currently active grants, cooperative agreements, and procurement contracts includes - (1) Only the Federal share of the funding under any Federal award with a recipient cost share or match; and (2) The value of all expected funding increments under a Federal award and options, even if not yet exercised. 20 Attachment D — Indemnification and Insurance Requirements INDEMNIFICATION A. Basic Indemnity 1. To the fullest extent permitted by applicable law, Subrecipient agrees to indemnify, hold harmless and defend the County of Riverside, its Agencies, Districts, Departments and Special Districts, Board of Supervisors, elected and appointed officials, and each of their respective directors, members officers, employees, agents, volunteers and representatives ("Indemnitees") and each of them from any and all Losses that arise out of or relate to any act or omission constituting ordinary and not professional negligence (including, without limitation, negligent breach of contract), recklessness, or willful misconduct on the part of Subrecipient or its subconsultants or their respective employees, agents, representatives, or independent contractors. 2. "Losses" shall mean any and all economic and non -economic losses, costs, liabilities, claims, damages, actions, judgements, settlements and expenses, including, without limitation, full and actual attorney's fees (including, without limitation, attorney's fees for trial and on appeal), expert and non -expert witness fees, arbitrator and arbitration fees and mediator and mediation fees. 3. Subrecipient further agrees to and shall indemnify and hold harmless the Indemnitees from all liability arising from suits, claims, demands, actions, or proceedings made by agents, employees or subcontractors of Subrecipient for salary, wages, compensation, health benefits, insurance, retirement or any other benefit not explicitly set forth in this Agreement and arising out of work performed for County pursuant to this Agreement. The Indemnitees shall be entitled to the defense and indemnification provided for hereunder regardless of whether the Loss is in part caused or contributed to by the acts or omissions of an Indemnitee or any other person or entity; provided however, that nothing contained herein shall be construed as obligating Subrecipient to indemnify and hold harmless any Indemnitee to the extent not required under the provisions of Paragraph B below. B. Indemnity for Design Professionals 1. To the fullest extent permitted by Applicable Law, Subrecipient agrees to defend (through legal counsel reasonably acceptable to County), indemnify and hold harmless the Indemnitees, and each of them, against any and all Losses that arise out of, pertain to, or relate to, any negligence, recklessness or willful misconduct constituting professional negligence on the part of Subrecipient or its Subconsultants, or their respective employees, agents, representatives, or independent contractors. The Indemnitees shall be entitled to the defense, and indemnification provided for hereunder regardless of whether the Loss is, in part, caused or contributed to by the acts or omissions of an Indemnitee or any other person or entity; provided, however, that nothing contained herein shall be construed as obligating Subrecipient to indemnify and hold harmless any Indemnitee to the extent not required under the provisions of this section. Subrecipient shall defend and pay, all costs and fees, including but not limited to attorney fees, cost of investigation, and defense, in any loss, suits, claims, demands, actions, or proceedings to the extent and in proportion to the percentage, such costs and fees arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of Subrecipient arising out of or from the performance of professional design services under this Agreement. The duty to defend applies to any alleged or actual negligence, recklessness, willful misconduct of Subrecipient. The cost for defense shall apply whether or not Subrecipient is a party to the lawsuit and shall apply whether or not Subrecipient is directly liable to the plaintiffs in the lawsuit. The duty to defend applies even if Indemnitees are alleged or found to be actively negligent, but only in proportion to the percentage of fault or negligence of Subrecipient. 21 2. Without affecting the rights of County under any other provision of this Agreement, Subrecipient shall not be required to indemnify or hold harmless or provide defense or defense costs to an Indemnitee for a loss due to that Indemnitee's negligence, recklessness or willful misconduct; provided, however, that such negligence, recklessness or willful misconduct has been determined by agreement of Subrecipient and Indemnitee or has been adjudged by the findings of a court of competent jurisdiction. C. Subrecipient agrees to obtain or cause to be obtained executed defense and indemnity agreements with provisions identical to those set forth in this section from each and every Subconsultant, of every Tier. D. Subrecipient's indemnification obligations under this Agreement shall not be limited by the amount or type of damages, compensation or benefits payable under any policy of insurance, workers' compensation acts, disability benefit acts or other employee benefit acts. E. The Indemnitees shall be entitled to recover their attorneys' fees, costs and expert and consultant costs in pursuing or enforcing their right to defense and/or indemnification under this Agreement. INSURANCE REQUIREMENTS Without limiting or diminishing the Subrecipient's obligation to indemnify or hold the County harmless, Subrecipient shall procure and maintain or cause to be maintained, at its sole cost and expense, the following insurance coverages during the term of this Agreement. As respects to the insurance section only, the County herein refers to the County of Riverside, its Agencies, Districts, Special Districts, and Departments, their respective directors, officers, Board of Supervisors, employees, elected or appointed officials, agents or representatives as Additional Insureds. A. Workers' Compensation: If the Subrecipient has employees as defined by the State of California, the Subrecipient shall maintain statutory Workers Compensation Insurance (Coverage A) as prescribed by the laws of the State of California. Policy shall include Employers' Liability (Coverage B) including Occupational Disease with limits not less than $1,000,000 per person per accident. The policy shall be endorsed to waive subrogation in favor of The County of Riverside. B. Commercial General Liability: Commercial General Liability insurance coverage, including but not limited to, premises liability, unmodified contractual liability, products and completed operations liability, personal and advertising injury, and cross liability coverage, covering claims which may arise from or out of Subrecipient's performance of its obligations hereunder. Policy shall name the County as Additional Insured. Policy's limit of liability shall not be less than $2,000,000 per occurrence combined single limit. If such insurance contains a general aggregate limit, it shall apply separately to this agreement or be no less than two (2) times the occurrence limit. Policy shall name the County as Additional Insureds. C. Vehicle Liability: If vehicles or mobile equipment are used in the performance of the obligations under this Agreement, then Subrecipient shall maintain liability insurance for all owned, non -owned or hired vehicles so used in an amount not less than $1,000,000 per occurrence combined single limit. If such insurance contains a general aggregate limit, it shall apply separately to this agreement or be no less than two (2) times the occurrence limit. Policy shall name the County as Additional Insureds. 22 D. Professional Liability (ONLY TO BE INCLUDED IN CONTRACTS WITH SERVICE PROVIDERS INCLUDING BUT NOT LIMITED TO ENGINEERS, DESIGN PROFESSIONALS, DOCTORS, AND LAWYERS) Contractor shall maintain Professional Liability Insurance providing coverage for the Contractor's performance of work included within this Agreement, with a limit of liability of not less than $1,000,000 per occurrence and $2,000,000 annual aggregate. If Contractor's Professional Liability Insurance is written on a claims made basis rather than an occurrence basis, such insurance shall continue through the term of this Agreement and Subrecipient shall purchase at his sole expense either 1) an Extended Reporting Endorsement (also, known as Tail Coverage); or 2) Prior Dates Coverage from new insurer with a retroactive date back to the date of, or prior to, the inception of this Agreement; or 3) demonstrate through Certificates of Insurance that Subrecipient has Maintained continuous coverage with the same or original insurer. Coverage provided under items 1), 2), or 3) will continue as long as the law allows. Policy shall name the County as Additional Insureds. E. General Insurance Provisions - All lines: 1. Any insurance carrier providing insurance coverage hereunder shall be admitted to the State of California and have an A M BEST rating of not less than A: VIII (A:8) unless such requirements are waived, in writing, by the County Risk Manager. If the County's Risk Manager waives a requirement for a particular insurer such waiver is only valid for that specific insurer and only for one policy term. 2. The Subrecipient must declare its insurance self -insured retention for each coverage required herein. If any such self -insured retention exceed $500,000 per occurrence each such retention shall have the prior written consent of the County Risk Manager before the commencement of operations under this Agreement. Upon notification of self -insured retention unacceptable to the County, and at the election of the County's Risk Manager, Subrecipient's carriers shall either; 1) reduce or eliminate such self -insured retention as respects this Agreement with the County, or 2) procure a bond which guarantees payment of losses and related investigations, claims administration, and defense costs and expenses. 3. Subrecipient shall cause Subrecipient's insurance carrier(s) to furnish the County of Riverside with either 1) a properly executed original Certificate(s) of Insurance and certified original copies of Endorsements effecting coverage as required herein, and 2) if requested to do so orally or in writing by the County Risk Manager, provide original Certified copies of policies including all Endorsements and all attachments thereto, showing such insurance is in full force and effect. Further, said Certificate(s) and policies of insurance shall contain the covenant of the insurance carrier(s) that a minimum of thirty (30) days written notice shall be given to the County of Riverside prior to any material modification, cancellation, expiration or reduction in coverage of such insurance. If Subrecipient insurance carrier(s) policies does not meet the minimum notice requirement found herein, Subrecipient shall cause Subrecipient's insurance carrier(s) to furnish a 30 day Notice of Cancellation Endorsement. 23 4. In the event of a material modification, cancellation, expiration, or reduction in coverage, this Agreement shall terminate forthwith, unless the County of Riverside receives, prior to such effective date, another properly executed original Certificate of Insurance and original copies of endorsements or certified original policies, including all endorsements and attachments thereto evidencing coverage's set forth herein and the insurance required herein is in full force and effect. Subrecipient shall not commence operations until the County has been furnished original Certificate (s) of Insurance and certified original copies of endorsements and if requested, certified original policies of insurance including all endorsements and any and all other attachments as required in this Section. An individual authorized by the insurance carrier to do so on its behalf shall sign the original endorsements for each policy and the Certificate of Insurance. 5. It is understood and agreed to by the parties hereto that the Subrecipient's insurance shall be construed as primary insurance, and the County's insurance and/or deductibles and/or self - insured retentions or self -insured programs shall not be construed as contributory. 6. If, during the term of this Agreement or any extension thereof, there is a material change in the scope of services; or, there is a material change in the equipment to be used in the performance of the scope of work; or, the term of this Agreement, including any extensions thereof, exceeds five (5) years; the County reserves the right to adjust the types of insurance and the monetary limits of liability required under this Agreement, if in the County Risk Management's reasonable judgment, the amount or type of insurance carried by the Subrecipient has become inadequate. 7. Subrecipient shall pass down the insurance obligations contained herein to all tiers of subcontractors working under this Agreement. 8. The insurance requirements contained in this Agreement may be met with a program(s) of self-insurance acceptable to the County. 9. Subrecipient agrees to notify County of any claim by a third party or any incident or event that may give rise to a claim arising from the performance of this Agreement 24 Attachment E - Project Monitoring Requirements Quarterly Progress Reports shall be submitted on the 21' of the month following the previous quarter. Quarterly reports shall be sent via e-mail to RIVCOARPA&RIVCO.ORG. The quarterly report shall include a brief description of the work performed during the reporting period, including construction status, milestones achieved, financial status report including cost incurred to date, cash flow projections, schedule updates, and any problems encountered in the performance of the work under this Agreement. The progress pay estimate for the reporting period shall be included as part of the quarterly progress report submittal. In addition to the above, project schedule and cashflow projection updates shall be emailed to the County on a monthly basis. 25 Attachment F - Construction Requirements Subrecipient shall: 1. Pursuant to the California Environmental Quality Act ("CEQA"), act as Lead Agency and assume responsibility for preparation, circulation and adoption of all necessary and appropriate CEQA documents pertaining to the construction, operation and maintenance of Neighborhood Revitalization Project. 2. To the extent that it has not already done so, the Subrecipient shall prepare or cause plans and specifications ("Plans") to be prepared for the Neighborhood Revitalization Project prior to advertising Neighborhood Revitalization Project for construction bids. 3. Provide County a copy of the engineering design cost proposal and associated design schedule for the Neighborhood Revitalization Project. 4. Advertise and award a public works construction contract for the Neighborhood Revitalization Project and begin construction per the schedules included in Attachment A of this Agreement. 5. Prior to advertising Neighborhood Revitalization Project for public works construction contract, obtain all necessary permits, approvals, or agreements as may be required by any federal, state and local resource or regulatory agencies pertaining to the construction, operation and maintenance of Neighborhood Revitalization Project. Assume sole responsibility for compliance with the requirements of all regulatory permits, including any amendments thereto, pertaining to the construction, operation and maintenance of Neighborhood Revitalization Project. 6. Implement or cause to be implemented, all environmental mitigation required in association with the construction, operation and maintenance of Neighborhood Revitalization Project. 7. Prior to advertising Neighborhood Revitalization Project for public works construction contract, obtain all necessary permits, licenses, agreements, approvals, rights of way, rights of entry, encroachment permits, and temporary construction easements as may be needed to construct, operate and maintain the Neighborhood Revitalization Project. 8. Advertise, award and administer a public works construction contract for the Neighborhood Revitalization Project pursuant to the provisions of applicable laws for public works of improvements, including but not limited to the California Public Contract Code, Government Code and Labor Code. 9. Shall certify and cause its contractor to certify, that it is not a target of economic sanctions imposed in response to Russia's actions in Ukraine imposed by the United States government or the State of California. The Subrecipient and its Contractor are required to comply with the economic sanctions imposed in response to Russia's actions in Ukraine, including with respect to, but not limited to, the federal executive orders identified in California Executive Order N-6-22, located at hgps://www. og v ca.gov/wp- content/uploads/2022/03/3.4.22-Russia-Ukraine-Executive-Order.pdf and the sanctions identified on the United States Department of the Treasury website (https://home.treasM. goy/policy-issues/financial-sanctions/sanctions-pro grams-and-country- information/ukraine-russia-related-sanctions). The Subrecipient and its Contractor are required to comply with all applicable reporting requirements regarding compliance with the economic sanctions, including, but not limited to, those reporting requirements set forth in California 26 Executive Order N-6-22 for all parties with one or more agreements with the State of California, the County of Riverside, or any other local agency, with a value of Five Million Dollars ($5,000,000) or more. Notwithstanding any other provision in these documents, failure to comply with the economic sanctions and all applicable reporting requirements may result in disqualification or termination of the Construction Agreement, if awarded. For parties and contractors with an agreement value of Five Million Dollars ($5,000,000) or more with the State of California, the County of Riverside, or any other local agency, reporting requirements include, but are not limited to, information related to steps taken in response to Russia's actions in Ukraine, including but not limited to: a. Desisting from making any new investments or engaging in financial transactions with Russian institutions or companies that are headquartered or have their principal place of business in Russia; b. Not transferring technology to Russia or companies that are headquartered or have their principal place of business in Russia; and c. Direct support to the government and people of Ukraine. To comply with this requirement, please insert your name and Federal ID Number (if available) on the Certification Form attached hereto, execute by a duly authorized representative for the contractor and return to the County. 10. The Subrecipient shall require, and the specifications, bid and contract documents shall require all contractors, subcontractors, vendors, equipment operators and owner operators, in each such case to the extent such individuals or entities are engaged to perform work on the Neighborhood Revitalization Project, to pay at least general prevailing wage rates to all workers employed in the execution of the contract, to post a copy of the general prevailing wage rates at the job -site in a conspicuous place available to all employees and applicants for employment, and to otherwise comply with applicable provisions of the California Labor Code and applicable laws relating to general prevailing wage rates. 11. Each contractor engaged to perform work on the Neighborhood Revitalization Project shall be required to furnish (i) labor and material payment bonds, and (ii) contract performance bonds, each in an amount equal to 100% of the contract price naming the Subrecipient as obligee and issued by a California admitted surety which complies with the provisions of Section 995.660 of the California Code of Civil Procedure. 12. Provide County with written notice that Subrecipient has awarded a public works construction contract for Neighborhood Revitalization Project. The written notice shall include the Contractor's actual bid amounts for Neighborhood Revitalization Project, setting forth herein the lowest responsible bid contract amount. 13. Prior to commencing Neighborhood Revitalization Project construction, provide to County: a. A construction schedule which shall show the order and dates in which Subrecipient or Subrecipient's contractor proposes to carry on the various parts of work, including estimated start and completion dates, and b. A confined space procedure specific to Neighborhood Revitalization Project. The procedure shall comply with requirements contained in California Code of 27 Regulations, Title 8, Section 5156 et seq. and County's Confined Space Procedures, SOM-18. 14. Require its construction contractor(s) to comply with all Cal/OSHA safety regulations including regulations concerning confined space and maintain a safe working environment for all working on the site. 15. Order the relocation of all utilities within Subrecipient rights of way which conflict with the construction of Neighborhood Revitalization Project and which must be relocated at the expense of who may have superior property rights. 16. Procure or caused to be procured insurance coverages during the term of this Agreement. Subrecipient shall require its Neighborhood Revitalization Project construction contractor(s) to furnish original certificate(s) of insurance and original certified copies of endorsements and if requested, certified original policies of insurance including all endorsements and any and all other attachments. Prior to Subrecipient issuing a Notice to Proceed to its construction contractor(s) to begin construction of Neighborhood Revitalization Project, an original certificate of insurance evidencing the required insurance coverage shall be provided to County. At minimum, the procured insurance coverages should adhere to the County's required insurance provided in Attachment D to this Agreement. 17. Construct, or cause to be constructed, Neighborhood Revitalization Project pursuant to a Subrecipient administered public works construction contract, in accordance with the Plans, and pay all costs associated therewith. 18. Inspect the Neighborhood Revitalization Project construction or cause the Neighborhood Revitalization Project's construction to be inspected by its construction manager and pay all costs associated therewith. 19. Provide County with a copy of the Subrecipient's recorded Notice of Completion. 20. Keep an accurate accounting of Neighborhood Revitalization Project cost and provide this accounting to County with Subrecipient's Notice of Completion. The final accounting of construction cost shall include a detailed breakdown of all costs, including, but not limited to, payment vouchers, Subrecipient approved change orders and other such construction contract documents as may be necessary to establish the actual cost of construction for the PLANS. Subrecipient shall be responsible to pay any amounts in excess of Award amount provided in this Agreement. 21. Refund to County, at the time of providing a Notice of Completion, any unexpended portions of Award amount within thirty (30) days of the Notice of Completion is filed for recordation. 28 COMPLIANCE WITH ECONOMIC SANCTIONS IN RESPONSE TO RUSSIA'S ACTIONS IN UKRAINE Prior to bidding on, submitting a proposal, or executing a contract, a party/contractor must certify: 1) it is not a target of economic sanctions and 2) in compliance with economic sanctions imposed by the U.S. government in response to Russia's actions in Ukraine, as well as any requirements related to the Russian sanctions imposed by the California Governor's Executive Order N-6-22 issued on March 4, 2022 and under state law, if any. To comply with this requirement, please insert the party/contractor name and Federal ID Number (if available), complete the information described below and execute by an authorized representative of the contractor. CERTIFICATION I, the authorized representative for contractor named below, certify I am duly authorized to execute this certification on behalf of the contractor below, and the contractor identified below has conducted a good faith review of existing contracts. I attest that the contractor is not a target of economic sanctions, and that contractor is in compliance with the economic sanctions imposed by the U.S. government in response to Russia's actions in Ukraine, as well as any requirements related to the Russian sanctions imposed by the California Governor's Executive Order N-6-22 issued on March 4, 2022 and under state law, if any. Party/Contractor Name (Printed) Federal ID Number or n a By (Authorized Signature) Printed Name and Title of Person Signing Date E- 29 Adft IT The Heart of Southern California Wine Country DOG PARK RENOVATION Parks/Recreation Project Project Description: This project is to design and construct a dog park at Mike Naggar Community Park. The dog park will include small and large dog pens, seating, drinking fountains, shade and an agility dog course feature. Benefit: This project protects the City's vast investment in parks and open space facilities. In addition, this project satisfies the City's Core Values of a Healthy and Livable City and Responsive City Government. Core Value: Healthy and Livable City Project Status: This project is dependent on the Prop 68 Per Capita Grant. Design is currently at 90%. The project is estimated to be complete in Fiscal Year 2023-24. Department: Public Works - Account No. 210.265.999.5800.PW21-14 / 207 Level: I City of Temecula Fiscal Years 2024-28 Capital Improvement Program 2023-24 Prior Years 2022-23 Adopted 2024-25 2025-26 2026-27 2027-28 Total Project Project Cost: Actuals Adjusted Budget Projected Projected Projected Projected Cost 5801-Administration 25,000 100,000 125,000 5804-Construction 533,484 10,000 543,484 5802-Design & Environmental 15,116 56,400 71,516 Total Expenditures 15,116 614,884 110,000 740,000 Source of Funds: 4025-Grants 4002-Measure S 25,000 247,126 357,874 110,000 247,126 492,874 Total Funding 25,000 605,000 110,000 740,000 Future Operating & Maintenance Costs: Total Operating Costs Notes : 1. Proposition 68 Grant from the California Department of Parks and Recreation. Item No. 11 CITY OF TEMECULA AGENDA REPORT TO: City Manager/City Council FROM: Patrick Thomas, Director of Public Works/City Engineer DATE: August 22, 2023 SUBJECT: Approve Specifications and Authorize Solicitation of Construction Bids for Citywide Slurry Seal Program — Fiscal Year 2022-23, PW23-16 PREPARED BY: Amer Attar, Engineering Manager Emalee Sena, Engineering Technician II RECOMMENDATION: That the City Council: 1. Approve the specifications and authorize the Department of Public Works to solicit construction bids for the Citywide Slurry Seal Program — Fiscal Year 2022-23, PW23-16; and 2. Make a finding that this project is exempt from CEQA per Article 19, Categorical Exemption, Section 15301, Existing Facilities, of the CEQA Guidelines. BACKGROUND: As part of the Operating Budget for Fiscal Year 2022-23, slurry will be utilized to seal the project roadways against water intrusion and deterioration of asphalt concrete pavement wearing surface. Ideally, slurry seal is applied every five to seven years as it prolongs pavement life thereby delaying more costly rehabilitation measures such as asphalt concrete overlays or removal and reconstruction. Construction involves roadway preparation by removal of existing striping/markings and cleaning/sealing large cracks. This is followed by application of slurry seal and subsequent restoration of striping and pavement markings. Staff has identified the street locations based on the Pavement Management Program (PMP) Update completed in 2017-18, current pavement conditions, time elapsed since the last preventative maintenance measure and geographical proximity. The streets to be sealed are in the communities of Rancho Vista, Los Ranchitos, and Rancho Vista East. An added alternate slurry seal area for this project is the community of Vail Ranch. The slurry seal of this area is contingent on the bids received and the available budget. The name of the streets to be slurry sealed are shown on the attached list and project location maps. Project specifications are complete and the project is ready to be advertised for construction bids. The contract documents are available for review in the office of the Director of Public Works. The Engineer's Construction Estimate for the Project is $1,303,923. The estimate for the added alternate areas is $973,056. The project is exempt from the CEQA requirements pursuant to Article 19, Categorical Exemption, Section 15301, Existing Facilities, of the CEQA Guidelines. Section 15301 states that the repair and maintenance of existing highways and streets are Class 1 activities which is exempt from CEQA. FISCAL IMPACT: This project is funded in the Operating Budget with Measure A funds. If necessary, the project budget can be supplemented from the Pavement Rehabilitation Program — Citywide project budget if they are available after consideration of the planned segments to be rehabilitated under that project. This project will slurry seal as much area as the budget allows. ATTACHMENTS: 1. Slurry Seal Street Name List 2. Project Location Maps Rancho Vista and Los Ranchitos Slurry Seal Street Name List - FY 2022-23 AGENA ST CRESTA VERDE CT REMORA ST ALPHA PL DEL MAR CT RENDOVA PL ARGO CT EL DOMINO PL SAN FERMIN PL ASTEROID WY EL FARO PL SAN JULIAN PL AVENIDA DE EL LUCERO PL SANTA CECILIA DR CALAZADA ELINDA RD SANTA SUZANNE PL BEL MONTE CT ESCOLACATA DR SANTIAGO RD BOREALIS DR ESTERO ST SENELA PL CABO ST FLORES DR SENELA PL CABRILLO AVE JEDEDIAH SMITH RD SKY TERRACE DR CACTUS PL JOHN WARNER RD SOUTHERN CROSS RD CAJON DR LA PAZ RD SPICA CT CALLE CARRANZA LA PRESA LOOP STAR CT CALLE DE VELARDO LA PRIMAVERA ST TIERRA ROBLES PL CALLE HALCON LAS VIOLETTAS CT TWILIGHT CT CALLE SONORA LAURIE RAE LN VALLEJO AV CALLE VIOLETA LEVANDE PL VALLEJO AVE E CAMINO DEL SOL LOLITA RD VERDADERO PL CAMPO ROJO LOMA PORTOLA DR VERDE DR CAMPO VERDE MANZANO DR VERONDA PL CANDIDA DR MARIPOSA PL VIA BRISA CAPRICE CT MILKY WAY DR VIA CANADA CARINO PL MIRA LOMA DR VIA VELEZ PL CASA CHATA PL MOONTIDE CT VILLA ALTURAS DR CENTAUR CT MOUNTAIN VIEW VILLA DEL SUR DR CIELO DE AZUL NEBULA LN VILLA TER CT CIELO MESA PALMA DR VIRGO CT COLINA VERDE PAULITA RD VISTA DEL RANCHO COLVER CT PESCADO DR WINDCREST LN CORONADO DR PIASANO PL YORBA AV CORTE VILLA PIO PICO RD COSMIC DR PORTRAITS LN Rancho Vista East Slurry Seal Street Name List - FY 2022-23 CALLE JAB ILI CORTE CORONADO CORTE SOLEDAD CALLE RESACA CORTE DEL CERRO CORTE VALENTINE CAMINO CASANA CORTE FLORECITA CORTE ZAMORA CAMINO DE LA TORRE CORTE HIGUERA ROSA CT CAMINO MAREA CORTE LA PUENTA VIA ASTURIAS CAMINO MERANO CORTE LARA VIA BALDERAMA CAMINO NUNEZ CORTE LAS CRUCES VIA REINA CAMINO SENECO CORTE MONTIA VIA TORENO CORTE AMALIA CORTE PALACIO VIA TORRES CORTE BACARRO CORTE PARADO VIA VASQUEZ CORTE BALBOA CORTE PERGAMINO VIA VISTANA CORTE CAMARA CORTE SAN VICENTE VINTAGE HILLS DR CORTE CANEL CORTE SANTA CORTE CARMELA CATALINA CORTE CHATADA CORTE SEDA Additive Alternate - Vail Ranch Slurry Seal Street Name List - FY 2022-23 AKES PASS COUNTRY GLEN WY NICLYN DR ALIGHCHI WY CRESTWOOD CIR OVERLAND TR AVENIDA BICICLETA CUPA LN PAROWN DR AVENIDA DE CUTCHOGUE DR PASCUAL CIR MISSIONS ENRIQUETA CIR POTESTAS DR AVITA CIR FERN CIR PRIS LN BANANAL WY FREESIA WY REGINA DR BOG UTA WY GAROLI PASS RHIANNON WY BRENTWOOD PL GRADO CIR ROMERO DR BRICE CIR HAFIZ PASS ROSEWOOD CIR CALLE ALFREDO HARMONY LN ROSSMAN CIR CALLE BANUELOS HISLOP WY SAMILIN CIR CALLE CANTU HUPA DR SASKIA PASS CALLE HILARIO HUPP DR SAWYERS RUN RD CALLE LANGARICA JAMIN CIR SHALE CIR CALLE LOPEZ JOHNSTON DR SHAYNNA CIR CALLE MIRA COPA JOSHEROO CT SILKY PASS CAMINO ALAMOSA KABIAN CT SOTELO DR CAMINO GONZALES KARIE WY STRIGEL CT CAMINO HERNANDEZ KIT CT SUNBEAM TR CAMINO MARACA LABETA CIR TEHACHAPI PASS CAMINO OTILIA LAURIANO DR TERRACE DR CAMINO PIEDRA ROJO LEVI CT TERZICH DR CAMINO RUBANO LINALOU RANCH RD THATCHER CT CAYENNE TR LONGFELLOW AV TIBURCIO DR CERVIN CIR LORRAINE DR TOBIAS CIR CINON DR MACHON RD TULLEY RANCH RD CORTE CANARIO MAPLEWOOD CT VALENTINO WY CORTE GANSO MARGE PL VIA RIO TEMECULA RD CORTE GUTIERREZ MARZI CT WELTON WY CORTE RODRIGUEZ MELISSA CIR CORTE SANCHEZ MILL RUN CT Alk City of Temecula - PW23 -16 Citywide Slurry Seal FY 2022-2023 _ VIA PUESTA DES 2 ' z co �� �O�BAR �O s(� - �p�RD <u �� ��S MARGAR\T �.. 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Data and information represented on this map are subject to update and modification. The City of Temecula assumes no warranty or legal responsibility for the information contained on this map. This map is not for reprint or resale. Visit the City of Temecula GIS online at https://temeculaca.gov/gis 0 0.1 0.2 Miles I I I I I Updated 8/8/2023 �9 Z X _ \II N D ♦ K �\ W 7 P A PC-D J CERRITOS [s t GPLLE ESPIN q City of Temecula - PW23-16 Citywide Slurry Seal FY 2022-2023 s 9AEI 7"MBERTIN WN-0111 ' H"RDONNAY HILLS POSITAS ft ® z "a, J� c� Gp, --- I\ GERCLE n .. G:B ,UNE 4t. •j, j�■. ■...Y■11.. 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Visit the City of Temecula GIS online at https://temeculaca.gov/gis 0 0.1 0.2 Miles I I I I Updated 8/8/2023 Item No. 12 CITY OF TEMECULA AGENDA REPORT TO: City Manager/City Council FROM: Patrick Thomas, Director of Public Works/City Engineer DATE: August 22, 2023 SUBJECT: Accept Improvements and File the Notice of Completion for the Traffic Signal — Park and Ride Access Improvements, PW18-11 PREPARED BY: Nino Abad, Senior Civil Engineer Laura Bragg, Associate Engineer II RECOMMENDATION: That the City Council: Accept the construction of the Traffic Signal — Park and Ride Access Improvements, PW18-11, as complete; and 2. Direct the City Clerk to file and record the Notice of Completion. BACKGROUND: On May 25, 2021, the City Council awarded a construction contract to PAL General Engineering, Inc. (PAL), in the amount of $901,846.00, and authorized the City Manager to approve contract change orders not to exceed the contingency amount of $90,184.60, for a total authorization of $992,030.60 to complete the Traffic Signal - Park and Ride Access Improvements, PW18-11. The Traffic Signal — Park and Ride Access Improvements project provided for the construction of a traffic signal and modifications to the medians on Temecula Parkway at Wabash Lane, construction of an access road from Temecula Parkway at Wabash Lane to the existing park and ride facility, and the elimination of the previously existing entrance to the park and ride facility on Vallejo Avenue by extending the existing wall. The access road goes through private property, and it is allowed via an Access Easement Agreement with the property owner. There is also a Reimbursement Agreement with the property owner, which requires them to pay the City a portion of the construction costs upon filing of the Notice of Completion. PAL General Engineering, Inc., exhausted contract working days on March 7, 2022, and continued to work on contract items through April 21, 2023, with involvement of the Surety Company that provided the Performance Bond for the project. On April 21, 2023, the City received `Beneficial Use" of the project area and at that time there were three items outstanding. As of July 31, 2023, PAL has completed the work in accordance with the approved plans and specifications with the exception of the same three outstanding items that the City has agreed to complete. Two of the three outstanding items pertain to installation of the Traffic Signal CCTV camera. The City has taken possession of the camera purchased for this project and will work with the manufacturer to place it at an appropriate location that will fully use the cameras capabilities. The City's IT Department will supply and install a different model CCTV camera. The third item is to assist in recording the survey document for the Wabash Lane and Temecula Parkway intersection at the County of Riverside. PAL's survey subcontractor is often nonresponsive, so this item will be performed by the City as to not delay filing the Notice of Completion. The City is in the process of negotiating the final payment with PAL, therefore, the Performance Bond, Labor and Materials Bond, and retention will not be released at this time. This negotiation may be a lengthy process due to the involvement of the Surety Company. The Contractor's Affidavit and Final Release will be provided when final payment negotiations are complete. All work will be warranted for a period of one year from April 21, 2023, the date the City obtained "beneficial use" of the project improvements. A Maintenance Bond will need to be supplied by PAL and the Surety Company as part of the final payment negotiations. Per the terms of the Reimbursement Agreement, the City must provide to the property owner the Notice of Completion and other project documents before said property owner will reimburse the City their share of the construction costs. Since the negotiations with the Contractor and Surety could be lengthy, the City is filing the Notice of Completion now instead of waiting for the final payment negotiations to be completed. The base amount of the construction contract was $901,846.00, five contract change orders were issued in the amount of $9,939.53. A sixth contract change order to reconcile quantity underruns is in progress and will be processed once the final payment negotiations are complete. The total project cost will be known at that point. FISCAL IMPACT: There are no fiscal impact associated with accepting the project and filing and recording the Notice of Completion. ATTACHMENTS: 1. Notice of Completion 2. Project Description 3. Project Location RECORDING REQUESTED BY AND RETURN TO: CITY CLERK CITY OF TEMECULA 41000 Main Street Temecula, CA 92590 EXEMPT FROM RECORDER'S FEES Pursuant to Government Code Sections 6103 and 27383 NOTICE OF COMPLETION NOTICE IS HEREBY GIVEN THAT: Temecula Valley Hospitality, LLC, is the owner of the property hereinafter described. The City of Temecula and Temecula Valley Hospitality, LLC, have entered into an Access Easement Agreement and a Reimbursement Agreement to allow for the construction and perpetual usage of a driveway that traverses the south westerly corner of the Temecula Valley Hospitality Property and connecting to the City of Temecula's property adjacent to the west. 2. The full address of the City of Temecula is 41000 Main Street, Temecula, California 92590. 3. The Nature of Interest is a Contract which was awarded by the City of Temecula to PAL General Engineering, Inc., 2364 Paseo De Las Americas #104-1461, San Diego, CA 92154, to perform the following work of improvement: Traffic Signal — Park and Ride Access Improvements, PW18-11 4. Said work was completed by said company according to plans and specifications and to the satisfaction of the Director of Public Works of the City of Temecula and that said work was accepted by the City Council of the City of Temecula at a regular meeting thereof held on August 22, 2023. That upon said contract Argonaut Insurance Company, c/o CMGIA, 20335 Ventura Blvd., Ste 426, Woodland Hills, CA, 91364, was surety for the bond given by the said company as required by law. 5. The property on which said work of improvement was completed is in the City of Temecula, County of Riverside, State of California, and is described as follows: Traffic Signal — Park and Ride Access Improvements, PW18-11 Riverside County Tax Assessor's Parcel Number 922-190-033 6. The location of said property is: Wabash Lane and Temecula Parkway, Temecula, CA 92592 Dated at Temecula, California, this 22"d day of August, 2023. City of Temecula Randi Johl, City Clerk STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss CITY OF TEMECULA ) I, Randi Johl, City Clerk of the City of Temecula, California, do hereby certify under penalty of perjury, that the foregoing NOTICE OF COMPLETION is true and correct, and that said NOTICE OF COMPLETION was duly and regularly ordered to be recorded in the Office of the County Recorder of Riverside by said City Council. Dated at Temecula, California, this 22nd day of August, 2023. City of Temecula Randi Johl, City Clerk Alk f The Heart of Southern California Wine Country City of Temecula Fiscal Years 2024-28 Capital Improvement Program TRAFFIC SIGNAL - PARK & RIDE ACCESS IMPROVEMENTS Circulation Project Project Description: This project includes the installation of a traffic signal on Temecula Parkway at Wabash Lane. The project also includes relocating the access of the Park and Ride facility on Temecula Parkway at La Paz Road from Vallejo Avenue to Wabash Lane. Benefit: This project improves traffic safety and circulation throughout the City. Core Value: Healthy and Livable City Project Status: Construction will be completed in Fiscal Year 2022-23. Department: Public Works - Account No. 210.265.999.605 / PW18-11 Level: I Project Cost: Prior Years Actuals 2023-24 2022-23 Proposed 2024-25 2025-26 2026-27 2027-28 Adjusted Budget Projected Projected Projected Projected Total Project Cost Administration 537,560 17 537,577 Construction 620,950 639,174 1,260,123 Construction Engineering 83,767 47,661 131,428 Design & Environmental 273,651 5,453 279,104 MSHCP 2,664 2,664 Total Expenditures 1,518,590 692,306 2,210,896 Source of Funds: Developer Contribution 175,000 175,000 General Fund 226,725 226,725 Measure S 1,018,590 290,581 1,309,171 Settlement Proceeds 500,000 500,000 Total Funding i 1,745,315 465,581 - 2,210,896 Future Operating & Maintenance Costs: Total Operating Costs U / CO Traffic Signal Park and Ride Access lmprovements Circulation Project Location ,.� Ft %'V . _ •� r I G a •'i'� 6-6 16 J•'�_.i Eqpt � .,! � "' .1. �/ < • �> Y Ira �{ I% �'�Jt2 e _ ,♦ ��° !� <ky 4b 1hC `�_� ti '�:: wl� ♦fir"` � `ae, .v:'i �` _�+ _ --. „_ -z yam, y I e k Z y�� C f 3 r 0". 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Visit the City of Temecula GIS online at https://temeculaca.gov/gis 2018 Aerial Data 82 Item No. 13 CITY OF TEMECULA AGENDA REPORT TO: City Manager/City Council FROM: Patrick Thomas, Director of Public Works/City Engineer DATE: August 22, 2023 SUBJECT: Receive and File Temporary Street Closures for 2023 Autumnfest Events PREPARED BY: Anissa Sharp, Management Assistant Nick Minicilli, Senior Traffic Engineer RECOMMENDATION: That the City Council receive and file the temporary closure of certain streets for the following 2023 Autumnfest Events: GOLDEN ERA RUNWAY SHOW NATIONAL EMERGENCY PREPAREDNESS FAIR ARTFEST HEALTH & COMMUNITY RESOURCE FAIR CYCLE FOR HOPE GREEK FESTIVAL HALLOWEEN CARNIVAL VETERAN'S DAY PECHANGA PU'ESKA MOUNTAIN DAY BACKGROUND: Nine special events are scheduled between August 2023 and November 2023 which necessitates the physical closure of all or portions of certain streets within the Old Town area and other streets throughout Temecula. These closures are necessary for event operation as well as to protect participants and viewers. The eight events and associated street closures are as follows: 1) GOLDEN ERA RUNWAY SHOW — August 261h The Golden Era Runway Show is a private permitted event, planned to be held Saturday, August 26th in Old Town Temecula. The street closures are scheduled as follows: Main Street from the easterly driveway edge of th Saturday, August 26 Be Good Restaurant (28636 Old Town Front Street) to Mercedes Street 8:00 a.m. to 10:00 p.m. Mercedes Street Saturday, August 26th Third Street to Fourth Street 8:00 a.m. to 10:00 p.m. Street closures for the Golden Era Runway Show event are shown on Exhibit "A" attached hereto. 2) NATIONAL EMERGENCY PREPAREDNESS FAIR — September 9' The National Emergency Preparedness Fair event will be held Saturday, September 9"' in Old Town Temecula with street closures scheduled as follows: Main Street from the easterly driveway edge of Saturday, September 9th Be Good Restaurant (28636 Old Town Front 6:00 a.m. to 4:00 p.m. Street) to Mercedes Street Mercedes Street Saturday, September 9th Third Street to Fourth Street 6:00 a.m. to 4:00 p.m. Street closures for the National Emergency Preparedness Fair event are shown on Exhibit "A" attached hereto. 3) ARTFEST — September 15th and September 16t' The ArtFest event will be held Friday, September 151h and Saturday, September 16th in Old Town Temecula with street closures scheduled as follows: Main Street 8:00 a.m. on Thursday, September 14th from the easterly driveway edge of to Be Good Restaurant (28636 Old Town Front Street) to Mercedes Street 11:00 p.m. on Saturday, September 16th 8:00 a.m. on Thursday, September 14th Mercedes Street Third Street to Fourth Street to 11:00 p.m. on Saturday, September 161h Street closures for the ArtFest event are shown on Exhibit "A" attached hereto. 4) HEALTH & COMMUNITY RESOURCE FAIR — September 301h The Health & Community Resource Fair event will be held Saturday, September 30th in Old Town Temecula with street closures scheduled as follows: Main Street 8:00 a.m. on Friday, September 29th from the easterly driveway edge of Be Good Restaurant (28636 Old Town Front to 8:00 p.m. on Saturday, September 30th Street) to Mercedes Street 8:00 a.m. on Friday, September 29th Mercedes Street Third Street to Fourth Street to 8:00 p.m. on Saturday, September 30th Street closures for the Health & Community Resource Fair event are shown on Exhibit "A" attached hereto. 5) CYCLE FOR HOPE — October 1't The Cycle for Hope is a private permitted event, planned to be held Sunday, October lit with street closures scheduled as follows: Rider Way Sunday, October lst Enterprise Circle West to 6:00 a.m. to 2:00 p.m. Commerce Center Drive Commerce Center Drive Sunday, October I" Rider Way to Overland Drive 6:00 a.m. to 2:00 p.m. Street closures for the Cycle for Hope event are shown on Exhibit "B" attached hereto. 6) GREEK FESTIVAL — October 14t' and October 151h The Greek Festival is a private permitted event, planned to be held Saturday, October 141h and Sunday, October 15th in Old Town Temecula with street closures scheduled as follows: Main Street 8:00 a.m. on Friday, October 131h from the easterly driveway edge of Be Good Restaurant (28636 Old Town Front to 8:00 a.m. on Monday, October 16th Street) to Mercedes Street 8:00 a.m. on Friday, October 131h Mercedes Street Third Street to Fourth Street to 8:00 a.m. on Monday, October 16th Street closures for the Greek Festival event are shown on Exhibit "A" attached hereto. 7) HALLOWEEN CARNIVAL — October 27t' The Halloween Carnival event will be held Friday, October 271" in Old Town Temecula with street closures scheduled as follows: Main Street from the easterly driveway edge of Friday, October 271h Be Good Restaurant (28636 Old Town Front 8:00 a.m. to 11:00 p.m. Street) to Mercedes Street Mercedes Street Friday, October 271h Third Street to Fourth Street 8:00 a.m. to 11:00 p.m. Street closures for the Halloween Carnival event are shown on Exhibit "A" attached hereto. 8) VETERAN'S DAY — November 11th The Veteran's Day event will be held Saturday, November 11 th in Old Town Temecula with street closures scheduled as follows: Main Street from the easterly driveway edge of Saturday, November 1 lth Be Good Restaurant (28636 Old Town Front 10:00 a.m. to 10:00 p.m. Street) to Mercedes Street Mercedes Street Saturday, November 1 lth Third Street to Fourth Street 10:00 a.m. to 10:00 p.m. Street closures for the Veteran's Day event are shown on Exhibit "A" attached hereto. 9) PECHANGA PU'ESKA MOUNTAIN DAY — November 15th The Pechanga Pu'6ska Mountain Day event will be held Wednesday, November 15th in Old Town Temecula with street closures scheduled as follows: Main Street from the easterly driveway edge of Wednesday, November 15th Be Good Restaurant (28636 Old Town Front 12:00 p.m. to 9:00 p.m. Street) to Mercedes Street Mercedes Street Wednesday, November 15th Third Street to Fourth Street 12:00 p.m. to 9:00 p.m. Street closures for the Pechanga Pu'eska Mountain Day event are shown on Exhibit "A" attached hereto. Street closures are allowed by the California Vehicle Code upon approval by the local governing body for certain conditions. Under Vehicle Code Section 21101, "Regulation of Highways," local authorities, for those highways under their jurisdiction, may adopt rules and regulations by ordinance or resolution for, among other instances, "temporary closing a portion of any street for celebrations, parades, local special events, and other purposes, when, in the opinion of local authorities having jurisdiction, the closing is necessary for the safety and protection of persons who are to use that portion of the street during the temporary closing." Chapter 12.12 of the Temecula Municipal Code, Parades and Special Events, provides standards and procedures for special events on public streets, highways, sidewalks, or public right of way and authorizes the City Council or City Manager to temporarily close streets, or portions of streets, for these events. FISCAL IMPACT: The costs of police services, as well as services provided by the City Public Works Maintenance Division (for providing, placing, and retrieving of necessary warning and advisory devices), are appropriately budgeted within the City's operating budget. ATTACHMENTS: 1. Exhibit A — Autumnfest Road Closures 2023 2. Exhibit B — Cycle for Hope Road Closures 2023 Exhibit A: Autumnfest Road Closures 2023 Autumnfest Events • Golden Era Runway Show August 26th, 8 AM - 10 PM • National Emergency Preparedness Fair - ^P'" Mercedes St September 9th, 6 AM - 4 PM [ , • ArtFest, September 14th, 8 AM to 'r ..{ _ September 16th, 11 PM • Health & Community �Fourth --------- Resource Fair St `} a September 29th, 8 AM to September 30th, 8 PM' • Greek Festival October 13th, 8 AM to October 16th, 8 AM q��; Main St • Halloween Carnival �;�} - q t October 27th, 8 AM - 11 PM; • Veteran's Day r � s_ _ t November 11 th, 10 AM - 10 PM - •• _- ,-• _ Pechanga Pu'eska Mountain Day November 15th, 12 PM - 9 PM Road Closure gem 28636 Old ell Third St -..4P07C %7 + _ Town Front St Old Town Front St '7 r 1 X t } � + it i yF R V. +y # w ( f # 1. J �V Rider Way r r } Road Closures • Cycle for Hope Sunday, October 1st 6:00 a.m. to 2:00 p.m. Exhibit B: Cycle for Hope Road Closures 2023 -:. 4� Commerce Center Dr r - r Overland Dr r t Enterprise Circle West ` *� Item No. 14 ACTION MINUTES TEMECULA COMMUNITY SERVICES DISTRICT MEETING COUNCIL CHAMBERS 41000 MAIN STREET TEMECULA, CALIFORNIA AUGUST 8, 2023 CALL TO ORDER at 6:16 PM: President James Stewart ROLL CALL: Alexander, Brown, Kalfus, Schwank, Stewart CSD PUBLIC COMMENTS -None CSD CONSENT CALENDAR Unless otherwise indicated below, the following pertains to all items on the Consent Calendar. Approved the Staff Recommendation (5-0): Motion by Alexander, Second by Brown. The vote reflected unanimous approval. 5. Approve Action Minutes of July 25, 2023 Recommendation: That the Board of Directors approve the action minutes of July 25, 2023. CSD DIRECTOR OF COMMUNITY SERVICES REPORT CSD GENERAL MANAGER REPORT CSD BOARD OF DIRECTORS REPORTS CSD ADJOURNMENT At 6:17 PM, the Community Services District meeting was formally adjourned to Tuesday, August 22, 2023 at 4:30 PM for a Closed Session, with a regular session commencing at 6:00 PM, City Council Chambers, 41000 Main Street, Temecula, California. James Stewart, President ATTEST: Randi Johl, Secretary [SEAL] Item No. 15 TEMECULA COMMUNITY SERVICES DISTRICT AGENDA REPORT TO: General Manager/Board of Directors FROM: Erica Russo, Director of Community Services DATE: August 22, 2023 SUBJECT: Approve Agreement with Titan Rental Group, Inc. for Event and Program Rental Items PREPARED BY: Dawn Adamiak, Community Services Superintendent RECOMMENDATION: That the Board of Directors approve the agreement with Titan Rental Group, Inc. for event and program rental items. BACKGROUND: Dependable, professional vendors play an essential role in supporting the Community Services Department by providing needed services. Titan Rentals Group, Inc. is committed to providing high quality rental items and has been serving Temecula residents and visitors in this capacity for over 10 years. Under this three-year contract, Titan Rental Group, Inc. will provide various rental items for numerous events and programs, including: • Temecula Rod Run • Teen Night Light Egg Hunt • Temecula Special Games • 4th of July Extravaganza • Memorial Day Event • Human Services Events & Programs • New Year's Eve Grape Drop • Art Fest • Santa's Electric Light Parade This three-year agreement will begin August 22, 2023, and remain in effect until July 31, 2026, unless terminated earlier pursuant to the provisions of the agreement. The cost for this agreement will not exceed $190,000 for the three-year term. FISCAL IMPACT: Adequate funds for the current fiscal year have been requested as part of the Fiscal Year 2023-24 Annual Operating Budget. Funds for future fiscal years under this multi -year agreement will be requested as part of the normal annual budget process. ATTACHMENTS: Agreement NON-EXCLUSIVE SERVICES AGREEMENT BETWEEN TEMECULA COMMUNITY SERVICES DISTRICT AND TITAN RENTAL GROUP, INC. EVENT SERVICES THIS AGREEMENT is made and effective as of August 22, 2023, between the Temecula Community Services District, a community services district (hereinafter referred to as "City"), and Titan Rental Group, Inc., a Corporation, (hereinafter referred to as "Vendor"). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows: 1. TERM This Agreement shall commence on August 22, 2023, and shall remain and continue in effect until tasks described herein are completed, but in no event later than July 31, 2026, unless sooner terminated pursuant to the provisions of this Agreement. 2. SERVICES Vendor shall perform the services and tasks described and set forth in Exhibit A, attached hereto and incorporated herein as though set forth in full. Vendor shall complete the tasks in according to the schedule of services which is also set forth in Exhibit A. Vendor recognizes and agrees that this Agreement is for the purpose of establishing a contractual relationship between the City and the Vendor for the non-exclusive procurement of services outlined on Exhibit A, attached hereto, and incorporated herein as though set forth in full. The Vendor understands this Agreement is non-exclusive and the City reserves the right to purchase similar services from other Vendors. 3. PERFORMANCE Vendor shall faithfully and competently exercise the ordinary skill and competence of members of their profession. Vendor shall employ all generally accepted standards and practices utilized by persons engaged in providing similar services as are required of Vendor hereunder in meeting its obligations under this Agreement. 4. PAYMENT a. The City agrees to pay Vendor, in accordance with the payment rates and terms and the schedule of payment as set forth in Exhibit B, Payment Rates and Schedule, attached hereto and incorporated herein by this reference as though set forth in full, based upon actual time spent on the above tasks. Any terms in Exhibit B, other than the payment rates and schedule of payment, are null and void. This amount shall not exceed One Hundred Ninety Thousand Dollars and No Cents ($190,000.00) for the total term of this agreement unless additional payment is approved as provided in this Agreement. b. Vendor shall not be compensated for any services rendered in connection with its performance of this Agreement which are in addition to those set forth herein, unless such additional services are authorized in advance and in writing by the General Manager. Vendor shall be compensated for any additional services in the amounts and in the manner as agreed to by General Manager and Vendor at the time City's written authorization is given to Vendor for the performance of said services. The not to exceed payment amount listed herein is an estimated expenditure and this Agreement does not guarantee Vendor this amount in purchases. 08/08/2021 C. Vendor will submit invoices for actual services performed. Payment shall be made within thirty (30) days of receipt of each invoice as to all non -disputed fees. If the City disputes any of Vendor's fees, it shall give written notice to Vendor within thirty (30) days of receipt of an invoice of any disputed fees set forth on the invoice. For all reimbursements authorized by this Agreement, Vendor shall provide receipts on all reimbursable expenses in excess of Fifty Dollars ($50) in such form as approved by the Director of Finance. 5. NON -ASSIGNABILITY The Vendor shall not assign the performance of this Agreement, nor any part thereof, nor any monies due hereunder, without prior written consent of the City. 6. INDEPENDENT CONTRACTOR The Vendor is and shall at all times remain as to the City a wholly independent contractor. The personnel performing the Work under this Agreement on behalf of the Vendor shall at all times be under Vendor's exclusive direction and control. 7. LEGAL RESPONSIBILITIES The Vendor shall keep itself informed of State and Federal laws and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this Agreement. The Vendor shall at all times observe and comply with all such laws and regulations. The City, and its officers and employees, shall not be liable at law or in equity occasioned by failure of the Vendor to comply with this section. 8. LICENSES At all times during the term of this Agreement, Vendor shall have in full force and effect, all licenses required of it by law for the performance of services described in this Agreement. 9. INDEMNIFICATION Vendor agrees to defend, indemnify, protect, and hold harmless, the City of Temecula, Temecula Community Services District, and/or the Successor Agency to the Temecula Redevelopment Agency, and its officers, officials, employees, agents, and volunteers, from and against any and all claims, demands, losses, defense costs or expenses, actions, liability or damages of any kind and nature which the City of Temecula, Temecula Community Services District, and/or the Successor Agency to the Temecula Redevelopment Agency, its officers, agents, employees, and volunteers may sustain or incur or which may be imposed upon them for injury to or death of persons, or damage to property arising out of Vendor's negligent or wrongful acts or omissions arising out of or in any way related to the Work or the Vendor's performance or non-performance of this Agreement, excepting only liability out of the sole negligence of the City of Temecula, Temecula Community Services District, and/or the Successor Agency to the Temecula Redevelopment Agency. 10. INSURANCE REQUIREMENTS Vendor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the work hereunder by the Vendor, its agents, representatives, or employees. a. Minimum Scope of Insurance. Coverage shall be at least as broad as: 08/08/2021 1) Insurance Services Office Commercial General Liability Form No. CG 00 01 11 85 or 88. 2) Insurance Services Office Business Auto Coverage form CA 00 01 06 92 covering Automobile Liability, code 1 (any auto). If the Vendor owns no automobiles, a non - owned auto endorsement to the General Liability policy described above is acceptable. 3) Worker's Compensation insurance as required by the State of California and Employer's Liability Insurance. If the Vendor has no employees while performing under this Agreement, worker's compensation insurance is not required, but Vendor shall execute a declaration that it has no employees. a. Minimum Limits of Insurance. Vendor shall maintain limits no less than: 1) General Liability: One Million ($1,000,000) per occurrence for bodily injury, personal injury, and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 2) Automobile Liability: One Million ($1,000,000) per accident for bodily injury and property damage. 3) Worker's Compensation as required by the State of California; Employer's Liability: One Million Dollars ($1,000,000) per accident for bodily injury or disease. b. Deductibles and Self -Insured Retentions. Any deductibles or self -insured retentions shall not exceed Twenty Five Thousand Dollars and No Cents ($25,000). C. Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: 1) The City of Temecula, the Temecula Community Services District, the Successor Agency to the Temecula Redevelopment Agency, their officers, officials, employees and volunteers are to be covered as insured's, as respects: liability arising out of activities performed by or on behalf of the Vendor; products and completed operations of the Vendor; premises owned, occupied or used by the Vendor; or automobiles owned, leased, hired or borrowed by the Vendor. The coverage shall contain no special limitations on the scope of protection afforded to the City of Temecula, the Temecula Community Services District, the Successor Agency to the Temecula Redevelopment Agency, their officers, officials, employees or volunteers. 2) For any claims related to this project, the Vendor's insurance coverage shall be primary insurance as respects the City of Temecula, the Temecula Community Services District, the Successor Agency to the Temecula Redevelopment Agency, their officers, officials, employees and volunteers. Any insurance or self -insured maintained by the City of Temecula, Temecula Community Services District, and/or the SuccessorAgency to the Temecula Redevelopment Agency, its officers, officials, employees or volunteers shall be excess of the Vendor's insurance and shall not contribute with it. 3) Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City of Temecula, the Temecula Community Services District, and the Successor Agency to the Successor Agency to the Temecula Redevelopment Agency, their officers, officials, employees or volunteers. 4) The Vendor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 08/08/2021 5) Each insurance policy required by this agreement shall be endorsed to state in substantial conformance to the following: If the policy will be canceled before the expiration date the insurer will notify in writing to the City of such cancellation not less than thirty (30) days' prior to the cancellation effective date. 6) If insurance coverage is canceled or, reduced in coverage or in limits the Vendor shall within two (2) business days of notice from insurer phone, fax, and/or notify the City via certified mail, return receipt requested of the changes to or cancellation of the policy. d. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of A-:VII or better, unless otherwise acceptable to the City. Self- insurance shall not be considered to comply with these insurance requirements. e. Verification of Coverage. Vendor shall furnish the City with original endorsements effecting coverage required by this clause. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. The endorsements are to be on forms provided by the City. All endorsements are to be received and approved by the City before work commences. As an alternative to the City's forms, the Vendor's insurer may provide complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications. 11. TERMINATION OR SUSPENSION This Agreement may be terminated or suspended at any time, for any reason, with or without cause at the sole and exclusive discretion of the General Manager, without default or breach of this Agreement by the City. 12. NOTICES Any notices which either party may desire to give to the other party under this Agreement must be in writing and may be given either by (i) personal service, (ii) delivery by a reputable document delivery service, such as but not limited to, Federal Express, that provides a receipt showing date and time of delivery, or (iii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by Notice. Notice shall be effective upon delivery to the addresses specified below or on the third business day following deposit with the document delivery service or United States Mail as provided above. Mailing Address: City of Temecula Attn: General Manager 41000 Main Street Temecula, CA 92590 To Vendor: Titan Rental Group, Inc. Attn: Jeff Leichty 14460 Veterans Way Moreno Valley, CA 92553 13. SEVERABILITY If any provision of this Agreement is held invalid or unenforceable by any court of final jurisdiction, it is the intent of the parties that all other provisions of this Agreement be construed to remain fully valid, enforceable, and binding on the parties. 08/08/2021 14. GOVERNING LAW This Agreement shall be construed in accordance with, and governed by, the laws of the State of California as applied to contracts that are executed and performed entirely in California. The City and Vendor understand and agree that the laws of the State of California shall govern the rights, obligations, duties, and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. Any litigation concerning this Agreement shall take place in the municipal, superior, or federal district court with geographic jurisdiction over the City of Temecula. In the event such litigation is filed by one party against the other to enforce its rights under this Agreement, the prevailing party, as determined by the court's judgment, shall be entitled to reasonable attorney fees and litigation expenses for the relief granted. 15. PROHIBITED INTEREST No officer, or employee of the City of Temecula that has participated in the development of this agreement or its approval shall have any financial interest, direct or indirect, in this Agreement, the proceeds thereof, the Vendor, or Vendor's sub -contractors for this project, during his/her tenure or for one year thereafter. The Vendor hereby warrants and represents to the City that no officer or employee of the City of Temecula that has participated in the development of this agreement or its approval has any interest, whether contractual, non -contractual, financial or otherwise, in this transaction, the proceeds thereof, or in the business of the Vendor or Vendor's sub -contractors on this project. Vendor further agrees to notify the City in the event any such interest is discovered whether or not such interest is prohibited by law or this Agreement. 16. ENTIRE AGREEMENT This Agreement contains the entire understanding between the parties relating to the obligations of the parties described in this Agreement. All prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged into this Agreement and shall be of no further force or effect. Each party is entering into this Agreement based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material. 17. AUTHORITY TO EXECUTE THIS AGREEMENT The person or persons executing this Agreement on behalf of the Vendor warrants and represents that he or she has the authority to execute this Agreement on behalf of the Vendor and has the authority to bind the Vendor to the performance of its obligation hereunder. The General Manager is authorized to enter into an amendment on behalf of the City to make the following non -substantive modifications to the agreement: (a) name changes; (b) extension of time; (c) non -monetary changes in scope of work; (d) agreement termination. 08/08/2021 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. TEMECULA COMMUNITY SERVICES DISTRICT By: James Stewart, TCSD President ATTEST: By: Randi Johl, Secretary APPROVED AS TO FORM: By: Peter M. Thorson, General Counsel TITAN RENTAL GROUP, INC. By: i By: Angel Leichty, Vice s dent VENDOR Titan Rental Group, Inc. Jeff Leichty 14460 Veterans Way Moreno Valley, CA 92553 951-453-1541 infop,titaneventrentals.com 6 City Purchasing Mgr. Initials and Date: 08/08/2021 EXHIBIT A Scope of Work / Outline Of Order or Service Procedure Vendor recognizes and agrees that this Agreement is for the purpose of establishing a contractual relationship between the Temecula Community Services District and the Vendor, for the purchase of goods or services. The procedure for ordering goods or requesting services is set forth as follows: 1. The General Manager or his designee shall submit to Vendor a written "Request for Order/Services". The Request for Order/Services shall include a description of the items to be purchased or the services to be completed, the time for delivery or completion of the services, and the plans and specifications for goods and equipment, if any. 2. Within five (5) business days of the date of the Request for Order/Services, Vendor shall respond in writing to the Request for Order/Services and advise the General Manager or his designee whether the goods are available, or services can be performed, along with the cost and estimated delivery or start of services. 3. In the event an emergency or service is required, the General Manager or his designee may transmit the Request for Order/Services orally to the Vendor. As soon as practical following the emergency, the Vendor and City designee shall in good faith confirm in writing the scope of the emergency order submitted or services undertaken. 4. Upon acceptance of the Vendor's response by the General Manager or his designee the Vendor shall proceed with the order or begin services. The acceptance of the goods and/or performance of the services shall be pursuant to the terms of this Agreement. Services Include but may not be limited to: Event site rental items, including but not limited to a. Tables b. Chairs c. Canopies d. Pedestrian Fencing e. Tablecloths 08/08/2021 EXHIBIT B PAYMENT RATES AND SCHEDULE Quotes shall be provided as requested by City staff for each service requested. Cost of services shall be as quoted, but in no event shall the total Agreement amount exceed $190,000.00, as outlined in Section 4 of this Agreement. The not to exceed payment amount listed herein is an estimated expenditure and this Agreement does not guarantee Vendor this amount in purchases. 08/08/2021 Item No. 16 TEMECULA COMMUNITY SERVICES DISTRICT AGENDA REPORT TO: General Manager/Board of Directors FROM: Patrick Thomas, Director of Public Works/City Engineer DATE: August 22, 2023 SUBJECT: Approve Annexation of Tract Map Numbers 37341 and 37341-17, Within Sommers Bend, to Service Level B (Residential Street Lights) Rates and Charges (Located on East Side of Butterfield Stage Road and North of Long Valley Wash) PREPARED BY: Ron Moreno, Assistant Director of Public Works Annie Bostre-Le, Public Works Development Manager RECOMMENDATION: That the Board of Directors adopt the following resolutions entitled: RESOLUTION NO. CSD A RESOLUTION OF THE BOARD OF DIRECTORS OF THE TEMECULA COMMUNITY SERVICES DISTRICT OF THE CITY OF TEMECULA, DECLARING INTENTION TO ANNEX PROPERTY (TRACT MAP 37341 AND 37341-17) TO SERVICE LEVEL B - RESIDENTIAL STREET LIGHTS AND TO LEVY ASSESSMENTS ON SUCH PROPERTY FOR FISCAL YEAR 2024-25, APPROVING THE ENGINEER'S REPORT, AND SETTING THE DATE, TIME AND PLACE OF A PUBLIC HEARING ON THE PROPOSED ANNEXATION AND ASSESSMENTS RESOLUTION NO. CSD A RESOLUTION OF THE BOARD OF DIRECTORS OF THE TEMECULA COMMUNITY SERVICES DISTRICT OF THE CITY OF TEMECULA, INITIATING PROCEEDINGS TO ANNEX PROPERTY (TRACT MAP 37341 AND 37341-17) TO SERVICE LEVEL B FOR FISCAL YEAR 2024-25 BACKGROUND: The Temecula Community Services District (TCSD) operates under the authority of Community Services District Law and provides residential street lighting to numerous residential subdivisions within the City of Temecula through Service Level "B". The boundaries of the TCSD are coterminous with the City, and City Council serves as the Board of Directors of the TCSD. Tract Map Numbers 37341 and 37341-17, within Sommers Bend, formerly known as Roripaugh Ranch is an existing residential development. On November 26, 2002, the City Council approved the Roripaugh Ranch Specific Plan with private streets. On January 23, 2018, the City Council approved the Roripaugh Ranch Specific Plan Amendment Number 4, which included a slight realignment and removal of gated entries on Sommers Bend (Loop Road) and interior local streets were revised to comply with updated fire safety requirements. These improvements allowed the roadway and street lights to be publicly dedicated as accepted on Tract Map 37368 recorded on July 25, 2019. The property owner has requested that the TCSD establish the future parcel charges necessary to provide ongoing revenue for residential street lighting within the development. Beginning Fiscal Year 2024-25, the following TCSD rates and charges are proposed for residential street lighting services within Tract Map Numbers 37341 and 37341-17: Service Level B $ 25.68 per residential parcel Pursuant to the provisions of Proposition 218, the TCSD is required to hold a public hearing and obtain voter or property owner approval in order to establish certain new rates and charges. In addition, a report must be prepared and filed with the Secretary/City Clerk which identifies all of the affected parcels and the amount of the proposed rates and charges and date of the Public Hearing. The Public Hearing is held at least 45 days after the mailing of the notices. If the proposed rates and charges are not rejected pursuant to a written protest, then the TCSD will conduct a mailed ballot proceeding not less than 45 days after the public hearing. The proposed rates and charges for Service Level B cannot be imposed unless the property owners have approved the new charges. Staff recommends that the Board of Directors adopt the resolution to accept the filing of the report on the proposed residential street lighting rates and charges for Tract Map Numbers 37341 and 37341-17, beginning in Fiscal Year 2024-25 and schedule a public hearing concerning this issue for October 10, 2023. Staff will then proceed with noticing the owner of Tract Map Numbers 37341 and 37341-17, regarding the proposed rates and charges and the public hearing date. If there is no majority protest against the rates and charges on October 10, 2023, staff with then proceed with the mailed ballot process of Service Level B. FISCAL IMPACT: If voter approved, the proposed rates and charges of $25.68 per parcel will generate an annual levy of $ 3,543.84 for Service Level B. Actual costs for providing long-term residential street lighting services within Tract Map Numbers 37341 through 37341-17 will be absorbed into Service Level B upon installation of said improvements. ATTACHMENTS: 1. Vicinity Maps — Tract Maps 37341 and 37341-17 2. Resolution of Intention 3. Resolution of Initiating Proceedings 4. Preliminary Annexation Engineer's Report IN THE CITY CIF TEMECULA, COUNTY OF RIVERSIDE , STATE OF CALIFORNIA SHEET 4 OF 7 SHEETS �70 7RC74. WEapop 000, Oslo 3 4 1 6 7 8 fM 15 15 �k . 37360 MR 668/92-28 26 WILDRYE WAY womp woos wool mm-- TINCT MAP 7 rRx° ACT MO. NOO 37341 BEING A SUBDIVISION OF A PORTION OF LOTS 24 AND 25 OF TRACT MAP NO. 37368, AS FILED IN BOOK 468, PAGES 89 THROUGH 98, INCLUSIVE, CF MAPS, SHOWN AS PARCEL A PER LGT LINE ADJUSTMENT NO. LD 19-1393 RECORDEG FEBRUARY 20, V 2020 AS INSTRUMENT NO.2020-0076510, ALL IN THE CITY OF TEMECULA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, LYING WITHIN SECTION 21, TCWNSHIP 7 SOUTH, RANGE 2 WEST, SAS! BERNARDINO MERIDIAN. RICK ENGINEERING COMPANY 51 � 50 SHEET INDEX MAP 49 48 t� ° 47' P¢ 25 0 46 54 °BASIN" 7— 3.100 AC. 24 45 23 44 1 1 43 22 4 I 42 21 41 T "El 71 f- 32 33 34 4 35 � 36 37 40 38 39 ! l 7RACT E . 17RAC7 1 . Vp 20 ov so 6 ma l6aa/su-sa NOTES 1. SEE SHEET NO. 2 FOR BOUNDARY CONTROL SHEET. SURVEYOR'S NOTES AND MONUMENT NOTES. 2. SEE SHEET NO. 3 FOR BOUNDARY MAP, BASIS OF BEARINGS AND VICINITY MAP. MARCH 2O19 LEGEND INDICATES BOUNDARY. - INOICATES CENTER LINE. INDICATES LOT LINE INDICATES SHEET NO. Ax- EASEMENT NOTES 1. AN EASEMENT FOR PUBLIC UTIL[TIES AND INCIDENTAL PURPOSES fN FAVOR OF GENERAL TELEPHONE COMPANY OF CALIFORNIA RECORDED DECEMBER 5, 1986 AS INSTRUMENT NO. 88-354239, O.R. CANNOT BE PLOTTED FROM RECORD- 2 A 3' PUBLIC UTILITY EASEMENT DEDICATED HEREON. 3 A PRIVATE DRAINAGE EASEMENT WITHIN LOT 53 AND LOT 54. 4. AN EASEMENT FOR PUBLIC UTILITY PURPOSES IN FAVOR OF EASTERN MUNICIPAL WATER DISTRICT RECORDED NOVEMBER 14, 2013 AS DOCUMENT NO. 2013-0539683, O.R. 5. AN EASEMENT FOR UNDERGROUND ELECTRICAL. SUPPLY SYSTEMS AND COMMUNICATION SYSTEMS AND INCIMENTAL PURPOSES IN FAVOR OF SOUTHERN CALIFORNIA EDISON COMPANY, A CORPORATION RECORDED DECEMBER 4, 2019 AS INSTRUMENT NO. 2019-0499070, O.R. SCALES 1" = 80' 80 C 80 160 t PLOT DATE\ 18-MAR-2020 JN x Cm\RICK\Projects\C-RIV-G\17B83\17883 AM - Survey-Muppfng\Survey\FlnulMcp\Phasel\TractMup37341\17883AMpfmO4_lndex.dgn LEGEND INDICATES BOUNDARY. — INDICATES CENTER LINE. INDICATES LOT LINE. OINDICATES SHEET N0. �X EASEMENT NOTES 1. AN EASEMENT FOR PUBLIC UTILITIES AND INCIDENTAL PURPOSES IN FAVOR OF GENERAL TELEPHONE COMPANY OF CALIFORNIA RECORDED DECEMBER 5, 1988 AS INSTRUMENT NO. 88-354239, O.R. CANNOT BE PLOTTED FROM RECORD.. 2 A 3' PUBLIC UTILITY EASEMENT DEDICATED HEREON. 3 A SEWER EASEMENT DEDICATED TO EASTERN MUNICIPAL WATER DISTRICT FOR SEWER PURPOSES WITHIN LOT 82 AND LOT 84. 4 AN EASEMENT DEDICATED TO EASTERN MUNICIPAL WATER DISTRICT FOR SEWER AND WATER PURPOSES. 21 Al 22 23 m 21 m IN THE CITY OF TEMECULA,COUNTY OF RIVERSIDE ,STATE OF CALIFORNIA TRACI MAP N010 3 17 BEING A PORTION OF PARCEL B OF NOTICE OF LOT LINE ADJUSTMENT NO.LD19-1393 RECORDED FEBRUARY 20,2020 AS INSTRUMENT N0. 2020-0076510 OF OFFICIAL. RECORDS, A PORTION OF LOTS 24 AND 25 OF TRACT MAP N0. 37368, AS FILED IN BOOK 468,PAGES 89 THROUGH 96,INCLUSIVE,OF MAPS, SHOWN AS PARCEL B OF NOTICE OF LOT LINE ADJUSTMENT N0. LD21-1111 RECORDED JANUARY 6, 2022 AS INSTRUMENT N0. 2022-0008833 OF OFFICIAL RECORDS, ALL IN THE CITY OF TEMECULA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, LYING WITHIN SECTION 21, TOWNSHIP 7 SOUTH, RANGE 2 WEST, SAN BERNARDINO MERIDIAN. RICK ENGINEERING COMPANY JUNE 2021 SHEET INDEX MAP PARCEL A LOU LOME ADJ • NO. LD21-� t t 1i SHEET 4 OF 7 SHEETS 1. SEE SHEET NO. 2 FOR BOUNDARY CONTROL SHEET, SURVEYOR'S NOTES, MONUMENT NOTES AND RECORD DATA FOR BOUNDARY. 2. SEE SHEET NO. 3 FOR BOUNDARY MAP, BASIS OF BEARINGS AND VICINITY MAP. 19 1 18 1 17 I 16 1 15 1 14 1 13 1 12 1 11 1 10 1 9 1 8 1 7 1 6 1 5 1 4 1 3 1 2 1 1 / _` - ------_ PENSTEMON WADY_ 2 4 ,�►�► _ LOT "B" V 2 4 25 Q % v 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 1 >. f GC / Gt 63 waft... 62 61 60 59 58 57 56 55 54 53 52 51 50 49 48 47 46 45 44 1 = 1 O LOT "®11 I 3 � ' 64 65 66 67 68 69 70 TRACT NQ 37 36 8 MB 46 : g g 71 72 73 74 iLOT 83 "LANDSCAPE" L 0.641 A.C. m' 79 80 81 ' SCALE: 60 0 60i` RESOLUTION NO. CSD 2023- A RESOLUTION OF THE BOARD OF DIRECTORS OF THE TEMECULA COMMUNITY SERVICES DISTRICT OF THE CITY OF TEMECULA, DECLARING INTENTION TO ANNEX PROPERTY (TRACT MAP 37341 AND 37341-17) TO SERVICE LEVEL B - RESIDENTIAL STREET LIGHTS AND TO LEVY ASSESSMENTS ON SUCH PROPERTY FOR FISCAL YEAR 2024-25, APPROVING THE ENGINEER'S REPORT, AND SETTING THE DATE, TIME AND PLACE OF A PUBLIC HEARING ON THE PROPOSED ANNEXATION AND ASSESSMENTS WHEREAS, the Board of Directors (the "Board") of the Temecula Community Services District (the "District") of the City of Temecula has initiated proceedings for the annexation of certain property, to Service Level B of the District (the "Assessment District") pursuant to the Landscaping and Lighting Act of 1972, as found in Part 2 (commencing with Section 22500) of Division 15 of the California Streets and Highways Code ("the Act"), for the purpose of funding Residential Street Lighting; and WHEREAS, as ordered by the Board, Webb Municipal Finance, LLC., the assessment engineer, has prepared and filed with the Clerk of the Board a report regarding the assessments which are proposed to be levied on and collected from the owners of the Subject Property, as defined below, for Fiscal Year 2024-25, to pay the costs of the maintenance and servicing of such Residential Street Lighting, and that report has been presented to and considered by the Board; and WHEREAS, it is necessary that the Board adopt a resolution of intention pursuant to Sections 22606 and 22587 of the California Streets and Highways Code setting and providing for notice of the time, date and place of public hearing on said report, the proposed annexation of the Subject Property to the Assessment District and the proposed assessments; and WHEREAS, in addition to the requirements set forth in the Act, to annex property into the Assessment District, Proposition 218 establishes detailed requirements for the imposition of a "new or increased" special assessment; and WHEREAS, in addition to notice, ballot and hearing requirements, Proposition 218 requires the District to separate the general benefits from the special benefits conferred on a parcel, and to only asses the special benefits on that parcel; and WHEREAS, Proposition 218 requires all assessments to be supported by a detailed Engineer's Report prepared by a registered professional engineer; and WHEREAS, the proposed assessment will assess properties located within the Assessment District pursuant to the amounts stated in the Engineer's Report ("Assessment Amount"); and WHEREAS, pursuant to Proposition 218, the District must comply with applicable sections of Article XII(D) of the California Constitution regarding the notice, hearing and protest procedures. NOW, THEREFORE, BE IT RESOLVED, DETERMINED AND ORDERED by Board of Directors of the Temecula Community Services District of the City of Temecula, California as follows: Section 1. Recitals. The above recitals are true and correct and are incorporated herein by this reference. Section 2. Findings. The Board of Directors finds that: (a) The Engineer's report of Webb Municipal Finance, LLC. (the "Report") contains all matters required by the Act and Proposition 218 and may, therefore, be approved by the Board; (b) The assessments which are proposed to be levied for Fiscal Year 2024-25 on all parcels of assessable property which are proposed to be annexed, to the Assessment District are based on special benefit conferred upon each such parcel from the payment of the costs of the residential street lighting and the maintenance and servicing thereof; (c) The proportionate special benefit derived by each parcel within the Assessment District has been determined in relationship to the entirety of the capital cost of the installation, maintenance and servicing of the residential street lights and appurtenant facilities; (d) The Assessment Amount which is proposed to be assessed on each such parcel is based upon and will not exceed the reasonable cost of the proportional special benefit conferred on that parcel; (e) The Assessment Amount is supported by a detailed engineer's report prepared by a registered professional engineer certified by the State of California. Section 3. Intention. The Board declares that it intends to annex the Subject Property, as defined below, into the Assessment District, to levy and collect assessments on all of the lots and parcels of assessable property which are proposed to be annexed, to the Assessment District for Fiscal Year 2024-25, and for the duration specified in Section 7 herein, in the amounts set forth in the Report. Such assessments will be collected at the same time and in the same manner as county taxes are collected, and all laws providing for the collection and enforcement of county taxes shall apply to the collection and enforcement of the assessments. Section 4. Improvements. The improvements which shall be provided for such property by and through the assessments levied annually thereon include the following: (a) The installation, maintenance and servicing of residential street lights; Section 5. Annexation to Assessment District. The property which is proposed to be annexed to the Assessment District is all the property that is in the Temecula Community Services District and which is described in Exhibit "A" attached hereto and by this reference made a part hereof ("Subject Property"). Upon the completion of the annexation proceedings, the property proposed to be annexed will be included in the Assessment District. The boundaries of the annexation are further described and shown in the Report. Section 6. Report and Assessments. The Report, which is on file with the Clerk of the Board, and which has been presented to the Board at the meeting at which this resolution is adopted, is approved. Reference is made to the Report for a full and detailed description of the improvements, the boundaries of the annexation, the assessments which are proposed to be levied on the assessable lots and parcels of land in the annexation as a part of the Assessment District for Fiscal Year 2024-25. Section 7. Duration of Assessments. The assessments shall be levied on all parcels of assessable property in the annexation, as identified in the Report, so long as the assessments are necessary to finance the improvements specified in Section 4 hereof and the maintenance and servicing thereof. Section 8. Hearing. The public hearing on the proposed annexation of the Subject Property to the Assessment District and the assessments which are proposed to be levied for Fiscal Year 2024-25 and which is required by Sections 22587 through 22594 and 22624 through 22629 of the California Streets and Highways Code and Section 53753 of the California Government Code, and Proposition 218 shall be held at 6:00 p.m. on October 10, 2023, in the City Council Chambers at 41000 Main Street, Temecula, California. Section 9. Notice of Hearing and Ballots. The Clerk of the Board shall mail a notice of the proposed annexation, the proposed assessments and of the time, date and place of the public hearing, as specified in Section 8 hereof, to the record owner of each parcel of property identified in the Report. Such notice shall specify the total amount of the assessment chargeable to all the property within the annexation, the amount chargeable to each owner's particular parcel, the duration of the assessments, the reason for the assessments and the basis upon which the amounts of the proposed assessments were calculated, together with the date, time and location of the public hearing, as specified in Section 8 hereof. The notice shall include, in a conspicuous place, thereon, a summary of the procedures applicable to the completion, return and tabulation of the assessment ballots which will accompany the notice and shall include a statement that the existence of a majority protest will result in the assessments not being levied, and that a majority protest will exist if, upon the conclusion of the hearing, assessment ballots submitted in opposition to the assessments exceed the assessment ballots submitted in favor of the assessments based on financial obligation. There shall be included with each such notice mailed to owner of identified parcels within the annexation an assessment ballot which includes the District's address for receipt of any ballot when completed by any owner receiving such notice whereby such owner may indicate his or her name, reasonable identification of the parcel and support or opposition to the proposed assessments. The notice and the assessment ballots shall conform in all respects to the requirements of subdivisions (b) and (c) of Section 53753 of the California Government Code and Article XIII(D) of the California Constitution. Should there be any conflict between the Act and Proposition 218, Proposition 218 shall control. K3 Section 10. If Maiority Protest Exists If a maiority protest exists, the Board shall not undergo another District -initiated petition under the Act for at least twelve (12) months from the hearing date thereof, unless otherwise provided by law. PASSED, APPROVED, AND ADOPTED by the Board of Directors of the Temecula Community Services District of the City of Temecula this 22" d day of August, 2023. James Stewart, President ATTEST: Randi Johl, Secretary [SEAL] STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss CITY OF TEMECULA ) I, Randi Johl, Secretary of the Temecula Community Services District of the City of Temecula, do hereby certify that the foregoing Resolution No. CSD 2023- was duly and regularly adopted by the Board of Directors of the Temecula Community Services District of the City of Temecula at a meeting thereof held on the 22nd day of August, 2023, by the following vote: AYES: BOARD MEMBERS: NOES: BOARD MEMBERS: ABSTAIN: BOARD MEMBERS: ABSENT: BOARD MEMBERS: W Randi Johl, Secretary EXHIBIT A DESCRIPTION OF PROPOSED TERRITORY TO BE ANNEXED The properties proposed to be annexed into Service Level B of the Temecula Community Services District are identified by Riverside County Assessor's Parcel Numbers (APN) in the Preliminary Annexation Engineer's Report - Appendix A — Assessment Roll. RESOLUTION NO. CSD 2023- A RESOLUTION OF THE BOARD OF DIRECTORS OF THE TEMECULA COMMUNITY SERVICES DISTRICT OF THE CITY OF TEMECULA, INITIATING PROCEEDINGS TO ANNEX PROPERTY (TRACT MAP 37341 AND 37341-1) TO SERVICE LEVEL B FOR FISCAL YEAR 2024-25 WHEREAS, the Board of Directors (the "Board") of the Temecula Community Services District (the "District") of the City of Temecula desires to undertake proceedings pursuant to the provisions of the Landscape and Lighting Act of 1972, Part 2, Division 15 of the California Streets and Highways Code (commencing with Section 22500) (hereafter referred to as the "Act"), to annex certain property, to Service Level B of the District (the "Assessment District") for the purpose of funding Residential Street Lighting; and WHEREAS, the Board of Directors has retained Webb Municipal Finance, LLC. for the purpose of preparing and filing the Engineer's Report and assisting in the public hearing and formation process of the proposed annexation. NOW, THEREFORE, BE IT RESOLVED, DETERMINED AND ORDERED by the Board of Directors of the Temecula Community Services District of the City of Temecula, California as follows: Section 1. Recitals That the Recitals set forth above are true and correct. Section 2. Engineer's Report The Board of Directors hereby orders Webb Municipal Finance, LLC. to prepare and file with the Clerk of the Board the Engineer's Report (the "Report") concerning the annexation of property, to the Assessment District in accordance with the Act and the laws of the State of California. Section 3. Improvements The improvements shall include the maintenance and servicing of residential street lighting. Section 4. Severability That the Board of Directors declares that, should any provision, section, paragraph, sentence or word of this Resolution be rendered or declared invalid by any final court action in a court of competent jurisdiction or by reason of any preemptive legislation, the remaining provisions, sections, paragraphs, sentences or words of the Resolution as hereby adopted shall remain in full force and effect Section 5. Effective Date That this Resolution shall take effect upon its adoption. Section 6. Certification That the Clerk of the Board shall certify as to the adoption of this Resolution and shall cause the same to be processed in the manner required by law. PASSED, APPROVED, AND ADOPTED by the Board of Directors of the Temecula Community Services District of the City of Temecula this 22"d day of August, 2023. James Stewart, President ATTEST: Randi Johl, Secretary [SEAL] STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss CITY OF TEMECULA ) I, Randi Johl, Secretary of the Temecula Community Services District of the City of Temecula, do hereby certify that the foregoing Resolution No. CSD 2023- was duly and regularly adopted by the Board of Directors of the Temecula Community Services District of the City of Temecula at a meeting thereof held on the 22nd day of August, 2023, by the following vote: AYES: BOARD MEMBERS: NOES: BOARD MEMBERS: I.\:331I_\I0: 97_ MLINLTJR]a:7.Y� ABSENT: BOARD MEMBERS: Randi Johl, Secretary 3 Webb MUNICIPAL FINANCE Preliminary Annexation Engineer's Report Tract Nos. 37341 and 37341-17 Temecula Community Services District Service Level B — Residential Streetlights Prepared For a The Heart of Southern California Wine Country August 2023 Table of Contents Sections Section i. Section 1 Section 2 Section 3 Tables Table 3-1. Appendices Appendix A Appendix B Engineer's Statement Plans and Specifications Method of Apportionment Budget Operating Budget for Service Level B Tax Roll Annexation Assessment Diagram _i 1 2 4 4 A-1 B-1 i. Engineer's Statement AGENCY: CITY OF TEMECULA PROJECT: TEMECULA COMMUNITY SERVICES DISTRICT SERVICE LEVEL B — RESIDENTIAL STREET LIGHTING ANNEXATION —TRACT NOS. 37341 AND 37341-17 TO: BOARD OF DIRECTORS CITY OF TEMECULA STATE OF CALIFORNIA REPORT PURSUANT TO "LANDSCAPING AND LIGHTING ACT OF 1972" Pursuant to Articles XIII D, Section 4 of the California Constitution, the Proposition 218 Omnibus Implementation Act and the Landscape and Lighting Act of 1972 this Report is prepared and presented to the Board of Directors (the "Board") to describe and outline the proposed annexation of territory into Temecula Community Services District Service Level B (the "District"). The Board will conduct a noticed public hearing to consider public comments and written protests regarding the annexation and levy of the parcels within the proposed annexation territory. Upon conclusion of the public hearing, property owner protest ballots received will be tabulated to determine whether a majority protest exists. The Board will confirm the results of the balloting once the ballot tabulation is completed. If a majority protest exists, further proceedings to implement the proposed annexation and levy of assessments shall be abandoned at that time. If tabulation of the ballots indicates that a majority protest does not exist for the proposed annexation and levy of assessments, the Board may adopt this Report and confirm the annexation of territory and levy of assessments as presented herein. In such case, the levy information will be submitted to the Riverside County Auditor/Controller and included as Assessments on the property tax roll for Fiscal Year 2024-2025. SECTION 1 The PLANS AND SPECIFICATIONS describe the annexation territory and the overall nature and extent of the improvements and services provided. SECTION 2 The METHOD OF APPORTIONMENT outlines the method of calculating each property's proportional special benefit necessary to calculate the property's annual assessment. This method of apportionment is consistent with the previously adopted method of apportionment for Service Level B that was approved by the property owners in a protest ballot proceeding conducted when the Service Level was formed. SECTION 3 A BUDGET showing the estimated annual costs to operate, maintain and service the local lighting improvements and appurtenant facilities within the annexation territory. SECTION 4 An ASSESSMENT ROLL with the proposed assessment amounts to be levied and collected in Fiscal Year 2024-2025 for each parcel based on the parcel's calculated proportional special benefit as outlined in the Method of Apportionment and the annual assessment rates established by the estimated budgets. SECTION 5 ASSESSMENT DIAGRAM showing the boundaries of the proposed annexation territory. Parcel identification, the lines and dimensions of each lot, parcel, and subdivision of land within the annexation territory are shown on the Riverside County Assessor's Parcel Maps and shall include any subsequent lot line adjustments or parcel changes therein. Reference is hereby made to the Riverside County Assessor's Parcel Maps for a detailed description of the lines and dimensions of each lot and parcel of land within the annexation territory. Temecula Community Services District Service Level B — Residential Street Lighting Engineer's Report —Annexation Tract Nos. 37341 and 37341-17 i. Engineer's Statement I Matthew E. Webb, a Professional Civil Engineer (employed at Albert A. Webb Associates and retained through an agreement between Webb Municipal Finance, LLC and my employer), acting on behalf of the Temecula Community Services District, pursuant to the "CSD Law", do hereby submit the following: The District requested Webb Municipal Finance, LLC, to prepare and file an Engineer's Annexation Report for Temecula Community Services District Service Level B, pursuant to Article XIII D, Section 4 of the California Constitution, presenting plans and specifications describing the general nature, location and extent of the improvements to be maintained, an estimate of the costs of the maintenance, operations, and servicing of the improvements for Service Level B, for the referenced Fiscal Year, an assessment of the estimated costs of the maintenance, operations, and servicing the improvements, assessing the net amount upon all assessable lots and/or parcels within the proposed annexation territory in proportion to the special benefit received; Reference is hereby made to the Riverside County Assessor's maps for a detailed description of the lines and dimensions of parcels within the District. The undersigned respectfully submits the enclosed Report as directed by the Board of Directors of the Temecula Community Services District. Please note that Albert A. Webb Associates provides engineering advice and related consulting services. Albert A. Webb Associates is not a registered municipal advisor and does not participate in municipal advisory activities, and nothing in this Engineer's Report is or should be interpreted to be municipal advisory services or advice. Temecula Community Services District Service Level B — Residential Street Lighting Engineer's Report —Annexation Tract Nos. 37341 and 37341-17 i. Engineer's Statement Executed this day of QRflFESS�QN a NN . 37385 M 'rr CIVIC- Y �oF CALiF°� 2023. ALBERT A. WEBB ASSOCIATES MATTHEW E. WEBB PROFESSIONAL CIVIL ENGINEER NO. 37385 ENGINEER OF WORK ON BEHALF OF THE CITY OF TEMECULA AND THE TEMECULA COMMUNITY SERVICES DISTRICT STATE OF CALIFORNIA Final approval, confirmation and levy of the annexation territory and all matters in the Engineer's Report were made on the day of 2023, by adoption of Resolution No. by the Board of Directors. CITY CLERK CITY OF TEMECULA STATE OF CALIFORNIA A copy of the Tax Roll and Engineer's Annexation Report were filed in the office of the City Clerk on the day of , 2023. CITY CLERK CITY OF TEMECULA STATE OF CALIFORNIA Temecula Community Services District Service Level B — Residential Street Lighting Engineer's Report —Annexation Tract Nos. 37341 and 37341-17 1. Plans and Specifications The territory within the proposed annexation consists of lots or parcels of land within the District, which is coterminous with the City of Temecula boundary. The purpose of the District is to provide through annual assessments, funding for the ongoing operation, maintenance, utility costs, and administration of residential streetlights. Temecula Services District Service Level B — Residential Street Lighting Engineer's Report —Annexation Tract Nos. 37341 and 37341-17 2. Methodology Proposition 218 Compliance On November 5, 1996, California voters approved Proposition 218, entitled the "Right to Vote on Taxes Act," which added Article XIII D to the California Constitution. While its title refers only to taxes, Proposition 218 establishes new procedural requirements for the formation and administration of assessment districts. Proposition 218 also requires that with certain specified exceptions, which are described below, all existing assessment districts must be ratified by the property owners within the District using the new procedures. Some of these exceptions include: 1. Any assessments imposed exclusively to finance the capital cost or maintenance and operation expenses for streets. 2. Any assessments levied pursuant to a petition signed by the persons owning all of the parcels subject to the assessment at the time the assessment was initially imposed. However, even if assessments are initially exempt from Proposition 218, if the assessments are increased in the future, the City will need to comply with the provisions of Proposition 218 for that portion of the increased assessment formula. Proposition 218 does not define the term "streets," however, based on the opinions of the public agency officials, attorneys, assessment engineers, and Senate Bill 919, it has been determined that streets include all public improvements located within the street rights -of -way. This would include median and parkway landscaping, traffic signals, safety lighting, and street lighting. Proposition 218 defines "assessment" as "any levy or charge upon real property by an agency for a special benefit conferred upon the real property." Cal. Const., art. XIII D, §2(b). A special assessment, sometimes called a "benefit assessment," is a charge generally levied upon parcels of real property to pay for benefits the parcels receive from local improvements. Special assessments are levied according to statutory authority granted by the Legislature or, in some instances, local charters. Distinguishing among taxes, fees, and assessments can be difficult and often depends on the context in which the distinction is made. For example, taxes, assessments, and property -related fees all may be imposed on property. The key feature that distinguishes an assessment from a tax, fee, or charge is the existence of a special benefit to real property. Without identifying a special benefit, there can be no assessment. Distinguishing General and Special Benefit Proposition 218 added a set of procedures and requirements, which a local government must follow to levy an assessment. In addition to notice, hearing, and assessment ballot proceedings, Proposition 218 provides that "only special benefits are assessable" and requires a local government to "separate the general benefits from the special benefits conferred on a parcel." By its nature, most public improvements financed through an assessment district contain an element of public benefit. The test is: does there exist, with relation to the improvement, a special benefit to the property assessed? The law requires the portion of the cost of the improvement, which benefits the public generally, to be separated from that portion of the cost of the improvement, which specially benefits assessed properties. Proposition 218 provides the following definition of "special benefit": "Special benefit" means a particular and distinct benefit over and above general benefits conferred on real property located in the district or to the public at large. General enhancement of property value does not constitute "special benefit". Temecula Services District Service Level B — Residential Street Lighting Engineer's Report —Annexation Tract Nos. 37341 and 37341-17 2. Methodology Method of Apportionment Pursuant to the Landscaping and Lighting Act of 1972 and Article XI II D of the Constitution of the State of California, all parcels that have special benefit conferred upon them as a result of the maintenance and operation of improvements shall be identified, and the proportionate special benefit derived by each identified parcel shall be determined in relationship to the entire cost of the maintenance and operation of the improvements. Only parcels that receive direct special benefit are assessed, and each parcel is assessed in proportion to the estimated benefit received. To assess benefits equitably it is necessary to calculate each property's relative share of the special benefits conferred by the funded improvements and service. The Equivalent Dwelling Unit (EDU) method of assessment apportionment is utilized in this District and establishes a basic unit (base value) of benefit and then calculates the benefit derived by each assessed parcel as a multiple (or a fraction) of that basic unit. For the purposes of this Engineer's Report, an EDU is the quantum of benefit derived from the various improvements by a single-family residential parcel. The single-family residential parcel has been selected as the basic unit for the calculation of assessments since it represents the majority of the parcels in the District. Thus, the "benchmark" property (the single-family residential parcel) derives one EDU of benefit and is assigned 1.00 Equivalent Dwelling Unit. The Assessment for Single -Family parcels within the District is therefore calculated by dividing the total District Assessment by the total number of Equivalent Dwelling Units to determine the Annual Assessment per Equivalent Dwelling Unit or Single -Family parcel. Total District Balance to Levy (Budgeted) / Total Number of EDUs (Total Residential Lots + Assigned Condominium Units) = Assessment per EDU/Parcel The district includes all developed single-family residential parcels, condominiums, and residential vacant lots for which the District provides ongoing servicing, operation, and maintenance of local street lighting improvements. The current rate and charge for Service Level B is $25.68 per residential lot ($12.84 per condominium unit within Specific Plans) and shall be applied to developed and undeveloped residential parcels. Temecula Services District Service Level B — Residential Street Lighting 3 Engineer's Report —Annexation Tract Nos. 37341 and 37341-17 3. Budget Table 3-1 Estimated Service Level B Annexation Operating Budget Summary for Fiscal Year 2024-2025 Budget Item Level B Level 192 Annexation B OPERATIONS MAINTENANCE Property Tax Administrative Fees $12,000 $65 Street Lighting $455,000 $2,463 Subtotal Operations Maintenance $455,000 $2,463 TOTAL DIRECT DISTRICT COSTS $467,000 $2,528 EXPENDITURES/REVENUES Contingency Reserve $0 $0 TOTAL EXPENDITURES / REVENUES $467,000 $2,528 CONTRIBUTIONS Other Contributions ($187,763) ($1,016) TOTAL COLLECTION/CONTRIBUTIONS ($187,763) ($1,016) Balance to Levy .• Number of Parcels 138 Number of EDUs 138 Assessment Rate per EDU $25.68 Temecula Services District Service Level B — Residential Street Lighting Engineer's Report —Annexation Tract Nos. 37341 and 37341-17 APPENDIX A Assessment Roll Service Level B Annexation Assessment Roll ,. 964690001 1 $ 25.68 964690002 1 $ 25.68 964690003 1 $ 25.68 964690004 1 $ 25.68 964690005 1 $ 25.68 964690006 1 $ 25.68 964690007 1 $ 25.68 964690008 1 $ 25.68 964691001 1 $ 25.68 964691002 1 $ 25.68 964691003 1 $ 25.68 964691004 1 $ 25.68 964691005 1 $ 25.68 964691006 1 $ 25.68 964691007 1 $ 25.68 964692001 1 $ 25.68 964692002 1 $ 25.68 964692003 1 $ 25.68 964692004 1 $ 25.68 964692005 1 $ 25.68 964692006 1 $ 25.68 964692007 1 $ 25.68 964692008 1 $ 25.68 964692009 1 $ 25.68 964692010 1 $ 25.68 964693001 1 $ 25.68 964693002 1 $ 25.68 964693003 1 $ 25.68 964693004 1 $ 25.68 964693005 1 $ 25.68 964693006 1 $ 25.68 964693007 1 $ 25.68 964693008 1 $ 25.68 964693009 1 $ 25.68 964693010 1 $ 25.68 964693011 1 $ 25.68 964693012 1 $ 25.68 964693013 1 $ 25.68 964693014 1 $ 25.68 964693015 1 $ 25.68 964693016 1 $ 25.68 .. 964693017 1 $ 25.68 964694001 1 $ 25.68 964694002 1 $ 25.68 964694003 1 $ 25.68 964694004 1 $ 25.68 964694005 1 $ 25.68 964694006 1 $ 25.68 964694007 1 $ 25.68 964694008 1 $ 25.68 964694009 1 $ 25.68 964694010 1 $ 25.68 964694011 1 $ 25.68 964694012 1 $ 25.68 964910001 1 $ 25.68 964910002 1 $ 25.68 964910003 1 $ 25.68 964910004 1 $ 25.68 964910005 1 $ 25.68 964910006 1 $ 25.68 964910007 1 $ 25.68 964910008 1 $ 25.68 964910009 1 $ 25.68 964910010 1 $ 25.68 964910011 1 $ 25.68 964910012 1 $ 25.68 964910013 1 $ 25.68 964910014 1 $ 25.68 964910015 1 $ 25.68 964910016 1 $ 25.68 964910017 1 $ 25.68 964910018 1 $ 25.68 964910019 1 $ 25.68 964910020 1 $ 25.68 964910021 1 $ 25.68 964910022 1 $ 25.68 964910023 1 $ 25.68 964910024 1 $ 25.68 964910025 1 $ 25.68 964910026 1 $ 25.68 964910027 1 $ 25.68 964910028 1 $ 25.68 964910029 1 $ 25.68 964910030 1 $ 25.68 964910031 1 $ 25.68 964910032 1 $ 25.68 .. 964910033 1 $ 25.68 964910034 1 $ 25.68 964910035 1 $ 25.68 964910036 1 $ 25.68 964910037 1 $ 25.68 964910038 1 $ 25.68 964910039 1 $ 25.68 964910040 1 $ 25.68 964910041 1 $ 25.68 964910042 1 $ 25.68 964910043 1 $ 25.68 964910044 1 $ 25.68 964910045 1 $ 25.68 964911001 1 $ 25.68 964911002 1 $ 25.68 964911003 1 $ 25.68 964911004 1 $ 25.68 964911005 1 $ 25.68 964911006 1 $ 25.68 964911007 1 $ 25.68 964911008 1 $ 25.68 964911009 1 $ 25.68 964911010 1 $ 25.68 964911011 1 $ 25.68 964911012 1 $ 25.68 964911013 1 $ 25.68 964911014 1 $ 25.68 964911015 1 $ 25.68 964911016 1 $ 25.68 964911017 1 $ 25.68 964911018 1 $ 25.68 964911019 1 $ 25.68 964911020 1 $ 25.68 964911021 1 $ 25.68 964911022 1 $ 25.68 964911023 1 $ 25.68 964911024 1 $ 25.68 964911025 1 $ 25.68 964911026 1 $ 25.68 964911027 1 $ 25.68 964911028 1 $ 25.68 964911029 1 $ 25.68 964911030 1 $ 25.68 964911031 1 $ 25.68 964911032 1 $ 25.68 APPENDIX B Annexation Assessment Diagram Webb MVNICIPAL FINANCE ASSESSMENT DIAGRAM SERVICE LEVEL B - RESIDENTIAL STREET LIGHTING ANNEXATION BOUNDARY - TRACT NOs. 37341 AND 37341-17 TEMECULA COMMUNITY SERVICES DISTRICT CITY OF TEMECULA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA OUSS'?O R OD GLUBNsg GeN1E F\1NE Legend ANNEXATION BOUNDARY PARCEL LINE VICINITY MAP NOT TO SCALE ITN -V/ �'-- THIS ASSESSMENT DIAGRAM CORRECTLY SHOWS THE LOT OR PARCEL OF LAND INCLUDED WITHIN THE BOUNDARIES OF THE ANNEXATION u IJ v 1 l yy DISTRICT FOR DETAILS CONCERNING THE LINES AND www.wr.w..x DIMENSIONS OF LOTS OR PARCELS REFER TO THE COUNTY NOT TO SCALE ASSESSORS MAPS FOR FISCAL YEAR 2022-2023. M:IGIS-Assessment) Temecula I TCSD SL B Annex Assessment Diagram.mxd Item No. 17 CITY OF TEMECULA AGENDA REPORT TO: City Manager/City Council FROM: Luke Watson, Deputy City Manager DATE: August 22, 2023 SUBJECT: Introduce Ordinance Amending Titles 5, 8, and 17 of the Temecula Municipal Code, and Adopt a Resolution Setting the Fee for a Tobacco Shop Permit and Find that this Ordinance is Exempt from the California Environmental Quality Act (CEQA) Pursuant to CEQA Guidelines Section 15061 (b)(3) PREPARED BY: RECOMMENDATION: Mark Collins, Assistant Planner That the City Council: 1. Introduce and read by title only an ordinance entitled: ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TEMECULA AMENDING TITLES 5, 8, AND 17 OF THE TEMECULA MUNICIPAL CODE TO (1) AMEND MASSAGE ESTABLISHMENT REGULATIONS, (2) ADD DEFINITIONS FOR TOBACCO SHOP, TOBACCO SHOP PERMIT AND UPDATE DEFINITIONS OF TOBACCO PRODUCT AND TOBACCO PARAPHERNALIA, (3) IMPLEMENT A TOBACCO SHOP PERMIT PROGRAM TO INCLUDE STRUCTURAL AND OPERATIONAL REQUIREMENTS, (4) UPDATE TOBACCO RETAILERS LICENSE PROCESSES, (5) AMEND REGULATIONS ON SMOKING IN HOTEL ROOMS, (6) REMOVE TOBACCO SHOP AS A CONDITIONALLY PERMITTED USE IN TABLE 17.08.030, (7) IMPLEMENT TOBACCO SHOP PERMIT REQUIREMENTS IN PLANNED DEVELOPMENT OVERLAY ZONING DESIGNATIONS 1 AND 4, AND (8) MAKE A FINDING THAT THIS ORDINANCE IS EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) PURSUANT TO CEQA GUIDELINES SECTION 15061 (13)(3) 2. Adopt Resolution entitled: RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA ESTABLISHING A TOBACCO SHOP PERMIT FEE SUMMARY OF ORDINANCE: The proposed Ordinance would make amendments to Titles 5, 8, and 17 of the Temecula Municipal Code. Listed below is a summary of the proposed changes to the Municipal Code: Changes to Title 5 — Chapter 5.22 Massage and Massage Establishments: Clarifying that Reiki, Cupping, Lymphatic, and similar massage, or wellness activities are massage activities that require a Massage Establishment Permit (MEP) 2. Require the practitioners of Reiki, Cupping, Lymphatic and similar massage or wellness activities to be a Certified Massage Therapist with a valid California Massage Therapy Council License (CAMTC) 3. Prohibit outcall massage services without a physician's written recommendation or order 4. Prohibit pets at massage establishments, with the exception of working service dogs 5. Require medical professionals who operate, own or supervise an exempt massage business to sign an affidavit attesting that massage is performed under their care and must be on site during such treatments 6. Modify the code to consolidate violations into an inspection friendly table Changes to Title 5 — Chapter 5.24 Licensure of Tobacco Retailers: 7. Add definition for "Tobacco Shop," "Tobacco Shop Permit," and update the definitions of "Tobacco Paraphernalia," and "Tobacco Product" Implement an annual permit for Tobacco Shops, to include: a. A cap on the number of Tobacco Shops within the City at a rate of one (1) Tobacco Shop per 10,000 Temecula residents, b. Separation requirements for Tobacco Shops from sensitive receptors, c. Operational standards, d. Sign and lighting requirements, e. Prohibit lounge and leisure type activities; and f. Prohibit the sale or consumption of alcohol 9. Update the process for a Tobacco Retailers License and assign duties to specific departments, in this instance it would be the Chief of Police or their designee Changes to Title 8 — Chapter 8.36 Smoking in Public Places: 10. Update the number of hotels rooms permitted to be designated as "smoking" rooms in accordance with state law 11. Remove an outdated exemption for smoking indoors for significant tobacco retailers Changes to Title 17 Table 17.08.030 Schedule of Permitted Uses: 12. Remove Tobacco Shop as a conditionally permitted use in the Neighborhood Commercial (NC) Zoning Designation Planned Development Overlay No. 1 — Table 17.22.106 Schedule of Permitted Uses: 13. Add "Note 6" to the table specifying that Tobacco Shops are subject to the requirements of Section 5.24.120 Planned Development Overlay No. 4 — Table 17.22.136B Schedule of Permitted Uses: 14. Add "Note 7" to the table specifying that Tobacco Shops are subject to the requirements of Section 5.24.120 BACKGROUND: The City of Temecula City Council adopted the Municipal Code in January 1990. Since its adoption, the City Council has periodically made amendments to various sections of the Code to improve its clarity, make corrections and implement state law. The proposed amendments to the Temecula Municipal Code include amendments to Title 5 (Business Licenses and Regulations), Title 8 (Health and Safety), and Title 17 (Zoning). Pursuant to Government Code Section 65800, the Planning Commission is required to review and make recommendations to the City Council regarding zoning regulations and amendments to Title 17 Zoning (Development Code) of the Temecula Municipal Code. The changes to Title 5 (Business Licenses and Regulations), and Title 8 (Health and Safety) of the Temecula Municipal Code of the proposed ordinance fall outside the purview of the Planning Commission, in that it is not an amendment to Title 17. However, staff felt it was important for the Planning Commission to review these proposed changes, which will place new requirements on existing and future tobacco shops throughout the City. The item was presented at a public hearing to the Planning Commission on July 19, 2023, and Resolution No. 2023-14 was adopted recommending the City Council adopt the proposed ordinance. City staff met with the City Council Public Safety Ad Hoc Subcommittee on April 25, 2023 to discuss the proposed ordinance and again on June 13, 2023 to discuss proposed changes to the draft ordinance (Councilmembers Alexander and Kalfus). City staff met with the Planning Commission Municipal Code Maintenance Ad Hoc Subcommittee on June 7, 2023 (Commissioners Hagel and Ruiz). FISCAL IMPACT: Community Development budgeted sufficient funds for the ordinance development and fee study, which will include administrative costs, and enforcement. ATTACHMENTS: 1. Ordinance 2. Resolution 3. Planning Commission Resolution No. 2023-14 4. Notice of Public Hearing 5. Notice of Exemption ORDINANCE NO.2023- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TEMECULA AMENDING TITLES 5, 8, AND 17 OF THE TEMECULA MUNICIPAL CODE TO (1) AMEND MASSAGE ESTABLISHMENT REGULATIONS, (2) ADD DEFINITIONS FOR TOBACCO SHOP, TOBACCO SHOP PERMIT AND UPDATE DEFINITIONS OF TOBACCO PRODUCT AND TOBACCO PARAPHERNALIA, (3) IMPLEMENT A TOBACCO SHOP PERMIT PROGRAM TO INCLUDE STRUCTURAL AND OPERATIONAL REQUIREMENTS, (4) UPDATE TOBACCO RETAILERS LICENSE PROCESSES, (5) AMEND REGULATIONS ON SMOKING IN HOTEL ROOMS, (6) REMOVE TOBACCO SHOP AS A CONDITIONALLY PERMITTED USE IN TABLE 17.08.030, (7) IMPLEMENT TOBACCO SHOP PERMIT REQUIREMENTS IN PLANNED DEVELOPMENT OVERLAY ZONING DESIGNATIONS 1 AND 4, AND (8) MAKE A FINDING THAT THIS ORDINANCE IS EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) PURSUANT TO CEQA GUIDELINES SECTION 15061 (B)(3) THE CITY COUNCIL OF THE CITY OF TEMECULA DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Procedural Findings. The City Council of the City of Temecula does hereby find, determine and declare that: A. City staff identified the need to make minor revisions and clarifications to portions of Title 5 (Business Licenses and Regulations), Title 8 (Health and Safety), and Title 17 (Zoning) of the Temecula Municipal Code. B. The code amendments are being made to address operational concerns surrounding massage establishments, implement a new permit for tobacco shops to include operational standards, and remove tobacco shop as a conditionally permitted use in the neighborhood commercial zoning district. In addition, the ordinance updates the number of permitted smoking rooms allowed in hotels in accordance with changes in state law. Finally, the code amendment makes minor typographical edits to the code. C. As required by State law, the Planning Commission considered the proposed amendments to Title 17 (Zoning) of the Temecula Municipal Code ("Ordinance") on July 19, 2023, at a duly noticed public hearing as prescribed by law, at which time the City staff and interested persons had an opportunity to and did testify either in support of or opposition to this matter. D. At the conclusion of the Planning Commission hearing and after due consideration of the testimony, the Planning Commission adopted PC Resolution No. 2023-14, recommending that the City Council approve the code amendments. E. The City Council, at a regular meeting, considered the Ordinance on August 22, 2023, at a duly noticed public hearing, as prescribed by law, at which time the City Staff and interested persons had an opportunity to and did testify either in support or opposition to this matter. F. Following the public hearing, the City Council considered the entire record of information received at the public hearings before the Planning Commission and City Council. Section 2. Further Findings. The City Council, in approving the proposed Ordinance, hereby makes the following additional findings as required by Section 17.01.040 ("Relationship to General Plan") of the Temecula Municipal Code: 1. The proposed uses are allowed in the land use designation in which the use is located, as shown on the land use map, or is described in the text of the general plan. The proposed changes to Title 17 include removal of tobacco shop as a permitted use in Neighborhood Commercial Zoning Designation and requiring Tobacco Shops in Planned Development Overlay (PDO) districts No. 1 and 4 to adhere to the new requirements of a Tobacco Shop Permit. These changes are prohibiting land uses or imposing requirements on existing uses, rather than allowing a use where it was not previously permitted. All other proposed amendments are minor clarifications and typographical edits and do not propose any land use changes contrary to the adopted General Plan. 2. The proposed uses are in conformance with the goals, policies, programs and guidelines of the elements of the general plan. The proposed amendments to Title 17 of the Temecula Municipal Code do not propose any land use that is inconsistent with the Temecula General Plan. The majority of the Code Amendments do not create or allow new uses where they were not previously allowed. Only the revisions to the Neighborhood Commercial (NC) Zoning district impact the use of land. The Code Amendments would remove Tobacco Shop as a permitted use in the NC Zoning district only. The remaining proposed amendments to the Temecula Municipal Code are minor clarifications and typographical edits and do not result in a contrary policy direction or indicate an inconsistency between the Temecula Municipal Code and the adopted General Plan. 3. The proposed uses are to be established and maintained in a manner which is consistent with the general plan and all applicable provisions contained therein. The proposed amendments to Title 5, 8, and 17 of the Temecula Municipal Code do not propose any land use that is inconsistent with the Temecula General Plan. The proposed changes to massage establishments modify definitions and operational requirements, require notarized documentation for exempt massage facilities and the prohibition of pets furthers Policy 5.4 of the Economic Development Element of the Temecula General Plan, which is to "Monitor existing businesses and support small businesses and the business retention program to encourage local employment and growth of local businesses." Changes to tobacco regulations include modifying definitions, implementing an annual permit for tobacco shops to include operational requirements, and updating the number of designated smoking rooms is in compliance with Goal 3 of the Community Design Element of the Temecula General Plan which is to ensure "Preservation and enhancement of the positive qualities of individual districts or neighborhood." All other proposed amendments are clarifications and typographical edits and do not propose any land use changes contrary to the adopted General Plan. Section 3. Environmental Findings. The City Council hereby finds that this Ordinance is exempt from the requirements of the California Environmental Quality Act ("CEQA") pursuant to Title 14 of the California Code of Regulations, Section 15061(b)(3) because it can be seen with certainty that there is no possibility that the Municipal Code amendments would have a significant impact on the environment. The Municipal Code amendments are minor policy changes, changes required by state law, and the imposition of regulations on existing uses and will not increase the intensity or density of any land use. A Notice of Exemption has been prepared and will be filed in accordance with CEQA and the State CEQA Guidelines. Section 4. Section 5.22.020 (Definitions) of Chapter 5.22 (Massage and Massage Establishments) of Title 5 (Business License and Regulations) of the Temecula Municipal Code is hereby amended to amend the definition of "Massage" as follows (with additions appearing in underlined text), with all other provisions of Section 5.22.020 remaining unchanged: "Massage" means the scientific manipulation of the soft tissues of the human body. "Massage" includes bodywork such as reiki, trigger point, hiatsu, cpppin and l3phatic drainage. Section 5. A new Item 5.22.040.A.I is hereby added to Subsection 5.22.040.A of Section 5.22.040 (Massage Establishment Permit Required) of Chapter 5.22 (Massage and Massage Establishments) of Title 5 (Business License and Regulations) of the Temecula Municipal Code (with additions appearing in underlined text), with all other provisions of Section 5.22.040 remaining unchanged: A. It is unlawful for any person to engage in, operate, conduct or carry on, in or upon any premises, a massage establishment without first obtaining a massage establishment permit pursuant to this chapter, securing the necessary business license as required by this code, and complying with Title 5 of this code. A separate permit shall be obtained for each separate massage establishment operated by such person. 1. Massage establishments include facilities that provide Reiki, Trigger Point, Shiatsu, Cupping, Lymphatic Drainage and any other activity that meets the definition of massage, as defined in Section 5.22.020 of this code. Professionals of such massage practices or any activity that meets the definition of massage as defined in Section 5.22.020 of this code shall be CAMTC certified in accordance with Section 5.22.030 of this code. 3 Section 6. Item 5.22.090.A.1 of Subsection 5.22.090.A (Requirements applicable to the operation of outcall services) of Chapter 5.22 (Massage and Massage Establishments) of Title 5 (Business License and Regulations) of the Temecula Municipal Code is hereby amended to read as follows (with additions appearing in underlined text), with all other provisions of Section 5.22.090 remaining unchanged: A. Outcall Massage. No person shall provide outcall massage in the city unless all of the following requirements are met: 1. The appointment for the outcall massage is performed only under a physician's written recommendation or order and the appointment was made by a massage establishment in good standing under this chapter and the massage professional is employed by the same massage establishment. Section 7. A new Subsection "28" (Pets) is hereby added to Subsection B (Operations) of Section 5.22.080 (Requirements applicable to the operation of massage establishments.) of Chapter 5.22 (Massage and Massage Establishments) of Title 5 (Business License and Regulations) of the Temecula Municipal Code to read as follows (with additions appearing in underlined text), with all other provisions of Section 5.22.080 remaining unchanged: 28. Pets. No pet(s) or live animal mascots, regardless of species, shall be allowed on site of any massage establishment, except for a working "service animal" as defined in Section 6.04.010 of this code. Section 8. Subsection 5.22.120A.I (Exemptions) of Chapter 5.22 (Massage and Massage Establishments) of Title 5 (Business License and Regulations) of the Temecula Municipal Code is hereby amended to read as follows (with deletions shown in strikethrough text and additions appearing in underlined text), with all other provisions of Section 5.22.120 remaining unchanged: A. This chapter shall not apply to the following individuals or businesses while engaged in the performance of the duties of their respective professions: 1. Persons of the state of Galifomia, > btA not fifnited to, holders of medieal degfees, stleh as pPhysicians, surgeons, chiropractors, osteopaths, and per -sons the-r- medical professionals and other persons holding a valid certificate to practice the healing arts, except for CAMTC-certified massage eg therapists, working under their direct supervision who are working at the same location as the licensed person, provided such professionals are performing massage, as defined in this chapter, at a licensed business as part of, and to the extent permitted by, their respective professions. Direct supervision, as used in this subsection, requires persons holding a valid certificate to practice the healing arts under the provisions of Division 2 (commencing with Section 500) Business and Professions Code to be present at the office of the business establishment and immediately available to furnish assistance and direction throughout the performance of the massage. The supervising medical professional is required to be physicalpresent on site. The required presence does not include virtual presence through audio/video real-time communications technology; 4 Section 9. A new subsection "C" (Affidavit) is hereby added to Section 5.22.120 (Exemptions) of Chapter 5.22 (Massage and Massage Establishments) of Title 5 (Business License and Regulations) of the Temecula Municipal Code to read as follows (with additions appearing in underlined text), with all other provisions of Section 5.22.120 remaining unchanged: C. Affidavit. All persons holding a valid certificate to practice the healing arts under the laws of the state of California who operate an exempt massage facility as defined by Section 5.22.120 of this code shall provide a notarized affidavit attesting that all massage treatments performed are under their order or direction and that they will remain on site during all such treatments. Such persons must assure that all assistants, students or aides do not function autonomously. Section 10. A new Section 5.22.155 (Violation Summary) is hereby added to Chapter 5.22 (Massage and Massage Establishments) of Title 5 (Business License and Regulations) of the Temecula Municipal Code to read as follows: 5.22.155 Violation and Penalty Table. Table 5.22.155 - Violation Summary' Level 1 VIOLATIONS Code Section Per TMC 5.22.140(B)(1) - Any violation of the provisions below are rounds to revoke a Massage Establishment Permit 5.22.070(C)(1)(a) Applicant or any officer/director of a corporation operating a massage establishment has been convicted of any crime that requires registration with any level of government or agency similar to and including Penal Code Section 290 or involves conduct that violates any law similar to and including Penal Code Sections 266(h), 266(i), 314, 315, 316, 318, 647 (a), (b , or (d), 653.22, 653.23 or any crime settled in a plea to violations of Penal Code Section 415, 602 or any lesser included or related offense. 5.22.070(C (1� )(b) Applicant or any officer/director of a corporation operating a massage establishment has been convicted of a Health and Safety Code Section 11550 offense or any offense involvingthe sale, distribution or possession of a controlled substance specified in Health and Safety Code Sections 11054, 11055, 11056, 11057 or 11058. 5.22.070(C (1)(c) Applicant or any officer/director of a corporation operating a massage establishment has engaged in conduct in another jurisdiction which, if it had occurred within the City, would constitute grounds for denial or revocation under this chapter. 5.22.070(C)(1)(d) Applicant or any officer/director of a corporation operating a massage establishment has been subjected to a permanent injunction against the conducting or maintaining of a nuisance pursuant to Penal Code Sections 11225 through 11235 or any similar provisions of law in a jurisdiction outside the state of California 5.22.070(C)(1)(e) Applicant or any officer/director of a corporation operating a massage establishment has engaged in conduct in any state or country which would constitute an offense as described in subsection 5.22.070(1)(a) or (b) of this section 5.22.070(C)(1)(fl Applicant or any officer/director of a corporation operating a massage establishment has been convicted of an act involving theft, dishonesty, fraud, deceit or moral turpitude or an act of violence, which act or acts are related to the qualifications, functions or duties of the operator of a massage establishment, or which act or acts occurred in connection with the operation of a massage establishment 5.22.070 C (1� )(g) Applicant or any officer/director of a corporation operating a massage establishment is registered under Penal Code Section 290, or any similar law in any state or other jurisdiction. 5.22.070(C)(1)(h) Applicant or any officer/director of a corporation operating a massage establishment has had a massage establishment permit, or other similar license or permit denied, suspended or revoked for cause by any governmental authority. 5.22.070(C)(1)(i) Applicant or any officer/director of a corporation operating a massage establishment has had any massage therapist or massage practitioner permit, ^ license, or certification denied, revoked or suspended by the CAMTC. 5.22.080(B)(5) No person or persons shall be allowed to live inside the massage establishment at any time. Beds, mattresses, waterbeds, futons, sofa beds, or any We of portable or convertible beds are not permitted on the premises. 5.22.080(B)(7) No person shall enter, be in or remain in anyof a massage establishment while _part in possession of, consuming using or under the influence of any alcoholic beverage, recreational drugs or controlled substance. The operator and on -duty manager shall be responsible to ensure that no such person shall enter or remain upon the massage establishment. Service of alcoholic beverages or recreational drugs shall not be allowed. 5.22.080(B)(8) No contraceptive devices, i.e., condoms or other prophylactics, or sexual devices, the primM purpose of which is for sexual stimulation, shall be sold, utilized, or allowed on the premises or possessed by any employee while on the premises. 5.22.080(B)(20) No massage professional or any person employed by the massage establishment, including independent contractors, may engage in acts that a reasonable person in the client's perspective, would be understood as an offer to perform or engage in with a client, acts that are sexual in nature, nor shall any massage professional or any_person employed by the massage establishment, massage the genitals or anal area of any patron, nor shall anyoperator or manager allow or permit such massage. An operator must comply with Business and Professions Code Section 4609(a) relating to sexual acts, including not allowing massage professionals to engage in any form of sexual activi on the premises of the massage , establishment, or to engage in sexual activi while providing massage for , compensation. A massage professional may only provide massage of female breasts with written consent of the person receiving the massage and a referral from a licensed California health care provider. This section is not intended to prohibit any massage technique recognized zed by CAMTC as legitimate, or to impose any specific restriction or professional practice beyond those set forth in Business and Professions Code Section 4609(a). No operator, manager or employee while performing any task or service associated with the massage business, shall be present in any room with another person unless the person's genitals, lg uteal crease, anus and, in the case of a female, her breasts, are fully covered. 5.22.080(B)(21) A massage professional may not wear attire that is transparent, see -through, or substantially exposes the massage professional's undergarments or that exposes his or her breasts, buttocks or genitals, or that in any way willfully and lewdly exposes his or her private parts in any that is in public or where there are other people present who may be offended or annoyed by such action. Swim attire may not be worn unless the massage professional is providing a water -based massage modality approved by the CAMTC. A massage professional shall not wear any clothing that is deemed by the CAMTC to constitute unprofessional attire. All employees of the massage establishment that are not massage professionals shall also adhere to these clothing requirements. 5.22.140(B ((a) The massage establishment is emplo�g a massagepist that does not hold a valid CAMTC license. 5.22.140(B (1� )(d) Alcoholic beverage or recreational drugs are found on -site. 5.22.140(B)(1)(e) The massage establishment has violated anyprovision of Business and Professions Code Section 4600 et seq 5.22.140(B)(1)(fl The chief of police determines that the massage establishment's operations constitute an immediate threat to the public health and safety. Level 2 VIOLATIONS Code Section Per TMC 5.22.140(B)(2) - Any three violations in a 12 month period of the provisions below are grounds to revoke a Massage Establishment Permit 5.22.080(A)(1)(a) Massage establishments shall be located in a zoning district which permits such use. When a new massage establishment is proposed to be constructed, a set of plans shall be submitted to the city for approval and shall be accompanied by he appropriate application and plan check fee. 5.22.080(A)(1)(b) No massage establishment located in a building or structure with exterior windows fronting a public street, highway, walkway, or parking area, shall, during business hours, block visibility into the interior reception and waiting area through the use of curtains, closed blinds, or any other material that obstructs, blurs or darkens the view into the premises. 5.22.080(A)(2) Neither signs nor the front of the business shall be illuminated by strobe, flashing lights or string lights. Each operator and/or on -du manager shall display the , massage establishment permit in a conspicuous public place in the lobby of the massage establishment. In addition, each operator and/or on -duty manager shall ensure: (a) CAMTC Certificates for each massage professional employed at the establishment (whether on -du or not,) are conspicuously displayed in the lobby , area of the massage establishment, and (b) that each massage professional has his or her identification card in his or her possession while providing massage services for compensation. 5.22.080(A)(3) Services List. Each operator shall post and maintain a list of services available and the cost of such services, in a conspicuous public place within the premises. No owner, managerperator shall permit, and no massage professional shall offer or perform, any service other than those posted, nor shall an operator or a massage professional request or charge a fee for any service other than those on the list of services available and posted in the reception area or provided to the client in advance of any outcall services. 5.22.080(A)(4) -� Each operator shall illuminate each room or area where massage is performed with light equivalent to a minimum of forty -watt incandescent light bulb, and shall provide sufficient ventilation. Such lighting and ventilation shall otherwise comply with the current mechanical and building code of the city. The lighting in each massage room shall be activated at all times while the patron is in such room or area. 5.22.080(A)(5) -� A minimum of one toilet and one separate wash basin shall be provided for patrons in each massage establishment. Each wash basin shall be equipped with soap or detergent and hot running water at all times and shall be located in close proximity to the area devoted to the performing of massage services. A permanently installed soap dispenser, filled with soap, and a single service towel dispenser or hand air dryer shall be provided at the restroom hand wash sink. Bar soap shall not be used. A trash receptacle shall be provided in each toilet room. Showers may be provided at the o erator's o tion. 5.22.080(A)06 If male and female patrons are to be treated simultaneously at the same massage establishment, separate massage rooms shall be provided for male and female patrons provided, however, that massage establishments having separate massage rooms for male and female patrons may provide "couples massage" in a single room, subject to the requirements of this subsection. Couples massage, i.e_, concurrent massage of two persons, is permitted within one room provided all other requirements of this chapter are satisfied including, but not limited to, provision of a separate massage table and massage professional for each customer. Any room to be used for couples massage shall be sufficiently sized so as to comply with any and all applicable building and fire codes and to permit free assa e and movement of the massage professionals. 5.22.080(A)(7) All facilities of the massage establishment must be in good and shall be thoroughly cleaned and sanitized each day the business is in operation. All walls, floors and ceilings of each restroom and shower area, if any, shall be made of washable mold -resistant surfaces. 5.22.080(A)(8) A massage table shall be provided in each massage room and the massage shall be performed on this massage table. The tables shall have a minimum height of twenty-eight inches. Two-inch thick foam pads with maximum width of four feet may be used on a massage table and must be covered with durable, washable plastic or other waterproof material. Beds, floor mattresses and waterbeds are not permitted on the premises. 5.22.080(B)(1) Each operator and/or on duty manager shall provide and maintain on the premises adequate equipment for disinfecting and sterilizing instruments used in massa e. 5.22.080(B)(3) Common use of towels or linen shall not be permitted. Towels and linen shall be laundered or changed promptly after each use. Separate cabinets or containers shall be provided for the storage of clean and soiled linen and towels, and such cabinets or containers shall be plainly marked: "clean linen" and "soiled linen." 5.22.080(B)(4) Each massage establishment and/or massage professional shall provide and maintain at the location where the massage is performed adequate equipment for disinfecting and sterilizing instruments used in massage. Instruments utilized in performing massage shall not be used on more than one client unless they been sterilized, using approved sterilization methods. 5.22.080(B)(6) No food of any kind shall be cooked or prepared in a massage establishment. No food of any kind shall be for sale or sold in the establishment. 5.22.080(B)(9) No electrical, mechanical or artificial device shall be used by the operator or any employee of the massage establishment for audio and/or video recordingor r for monitoring the performance of a massage or the conversation or other sounds in the massage rooms without the written consent of the patron. 5.22.080(B)(10) The operator and/or manager of the massage establishment shall maintain a roster of all employees, including operators, managers and massage professionals, showing each name, nickname and alias, home address, age, birth date, gender, height, weight, color of hair and eyes, phone number, Social Security Number, CAMTC certificate number, date of employment, and duties of each employee. The foregoing roster and all information therein shall be maintained on the premises for a period of two years following the termination of each employee. Upon consent or upon obtaining an applicable warrant, the operator or manager on duty shall make the roster immediately available for inspection during all hours the massage establishment is open for business. Information in the roster shall be available for inspection only try or police department representatives while performing official duties. It is unlawful for a massage establishment to employ or retain any person to provide massage for compensation, or to allow any person to provide massage for compensation on the premises of a massage establishment, unless that person is listed as a massage professional on the massage permit issued pursuant tothis cha ter. 5.22.080(B)(11) The massage professional shall provide to each patron clean, sanitary and opaque coverings capable of covering areas of the patron identified as prohibited massage areas including the genital area, anus and female breast(s). Re -use of such coverings is prohibited unless adequately cleaned and sanitized. 5.22.080(B)(12) Every person operating a massage establishment shall keep a record of the dates and hours of each treatment or service provided, the name and address of the patron, the name of massage professional administering such service and a description of the treatment or service rendered. 5.22.080(B)(13) The owner must advise the city, in writing, at the time of application for a permit of the business hours, and any change in hours occurring thereafter. No person shall operate a massage establishment or administer a massage in any massage establishment or at an outcall location booked by that massage establishment between the hours of nine p.m. and seven a.m. All massages must terminate by nine p.m., regardless of the start time. All customers, patrons and visitors shall be excluded from the massage establishment during these hours and be advised of these hours. The hours of operation must be displayed in a conspicuous public place in the lobby within the massage establishment and in the front window clearly visible from the outside. It is the obligation and responsibili of the , massage establishment to inform clients of the requirement that any massage service must cease by nine p.m. 5.22.080(B)(14) No permitted massage establishment shall place, publish or distribute, or cause to be placed, published or distributed, in any publication or any website, any advertisingthat hat depicts any portion of the human body that would reasonably suggest to prospective patrons that any service is available other than those services authorized by the Massage Therapy Act and pursuant to this chapter. No massage establishment shall employ language in the text of such advertising that would reasonably suggest to a prospective patron that any service is available other than those services authorized by this chapter. The massage establishment shall ensure that it and all certified massage professionals comply with Business and Professions Code Sections 4608, 4609 and 4611, by requiring the massage professionals to include the name under which he or she is certified and his or her certificate number in yLny and all advertising of massage for com ensation• to not engage in sexually suggestive advertising related to massage services; to not hold him or herself out as a certified massage professional, or use terms such as "licensed" or "certified," that implies that an uncertified person is certified as a massage professional; to not falsely state or advertise or put out any sign or card, or to falsely represent to the public, that any individual is licensed, certified, or registered as a massage professional if that individual is not so certified by the CAMTC. 5.22.080(B)(15) No operator or manager shall engage in, conduct or carry on the business of a massage establishment unless there is on file with the police department, in full force and effect at all times, documents issued by an insurance company authorized to do business in the state of California evidencing that the permit holder is insured under a liability insurance policy providing minimum coverage of one million dollars for personal injury or death to one person arising out of the operation of the massage establishment and/or the administration of any massage. Evidence of the required insurance shall be provided to the chief of police at the time an initial application, or renewal application, is filed. 5.22.080(B)(16) All massage establishments must comply with all state and federal laws and regglations providing for access to and receipt of services by disabled persons. 5.22.080(B)(17) All front, reception, hallway or front exterior doors (except back or exterior doors used solely for employee entrance to and exit from the massage establishment) shall be unlocked during business hours, except as may be permitted by applicable law (such as the Temecula Fire Code) which allow for safety doors that may be opened from the inside when locked. No massage may be performed within any cubicle, room, booth or any other area within a massage establishment that is fitted with a lock of an,, kind as a locking doorknob, padlock, dead bolt, sliding bar or similar device), unless the door is an exterior door. No entry doors to any room shall be obstructed by any means. The requirement that an exterior door must remain unlocked at all times does not apply to any massage establishment owned by one individual with one or no employees or independent contractors. 5.22.080(B)(18) No person shall be permitted to be within a massage establishment except within the lobby or reception area, or area where a customer is receiving massage services, during hours of operation, unless that person has been disclosed to the Lty as required under this chapter, including Section 5.22.060(A)(5). 5.22.080(B)(19) No massage establishment may discriminate or exclude patrons on the basis of their race, sex, religion, age, disability or any other classification protected under federal or state laws, rules or regulations. 5.22.080(B)(22) The operator and on du manager shall be jointly responsible for the conduct of , all employees while the employees are on the premises of the massage establishment. Any act or omission of an employee constituting a violation of any provision of this chapter shall be deemed to be an act or omission of the operator and on duty managerpurposes of determining whether the massage establishment permit should be revoked, or an application for such permit or renewal thereof, denied. 5.22.080(B)(23j No operator or manager shall employ any person as a massage professional who does not hold a CAMTC Certificate. Every operator or manager shall report to the chief of police any change of employees, whether by new or renewed employment, discharge or termination, on the form and in the manner required by the chief of police. The report shall contain the name of the employee and the date of hire or termination. The report shall be made within ten business days of the date of hire or termination. The operator and manager must notify the chief of police 10 immediately upon the massage establishment's notice of any disciplinary action taken by the CAMTC regarding one of the establishment's massage professionals and submit a copy of the notice or order. This provision requires reportin to the chief of police, even if the operator or manager believes that the chief of police has or will receive the information from another source. 5.22.080(B)(24) No massage establishment shall operate as a school of massage, or use the same facilities as that of a school of massage, 5.22.080(B)(25) Operation of a massage establishment without a qualified manager being present at all times that the massage establishment is open for business is prohibited. 5.22.080(B)(26) Each operator and on -duty manager shall at all times comply with all provisions of this chapter and all other applicable provisions of the Temecula Municipal Code, all conditions of any required zoning approvals, conditions imposed by the chief of police, and all state and federal laws, statutes and regulations, and shall provide roof of compliance u on request by the police de artment. 5.22.080(B)(27) Each massage establishment shall have and maintain a dedicated telecommunication device physically at the business location with an assigned telephone number capable of receiving_ incoming calls and dialingout ut to emergency services specifically 911. 5.22.080(B)(28) No pet(s) or live animal mascot(s), regardless of species, shall be allowed on site of any massage establishment, the only exemption shall be a working "service animal" as defined in Section 6.04.010 of this code. ' This is a summary of violations only. Please see the referenced code sections for complete details an omission from this table does not remove the burden of compliance. Section 11. Chapter 5.24 is hereby renamed as "Licensure of Tobacco Retailers and Tobacco Shops". Section 12. Section 5.24.030 (Definitions) of Chapter 5.24 (Licensure of Tobacco Retailers) of Title 5 (Business Licenses and Regulations) of the Temecula Municipal Code is hereby amended to add definitions for "Tobacco Shop" and "Permit" and to revise the definitions for "Tobacco paraphernalia" and "Tobacco product" to read as follows (with additions appearing in underlined text) with all other provisions of Section 5.24.030 remaining unchanged: "Tobacco Shop" means any premises dedicated to the disnlav, sale, distribution, delivery, offerin furnishing, or marketing of tobacco, tobacco products, tobacco accessories, or tobacco paraphernalia, including all non -tobacco products that contain nicotine. Any premises that dedicates more than 10 percent of its floor space(excluding bathrooms, kitchens, breakrooms, and other exclusive employee use common areas) to tobacco products, tobacco accessories or tobacco paraphernalia shall be considered a "Tobacco Shop" for purposes of this chapter. If a premises dedicates less than 10 percent of its floor space (excluding bathrooms, kitchens, breakrooms, and other exclusive employee use common areas) to tobacco products, tobacco accessories or tobacco paraphernalia, then it shall be considered a "Tobacco Retailer" as defined in Section 5.24.030. and is not governed by this Chapter. "Tobacco Shop Permit" or "TSP" means a Tobacco Shop Permit issued pursuant to this chapter. m "Tobacco paraphernalia" means cigarette papers or wrappers, pipes, electronic cigarette or vqping devices, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking, preparation, storing, or consumption of tobacco products. "Tobacco product" means: 1. Any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, electronic cigarette or vaping device to include liquid, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco; and 2. Any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body but does not include any product specifically approved by the Federal Food and Drug Administration for use in treating nicotine or tobacco product dependence. Section 12. A new Section 5.24.120 "Tobacco Shops" is hereby added to Chapter 5.24 (Licensure of Tobacco Retailers) of Title 5 (Business Licenses and Regulations) of the Temecula Municipal Code to read as follows (with additions appearing in underlined text): 5.24.120 Tobacco Shops. A. Tobacco Shop Permit (TSP) Required. 1. It is unlawful for any person to engage in, operate, conduct or carry on, in or upon any premises, a tobacco shop without first obtaining a permit pursuant to this chapter, securing the necessary business license as required by this code, and complying with Title 5 of this code. A separate permit shall be obtained for each separate tobacco shop operated by such person. 2. A permit to operate a tobacco shop shall be valid for a period of one year and shall expire in conjunction with the business license. B. Maximum Number of Tobacco Shops. 1. The maximum number of tobacco shops within the city shall not exceed one tobacco shop per every ten thousand (10,000) inhabitants of the city, with any fraction of that ratio being rounded down to the nearest whole number. For purposes of this section, the total number of inhabitants of the citv shall be determined by the most current published data available from the California State Department of Finances, as of the date an application for a tobacco shop permit is filed. 2. If there is no lapse in the timely renewal of a city business license and tobacco retailers license as required under this chapter, tobacco shops operating with a valid and current business license and current and valid Tobacco Retailers License no later than sixty 60) days after the effective date of this ordinance and that operate in compliance with all local, state and federal laws, ordinances, rules and regulations, may continue to operate in the city even if the number of tobacco shops exceed the maximum number of tobacco shops permitted in the city pursuant to subsection B(1) above and separation requirements pursuant to subsection E(l)(a) of this chapter. 3. Any owner that meets the requirements of subsection 2 above may sell or transfer the tobacco shop, but the new owner of the tobacco shop shall apply and obtain a tobacco shop 12 permit before the new owner or operator begins operating the tobacco shop. If the tobacco shop that is sold or transferred does not have a history of violating any provisions of the chapter for at least one year preceding the date of sale or transfer of the business, the business may obtain a tobacco shop permit to operate in the city even if the number of tobacco shops exceed the maximum number of tobacco shops permitted in the city pursuant to subsection B(1) above, as long as the business meets all the requirements of Section 5.24.120(D). C. Application for Tobacco Shop Permit. 1. All persons desiring a tobacco shop permit shall file a written application on the required form available at the citesplanning department. The application, to be signed under penalty of perjury, shall be accompanied by the appropriate filing fee established by resolution of the city council. The applicant must be at least twenty-one (21) years of age at the time of application. The application shall be completed and signed b, t�perator of the proposed tobacco shop, if a sole proprietorship; one e�partner, if the operator is a partnership; one officer or one director, if the operator is a corporation; and one participant, if the operator is a joint venture. The application for a tobacco shoppermit does not authorize operation of a tobacco shop unless and until such permit has been properly granted. The application shall contain or be accompanied by the following information: a. The type of ownership of the business; for example, whether an individual, partnership, or corporation. If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation or charter, together with the state and date of incorporation and the names and residence addresses of each of its current officers and directors, and of each stockholder holding more than five percent of the stock of that corporation. If the applicant is a partnership, the application shall set forth the name and residence of each of the partners, including limited partners. If the business is a limited partnership, it shall furnish a copy of its certificate of limited partnership filed with the Secretary of State. If one or more of the partners is a corporation, the provisions of this subsection pertainingtrporations shall apply; b. The precise name under which the tobacco shop is to be conducted; c. The complete address, all telephone numbers, and email address of the tobacco shop; d. The following personal information concerningtpplicant: i. Full complete name and all aliases used by the applicant, ii. Current address and all previous residential addresses for eight years immediately preceding the present address of the applicant, iii. Acceptable proof that the applicant is at least twenty-one (21) years of age, iv. Proof of legal residency and/or the ability to legally work in the United States, v. The applicant's complete business, occupation and employment history for eight years preceding the date of application, including, but not limited to, the tobacco shop or similar business history and experience of the applicant, vi. The complete tobacco shop license history of the applicant, whether such person has ever had any permit, license, or certification to conduct sales of tobacco products issued or denied by any governmental authority; the date of issuance of 13 such a permit or license, whether the permit or license was denied, revoked or suspended; and the reason therefor, vii. Whether the applicant has ever had a tobacco retailers license, tobacco shop permit, or any_permit/license required for the operation of a tobacco shop denied, revoked or suspended by any government authority, and the reason therefor, viii. All criminal convictions occurring in any state or country, including convictions resulting from any plea of nolo contendere (no contest), within the last ten years, including those dismissed or expunged pursuant to Penal Code Section 1203.4, but excluding infraction traffic violations, and the date and place of each such conviction and reason therefor, ix. Information re ag rding any pending criminal charges against the applicant, and x. A complete set of fingerprints taken by the police department. e. The name and address of the owner and lessor of the premises upon or in which the tobacco shop is to be located. In the event the applicant is not the legal owner of the premises, the application must be accompanied by a copy of the lease and a notarized acknowledgment from the owner of the premises that a tobacco shop will be located on the premises, and that the tobacco shop must operate in compliance with the requirements of this chapter; f. Such other identification and information as the chief of police may reauire in order to discover the truth of the matters required to be set forth in the application; g. A statement in writing and dated by the applicant that he or she certifies under penalty of perjury that all information contained in the application is true and correct; h. Statements in writing and dated by the applicant and the applicant's designated manager(s) certify under nder penalty of perjury that they: i. Have reviewed Chapter 5.24 and Chapter 8.56 of the Temecula Municipal Code, ii. Understand its contents, iii. Understand the duties of a manager, iv. Will only ploy persons of legal age to sell tobacco products, v. Authorize the chief of police to investigate the truth of the information contained in the application, and vi. Will be responsible for the conduct of all tobacco shop operators, employees, agents, independent contractors, or other representatives while such persons are on the premises of the tobacco shop, and that failure to comply with the provisions of this chapter and any federal, state, or local law, may result in the revocation of the tobacco shop permit. If, during the term of a tobacco shop permit, the permit holder has any change in information submitted on the original or renewal application, the permit holder shall notify the police department of such change, within ten (10) business days thereafter, in writing and A floor plan of the proposed tobacco shop showing all interior areas, includingareas reas where tobacco products are stored or sold, all doors, display cases, restrooms, plumbing, and an., other features required by the chief of police. 14 k. The applicant, if a corporation or partnership, shall designate one or more of its officers or partners to act as manager during business hours. If the applicant is an individual, then that individual, or designee thereof shall act as manager. Each person who shall serve as manager shall complete and sign all application forms required of an individual ,qpplicant for a tobacco shop permit. 1. Notwithstanding the fact that an application filed under this section may be a "public record" under Government Code Section 6250, et seq., certain portions of such application contain information vital to the effective administration and enforcement of the licensing and/or permit scheme established herein which is personal, private, confidential, or the disclosure of which could expose the applicant to a risk of harm. Those portions of the application which are not subject to disclosure are: the applicant's residence address and telephone number, the applicant's date of birth and/or age, the applicant's driver's permit and/or social security number, and/or personal financial data. The city council in adopting the he application or permitting system set forth herein has determined in accordance with Government Code Section 6255 that the public interest in disclosure of the information set forth above is outweighed the public interest in achieving compliance with this chapter by ensuring that the applicant's privacy, confidentially or security interests are protected. The city clerk shall cause to be redacted from any copy of a completed permit application made available to any member of the public, the information set forth above. D. Tobacco Shon Permit Issuance and Denial. 1. Upon receipt of a written application for a tobacco shop permit, the chief of police shall conduct an investigation to ascertain whether the applicant satisfies the requirements of this chapter. The chief of police shall, within thirty (30) days of receipt of an application, and on a first -come -first -served -basis, approve, conditionally approve or deny the gpplication. The thirty -day (30) period may be extended for up to thirty (30) additional days, if necessary, to complete the investigation at the discretion of the chief of police or their designee. 2. The chief of police shall deny all tobacco shop permit application(s) if the maximum number of tobacco shops under section 5.24.120(B)(1) has been met. 3. The chief of police shall deny all tobacco shop permit application(s) if they make any of the followingfindings: a. The applicant, if an individual, or any of the officers or directors of the corporation, if the applicant is a corporation; or a partner, if the applicant is a partnership, or any person directly engaged or employed in the tobacco shop, includingif f any of the above listed parties, has within ten (10) years preceding the date of application: i. Been convicted of a violation of Health and Safety Code Section 11550 or any offense involving the illegal sale, distribution or possession of a controlled substance specified in Health and Safety Code Sections 11054, 11055, 11056, 11057 or 11058: ii. Engaged in conduct in another jurisdiction which, if it had occurred within the city, would constitute grounds for denial or revocation under this chapter; 15 iii. Been subjected to a permanent injunction against the conducting or maintaining of a nuisance pursuant to Penal Code Sections 11225 through 11235 or any similar provisions of law in a jurisdiction outside the state of California; iv. Engaged in conduct in any state or country which would constitute an offense as described in subsection (3)(i) or (ii) of this section; v. The applicant has had a Tobacco Retailers License revoked from any jurisdiction authorized to issue such license(s); vi. The applicant or any of the applicant's proposed employees, after a full hearing by administrative proceeding or state court, has aided and abetted any of the offenses listed in this section; vii. The applicant has made a false, misleading or fraudulent statement or omission of fact to the city in the permit application; viii. The application does not contain all of the information required by this section; ix. The tobacco shop, as proposed by the applicant, does not comply with all applicable laws, including, but not limited to, health, zoning, fire and safety requirements, regulations and standards; x. The applicant has not satisfied the requirements of this chapter in the time specified; xi. The location of the proposed tobacco shop has within a twelve (12) month period prior to the submittal of the application: (a) Been the site of a violation of this chapter, or any similar criminal or civil ordinance, law, rule, or regulation of the state of California or any other public agency related to the operation of a tobacco shop, (b) Been the site of a tobacco shop that was closed due to criminal activity. For purposes of this subsection, closure due to criminal activity includes voluntary closure of a tobacco shop after there have been arrests at the location or other notices relating to criminal activity, (c) Been the site of a tobacco shop where violations have not been addressed in the time specified in the notice of violation or administrative citation, (d) Been the site of a tobacco shop that has been revoked pursuant to this chapter, (e) Been the site of a tobacco shop that has received a notice of revocation or fine issued pursuant to the Temecula Municipal Code, while any appeal of the revocation or fine is pending, or (f) Been the site of a tobacco shop that has outstanding fines issued pursuant to the Temecula Municipal Code that have not been paid. b. If the application is denied for failure to comply with this chapter, the applicant, owner and operator of the tobacco shop may not reapply for a period of one year from the date the application was denied. c. An appeal of the denial of a tobacco shop establishment permit shall be ,governed by procedures set forth in Section 5.24.120(J). E. Tobacco Shop Requirements. 1. Facilities. a. Location. No tobacco shoe shall be located within five hundred (500) feet of a sensitive receptor(s), as defined in Chapter 9.20.020 of this code or from another tobacco sho. 16 This shall be measured in a straight line from any entrance of the tobacco shop to the property line of a sensitive receptor or another tobacco shop. A radius map package shall be required at the time of submittal when there is concern about the proposed tobacco shop location in relation to sensitive receptors, this shall be at the discretion of the chief of police or the director of community development. b. Structure. Tobacco shops shall be located in a zoning district which permits such use. No tobacco shop located in a building or structure with exterior windows fronting a public street, highway, walkway, or parking area, shall, during business hours, block visibility into the interior area through the use of curtains, closed blinds, or an., other material that obstructs, blurs or darkens the view into the premises. c. Display of Permits. Tobacco shops shall at all times display in a conspicuous and prominent manner, visible upon entrance to the tobacco shop all permits, licenses, or any other approval required for the operation of a tobacco shop. Expired permits do not satisfy this requirement. d. Signs. All tobacco shop signs shall comply with all provisions of Chapter 17.28 (Sign Standards,) or the appropriate Specific Plan or Planned Development Overlgy PDO). When there is a conflict between standards, the more restrictive standard shall be followed. Tobacco shops shall not have signage on doors, windows or storefronts except as provided for in Chapter 17.28.050(I)&(J). No signs shall be closer than eighteen (18) inches from all exterior doors, windows and storefront. No signs depicting tobacco use shall be able to be seen from the public right of way. Each sign violating this section shall be counted as a violation. e. Lighting. Tobacco shops shall be internally illuminated with white or soft white lights only. No lightingfor or any purpose shall be placed around or on windows or doors, to include frames. f. Accessory Uses. Lounge, arcade, and similar accessory activities prohibited. No tobacco shop shall allow or provide an area either indoor or outdoor that is for a customer lounge, arcade, or similar use(s). g. Bathroom Facilities. Customers shall be prohibited from utilizing any bathroom facilities on site. 2. Operations. a. Business License. Each tobacco shop shall hold a valid business license issued b. the City of Temecula. b. State Tobacco Retailers License. Each tobacco shop shall hold a valid California Cigarette and Tobacco Products Retailer's License issued by the State Board of Equalization, in accordance with State law. c. City Tobacco Retailers License. Each tobacco shop shall hold a valid Tobacco Retailers License issued by the City of Temecula. d. Tobacco Shop Permit. Each tobacco shop shall hold a valid Tobacco Shop Permit (TSP) issued by the City of Temecula. e. Hours of Operation. The owner must advise the city, in writing, at the time of gpplication for a permit of the business hours, and any change in hours occurring 17 thereafter. No person shall operate a tobacco shop between the hours of nine p.m. and seven a.m. f. Employee Age. No person under the age of twenty-one (21) years, at the time of application, shall operate or be employed by a tobacco shop. g. Living Prohibited. No person or persons shall be allowed to live inside the tobacco shop at any time. Beds, mattresses, waterbeds, futons, sofa beds, or any type of portable or convertible beds are not permitted on the premises. h. Alcoholic Beverages/Drugs — Prohibited Materials. No person shall enter, be in or remain in any part of a tobacco shop while in possession of, consuming or under the influence of any alcoholic beverage, recreational drugs (including cannabis,) or a controlled substance. The operator and on -duty manager shall be responsible to ensure that no such person shall enter or remain upon the tobacco shop. Service of alcoholic beverages or recreational drugs shall not be allowed to include all substances located in Chapter 8.56 (Psychoactive Bath Salts, Psychoactive Herbal Incense, and other Synthetic Drugs). A tobacco shop is not permitted to sell, store, distribute, trade or _give for no charge alcohol. i. Tobacco Use. There shall be no tobacco use or consumption (including "tasting_s") at any tobacco shop. j. Samples. Tobacco shops are prohibited from providing samples or tastings of any tobacco product or accessory whether free or for charge. k. Entrances. Tobacco shops cater specifically to adult customers over the age of twenty- one (21) to purchase tobacco products, accessories, etc. not the general public. As such, entrances/exits shall remain closed, not locked, during the hours of operation and employees shall not congregate, gather, or loiter in such areas. Tobacco Products, and Paraphernalia. Tobacco Products, and tobacco paraphernalia shall not be kept within ten (10) linear feet from any building entrance or check-out counter. This prohibition shall not apply if the display is not physically accessible to customers. m. Tobacco Flavors. A tobacco shop, or any of the tobacco shop's agents or employ shall not sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer as defined in Health and SafetX Code § 104559.5. This includes the storage of flavored tobacco products. n. Single Cigarettes. No tobacco shop shall sell single or individual cigarettes sometimes referred to as "loosies." o. Self -Service Displays Prohibited. No person shall display tobacco products or tobacco paraphernalia by means of a self-service display or to engage in tobacco retailing by means of a self-service display. A tobacco retailer who chooses to display tobacco products or tobacco paraphernalia in a locked cabinet, case or similar structure must post a clear and conspicuous sign on or within five feet of the display, stating that the case or structure is locked at all times. p. Compliance With All Laws. Each operator or manager shall at all times comply with all provisions of this chapter and all other applicable provisions of the Temecula Municipal Code, all conditions of any required zoning approvals, conditions imposed 18 by the chief of police, and all state and federal laws, statutes and regulations, and shall provide proof of compliance upon request by the police department. 3. Inspections. a. A tobacco shop may b�pected twice a year for the purpose of determining that the provisions of this chapter are met. Such inspections may be made by the police department, persons employed by the city whose job descriptions require the person to enforce the provisions of this code, including, but not limited to, code enforcement officers, and such other enforcement officials as described in Sections 1.16.020 and 1.21.020 of the Temecula Municipal Code or its successor sections. b. Complaints or violations related to this chapter reported to the City may result in additional inspections at the discretion of the chief of police. F. Transfer and Changes of Business. 1. No tobacco shop permit may be sold, transferred or assi.need by a permit holder, or by operation of law, to any other person or persons. Any such sale, transfer or assignment, or attempted sale, transfer or assignment, shall be deemed to constitute a voluntary surrender of such permit and such permit shall thereafter be null and void; provided and exceptin& however, that if the permit holder is a partnership and one or more of the partners should die, one or more of the surviving partners may acquire, by purchase or otherwise, the interest of the deceased partner or partners without effecting a surrender or termination of such permit, and in such case, the permit, upon notification to the chief of police, shall be placed in the name of the surviving partners. G. Fees. 1. The city council shall establish by resolution, and from time to time may amend, the fees for the administration of this chapter. Fees required by this chapter shall be in addition to any required under any other chapter of this code. H. Duration and Renewal of Permits. 1. Tobacco shop permits may be renewed on the first business day in February 2024, and on a year-to-year basis thereafter on the first business day in February, provided the permit holder continues to meet the requirements of this chapter. "Business day" as used in this subsection shall mean the days that Temecula City Hall is open for business. 2. No permit granted herein shall confer any vested right to anyPersonfor more than the permit period. 3. Applications for a permit renewal shall be filed with the chief of police at least sixty 0) days prior to expiration of the existing �permit, otherwise the permit will lapse. At the discretion of the chief of police, a conditional permit pending satisfactory completion of the renewal application process may be issued to renewal applicants who have no permit revocation proceedings pending at the time of filing of the renewal application. 4. Renewal applications shall set forth such information as ma.. b�quired by the chief of police to update and verify the information contained in the original permit application. The applicant shall pay an application fee when applying for renewal. 5. If an application for renewal of permit and all required information is not timely received and the permit expires, no right or privilege to operate a tobacco shop shall exist. I. Violation and Penalty. 19 1. Violations of this Section are broken down into two levels of severity as they relate to the Tobacco Shop Permit (TSP): a. Level 1 Violations are violations of such significance that a single violation of such provisions would cause the immediate revocation of the tobacco shop permit (TSP). b. Level 2 Violations are violations of this chapter that do not rise to the severity of Level 1 Violations. Any three (3) Level 2 violations in a twelve (12) month period is grounds for revocation of the TSP by the chief of police. 2. Table 5.24.120 — Violation Summary Table Table 5.24.120 - Violation Summary' Level 1 VIOLATIONS Code Section Per TMC 5.24.120.H(I)(1)(a) - Any violation of the provisions below are urounds to revoke a Tobacco Shop Permit 5.24.120.E(1)(a) No tobacco shop shall be located within one -thousand (1,000)feet of a sensitive receptor(s), as defined in Chapter 9.20.020 of this code or from another tobacco shop. This shall be measured in a straight line from any entrance of the facility to the property line of a sensitive receptor or another tobacco shop. 5.24.120.E(1)(b) Tobacco shops shall be located in a zoning district which permits such use. No tobacco shop located in a building or structure with exterior windows fronting a public street, highway, walkway, or parking area, shall, during business hours, block visibility into the interior area through the use of curtains, closed blinds, or any other material that obstructs, blurs or darkens the view into the premises. 5.24.120.E(1)(f) Lounge, arcade and similar accessory activities prohibited. No tobacco shop shall allow or provide an area either indoor or outdoor that is for customer lounge, arcade or similar use (s). 5.24.120.E(2)(a) Each tobacco shop shall hold a valid business license issued by the City of Temecula. 5.24.120.E(2)(b) Each tobacco shop shall hold a valid California Cigarette and Tobacco Products Retailer's License issued by the State Board of Equalization, in accordance with State law. 5.24.120.E(2)(c) Each tobacco shop shall hold a valid Tobacco Retailers License issued by the City of Temecula. 5.24.120.E(2)(d) Each tobacco shop shall hold a valid Tobacco Shop Permit issued b, the City of Temecula. 5.24.120.E(2)(g) No person or persons shall be allowed to live inside the tobacco shop at any time. Beds, mattresses, waterbeds, futons, sofa beds, or any type of portable or convertible beds are not permitted on the premises. 5.24.120.E(2)(h) No person shall enter, be in or remain in any part of a tobacco shop while in possession of, consuming using or under the influence of any alcoholic beverage, recreational drugs or controlled substance. The operator and on- duty manager shall be responsible to ensure that no such person shall enter or remain upon the tobacco shop. Service of alcoholic beverages or recreational drugs shall not be allowed to include all substances located in Chapter 8.56 (Psychoactive Bath Salts, Psychoactive Herbal Incense, and 20 other Synthetic Drugs). A tobacco shop is not permitted to sell, store, distribute, trade or give for no charge alcohol. Level 2 VIOLATIONS Code Section Per TMC 5.24.120.H(I)(1)(b) - Any three violations in a 12 month period of the provisions below are grounds to revoke a Tobacco Shop Permit 5.24.120.E(1)(c) Tobacco shops shall at all times display in a conspicuous and prominent manner, visible upon entrance to the tobacco shop all permits, licenses, or any other approval required for the operation of a tobacco shop. Expired permits do not satisfy this requirement. 5.24.120.E(1)(d) All tobacco shop signs shall comply with all provisions of Chapter 17.28 (Sign Standards) or the appropriate Specific Plan or Planned Development Overlay (y (PDO). When there is a conflict between standards, the more restrictive standard shall be followed. Tobacco shops shall not have signage on doors, windows or storefronts except as provided for in Chapter 17.28.050(D)(J). No signs shall be closer than eighteen 18) inches from all exterior doors, windows and storefront. No signs depicting tobacco use shall be able to be seen from the public right of way sign violating this section shall be counted as a violation. 5.24.120.E(1)(e) Tobacco shops shall be internally illuminated with white or soft white lights only. No lightingfor any purpose shall be placed around or on windows or doors, to include frames. 5.24.120.E(1)(g) Customers shall be prohibited from utilizing any bathroom facilities on site. 5.24.120.E(2)(e) The owner must advise the city, in writing, at the time of application for a permit of the business hours, and any change in hours occurring thereafter. No person shall operate a tobacco shop between the hours of nine p.m. and seven a.m. 5.24.120.E(2)(f) No person under the age of twenty-one (21) years, at the time of gpplication, shall operate or be employ a tobacco shop_ 5.24.120.E(2)(i) There shall be no tobacco use or consumption at any tobacco shop_ 5.24.120.E(2)(i) Tobacco shops are prohibited from providing samples of any tobacco product or accessory whether free or for charge. 5.24.120.E(2)(k) Tobacco shops cater specifically to adult customers over the age of twen -one (21) to purchase tobacco products, accessories, etc. not the , general public. As such, entrances/exits shall remain closed, not locked, during the hours of operation and employees shall not congregate, ag ther or loiter in such areas. 5.24.120.E(2)(1) Tobacco Products, and Paraphernalia shall not be kept within ten Ll0) linear feet from any building entrance or check-out counter. This prohibition shall not apply if the display is not physically accessible to customers. 5.24.120.E(2)(m) A tobacco shop, or any of the tobacco shops agents or employees, shall not sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer as defined 21 in Health and Safety Code § 104559.5. This includes the storage of 5.24.120.E(2)(n) No tobacco shop shall sell single or individual cigarettes sometimes referred to as "loosies." No person shall display tobacco products or tobacco paraphernalia by means of a self-service display or to engage in tobacco retailing by means of a self-service display. A tobacco retailer who chooses to display 5.24.120.E(2)(o) tobacco products or tobacco paraphernalia in a locked cabinet, case or similar structure must post a clear and conspicuous sign on or within five feet of the display stating that the cabinet, case or structure is locked at all times. 1 This is a summary of violations only. Please see the referenced code sections for 3. Violations that are not specifically identified in this section such as 5.24.120(E)(2)(a) shall be classified at the sole discretion of the chief of police on a case-bv-case basis. J. Revocation, Permit Denial and Appeal. 1. Violation and Noncompliance. The chief of bolice may refuse to issue a hermit. renew a permit, or may revoke an existing permit, on the grounds that the applicant or permit holder has failed to comply with the permit conditions or other requirements of this chapter, or any requirement of state law. In any such case, the applicant or permit holder shall have the right to appeal in the time and manner set forth in this section. For purposes of this section. if an administrative citation is contested. and is held to be invalid or rescinded by an independent hearing officer appointed pursuant to this chapter, or by any court of law, the violations identified in the administrative citation shall not form the basis for revoking or refusing to renew a tobacco shop permit. If any administrative citation is contested, and is upheld by an independent hearing officer appointed pursuant to this chanter, or by anv court of law, that administrative citation can form the basis for the revocation or refusal to renew a tobacco shop permit. 2. Notice. When the chief of police concludes that grounds for denial of a new permit or permit renewal, or permit revocation exist, the chief of police shall serve the applicant or permit holder, either personally or by certified mail, addressed to the business or residence address of applicant or permit holder, with a notice of denial of permit, or notice of intent to revoke or deny renewal. This notice shall state the reasons for the decision, the effective date of the decision, the right of the applicant or permit holder to appeal the decision to a hearing officer, and that the decision will be final if no written anneal is filed within the time permitted. 3. Appeal. a. The right to file a written appeal of a revocation or denial of new permit or renewal of aapermit shall terminate upon the expiration of fifteen (15) dqys of the date of mailing by the chief of police of the notice specified in subsection J(2) of this section. The written anneal shall be filed with the citv clerk of the citv of Temecula and shall be 22 accompanied by an appeal fee in an amount as set by city council resolution, and the city clerk shall promptly forward a copy of the appeal to the chief of police. b. In the event an appeal is timely filed, the denial of the permit, or renewal or revocation of the permit, shall not be effective until a final decision has been made on the appeal. Notwithstanding the foregoing, if the chief of police finds and determines that permitting a tobacco shop to continue to operate, pending the appeal hearing, would present an unreasonable and immediate risk to the public health and safety, the denial of renewal or revocation may take effect immediately. If no timely appeal is filed, the denial of renewal or revocation shall become effective upon expiration of the period for filing appeals. c. Upon receipt of a timely appeal, the city clerk shall refer the appeal to the California Office of Administrative Hearings ("OAH") for the assignment of an administrative law judge to serve as the hearing officer. i. Not less than fifteen (15) dqys prior to the meal hearing, the city clerk shall notify the chief of police and the appellant of the names of three qualified attorneys or retired Superior Court or Appellate Court judges submitted to the city clerk by a reputable firm providing mediators and arbitrators to serve as a panel from which the hearing officer will be selected. ii. Within five days of the date of mailing the notice of the available panel, the chief of police and the appellant matey the city clerk in writing that he or she elects to remove one of the three potential hearing officers. iii. The city clerk shall then request the mediation and arbitration firm to select one of the remaining names on the list as the designated hearing officer for the appeal hearing. iv. The hearing officer shall be fair and impartial and shall have no bias for or against the chief of police or the appellant. d. At the appeal hearing, the hearing officer shall receive oral and written evidence from the chief of police and the appellant. The hearing officer shall have authority to administer oaths to those persons who will provide oral testimony. The evidence presented need not comply with the strict rules of evidence set forth in the California Evidence Code, but shall be the type of evidence upon which reasonable and prudent people rely upon in the conduct of serious affairs. The hearing officer shall have broad authority to control the proceedings and to provide for cross examination of witness in a fair and impartial manner. The chief of police shall have the burden of proof to establish by clear and convincing evidence the facts upon which his or her decision is based. The appeal hearing shall be recorded by audio recording. Anyparty ma. sole cost and expense, utilize the services of a certified court reporter to prepare the verbatim record of the hearing. If a court reporter is used, the transcript prepared shall be made available for purchase to both parties. The hearing officer may continue the agppeal hearing from time to time, but only upon written motion of a party showing good cause for the continuance. e. The hearing officer may uphold, modify or reverse the decision of the chief of police. Within thirty (30) days or as otherwise determined by OAH, of the conclusion of the 23 appeal hearing, the hearing officer shall render his or her decision and make written findings supporting the decision. He or she shall send the decision to the city clerk. Upon receipt of the hearing officer's decision, the city clerk shall send a copy of it to the chief of police and the appellant, alongwith ith a proof of mailing. f. Within ten (10days from date of the city clerk's mailing of the decision, either party may appeal the decision to the city manager. The appeal shall be in writing and filed with the city clerk, and shall state the grounds of the appeal and specify the errors in the hearing officer's decision. Upon receipt of the appeal, the city clerk shall schedule the appeal for review by the city manager to occur within thirty days. g. The city manager's review of the appeal shall be limited to determining whether the evidence received at the appeal hearing_ supports the findings and decision of the hearing officer. The city manager shall be limited to considering the evidence presented at the appeal hearing. No public hearing shall be required and no new evidence shall be taken by the city manager. The city manager's decision on the appeal shall be set forth in a written opinion. The city clerk shall mail a copy of the city manager's _opinion to the chief of police and the appellant along with a proof of service. Any legal action challenging the city manager's decision shall be filed within ninety (90) days of the date of the proof of service of mailing of the citmanager's opinion, pursuant to Section 1094.5. et sea.. of the California Code of Civil Procedure. The citv manager's decision shall be final and effective upon mailing of the opinion. If the appellant prevails following a final decision, the appeal fee shall be returned. K. Application to Existing Businesses. 1. All requirements set forth in this chapter are deemed to be necessary for the protection of the public health, safety, and welfare and shall be applicable to and govern all existing and proposed tobacco shops immediately upon the date the ordinance is codified in this chapter, and shall become effective. Section 13. Section 5.24.030 (Definitions) of Chapter 5.24 (Licensure of Tobacco Retailers) of Title 5 (Business Licenses and Regulations) of the Temecula Municipal Code is hereby amended to add a definition for "chief of police" to read as follows with all other provisions of Section 5.24.030 remaining unchanged: "Chief of police" means the head of the agency or division which at the time involved has responsibility for performing the police function for, or within, the city, or his or her designee. Section 14. Subsection E of Section 5.24.040 (Tobacco license prerequisite — Application process) of Chapter 5.24 (Licensure of Tobacco Retailers) of Title 5 (Business Licenses and Regulations) of the Temecula Municipal Code is hereby amended to read as follows (with deletions appearing in strikethrough text and additions appearing in underlined text) with all other provisions of Section 5.24.040 remaining unchanged: E. All applications shall be submitted on a form supplied by the eity managef chief of op lice and shall contain the following information: 1. The name, address, email, website, and telephone number of each proprietor; 24 2. The business name, address, email, website, and telephone number of the single fixed location for which tobacco retailer's license is sought; 3. The name and mailing address authorized by each proprietor to receive all license - related communications and notices (the "authorized address"). If an authorized address is not supplied, each proprietor shall be understood to consent to the provision of notice at the business address specified in subsection (E)(2) of this section; 4. Proof that the location for which a tobacco retailer's license is sought has been issued a valid state tobacco retailer's license by the California Board of Equalization; 5. Whether or not any proprietor is a person who has been determined to have violated this chapter or has been a proprietor at a location that has been determined to have violated this chapter and, if so, the dates and locations of all such violations; 6. Such other information as the chief of police deems necessary for the administration or enforcement of this chapter; Section 15. Subsection B of Section 5.24.050 (License Issuance — Standards) of Chapter 5.24 (Licensure of Tobacco Retailers) of Title 5 (Business Licenses and Regulations) of the Temecula Municipal Code is hereby amended to read as follows (with deletions appearing in strikethrough text and additions appearing in underlined text) with all other provisions of Section 5.24.050 remaining unchanged: B. Upon the receipt of an application for a tobacco retailer's license and the license fee, the chief of police shall issue a license unless substantial record evidence demonstrates that one of the following bases for denial exists: 1. The application is incomplete or inaccurate. 2. The application seeks authorization for tobacco retailing at a location for which a prohibition on issuing licenses is in effect pursuant to Section 5.24.100(B) of this chapter. However, this subsection shall not constitute a basis for denial of a license if the applicant provides the city with documentation demonstrating by clear and convincing evidence that the applicant has acquired or is acquiring the location or business in an arm's length transaction. 3. The application seeks authorization for tobacco retailing for a proprietor for which a prohibition on issuing licenses is in effect pursuant to Section 5.24.100(B) of this chapter. 4. The application seeks authorization for tobacco retailing that is prohibited pursuant to subsection A of this section, that is unlawful pursuant to any other city chapter, or that is unlawful pursuant to any other local, state, or federal law. Section 16. Item 1 of Subsection B of Section 5.24.090 (License Violation) of Chapter 5.24 (Licensure of Tobacco Retailers) of Title 5 (Business License and Regulations) of the Temecula Municipal Code is hereby amended to read as follows (with deletions appearing in strikethrough text and additions appearing in underlined text) with all other provisions of Section 5.24.090 remaining unchanged: 25 B. License Compliance Monitoring. 1. Compliance with this chapter shall be monitored by the chief of police. Any peace officer may enforce the provisions of this chapter. Section 17. Subsection C of Section 8.36.030 (Prohibition of smoking in public places, places of employment and other areas.) of Chapter 8.36 (Smoking in Public Places of Title 8 (Health and Safety) of the Temecula Municipal Code is hereby amended to read as follows (with deletions appearing in strikethrough text and additions appearing in underlined text): C. Unless otherwise prohibited by law, smoking is permitted in the following locations: store; 12. By performers during theatrical productions, if smoking is a part of the theatrical production; 2-3. Private residential property, except when designated as nonsmoking under Chapter 17.30 of this code or used as a childcare or health care facility subject to licensing requirements and children, patients, or employees are present; 34. Up to twenty -€rye 20 percent of hotel and motel guest rooms, if the hotel or motel permanently designates particular guest rooms as nonsmoking rooms such that eightX seventy five 80 or more of its guest rooms are nonsmoking and ashtrays and matches are permanently removed from such nonsmoking rooms. Permanent "no smoking" signage shall be posted in nonsmoking rooms; 45. Outdoor dining areas of businesses operating under an on -sale license for public premises issued by the California Department of Alcoholic Beverage Control. Section 18. Table 17.08.030 (Schedule of Permitted Uses Commercial/Office/Industrial Districts) of Section 17.08.030 (Use Regulations) of Chapter 17.08 (Use Regulations) of Title 17 (Zoning) of the Temecula Municipal Code is hereby amended to read as follows (with additions appearing in underlined text): Table 17.08.030 Schedule of Permitted Uses Commercial/Office/Industrial Districts Description of Use NC I CC I HT I SCIPOIBPI LI T Tailor shop P P - - P - - Taxi or limousine service - P P P Tile sales - P - P - - - Tobacco shop C- _ P13 P 13 P 13 Notes: 13. Subject to the requirements contained in Section 5.24.120 of this code. Section 19. Table 17.22.106 (Schedule of Permitted Uses Pala Road Planned Development Overlay District -1) of Section 17.22.106 (Use Regulations) of Article 2. (Pala Road Planned Development Overlay District-1) of Chapter 17.22 (Planned Development Overlay 26 Zoning District (PDO-)) of Title 17 (Zoning) of the Temecula Municipal Code is hereby amended to read as follows (with additions appearing in underlined text): Table 17.22.106 Schedule of Permitted Uses Pala Road Planned Development Overlay District-1 Description of Use PDO-1 T Tailor shop P Taxi or limousine service P Tile sales P Tobacco sho 6 P Tool and die casting - Transfer, moving and storage Transportation terminals and stations - Truck rentals (no sales or/service) C TVNCR repair P Notes: 1. The CUP will be subject to Section 17.10.020(B), special standards for the sale of alcoholic beverages. 2. Subject to citywide antenna standards. 3. See Section 17.10.020(L), special standards for indoor swap meets. 4. See Section 17.10.020(N ), special standards for self -storage or mini -warehouse facilities. 5. Subject to the special setback provisions contained in Section 17.22.108. 6. Subject to the requirements of Section 5.24.120 Section 20. Table 17.22.136B (Schedule of Permitted Uses Temecula Creek Village Planned Development Overlay District -4) of Section 17.22.136 (Use Regulations) of Article V. (Temecula Creek Village Planned Development Overlay District-4) of Chapter 17.22 (Planned Development Overlay Zoning District (PDO-)) of Title 17 (Zoning) of the Temecula Municipal Code is hereby amended to read as follows (with additions appearing in underlined text): Table 17.22.136B Schedule of Permitted Uses Temecula Creek Village Planned Development Overlay District-4 Description of Use PD04R PDO-4V6 T Tailor shop P P Taxi or limousine service P - Tile sales P - Tobacco shopi P7 - Tool and die casting- - Transfer, moving and storage - Transportation terminals and stations - - 27 Table 17.22.136B Schedule of Permitted Uses Temecula Creek Village Planned Development Overlay District-4 Description of Use PDO-4R PDO-4V6 Truck rentals no sales or service - - TV/VCR repair P P4 Notes: 1. The CUP will be subject to Section 17.10.020(B) special standards for the sale of alcoholic beverages. 2. Subject to the requirements of Chapter 17.40 of the Temecula Municipal Code. 3. In PDO-4, all senior housing residential projects shall use the development and performance standards for the high density residential zone and the provisions contained in Section 17.06.050(H). 4. The size of the use or activity is limited to 5,000 square feet. 5. Outdoor entertainment in conjunction with an eating establishment is permitted provided that the outside noise levels do not interfere with off -site conversation. 6. Drive through facilities are not allowed in the village planning area. Retail/support commercial planning area is identified as PDO-4R. Village commercial planning area is identified as PDO-4V. Multifamily planning areas A and B use the high density column in Table 17.06.030. 7. Subject to the requirements of Section 5.24.120 Section 21. Severability. If any section or provision of this Ordinance is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, or contravened by reason of any preemptive legislation, the remaining sections and/or provisions of this Ordinance shall remain valid. The City Council hereby declares that it would have adopted this Ordinance, and each section or provision thereof, regardless of the fact that any one or more section(s) or provision(s) may be declared invalid or unconstitutional or contravened via legislation. Section 22. Certification. The Mayor shall sign and the City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same or a summary thereof to be published and posted in the manner required by law. Section 23. Effective Date. This Ordinance shall take effect thirty (30) days after passage. 28 PASSED, APPROVED, AND ADOPTED by the City Council of the City of Temecula this day of , ATTEST: Randi Johl, City Clerk [SEAL] 29 Zak Schwank, Mayor STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss CITY OF TEMECULA ) I, Randi Johl, City Clerk of the City of Temecula, do hereby certify that the foregoing Ordinance No. 2023- was duly introduced and placed upon its first reading at a meeting of the City Council of the City of Temecula on the 22nd day of August, 2023, and that thereafter, said Ordinance was duly adopted by the City Council of the City of Temecula at a meeting thereof held on the day of , , by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: 30 Randi Johl, City Clerk RESOLUTION NO.2023- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA ESTALISHING A TOBACCO SHOP PERMIT FEE THE CITY COUNCIL OF THE CITY OF TEMECULA DOES HEREBY RESOLVE AS FOLLOWS: Section 1. The City Council has the authority to establish application review fees. As such, the City Council has the authority to establish a fee for the review of Tobacco Shop Permit applications. Section 2. The City Council herby finds and determines that, based upon its review of the information and analysis of City Staff, the proposed establishes a reasonable fee for staff to conduct Tobacco Shop Permit application reviews. Section 3. The City Council herby approves the following fee schedule: Permit Type I Fee Tobacco Shop Permit — New Application $854.00 Tobacco Shop Permit — Renewal Application $346.00 PASSED, APPROVED, AND ADOPTED by the City Council of the City of Temecula this 22"d day of August, 2023. Zak Schwank, Mayor ATTEST: Randi Johl, City Clerk [SEAL] STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss CITY OF TEMECULA ) I, Randi Johl, City Clerk of the City of Temecula, do hereby certify that the foregoing Resolution No. 2023- was duly and regularly adopted by the City Council of the City of Temecula at a meeting thereof held on the 22"d day of August, 2023, by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: Randi Johl, City Clerk PC RESOLUTION NO.2023-14 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TEMECULA RECOMMENDING THAT THE CITY COUNCIL ADOPT AN ORDINANCE ENTITLED, "AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TEMECULA AMENDING TITLES 5, 8, AND 17 OF THE TEMECULA MUNICIPAL CODE TO (1) AMEND MASSAGE ESTABLISHMENT REGULATIONS, (2) ADD DEFINITIONS FOR TOBACCO SHOP, TOBACCO SHOP PERMIT AND UPDATE DEFINITIONS OF TOBACCO PRODUCT AND TOBACCO PARAPHERNALIA, (3) IMPLEMENT A TOBACCO SHOP PERMIT PROGRAM TO INCLUDE STRUCTURAL AND OPERATIONAL REQUIREMENTS, (4) UPDATE TOBACCO RETAILERS LICENSE PROCESSES, (5) AMEND REGULATIONS ON SMOKING IN HOTEL ROOMS, (6) REMOVE TOBACCO SHOP AS A CONDITIONALLY PERMITTED USE IN TABLE 17.08.030, (7) IMPLEMENT TOBACCO SHOP PERMIT REQUIREMENTS IN PLANNED DEVELOPMENT OVERLAY ZONING DESIGNATIONS 1 AND 4, AND (8) MAKE A FINDING THAT THIS ORDINANCE IS EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) PURSUANT TO CEQA GUIDELINES SECTION 15061 (B)(3)." Section 1. Procedural Findings. The Planning Commission of the City of Temecula does hereby find, determine and declare that: A. City staff identified the need to make revisions and clarifications to portions of Title 5 (Business Licenses and Regulations), Title 8 (Health and Safety), and Title 17 (Zoning) of the Temecula Municipal Code. B. The Planning Commission, at a regular meeting, considered the proposed amendments to Title 5 (Business Licenses and Regulations), Title 8 (Health and Safety), and Title 17 (Zoning) of the Temecula Municipal Code on July 19, 2023, at a duly noticed public hearing as prescribed by law, at which time the City staff and interested persons had an opportunity to, and did testify either in support or opposition to this matter. C. The proposed amendments to Title 5, 8, & 17 are consistent with the City of Temecula General Plan, and each element thereof. D. At the conclusion of the Planning Commission hearing and after due consideration of the testimony, the Planning Commission recommended that the City Council adopt the Ordinance attached hereto as Exhibit "A". E. All legal preconditions to the adoption of this Resolution have occurred. Section 2. Further Findings. In recommending adoption of the proposed Ordinance, the Planning Commission of the City of Temecula does hereby make the following additional findings as required by Section 17.01.040 ("Relationship to General Plan") of the Temecula Municipal Code: 1. The proposed use is allowed in the land use designation in which the use is located, as shown on the land use map, or is described in the text of the general plan. Of the 15 proposed amendments to Title 5 (Business Licenses and Regulations), Title 8 (Health and Safety), and Title 17 (Zoning) none propose any land use that is inconsistent with the Temecula General Plan. The changes to Title 17 include removing tobacco shop as a permitted use in Neighborhood Commercial Zoning District and add a note to the permitted use table in Planned Development Overlay Districts No. 1 and 4 related to tobacco shops. These changes are prohibiting land uses or imposing requirements on existing uses, rather than allowing a use where it was not previously permitted. All other proposed amendments are minor clarifications and typographical edits and do not propose any land use changes contrary to the adopted General Plan. 2. The proposed uses are in conformance with the goals, policies, programs and guidelines of the elements of the general plan. The proposed amendments to Title 17 of the Temecula Municipal Code do not propose any land use that is inconsistent with the Temecula General Plan. The majority of the Code Amendments do not create or allow new uses where they were not previously allowed. Only the revisions to the Neighborhood Commercial (NC) Zoning district impact the use of land. The Code Amendments would remove Tobacco Shop as a permitted use in the NC Zoning district only. The remaining proposed amendments to the Temecula Municipal Code are minor clarifications and typographical edits and do not result in a contrary policy direction or indicate an inconsistency between the Temecula Municipal Code and the adopted General Plan. 3. The proposed uses are to be established and maintained in a manner which is consistent with the general plan and all applicable provisions contained therein. The proposed amendments to Title 5, 8, and 17 of the Temecula Municipal Code do not propose any land use that is inconsistent with the Temecula General Plan. The proposed changes to massage establishments modify definitions and operational requirements, require notarized documentation for exempt massage facilities and the prohibition of pets furthers Policy 5.4 of the Economic Development Element of the Temecula General Plan, which is to "Monitor existing businesses and support small businesses and the business retention program to encourage local employment and growth of local businesses." Changes to tobacco regulations include modifying definitions, implementing an annual permit for tobacco shops to include operational requirements, and updating the number of designated smoking rooms is in compliance with Goal 3 of the Community Design Element of the Temecula General Plan which is to ensure "Preservation and enhancement of the positive qualities of individual districts or neighborhood." All other proposed amendments are clarifications and typographical edits and do not propose any land use changes contrary to the adopted General Plan. Section 3. Environmental Compliance. In accordance with the California Environmental Quality Act, the proposed Ordinance is exempt from the requirements of the California Environmental Quality Act ("CEQA") pursuant to Title 14 of the California Code of Regulations, Section 15061 (b) (3) because it can be seen with certainty that there is no possibility that the Ordinance will have a significant effect on the environment. The Municipal Code amendments are minor policy changes, changes required by state law, and the imposition of regulations on existing uses and will not increase the intensity or density of any land use. The Planning Commission, therefore, recommends that the City Council of the City of Temecula adopt a Notice of Exemption for the proposed ordinance. Section 4. Recommendation. The City of Temecula Planning Commission hereby recommends the City Council approve Planning Application No. LR23-0050, a proposed Citywide Ordinance as set forth on Exhibit "A", attached hereto, and incorporated herein by this reference. PASSED, APPROVED AND ADOPTED by the City of Temecula Planning Commission this 19th day of July 2023. v I Wow; mw) 7PA PRA Chair ATTEST: Luke Watson Secretary [SEAL] STATE OF CALIFORNIA COUNTY OF RIVERSIDE ) ss CITY OF TEMECULA } I, Luke Watson, Secretary of the Temecula Planning Commission, do hereby certify that the forgoing PC Resolution No. 2023-14 was duly and regularly adopted by the Planning Commission of the City of Temecula at a regular meeting thereof held on the 19th day of July, 2023, by the following vote: AYES: 4 PLANNING COMMISSIONERS: Hagel, Solis, Turley-Trejo, Watts NOES: 0 PLANNING COMMISSIONERS: None ABSTAIN: 0 PLANNING COMMISSIONERS: None ABSENT: 1 PLANNING COMMISSIONERS Ruiz .1 Luke Watson Secretary ORDINANCE NO.2023- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TEMECULA AMENDING TITLES 5, 8, AND 17 OF THE TEMECULA MUNICIPAL CODE TO (1) AMEND MASSAGE ESTABLISHMENT REGULATIONS, (2) ADD DEFINITIONS FOR TOBACCO SHOP, TOBACCO SHOP PERMIT AND UPDATE DEFINITIONS OF TOBACCO PRODUCT AND TOBACCO PARAPHERNALIA, (3) IMPLEMENT A TOBACCO SHOP PERMIT PROGRAM TO INCLUDE STRUCTURAL AND OPERATIONAL REQUIREMENTS, (4) UPDATE TOBACCO RETAILERS LICENSE PROCESSES, (5) AMEND REGULATIONS ON SMOKING IN HOTEL ROOMS, (6) REMOVE TOBACCO SHOP AS A CONDITIONALLY PERMITTED USE IN TABLE 17.08.030, (7) IMPLEMENT TOBACCO SHOP PERMIT REQUIREMENTS IN PLANNED DEVELOPMENT OVERLAY ZONING DESIGNATIONS 1 AND 4, AND (8) MAKE A FINDING THAT THIS ORDINANCE IS EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) PURSUANT TO CEQA GUIDELINES SECTION 15061 (11)(3) THE CITY COUNCIL OF THE CITY OF TEMECULA DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Procedural Findings. The City Council of the City of Temecula does hereby find, determine and declare that: A. City staff identified the need to make minor revisions and clarifications to portions of Title 5 (Business Licenses and Regulations), Title 8 (Health and Safety), and Title 17 (Zoning) of the Temecula Municipal Code. B. The code amendments are being made to address operational concerns surrounding massage establishments, implement a new permit for tobacco shops to include operational standards, and remove tobacco shop as a conditionally permitted use in the neighborhood commercial zoning district. In addition, the ordinance updates the number of permitted smoking rooms allowed in hotels in accordance with changes in state law. Finally, the code amendment makes minor typographical edits to the code. C. As required by State law, the Planning Commission considered the proposed amendments to Title 17 (Zoning) of the Temecula Municipal Code ("Ordinance") on July 19, 2023, at a duly noticed public hearing as prescribed by law, at which time the City staff and interested persons had an opportunity to and did testify either in support of or opposition to this matter. 1 D. At the conclusion of the Planning Commission hearing and after due consideration of the testimony, the Planning Commission adopted PC Resolution No. 2023-14, recommending that the City Council approve the code amendments. E. The City Council, at a regular meeting, considered the Ordinance on August 22, 2023, at a duly noticed public hearing, as prescribed by law, at which time the City Staff and interested persons had an opportunity to and did testify either in support or opposition to this matter. F. Following the public hearing, the City Council considered the entire record of information received at the public hearings before the Planning Commission and City Council. Section 2. Further Findings. The City Council, in approving the proposed Ordinance, hereby makes the following additional findings as required by Section 17.01.040 ("Relationship to General Plan") of the Temecula Municipal Code: 1. The proposed uses are allowed in the land use designation in which the use is located, as shown on the land use map, or is described in the text of the general plan. The proposed changes to Title 17 include removal of tobacco shop as a permitted use in Neighborhood Commercial Zoning Designation and requiring Tobacco Shops in Planned Development Overlay (PDO) districts No. 1 and 4 to adhere to the new requirements of a Tobacco Shop Permit. These changes are prohibiting land uses or imposing requirements on existing uses, rather than allowing a use where it was not previously permitted. All other proposed amendments are minor clarifications and typographical edits and do not propose any land use changes contrary to the adopted General Plan. 2. The proposed uses are in conformance with the goals, policies, programs and guidelines of the elements of the general plan. The proposed amendments to Title 17 of the Temecula Municipal Code do not propose any land use that is inconsistent with the Temecula General Plan. The majority of the Code Amendments do not create or allow new uses where they were not previously allowed. Only the revisions to the Neighborhood Commercial (NC) Zoning district impact the use of land. The Code Amendments would remove Tobacco Shop as a permitted use in the NC Zoning district only. The remaining proposed amendments to the Temecula Municipal Code are minor clarifications and typographical edits and do not result in a contrary policy direction or indicate an inconsistency between the Temecula Municipal Code and the adopted General Plan. 3. The proposed uses are to be established and maintained in a manner which is consistent with the general plan and all applicable provisions contained therein. The proposed amendments to Title 5, 8, and 17 of the Temecula Municipal Code do not propose any land use that is inconsistent with the Temecula General Plan. The proposed changes to massage establishments modify definitions and operational requirements, require notarized documentation for exempt massage facilities and the prohibition of pets furthers Policy 5.4 of the Economic 0a Development Element of the Temecula General Plan, which is to "Monitor existing businesses and support small businesses and the business retention program to encourage local employment and growth of local businesses." Changes to tobacco regulations include modifying definitions, implementing an annual permit for tobacco shops to include operational requirements, and updating the number of designated smoking rooms is in compliance with Goal 3 of the Community Design Element of the Temecula General Plan which is to ensure "Preservation and enhancement of the positive qualities of individual districts or neighborhood." All other proposed amendments are clarifications and typographical edits and do not propose any land use changes contrary to the adopted General Plan. Section 3. Environmental Findings. The City Council hereby finds that this Ordinance is exempt from the requirements of the California Environmental Quality Act ("CEQA") pursuant to Title 14 of the California Code of Regulations, Section 15061(b)(3) because it can be seen with certainty that there is no possibility that the Municipal Code amendments would have a significant impact on the environment. The Municipal Code amendments are minor policy changes, changes required by state law, and the imposition of regulations on existing uses and will not increase the intensity or density of any land use. A Notice of Exemption has been prepared and will be filed in accordance with CEQA and the State CEQA Guidelines. Section 4. Section 5.22.020 (Definitions) of Chapter 5.22 (Massage and Massage Establishments) of Title 5 (Business License and Regulations) of the Temecula Municipal Code is hereby amended to amend the definition of "Massage" as follows (with additions appearing in underlined text), with all other provisions of Section 5.22.020 remaining unchanged: "Massage" means the scientific manipulation of the soft tissues of the human body. "Massage" includes bodywork such as reiki, trigger point, hiatsu, cupping and lymphatic drainage. Section 5. A new Item 5.22.040.A.1 is hereby added to Subsection 5.22.040.A of Section 5.22.040 (Massage Establishment Permit Required) of Chapter 5.22 (Massage and Massage Establishments) of Title 5 (Business License and Regulations) of the Temecula Municipal Code (with additions appearing in underlined text), with all other provisions of Section 5.22.040 remaining unchanged: A. It is unlawful for any person to engage in, operate, conduct or carry on, in or upon any premises, a massage establishment without first obtaining a massage establishment permit pursuant to this chapter, securing the necessary business license as required by this code, and complying with Title 5 of this code. A separate permit shall be obtained for each separate massage establishment operated by such person. 1. Massage establishments include facilities that provide Reiki, Trigger Point, Shiatsu, Cupping, Lymphatic Drainage and any other activity that meets the definition of massage. as defined in Section 5.22.020 of this code. Professionals of such massage practices or any activity that meets the definition of massage as defined in Section 5.22.020 of this code shall be CAMTC certified in accordance with Section 5.22.030 of this code. Section 6. Item 5.22.090.A.1 of Subsection 5.22.090.A (Requirements applicable to the operation of outcall services) of Chapter 5.22 (Massage and Massage Establishments) of Title 5 (Business License and Regulations) of the Temecula Municipal Code is hereby amended to read as follows (with additions appearing in underlined text), with all other provisions of Section 5.22.090 remaining unchanged: A. Outcall Massage. No person shall provide outcall massage in the city unless all of the following requirements are met: 1. The appointment for the outcall massage is performed only under aphysician's written recommendation or order and the appointment was made by a massage establishment in good standing under this chapter and the massage professional is employed by the same massage establishment. Section 7. A new Subsection "28" (Pets) is hereby added to Subsection B (Operations) of Section 5.22.080 (Requirements applicable to the operation of massage establishments.) of Chapter 5.22 (Massage and Massage Establishments) of Title 5 (Business License and Regulations) of the Temecula Municipal Code to read as follows (with additions appearing in underlined text), with all other provisions of Section 5.22.080 remaining unchanged: 28. Pets. No pet(s) or live animal mascots. reg rdless of species. shall be allowed on site of any massage establishment, except for a working "service animal" as defined in Section 6.04.010 of this code. Section 8. Subsection 5.22.120A.I (Exemptions) of Chapter 5.22 (Massage and Massage Establishments) of Title 5 (Business License and Regulations) of the Temecula Municipal Code is hereby amended to read as follows (with deletions shown in strikethrough text and additions appearing in underlined text), with all other provisions of Section 5.22.120 remaining unchanged: A. This chapter shall not apply to the following individuals or businesses while engaged in the performance of the duties of their respective professions: 1. Personsholding n al-rd eei4ifie to t.-.... aetiee !he ..Wal,iig afts under the laws of the steate of Cie=,ia. i,zc-luding. but jiet limited to,-helde nedi,.�grees. stieli as pPhysicians, surgeons, chiropractors, osteopaths, and per -sons the-r- medical professionals and other persons holding a valid certificate tc practice the healing arts, except liar CANI C-certified massage thejmULs:[s, working under their direct supervision who are working at the same location as the licensed person, provided such professionals are performing massage, as defined in this chapter, at a licensed business as part of, and to the extent permitted by, their respective professions. Direct supervision, as used in this subsection. requires persons holding a valid certificate to practice the healing arts under the previsions of Division 2 (commencing with Section 500) Business and Professions Code to be aesent at the office of the business establishment and immediately -available to furnish assistance and direction throe hoot the performance or the massa e. The supervising medical professional is required to be physical present on site. The IR rCq aired presence does not include virtual presence through audio/video real -t-time coiizmunications technology; Section 9. A new subsection "C" (Affidavit) is hereby added to Section 5.22.120 (Exemptions) of Chapter 5.22 (Massage and Massage Establishments) of Title 5 (Business License and Regulations) of the Temecula Municipal Code to read as follows (with additions appearing in underlined text), with all other provisions of Section 5.22.120 remaining unchanged: C. Affidavit. All persons holding a valid certificate to practice the healing arts under the laws of the state of California who operate an exempt massage facility as defined by Sectiop 5.22.120 of this code shall provide a notarized affidavit attesting that all massage treatments performed are under their order or direction and that they will remain on site during all such treatments. Such persons must assure that all assistants, students or aides do not function autonOMOUsly. - Section 10. A new Section 5.22.155 (Violation Summary) is hereby added to Chapter 5.22 (Massage and Massage Establishments) of Title 5 (Business License and Regulations) of the Temecula Municipal Code to read as follows: 5.22.155 Violation and Penalty Table. Table 5.22.155 - Violation Summary' Level 1 VIOLATIONS Code Section Per TMC 5.22.140(B){1) - Any violation of the provisions below are rounds to revoke a Massage Establishment Permit 5.22.070(C)(1)(a) Applicant or any officer/director of a corporation operating a massage establishment has been convicted of anythat requires registration with any _crime level of governinent or a red E1cy similar to and inchiding Penal Code Section 290 o?- involves conduct that violates airy law similar to avid includingPeital Code Sections 266(h), 266(i), 314, 3 15,316 318, 647 (a), (b), or (d), 653.22, 653.23 or aiV crime settled in a plea to violations of Penal Code Section 415, 602 or aiw lesser included or related offense. 5.22.070tC)(.1)(b) Applicant or any officer/director of a corporation operating a massage establishment has been convicted of a Health and Safe Code Section 11550 eaffeitse or arty offense involving the illegal sale, distribution or possessioq of a euiitrol led substance specified in flealth and Safety Code Sections 11054. 1 1055. 1 1056, 11057 or 11058. 5.22.070(C)(1)(c) Applicant or any officer/director of a corporation operating a nlassag� establishment has engaged in conduct in another_iw•isdiction which, if it had occurred_ within the City, would constitute Q'OUnds for denial or revocation under this chapter. 5.22.070(� 1)(d) Applicant or any officer/director of a corporation operating a massage establishment has been subiccted to a permanent injtnietion against [lye condtictin or maintaiEtingof a iiiiisattce pursuant to Penal Code Sections 1 1225 tltrotigli 1 1235 or any similar provisions of law in a jurisdiction outside the state of California 5.22.070(C)(I)(e) Applicant or ma officer/director of a corporation operating a massage establishment has engaged in conduct in any state or country which would constitute an offense as described in subsection 5.22.070 I a orb of this section 5.22.070(C)(1)(f) Applicant or any officer/director of a corporation operating a massage establishment has been convicted of an act involving theft, dishonesty, fraud, deceit or moral turpitude or an act of violence, which act or acts are related to the C]llalitiCation5, functions or duties of the operator of massage establishment, ar which act or acts occurred in connection_ with the operation of massage establishment 5.22.070(C)( I )fg) nJpal ant or any officer/director of a Corporation O erp ating a nlasSM establishment is registered under Penal Code Section 290 or any similar law in any. state or olher 'urisdicti w 5.22.070(C)(1)(11) ADD licant or any officer/director of a car orb atio�a z�perating a massage establishment has had a massage estahlishinent permit, or other similar Iicense or perm it denied, --suspended or revoked for cause by any governmental authorit . 5.22.070(C)(I )(i) �licant or any officeildirector of a car�oraiivn rating inassae establishinent has had any massage therapist or massage practitioner permit. license, or certification denied revoked or suspended bytheCAMTC. 5.22.080(B)(5) No person or„persons shall be allowed to live inside the massage establishment at any time. Beds, mattresses, waterbeds, futons, sofa beds, or any type of portable or convertible beds are not permitted on the remises. 5.22 080t13](7) No pursr�n shall enter, he in or remain in any part of a massage estahlishment while_ in possession of, consuming, using or under the influence of any alcoholic beverage, recreational drugs or controlled substance. The operator and on -duty manager shall be respansbie to_ eaisure that no such person shall enter or remain upon the massage establishment. Service of alcoholic beverages_or recreational drugs shall not be allowed. 5.22.080(B)(8) No contraceptive devices; i.e., condoins or other prophylactics, or sexual devices, the prutiary urpose of which is for sexual stimulation. shall be sold, utilized, or allowed on the remises or possessed by any employee while on the prermses. 5.22.080( )(20) No massage professional or any person ern toyed by the massage establishment. includin ig ndependent contractors, may engage in acts that a reasonable person in the client's perspective, would be understood as an offer to perform or engage in with a client, acts that are sexual in nature, nor shall any massage professional or 91W-person employed by the massage establishment. massage tliegenitals or anal area of any patron, nor shaI I any operator or manager al low or permit such massage. An operator must comply with Business and Professions Code Section 4609(a) relating to sexual acts. including not allowing inassMe professionals to engage in any form of sexual activity on the premises of the massame establishment, or to engage in sexual activity while providing massage for compensation. A massage professional may only provide massa e of female breasts with written consent of the person receiving the massage and a referral from a licensed California health care provider. This section is not intended to prohibit any massage techIlique recognized by CAMTC as legitimate, or to impose any specific restriction or professional practice beyond those set forth in Business and Professions Code Section 4609(a). No operator, manager or employee while performing my task _or service associated with the massage business shall be present in any room with another person. unless the person's genitals, gluteal crease anus and in the case of a female her breasts are fully covered. 5.22.080(B)(21) A massage professional may not wear attire that is transparent, see -through, �, or substantially exposes the massage professional's undergarments or that exposes his or her breasts, buttocks or genitals, or that in any way willfully and lewd exposes his or her private parts in any that is in public or where there are ether peo le )j-cscnt who inay he offended or annoyed by such_aetioti. Swine attire may not be worn unless the massage professional is providing a water -based massage modality approved by the CAMTC. A massage professional shall not wear any clothingthat is deemed by the CAMTC to constitute unprofessional attire. All employees of the massage establishment that are not massage professionals shall also adhere to these clothin ► requirements. 5.22.140(B)( I )(a) The massa eg establishment is employing a massage therapist that does not hold a valid CAMTC license. 5.22.14Q B 1 d Alcoholic beverage or recreational dai s are found on -site. 5.22.140(B)(1)(e) The massagg establishment has violated any provision of Business and Professions Code Section 4600 et se 5.22.140(B)(1)(f) The chiefof_p:olice determines that the massage establishment's operations constitute an immediate threat to the ublic health and salet . Level 2 VIOLATIONS Code Section 11'et- 'I'MC 5.22.140(13)(2) - Any three violations in a 12 month period of the provisions below are grounds to revoke a Massage Establishment Permit 5.22.080(A)(1)(a) Massage estahli.shments shall be. located in a zoning district which permits'snch use. When a new massage establishment is pMposed to be constructed, a set of tans shall be submitted to the_ city for ap roval and shall be accompanied by the a ra riate application and plan check fee. 5.22.080(A)(1)(b) No massage establishment located in a buildhig ❑r structure with exterior windows frontingal2ublic street. highway, walkway, or ap rking area, shall. during business hours, block visibility into the interior reception and waiting area through the use of curtains, closed blinds, or any other material that obstructs, blurs or darkens the view into the remises. 5.22.080(A)(2) Neither signs nor the front of the business shall be illuminated by strobe, flashing fights or string lights. Each operator andlor on -duty manager shalI display [lie massa a establishment permit in a conspicuous u�7 blic place in the lobby of the massage establishment. In addition, each operator and/or on -duty mana eg r shall ensure: (a) CAMTC Certificates for each massage professional employed at the establishment (whether on -duty or not) are conspicuously displayed in the lobby area of the massage establishment; and (b). that each massage. pipfeLsional has his or her identification card in his or her possession while providing, tnassag;e services for com ensation. 5.22.080(A)(3) Services list. Each operator shall post and maintain a list of services available and the cost of such services, in a conspicuous public place within the premises. No owner, manager or operator shall permit, and no ntassai a .rofessional shall offer or perform,_any service other than those posted, nor shall all ooperator or a massage professional request or charge a fee for any service other than those on the list of services available and posted in the reception area or rovided to the client in advance of aily outcall services. 5.22.080(A)(4) Each operator shall illuminate each room or area where massage is performed with light equivalent to a minimum of forty -watt incandescent light bulb, and shall provide sufficient ventilation. Such lighting and ventilation shall otherwise com I with the current mechanical and building code of the city. The lightiiig_,in each massage room shall be activated at all tinges while the patron is in such room or area. 5.22.080(A)(5) A minimum of one toilet and one separate wash basin shall be provided for patrons in each massage establishment. Each wash basin shall be equipped with soap or detergent and hot running water' at all_tintes and shall be located in close proximity to the area devoted to the performing of massage services. A permanently installed soap dispenser, filled with soap, and a single service towel dispenser or hand air dryer shall be provided at the restroonl hand wash sink. Bar soap shall not be used. A trash receptacle shall be provided in each toilet_room. Showers may be provided at theoperator's o tion. 5.22.080(A)(6) If male and female patrons are to be treated simultaneously at the same massage establishment-s_eRrate massage rooms shall be provided for male and female patrons provided, however. that massage establishments having separate massage rooms for male and female patrons may provide "couples massage" in a single room sub'ect to the re uirements of this subsection. Cou Ies massa e i.e. concurrent massage of two persons, is permitted within one room provided all other requirements ofthis chapter are satisfied 'ineIudin,:, but not limited to, provision of separate massage table and massage professional for each customer. Any room to be used for couples massage shall be Sufficiently sized so as to coijjplly with any and all applicable building and fire codes and to hermit free passage and movement of the massa e professionals. 5.22.080 A 7 All facilities of the massage establishment must be in &pod rel2gir and sllall tare thoroughly cleaned and sanitized each day the business is in operation. All walls, floors and ceilings of each restroom and shower area, if any, shall be made of washable mold -resistant surfaces. 5.22.080(A)(8) A massage table shall be provided in each massage room and the massage shall be performed on this massage table. The tables shall have a minimum Ilei hg t of twenty-eight inches. Two-inch thick foam pads with maximum width of four feet may be used on a massage table and must be covered with durable, washable plastic or other waterproof material, Beds .floor mattresses and waterbeds are not permitted on the premises. 5.2 08a.CB)L} Each operator and/or on duly manager shall provide and maintain on the premises ode uate e ii ment for disinfecting and sterilizing instruments used in massa e. 5.22.080 B 3 _ Common use of towels or linen shall not be permitted. Towels and linen shall be laundered or changed promptly after each use. Separate cabinets or containers shall be provided for the storage ofclean and soiled linen and towels, and such cabinets or containers shall be pjainly marked: "clean linen" and "soiled linen." 5.22.080(B)(4) Eacli niassage estab I i sh me n I and/or massage professional shall Provide alld maiutaul at the location where the massage is performed adequate equipment for disinfecting and sterilizing instruments used in massage. Instruments utilized in performing massage shall not be used on more than one client unless they have been sterilized, Ming approved sterilization methods. 5.22.080(B)(6) No food of any kind shall be cooked or prepared in a massage establishment. No fop ol'any kind shall be For sale or sold in the establishment. 5.22.080 B 9) ��(— No electrical, mechanical or artificial device shall be used by the operator or any Gn,�loxee of the massage establishment for audio and/or video recording or for 11.1Mlitorin rg the performance of a massage or the conversation or other sounds in the massage rooms without the written consent of thepatron. 5.22.080(B)(10) The operator aandlor manager of the massage establishment shall maintain a roster of all elllp oyees, including operators, managers and massage pl�OfessionaI$, showing each name, nickname and al ias, home address, age, birth date, gender, height, weight, color of hair and eyes, plione number, Social SeCUrijxNumber CAMTC certificate number, date of employment, and duties of each employee. Tliefaregoing roster and all information therein shall be maintained on the premises For a period of two gears following the termination of each employee. !1 on consent or upon obtaining an applicable warrant, the operator or manager on duty shall make the roster immediately available for inspection during all hours the massage establishment is open for business. Information in the roster shall be available for inspection only to city or police department representatives while performing official duties. it is unlawful for massage establishment to ern Mkt u or retain an person to provide massa for com�ensatinn, or to allow aEly_persan tc� provide massage for compensation on the premises of a massage establishment, unless that person is listed as a massage professional on the massajze permit issued )lrsuant to this cha ter. 5.22.080(B)(1 1 The massage professional shall provide to each patron clean, sanitary and opaque coverings ca able of covering areas of the patron identified as prohibited massage Areas including the gCtittal a!'ea, anus and felllale breasts Re -use or such coverings is prohibited unless ade uatel cleaned and sanitized. 5.22.080 B 12 Every person operating a massage establishment shall keep a record of the dates and hours of each treatment or service provided, Elie [tame and address of the patron, the name of massa gc professional administering such service and a des cri tion oFthe treatment or service rendered. 5.22.080(B)(13) The owner must advise the ci-, in writii g. at the lime ohapplicalio[t For a Perinit of the business hours, and any change in hours occun'ing thereafter. No m soll shall operate a massage establishment or administer a massage in any massage establishment or at an outcall location booked by that massage establishment between the hours of nine p.m. and seven a.m. All massages must terminate by nine p.m., regardiess_of the start time. All customers patrons and visitors shall be excluded from the massage establishment durins these !lours and be advised of these hours. The hours of operation must be displayed in a conspicuous public place in the lobby within the massage establishment and in the front window clearly visible from the outside. It -is the obligation and responsibility of the massage establishment to in form clients of the re a irement that a[l massage service must cease §y nine p.m. 5.22.080(B)(14) No permitted !Massage ostablisllnlenl shall place, publish or distribute,_or cause to be placed. _published or distributed, in any publication or any website,_afty advertising that depicts any portion of the human body that would reasonably su T e€�g st to prospcc__ tiyE g ons_that any service is available other than those services authorized by the Massage Therms Act and pursuant to this chapter. No massage establishment shall employ language in the text of such advertising that would reasonably suggest to a prospective patron that any service is available other than those services authorized by this chapter. The massage establishment shall ensure that it and all certified massage proressi.onals comply with Business and Professions Code Sections 4608, 4609 and 4611. by requiring the massage professionals to include the name under which he or she is certified and his or her certificate number in any and all advertising of massage for compensation, to not engage in sexually suggestive advertising related to massage services, to not hold him or herselfout as a certified massage professional, or use terms such as "licensed" or "certified," that implies that an uncertified person is certified as a massage professionals to not falsely state or advertise or put out a{y siga or card, or to falselypresent to the public, that any individual is licensed, certified, or registered as a massage professional if that individual is not so certified by the CAMTC. 5.22.080(B)(15) No operator or manager shall engage in. conduct or carry on the business of a massage establishment unless there is on file with the police department, in full force and effect at all times, documents issued by an insurance company authorized to do business in the state of California evidencing that the permit holder is insured under a liability insurance_ policy providing minimum coverage of one million dollars forinjury or death to one person arising out of the _personal operation of the massage establishment and/or the administration of any, massage. Evidence of the re aired insurance shall be provided to the chief of police at the time an initial application, or renewal application, is filed. 5.22.080(B)(16) All massage establishments must comply wwith all state and federal laws and regulations providing for access to and receipt of services by disabled 2ersons. 5.22.080(B)(17) All front, reception, hallway .or front exterior doors (except back or exterior doors used solely for employee entrance to and exit from the massage establishment shall be unlocked during business hours, except as may be permitted by applicable law (such as the Temecula Fire Code) which allow for safer doors that maybe opened from the inside when Iocked. No mass"a may be erformed within an cubicle, room, booth or any other area within a massage establishment is fitted that with a lock of any kind ind (such as a locking doorknob, padlock, dead bolt sliding bar or similar device), unless the door is an exterior door. No entr doors to an room shall be obstructed by any means. The requirement that an exterior door must remain unlocked at all times does not applyto any massage establishment owned by one individual with one or no employees or independent contractors. 5.22.080 B i 8 No person shall be permitted to be within a massage estabIishmejit gxctpt within the lobby or reception area, or area where a customer is receiving passage services, during hours of operation, unless that person has been disclosed to the city as re aired under this chapter, includin Section 5.22.060(A)(5). 5.22.080(B)(19) No massage establishment may discriminate or exclude patrons on the basis of their race sex religion, age, disability or any other classification protected under rederal or state laws rules or regulations. 5.22.080(B)(22) The operator and on duty manager shall be jointly responsible for the conduct of all employees while the employees are on the premises of the massage establishment. Any act or omission of an employee constituting a violation of any, provision of this chapter shal I be deemed to be an act or omission of the operator and on duty manager for purposes of determining whether the massa e establishment permit should be revoked, or an application for such permit or renewed thereo�_dBklleil, 5.22.080(B)(23) No operator or manager sllall employ ant' person as a massage professional who does not hold a CAMTC Certificate. Eveiy operator or manager shall report to the chief of police any change of employees, whether by. new or renewed em In men discharge or termination, on the form and in the manner required by the chief of police_ The report shall contain the name of the employee and the date of hire or termination. The report small be made within ten business days of the date of hire or termination. Theoperator and manager must notify the chief of police 10 in�tnediarElY upon the mass ap,a estabIislimem's notice of any disciplinary action taken by the CAMTC regard iigone ofthe establishment's massage professionals and submit a co of the notice: or order. This provision retdres reporting to the chief of pollee, even if the o,peratoror nianaaer believes that else clliet�of 11olice Itas or %%gill receive the information fi•om anotlier source. 5.22.080(B)(24 No massage establishment shall o_Wrate as a school ofrnassaV, or use the same facilities as that of a school of rnassa e. 5.22.080(B)(25) oration of massage establishment without a garalified immager' being pr•esem at all times that the rnassa rc establishment is o en for business is roliibitcd, 5.22.080(B (� Each operator and on -duty ny tanager shall at all times comply with all provisions of this cliapter and all other applicable provisions of the Temecula Murt!ici all Code. all conditions of any required zoninW approvals, conditions imposed by the Chief of police, and all state and federal laws, statutes and regulations, and shall provide roof of cornliance upon request by the police department. 5.22.080(B)(27) Eas h massaye establishment shall have and maintain a dedicated telecommunication device physically at the business location with an assigned telephone number capable of receiving iiicorniiig calls and dialing out to g2Lergeiiqj services specifically 911. 5.22.080(B)(28) No pet(s) or live animal mascot0, regardless of species, shall be allowed on site of any massage establishment, the only exemption shall be a working "service animal" as defined in Section 6.04.010 of this code. ' This is a summary of violations only. Please see the referenced code sections for complete details an omission from this table does not remove the burden of com liiancc. Section 11. Chapter 5.24 is hereby renamed as "Licensure of Tobacco Retailers and Tobacco Shops". Section 12. Section 5.24.030 (Definitions) of Chapter 5.24 (Licensure of Tobacco Retailers) of Title 5 (Business Licenses and Regulations) of the Temecula Municipal Code is hereby amended to add definitions for "Tobacco Shop" and "Permit" and to revise the definitions for "Tobacco paraphernalia" and "Tobacco product" to read as follows (with additions appearing in underlined text) with all other provisions of Section 5.24.030 remaining unchanged: "Tobacco Shop" means anv premises dedicated to the disolay. sale. distribution. deliverv. offerin furnishing, or marketing of tobacco, tobacco products, tobacco accessories, or tobacco paraphernalia, including all non -tobacco products that contain nicotine. Any premises that dedicates more than 10 percent of its floor space exe I ud i ng bathrooms kitchens breakrooms and other exclusive employee use common areas) to tobacco products, tobacco accessories or tobacco paraphernalia_ shall be considered a "Tobacco Shop" for purposes of this chapter. If a premises dedicates less than 10 percent of its floor space (excluding bathrooms, kitchens, breakrooms, and other exclusive employee use common areas) to tobacco products, tobacco accessories or tobacco paraphernalia, then it shall be considered a "Tobacco Retailer" as defined in Section 5.24.030. and is not governed by this Chapter. "Tobacco Shop Permit" or "TSP" means a Tobacco Shop Permit issued pursuant to this chapter. 11 "Tobacco paraphernalia" means cigarette papers or wrappers, pipes, electronic cigarette ar va ins devices, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking, preparation, storing, or consumption of tobacco products. "Tobacco product" means: 1. Any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, electronic cigarette or vaping device to include ligUid, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco; and 2. Any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body but does not include any product specifically approved by the Federal Food and Drug Administration for use in treating nicotine or tobacco product dependence. Section 12. A new Section 5.24.120 "Tobacco Shops" is hereby added to Chapter 5.24 (Licensure of Tobacco Retailers) of Title 5 (Business Licenses and Regulations) of the Temecula Municipal Code to read as follows (with additions appearing in underlined text): 5.24.120 Tobacco Shops. A. Tobacco Sinop Permit (TSP) Required. 1. It is unlawful for any person to engage in, operate, conduct or carry on, in or upon any premises, a tobacco shop without first obtaining a permit pursuant to this chapter. securing the necessary business license as required by this code, and complying with Title 5 of this code. A se arate ermit shall be obtained for each separate tobacco shop ol2erated b such person. 2. A pgnnit tooperate a tobacco shop shall be valid fora period of one year and shall expire in conjunction with the business license. B. Maximum Number of Tobacco Shops, I . The maximum number of tobacco shops within the city shall not exceed one tobacco shop per every ten thousand (10,000) inhabitants of the city witlz any fraction of that ratio being rounded down to the nearest whole number. For purposes of this section the total number of inhabitants of the city shall be determined by the most current published data available from the California State Department of Finances as of the date an application for a tobacco shop ermit is filed. 2. If there is no lapse in the timely renewal of a city business license and tobacco retailers license as required under this chapter, tobacco shops operating with a valid and current business license and current and valid Tobacco Retailers License no later than sixty (60) days after the effective date of this ordinance and that operate incompliance with all local. state and federal laws, ordinances, rules and regulations, may continue to operate in the city even if the number of tobacco shops exceed the maximum number of tobacco shops permitted in the city pursuant to subsection B(I) above and separation requirements pursuant to subsection E(1)(a) of this chapter. 3. Any owner that meets the requirements of subsection 2 above ma sell or transfer the tobacco shop, but the new owner of the tobacco shop shall appty and obtain a tobacco sho 12 perinit before the new owner or operator begins operating titre tobacco shop. Ii'the tobacco shop that is sold or transferred does not have a histoU of violating any provisions of the chapter for at least one year preceding the date of sale or transfer of the business, the business may obtain a tobacco shop uerniit to operate in (lie city eveti if the number- of tobacco shops exceed the maximum number of tobacco shops permitted in the citXpursuant to subsection BM } above. as long as the business meets all the requirements of Section 5.24.120(D). C. Application for Tobacco Shop Permit. 1. All persons desiring a tobacco shop permit shall file a written application on the required form available at the city's planning department. The application, to be signed under peiialltty of perjgi.y, shall be accompanied by (lie appropriate tiling fee established by resolution of the city council. The applicant must be at least twenty-one (21) years of age at the time of application. The application shall be completed and signed by the operator of the proposed tobacco shop, if a sole proprietorship; one general partner, if the operator is_a partnership: one officer or one director. if the operator is a corporation: and one participant, if the operator is a joint venture. The application for a tobacco shop permit does not awhori7.e operation of a tobacco shop unless and until such permit has begg properly granted. The application shall contain or be accompanied by the following information: a. The type of ownership of the business; for exwnple, whether an individual, partnership, or corporation. If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation or charter, together with the state and date of incorporation and the names and residence addresses of each of its current officers and directors, and of each stockholder holding more than five percent of the stock of that corporation. If the applicant is a partnership, the application shall set forth the name and residence of each of the partners. including limited partners. If the business is a limited partnership, it shall furnish a copy of its certificate of limited partnership filed with the Secretary of State. If one or more of the partners is a corporation, the provisions of this subsection pertaining to corporations shall apply: b. The precise name under which the tobacco shoe is to be conducted: c. The complete address, aI.l telephone numbers, and email address of the tobacco shop; d. The following personal information concerningthe he applicant: i. Full complete name and all aliases used by the applicant, ii. Current address and all previous residential addresses Cor eight years immediately preceding_ the present address of the applicant. iii. Acceptable proof that the applicant is at least twenty-one (21) years of age, iv. Proof of legal residency and/or the ability to legally work in the United States, v. The -applicant's complete business occupation and employment histooLfor eight years preceding the elate ol'application, including,; but not limited to. the tobacco shop or similar business history and experience of the applicant, vi. The complete tobacco shop license history of the applicant, whether such person has ever had any permit, license, or certification to conduct sales of tobacco products issued or denied by any ayernmental authorityi the date of issuance of 13 sucli a permit or license, wliether the permit or license was denied, revoked or Suspended; and [lie reason therefor, vii. Whether the applicant has ever had a tobacco retailers license, tobacco shop permit, or any permitllicense reg uired flor the o,peration of a tobacco shop denied. revoked or suspended by any government authority, and the reason therefor. viii. All criminal convictions occurring in any state or country, including convictions resulting from any plea of nolo contenders {no contest}, within the last ten Years, inc.ltiding those dismissed or expunged pursuant to Penal Code Section 1203.4, but excluding infraction traffic violations, and the date and place of each such conviction and reason therefor, ix. Information regarding any ending criminal charges against the applicant, and x. A caMplete set of fingerprints taken by the police department. e. The name and address of the owner and lessor of the premises upon or in which the tobacco shop is to be located. In the event the applicant is not the legal owner of the premises. the application nlList be accompanied by a copy of the lease and a notarized acknowledgment from the owner of the premises that a tobacco shop will be located on Elie premises, and that the tobacco shop must operate in compliance with the requirements of this chapter; f. Such other identification and information as the chief of police may require in order to discover the truth of the matters required to be set forth in the application; g. A statement in writing and dated by the applicant that he or she certifies under penalty of perjury that all information contained in the application is true and correct; h. Statements in writing and dated by The applicant and the applicant's designated manager(s) certifyingunder nder penalty of perjury that they; i. Have reviewed Chapter 5.24 and Chapter 8.56 of the Temecula Municipal Code, ii. Understand its contents, iii. Understand the duties of a manager, iv. Will only employ persons of legal .age to sell tobacco products, v. Authorize the chief of police to investigate the truth of the information contained in the application, and vi. Will be responsible for the conduct of all tobacco shop operators, employees, agents, independent contractors, or other representatives while such persons are on the premises of the tobacco shop. and that failure to comply with the provisions of this chapter and any federal, state, or local law, may result in the revocation of the tobacco shop pel-mit. If, during the term of a tobacco shop permit, the peinit holder has any change in information submitted on the original or renewal application, the permit holder shall note Fy the poIice de artntent of sttch change. within ten 10 business da s thereafter in writing; and A floor plan of the proposed tobacco shop showing all interior areas. including, areas where tobacco products are stored or sold, all doors, display cases, restrooms, plumbing, and any other physical features required by the chief of police. 14 k. The applicant. if a corporation or partnership, shall designate one or more of its officers or pariners to act as, manager during business hours. If the appIicall t i5 all lndiyidllal, then that individual or designee thereof shall act as manager. Each person who shall serve as manager shall complete and sign all application Forms required of an individual applicant_ for a tobacco shop hermit. 1. Notwithstanding the tirct that an application fled under this section may be a "public record" under Government Code Section 6250 et seq., certain portions of such application contain information vital to the effective administration and enforcement of the licensing and/or permit scheme established herein which is personal, private, confidential, or the disclosure of which could expose the applicant to a risk of harm, Those portions of the application which are not subject to disclosure are: the applicant' •ant's residence address and telephone number, the applicant's date of birth and/or age, the applicant's driver's permit and/or social security number, and/or personal financial data. The city council in adopting the application or permitting system set forth herein has determined in accordance with Government Code Section 6255 that the public interest in disclosure of the information set forth above is outweighed by the public interest in achieving compliance with this chapter by ensuring that the applicant's privacy, confidentially or security interests are protected. The city clerk shall cause to be redacted from any copy of a completed permit application made available to any member of the public, the information sct forth above. D. Tobacco Shop Permit Issuance and Denial. 1. Upon receipt of a written application for a tobacco shop permit, the chief of police shall conduct an investigation to ascertain whether the applicant satisfies the requirements of this chapter. The chief of police shall, within thirty (30) days of receipt of an application. and on a first -come -first -served -basis approve, conditionally approve or denly the application. The thirty -day 30period may be extended for up to thin 30 additional days, if necessary, to .complete the investigation at the discretion of the chief of police or their designee. 2. The chief of police shall deny all tobacco shop permit application(s) if the maximum number of tobacco shops under section 5.24.120(B)(1) has been met. 3. The chief of police shall deny all tobacco shop permit application(s) if they make any of the following findings. - a. The applicant, if an individual, or any of the officers or directors of the corporation, if the applicant is a corporation; or a partner, if the applicant is a partnership, or any person directly engand or employed in the tobacco shop, includin if of the above listed parties, has within ten 10 ears preceding the date of application: Been convicted of a violation of Ilealtli and Safety Code Section 11550 or an offense involving the illegal sale, distribution or possession_ of a controlled substance sl2ecified in Health and Safety Code Sections 11054 11055 11056 11057 or 11058; H. Engaged in conduct in another 'urisdiction which if it had occurred within the city, would constitute grounds for denial or revocation under this chapter; 15 iii. Been subjected to a permanent injunction against the conducting or maintaining of a nuisance pursuant to Penal Code Sections 11225 tlirouR;h 11235 or any similar provisions of law in a jurisdiction outside the state of California; iv. En a ed in conduct in any state or country which would constitute an offense as described in subsection (3)(i) or (ii) of this section; v. Tiie ap licant has had a Tobacco Retailers License revoked from any jurisdiction authorized to issue such license(s): vi. The applicant or any of the applicant's proposed employees, after a fig ll hearing by administrative proceeding or state court, has aided and abetted any of the offenses listed in this section; vii. The applicant has made a false, misleading or fraudulent statement or omission of fact to the city in the permit application; viii. The application does not contain all of the information required by this section, ix. The tobacco. shop. as proposed b. the lie applicant, does not comply with all appiicable laws, including. but not limited to. health, zoning, fire and safety requirements, regulations and standards; x. The applicant has not satisfied (lie requirements of this cliapteriri the time specified; xi. The location of the proposed tobacco shop has within a twelve 12 month period prior to the submittal of the application: (a) Been the site of a violation of this chapter, or any similar criminal or civil ordinance. law. rule, or regulation of the state of California or an,, other agency related to the operation of a tobacco shops (b) Been the site of a tobacco shop that was closed due to criminal activity. For purposes of this subsection, closure due to criminal activity includes voluntary closure of a tobacco shop after there have been arrests at the location or other notices relating to criminal activity, (c) Been the site of a tobacco shop where violations have not been addressed in the timespecified in the notice of violation or administrative citation (d) Been the site of a tobacco shop that has been revoked pursuant to this chapter, (e) Been the site of tobacco shop. that has received a notice of revocation or fine issued pursuant to the Temecula Municipal Code, while any appeal of the revocation or fine is pending, or (f) Been the site of a tobacco shop that has outstanding fines issued pursuant to the Temecula Municipal Code that have not been paid. b. If the application is denied for failure to comp] y with this chapter. the applicant owner and operator of the tobacco shop may not reapply for a period of one year from the date the application was denied. c. An appeal of the denial of a tobacco shop establishment permit shall be governed by procedures set forth in Section 5.24.120(J). E. Tobacco Shop Requirements. 1. Facilities. a. Location. No tobacco shop shall be located within five hundred (500) feet of a sensitive receptor(,$), as defined in Chapter 9.20.020 of this code or from another tobacco shop 16 This shall be measured in a straight line from any entrance of the tobacco shop to the property line of a sensitive receptor or another tobacco shop. A radius map package shall be required at the time of submittal when there is concern about the proposed tobacco shot) location in relation to sensitive recet)tors. this shall be at the discretion of the chief of police or the director of community development. b. Structure. Tobacco shops shall be located in a zoning district which permits such use. No tobacco shop located in a building or structure with exterior windows fronting a public street, highway, walkway, or parking area. shall, during business hours, block visibility into the interior area through the use of curtains, closed blinds, or any other material that obstructs blurs or darkens the view into the premises. c. Display of Permits. "Tobacco slops shall at all times display in a conspicuous and prominent manner, visible upon entrance to the tobacco shop all permits. licenses, or any other approval required for the operation of tobacco shop. Expired permits do not satisfy this requirement. d. Sirens. All tobacco shop signs shall comply with all provisions of Chapter 17.28 (,Sign Standards) or the appropriate Specific Plan or Planned Development Overlay (PDO,i When there is a conflict between standards, the more restrictive standard shall be followed. Tobacco shops shall not have signage on doors, windows or storefronts except as provided for in Chapter 17.28.050(1)&(J) No signs shall be closer than eighteen (18) inches from all exterior doors, windows and storefront. No sighs depicting tobacco use shall be able to be seen from the public right of way. Each sign violating this section shall be counted as a violation. e. Lighting. Tobacco shops shall be internally illuminated with white or soft white lights only. No lightingfor off• any purpose shall be placed around or on windows or doors, to include frames. f. Accessory Uses. Lounbe, arcade, and similar accessory activities prohibited. No tobacco shop shall allow or provide an area either indoor or outdoor that is for a custorner_lounge. arcade, or similar use(s). g. Bathroom Facilities. Customers shall be prohibited from utilizing any bathroom facilities on site. 2. Operations. a. Business License. Each tobacco shoo shall hold a valid business license issued by the City of Temecula. b. State Tobacco Retailers License. Each tobacco shop shall hold a valid California Cigarette and Tobacco Products Retailer's License issued by the State Board of Equalization, in accordance with State law. c. City Tobacco Retailers License. Each tobacco shot) shall hold a valid Tobacco Retailers License issued by the C ity of Temecula. d. Tobacco Shop Permit. Each tobacco shop shall hold a valid Tobacco Shop Permit (TSP)issued by the City of Temecula. e. Hours of Operation. The owner must advise the city, in writing, at the time of application for a permit of the business hours, and any change in hours occurring 17 thereafter. No person shall operate a tobacco shop between the hours of nine p.m. and seven a.m. f. Employee Age. No person under the age of twenty-one 21 ears at the time of application, shall operate or be employed by a tobacco shop. g. Living Prohibited, No person or persons shal l be allowed to live inside the tobacco shop at anv time. Beds, mattresses, waterbeds. futons, sofa beds, or any type of portable or convertible beds are not permitted on the premises. h. Alcoholic Beverages/Drugs — Prohibited Materials. No person shall enter, be in or remain in any_pail of'a tobacco shop while in possession of, consuming or under the influence of any alcoholic beverage, recreational drugs (including cannabis,) or a controlled substance. Theoperator and on -duty manager shall be responsible to ensure that no such person shall enter or remain upon the tobacco shop. Service of alcoholic beverages or recreational drugs shall not be allowed to include all substances located in Chapter 8.56 Psychoactive Bath Salts Psychoactive Herbal Incense, and other Synthetic Drugs). A tobacco shop is not permitted to sell store distribute trade or give for no charge alcohol. i. Tobacco Use. There shall be no tobacco use or consumption including ``tastings") at any tobacco shot. j. Samples. Tobacco shops are prohibited from providing samples or tastings of any tobacco product or accessory whether free or For charge. k. Entrances. Tobacco shops cater specifically o adult customers over the age of twenty- one 21 to purchase tobacco products, accessories, etc. not the genera public. As such, entrances/exits shall remain closed. not locked, during_ the hours of operation and employees shall not congregate, gather, or loiter in such areas. 1. Tobacco Products, and Paraphernalia. Tobacco Products, and tobacco paraphernalia shall not be kept within ten 10 linear feet from any building entrance or check-out counter. This rohibition shall not apply if the dis la is not phasically accessible to customers. m. Tobacco Flavors. A tobacco shop, or any of the tobacco shop's agents or employees, shall not sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer as defined in Health and Safety Code §104559.5. This includes the storage of flavored tobacco products. n. Single Cigarettes. No tobacco shop shall sell single or individual cigarettes sometimes referred to as "loosies." o. Self -Service Displays Prohibited. No person shall display tobacco products or tobacco paraphernalia by means of a self-service display or to engage in tobacco retailing by. means of a self-service display. A tobacco retailer who chooses to display tobacco products or tobacco paraphernalia in a locked cabinet, case or similar structure must post a clear and conspicuous sign on or within rive feet of the display statingthat the cabinet, case or structure is locked at all times. p. Compliance Willi All Laws. Each operator or manager shall at all times comply with all provisions of this chapter and all other applicable provisions of the Temecula Municipal Code. all conditions of any required zoning approvals, conditions imposed 18 by the chief of police, and all state and federal laws, statutes and regulations. and shall provide proof of compliance upon request by the police department. 3. lnspec;tions. a. A tobacco shop may be inspected twice a year for the purpose of determining that the provisions of this -chapter are net. Such inspections may be made by. the police department. persons employed by the city whose job descril2tions re uire the person to enforce the provisions of this code, including,hut not limited to, cede enlorcemcnt officers and such other enforcement officials as described in Sections 1.16.020 and 1.21.020 of the Temecula Municipal Code or its successor sections. b. Complaints or violations related to this chapter re orted to the City may result in additional inspections at the discretion of the chief of pollce. F. Transfer and Changes of Business. 1. No tobacco shop permit may be sold, transferred or assigned by a permit holder, or by operation of law, to any other person or persons. Any such sale, transfer or assignment, or attempted sale,_ transfer or assignment, shall be deemed to constitute a voluntary surrender of -such permit and such permit shall thereafter be null and void, provided and excepting, however, that if the permit holder is a partnership and one or more of the partners should die. one or more of the surviving partners may acquire, by purchase or otherwise, the interest of the deceased partner or partners without effecting a surrender or termination of such permit, and in such case, the permit, upon notification to the chief of police, shall be placed in the name of the surviving partners. G. Fees. 1. The city council shall establish by resolution, and from time to time ma amend the fees for the administration of this chapter. Fees rgquired b this chapter shall be in addition to any required under any other chapter of this code. H. Duration and Renewal of Permits. 1. Tobacco shop permits may be renewed on the first business day in February 2024, and on a_year-to-year basis thereafter on the first business day in February, provided the permit holder continues to meet the requirements of this chapter. "Business day" as used in this subsection shall mean the days that Temecula City Hall is open for business. 2. No permit granted herein shall confer agy vested right to any person for more than the permit period. 3. Applications for a permit renewal shall be filed with the chief of police at least sixth days prior to expiration of the existing permit, otherwise the permit will lase. At the discretion of the chief of police, a conditional permit pending satisfactory completion of the renewal application process may be issued to renewal applicants who have no permit revocation proceedings pcndin T at the time of fil ing of the renewal application. 4. Renewal_ applications shall set forth such information as may be required by the chief of police to update and verify the information contained in the original permit application. The applicant shall pay an application fee when applying for renewal. 5. If an anl2lication for renewal of permit and all required information is not timelx received and the permit expires. no right or privilege tooperate a tobacco shop shall exist. Violation and Penalty. 19 1. Violations of this Section are broken down into two levels of severit as they relate to the Tobacco Shop Permit (TSP): a. Level 1 Violations are violations of such significance that a single violation of such ..provisions would cause the immediate revocation of the tobacco shop permit (TSP}. b. Level 2 Violations are violations of this chapter that do not rise to the severi!Y of Level 1 Violations. An. three hree (_3) Level 2 violations in a twelve (12) month period is rounds for revocation of the TSP by the chief of police, 2. Table 5.24.120 — Violation Summary Table Table 5.24.120 - Violation Summary' Level 1 VIOLATIONS Code Section Per TMC 5.24.120.H I 1 a - Any violation of the provisions below are L3rounds to revoke a Tobacco Shop Permit 5.24.120.E(l)(a) No tobacco shop shall be located within one -thousand (I,000) Feet of a sensitive receptor(s), as defined in Chapter 9.20.020 of this code or from another tobacco shop. This shall be measured in a straight line fi•om any entrance of the facility to the property line of a sensitive receptor or another_ tobacco shop. 5.24.120.E(1)(b) Tobacco shops shall be located in a zoning district which nerniits such use. No tobacco shop located in a building or structure with exterior windows fronting a pUbfic street h ighway, walkway, or parking area shall during business horns block visibili into the interior area through the use of curtains closed blinds or any other material that obstructs blurs or darkens the view into the premises. 5.24.120.E(1)(f) Lounge,, arcade_ and similar accessory activities No tobacco „prohibited. shop shall allow or provide an area either indoor or outdoor that is For customer lounge, arcade or similar use(s). 5.24.120.E(2)(a) shall hold a valid business license issued City; of Each tobacco shopt� t Temecula. 5.24.120.E(2)(b) Each tobacco shop shall hold a valid California Cigarette and Tobacco Products Retailer's License issued by the State Board of E ualization. in accordance with State law. 5.24.120.E(2)(c) Each tobacco shop shall hold a valid Tobacco Retailers License issued b the City oFTeniecula. 5.24.120.E(2)(d) Each tobacco shop shall hold a valid Tobacco Shop Permit issued by the City ofTemecula. 5.24.1_201(2)(g) No person or persons shall be allowed to live inside the tobacco shop at any time. Beds, mattresses, waterbeds, futons, sofa bids, or anytype of portable or convertible beds are not perinitted on the premises. 5.24.120.E.(2)(Ii) No erson shall enter, be in or remain in gE it Qfa tobacco shop Mh_i_ic in possession of C011SL1niiJjg, USiJ19 or under the influence of ariv alcoholic beverag,e, recreational drugs or controlled substance. The operator and on- dutyier shall be responsible to ensure that na such person shall enter or remain upon the tobacco shop. Service of alcoholic beverages or recreational -drugs shall not be allowed to include all substances located in Chapter 8.56 (Psychoactive Bath Salts, Psychoactive Herbal Incense, and 20 other Synthetic l7rugsL A tobacco shop is not permitted to sell stoles distribute, lr•ade or give for no charge alcolloi. Level 2 VIOLATIONS Code Section Per TMC 5.24.120.H(I)(1)(b) - Any three violations in a 12 month period of the provisions below are grounds to revoke a Tobacco Shop Permit L22L 20. E(l )[c) 'I'obacco shops shall at all times dish lay in a cons icuous and Prominent manner, visible upon entrance to the tobacco shop all permits, licenses, or any other approval regc uired for die operation of a tobacco shop. L xpii-ctl enn its .do not satlsl"y E131s re ll II BFnent. 5.24.120.E(l)(d) All tobacco sly si is shall comply with all provisions of Chapter 17.28 (Sign Standards) or the appropriate SpOCiiIG Plan Or Planned Development Overlay (PDO). When there is a conflict between standards, the more restrictive standard shall be followed. Tobacco shops shall not have signage on doors, windows or storefronts except as provided for in Chapter_l 7.28.0501SiM. No signs shall be closer than eighteei (I 8) inches from all exterior doors, windows and storefront. No signs depicting tobacco use shall be able to be seen from the PLIblic right of way. Each sign violating this section shall be counted as a violation. 5.24.120.E(1)(e) Tobacco shops shall be internally illuminated with white or soft white lights only. No lighting for andpurpose shall be placed around or on windows or doors, to include frames. 5.24.120_E( 1)(g) Customers shall be prohibited from Utilizing any bathroom facilities on site. 5.24. ] 20.E(2)(e) The owner must advise the city, in writing, at the time of applicationfor a F?umit of the business hours, and any change in ItoUi•5 OCCurdIIA thereafter.No person small operate a tobacco shop between the hours of nitre p.m. anti seven a.m. 5.24.120.E(2)(fl No person under the age of twenty-one (2 1 ) years, at the time of application, shall operate or be employed by a tobacco sho . 5.24.120.E(2)(i) There shall be no tobacco use or consumption at any tobacco sho. 5.2�1. ! 0.E(2)(I) Tobacco shops are prohibited from providing samples of any tobacco product or accessory whether free or for charge. 5.24.120.E(2)(k) Tobacco shops cater specifically to adult customers over the age of twenty-one (2 1 ) to Pirchase tobacco products, accessories, etc. not the ggneral ub]ie. As such, entrances/exits shall remain closed, not locked, during the hours of operation and employees shall not congregate. ag_ her or loiter in such areas. 5.24.120.E(2)(1) Tobacco Products, and Paraphernalia shall not be kept within ten 10 linear feet from any building entrance or check-out counter. This prohibition shall Itot app ly if the displl y is not ph_ysica�accessible to customers. 5.24.120.E(2)(m) A tobacco shop, or any of the tobacco shops agents or employees, shall not sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco grodLICt or a tobacco product flavor enhancer as defined 21 in Health and Safety Code § 104559.5. This includes the storage of 5.24.120.E(2)(n) No tobacco shopsmall sell single or individual ci arettes sometiill es -_r__- a __ ,� No person sliall display tobacco rp odugLs rsr tobg co paraplieriviiija by means of a self-service display or to en a e in tobacco retailing by means of a self-service dis la . A tobacco retailer who chooses to dis la 5.24.120.E(2)(o) tobacco products or tobacco paraphernalia in a locked cabinet, case or similar structure must post a clear and conspicuous sign on or within five feet ofthe display stat ing that the cabinet, case or structure is locked at all 'This is a summary of violations only. Phrase see the referenced code sections for Mete details. An omission from this table does not remove the burden of compliance. 3. Violations that are not specifically identified in this section such as 5.24.120(E)(2)(q) shall be classified at the sole discretion of the chief of police on a case -by -case basis. J. Revocation Permit Denial and Appeal. 1. Violation and Noncompliance. The chief of police may refuse to issue a permit, renew a permit, or may revoke an existing permit, on die grounds that the applicant or permit holder has failed to comply with the permit conditions or other requirements of this chapter, or any requirement of state law. In any such case, the applicant or permit holder shall have the right to appeal in the time and manner set forth in this section. For ❑urvoses of this section, if an administrative citation is contested. and is held to be invalid or rescinded b„y an independent bearing officer appointed pursuant to this chapter, or by any court of law, the violations identified in the administrative citation shall not form the basis for revoking or refusing to renew a tobacco shop permit. If any administrative citation is contested and is upheld by an independent hearing officer appointed pursuant to this chapter, or by any court of law, that administrative citation can form the basis for the revocation or refusal to renew a tobacco shop permit. 2. Notice. When the chief of police concludes that erounds for denial of a new permit or permit renewal. or permit revocation exist. the chief of police shall serve the applicant or permit holder, either personally orby_certified mail, addressed to the business or residence address of applicant or permit holder, with a notice of denial of permit, or notice of intent to revoke or deny renewal. This notice shall state the reasons for the decision the effective date of the decision. the right of the applicant or permit holder to appeal the decision to a hearing officer. and that the decision will be final if no written aDDeal is tiled within the tintin�e _permitted. 3. Appeal. a. The right to file a written appeal of a revocation or denial of new permit or renewal of a pernnit shall terminate upon the expiration of fifteen (15) days of the clate of ipailin by the chief of police of the notice specified in subsection J(2) of this section. The written appeal shall be filed with the city clerk of the city or l'emecula and shall be 22 accompanied by an appeal free in an amount as set by city council resolution, and the city clerk shall promptly forward a copy of the appeal to the chief of police. b. In the event an appeal is timely {tied. the denial of the permit, or renewal or revocation of the permit, shall not be effective until a final decision has been made on the_appeal. Notwithstanding the foregoing, if the chief of police finds and determines that permitting a tobacco shop to continue to operate, pendingthe he appeal hearing, would present an unreasonable and immediate risk to theublic health and safety. the denial of renewal or revocation may take effect immediately. If no timely appeal is filed the denial of renewal or revocation shall become effective upon expiration of the period for filing, appeals_ c. Upon receipt of a timely appeal. the city clerk shall refer the al2peal to the Califomia Office of Administrative Hearings "OAH" for the assignment of an administrative law lucij,;e to serve as the hearing officer. i. Not less than fifteen 15 da s prior to the appeal hearing,the city clerk shall notify the chief of police and the appellant of the names of three qualified attorneys or retired Superior Court or Appellate Court judges submitted to the city clerk by a reputable firm providing mediators and arbitrators to serve as a panel from which the hearing officer will be selected. ii. Within five days of the date of mailing the notice of the available panel, the chief of police and the appellanl may notify [lie city clerk in writing that lie or slie elects to remove one of the three potential hearing officers. iii. The city clerk shall then request the mediation and arbitration firm to select one of the remaining names on the list as the designated hearing officer for the appeal hearing. iv. The hearing officer shall be fair and impartial and shall have no bias for or against the chief of oIice or the gppelIant. d. At the appeal hearing, the hearing officer shall receive oral and written evidence from the chief of police and the appellant. The hearing officer shall have authority to administer oaths to those persons who will provide oral testimony. The evidence presented deed not comply with the strict rules of evidence set forth in the California Evidence Cocci, but shall be the type of evidence J)011 which reasonable and prudent people rely upon in the conduct of serious affairs. The hearing officer shall have broad authority to control the proceedings and to provide for cross examination of witness in a fair and impartial manner. The chief of police shall have the burden of proof to establish by clear and convincing evidence the Facts upon which his or her decision is based. The appeal hearing shall be recorded by audio recording. Anyparty_may at its sole cost and expense, utilize the services of a certified court reporter to prepare the verbatim record of the hearing. if a court reporter is used, the transcript prepared shall be made available for purchase to both parties. The hearing officer may continue the appeal hearing from time to time, but only upon written motion of a party showing good cause for the continuance. e. The hearing officer may uphold, modify or reverse the decision of the chief of police. Within thirty 30 days or as otherwise determined by OAH of the conclusion of the 23 appeal hearing the hearing officer shall render his or her decision and make written findings supporting the decision. He or she shall send the decision to the city clerk. Upon receipt of the hearing officer's decision, the city clerk shall send a copy of it to the chief of police and the appellant along with a proof of mailing. f. Within ten 10 days from date of the city clerk's mailing of the decision, either party tz7a gppeal the decision to the city nianagg:r. The appeal shall he in writing and tiled with the city clerk. and shall state the grounds of the appeal and specify the errors in the hearing officer's decision. Upon receipt of the a peal the city clerk shall schedule the appeal for review by the citmanager to occur within thirty days. g. The city manager's review of the appeal shall be limited to determining whether the evidence received at the appeal hearing supports the findings and decision of the hearing officer. The city manager shall be limited to considering the evidence presented at the appeal hearing. No public hearing shall be required and no new evidence shall be taken by the city manager. The city manager's decision on the appeal shall be set forth in a written opinion. The city clerk shall mail a copy of the city, manager'spinion to the chief of police and the appellant along with a proof of service. Any legal action challenging the city manager's decision shall be filed within ninet , 90 . da ys of the date of the proof of service of mailing of the city manager's o inion, ursuant to Section I094.5, et seq., of the California Code of Civil Procedure. The city manager's decision shall be final and effective a OII ivailin g of [lie opinion. If the appellant prevails following a final decision the appeal fee shall be returned. K. Application to -Existing Businesses. 1. All re uirements set forth in this chapter are deemed to be necessM for the protection of the public health, safety, and welfare and shall be applicable to and govern all existing and proposed tobacco shops immediately upon the date the ordinance is eodi_fied in this chapter. and shall become effective. Section 13. Section 5.24.030 (Definitions) of Chapter 5.24 (Licensure of Tobacco Retailers) of Title 5 (Business Licenses and Regulations) of the Temecula Municipal Code is hereby amended to add a definition for "chief of police" to read as follows with all other provisions of Section 5.24.030 remaining unchanged: "Chief of police" means the head of the agency or division which at the time involved has responsibility for performing the police function for, or within, the city, or his or her designee. Section 14. Subsection E of Section 5.24.040 (Tobacco license prerequisite — Application process) of Chapter 5.24 (Licensure of Tobacco Retailers) of Title 5 (Business Licenses and Regulations) of the Temecula Municipal Code is hereby amended to read as follows (with deletions appearing in strikethrough text and additions appearing in underlined text) with all other provisions of Section 5.24.040 remaining unchanged: E. All applications shall be submitted on a form supplied by the eity managef chief of police and shall contain the following information: 1. The name, address, email, website, and telephone number of each proprietor; 24 2. The business name, address, email, website, and telephone number of the single fixed location for which tobacco retailer's license is sought; 3. The name and mailing address authorized by each proprietor to receive all license - related communications and notices (the "authorized address"). If an authorized address is not supplied, each proprietor shall be understood to consent to the provision of notice at the business address specified in subsection (E)(2) of this section; 4. Proof that the location for which a tobacco retailer's license is sought has been issued a valid state tobacco retailer's license by the California Board of Equalization; 5. Whether or not any proprietor is a person who has been determined to have violated this chapter or has been a proprietor at a location that has been determined to have violated this chapter and, if so, the dates and locations of all such violations; 6. Such other information as the eky manager chief of police deems necessary for the administration or enforcement of this chapter; Section 15. Subsection B of Section 5.24.050 (License Issuance — Standards) of Chapter 5.24 (Licensure of Tobacco Retailers) of Title 5 (Business Licenses and Regulations) of the Temecula Municipal Code is hereby amended to read as follows (with deletions appearing in strikethrough text and additions appearing in underlined text) with all other provisions of Section 5.24.050 remaining unchanged: B. Upon the receipt of an application for a tobacco retailer's license and the license fee, the ^_'_y HianageF chief of police shall issue a license unless substantial record evidence demonstrates that one of the following bases for denial exists: 1. The application is incomplete or inaccurate. 2. The application seeks authorization for tobacco retailing at a location for which a prohibition on issuing licenses is in effect pursuant to Section 5.24.100(B) of this chapter. However, this subsection shall not constitute a basis for denial of a license if the applicant provides the city with documentation demonstrating by clear and convincing evidence that the applicant has acquired or is acquiring the location or business in an arm's length transaction. 3. The application seeks authorization for tobacco retailing for a proprietor for which a prohibition on issuing licenses is in effect pursuant to Section 5.24.100(B) of this chapter. 4. The application seeks authorization for tobacco retailing that is prohibited pursuant to subsection A of this section, that is unlawful pursuant to any other city chapter, or that is unlawful pursuant to any other local, state, or federal law. Section 16. Item 1 of Subsection B of Section 5.24.090 (License Violation) of Chapter 5.24 (Licensure of Tobacco Retailers) of Title 5 (Business License and Regulations) of the Temecula Municipal Code is hereby amended to read as follows (with deletions appearing in strikethrough text and additions appearing in underlined text) with all other provisions of Section 5.24.090 remaining unchanged: 25 B. License Compliance Monitoring. 1. Compliance with this chapter shall be monitored by the eity managef chief of police. Any peace officer may enforce the provisions of this chapter. Section 17. Subsection C of Section 8.36.030 (Prohibition of smoking in public places, places of employment and other areas.) of Chapter 8.36 (Smoking in Public Places of Title 8 (Health and Safety) of the Temecula Municipal Code is hereby amended to read as follows (with deletions appearing in strikethrough text and additions appearing in underlined text): C. Unless otherwise prohibited by law, smoking is permitted in the following locations: 1 Sig n_i fieanttr.ty cee rretailers, :f n itiot'-a le prohibited 11 tiF es ffom entering the store; 12. By performers during theatrical productions, if smoking is a part of the theatrical production; 23. Private residential property, except when designated as nonsmoking under Chapter 17.30 of this code or used as a childcare or health care facility subject to licensing requirements and children, patients, or employees are present; 34. Up to twenty-five (20) percent of hotel and motel guest rooms, if the hotel or motel permanently designates particular guest rooms as nonsmoking rooms such that 6ghty sevenly five or more of its guest rooms are nonsmoking and ashtrays and matches are permanently removed from such nonsmoking rooms. Permanent "no smoking" signage shall be posted in nonsmoking rooms; 45. Outdoor dining areas of businesses operating under an on -sale license for public premises issued by the California Department of Alcoholic Beverage Control. Section 18. Table 17.08.030 (Schedule of Permitted Uses Commercial/Office/Industrial Districts) of Section 17.08.030 (Use Regulations) of Chapter 17.08 (Use Regulations) of Title 17 (Zoning) of the Temecula Municipal Code is hereby amended to read as follows (with additions appearing in underlined text): Table 17.08.030 Schedule of Permitted Uses Commercial/Office/Industrial Districts Description of Use NC CC HT I SC I PO BP I LI T Tailorshop P P - - P - Taxi or limousine service - P P P C Tile sales - P - P - Tobacco shop !' E P!' PI' P' - _ - Haas: 1 1. Subject to the renuirenteiits cmitained in Section 5.24.120 of this code. Section 19. Table 17.22.106 (Schedule of Permitted Uses Pala Road Planned Development Overlay District -1) of Section 17.22.106 (Use Regulations) of Article 2. (Pala Road Planned Development Overlay District-1) of Chapter 17.22 (Planned Development Overlay 26 Zoning District (PDO-)) of Title 17 (Zoning) of the Temecula Municipal Code is hereby amended to read as follows (with additions appearing in underlined text): Table 17.22.106 Schedule of Permitted Uses Pala Road Planned Development Overla District-1 Description of Use PDO-1 T Tailor shop P Taxi or limousine service P Tile sales P Tobacco sho 6 P Tool and die casting- Transfer, moving and storage Transportation terminals and stations - Truck rentals no sales or/service) C5 TV/VCR repair P Notes: 1. The CUP will be subject to Section 17.10.020(B), special standards for the sale of alcoholic beverages. 2. Subject to citywide antenna standards. 3. See Section 17.10.020(L), special standards for indoor swap meets. 4. See Section 17.10.020(N), special standards for self -storage or mini -warehouse facilities. 5. Subject to the special setback provisions contained in Section 17.22.108. 6. Subject to the requirements of Section 5.24.120 Section 20. Table 17.22.13613 (Schedule of Permitted Uses Temecula Creek Village Planned Development Overlay District -4) of Section 17.22.136 (Use Regulations) of Article V. (Temecula Creek Village Planned Development Overlay District-4) of Chapter 17.22 (Planned Development Overlay Zoning District (PDO-)) of Title 17 (Zoning) of the Temecula Municipal Code is hereby amended to read as follows (with additions appearing in underlined text): Table 17.22.136B Schedule of Permitted Uses Temecula Creek Village Planned Development Overlay District-4 Description of Use PDO-411 PDO-4V6 T Tailor shop P P Taxi or limousine service P - Tile sales P - Tobacco shop' P7 Tool and die casting - Transfer, movin and storage - Transportation terminals and stations - - 27 Table 17.22.136B Schedule of Permitted Uses Temecula Creek Village Planned Development Overlay District-4 Description of Use PD04R PDO-4V6 Truck rentals no sales or service - - TV/VCR repair P P4 Notes: 1. The CUP will be subject to Section 17.10.020(B) special standards for the sale of alcoholic beverages. 2. Subject to the requirements of Chapter 17.40 of the Temecula Municipal Code. 3. In PDO-4, all senior housing residential projects shall use the development and performance standards for the high density residential zone and the provisions contained in Section 17.06.050(H). 4. The size of the use or activity is limited to 5,000 square feet. 5. Outdoor entertainment in conjunction with an eating establishment is permitted provided that the outside noise levels do not interfere with off -site conversation. 6. Drive through facilities are not allowed in the village planning area. Retail/support commercial planning area is identified as PDO-4R. Village commercial planning area is identified as PDO-4V. Multifamily planning areas A and B use the high density column in Table 17.06.030. 7. Subject to the requirements of Section 5.24.120 Section 21. Severability. If any section or provision of this Ordinance is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, or contravened by reason of any preemptive legislation, the remaining sections and/or provisions of this Ordinance shall remain valid. The City Council hereby declares that it would have adopted this Ordinance, and each section or provision thereof, regardless of the fact that any one or more section(s) or provision(s) may be declared invalid or unconstitutional or contravened via legislation. Section 22. Certification. The Mayor shall sign and the City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same or a summary thereof to be published and posted in the manner required by law. Section 23. Effective Date. This Ordinance shall take effect thirty (30) days after passage. PASSED, APPROVED, AND ADOPTED by the City Council of the City of Temecula the 22nd day of August 2023. 28 Zak Schwank, Mayor ATTEST: Randi Johl City Clerk [SEAL] STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss CITY OF TEMECULA ) I, Randi Johl, City Clerk of the City of Temecula, do hereby certify that the foregoing Ordinance No. 2023- was duly introduced and placed upon its first reading at a meeting of the City Council of the City of Temecula on the 22°a day of August, 2023, and that thereafter, said Ordinance was duly adopted by the City Council of the City of Temecula at a meeting thereof held on the day of , 2023, by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: 29 Randi Johl City Clerk Notice of Public Hearing THE CITY OF TEMECULA 41000 Main Street Temecula, CA 92590 A PUBLIC HEARING has been scheduled before the CITY COUNCIL to consider the matter(s) described below. Case No.: Long Range Project No. LR23-0050 Applicant: City of Temecula Location: Citywide Proposal: Adopt an ordinance of the City Council of the City of Temecula amending Titles 5, 8, and 17 of the Temecula Municipal Code to (1) amend massage establishment regulations, (2) add definitions for tobacco shop, tobacco shop permit and update definitions of tobacco product and tobacco paraphernalia, (3) implement a tobacco shop permit program to include structural and operational requirements, (4) update tobacco retailers license processes, (5) amend regulations on smoking in hotel rooms, (6) remove tobacco shop as a conditionally permitted use in table 17.08.030, (7) implement tobacco shop permit requirements in planned development overlay zoning designations 1 and 4, make other clerical revisions to the Municipal Code. Environmental Action: In accordance with the California Environmental Quality Act ("CEQA"), the proposed ordinance is exempt from further environmental review and a Notice of Exemption will be adopted in compliance with CEQA (Section 15061(b)(3)). PLACE OF HEARING: 41000 Main St., Temecula, CA 92590, City of Temecula, Council Chambers DATE OF HEARING: August 22, 2023 TIME OF HEARING: 6:00 PM Any person may submit written comments to the City Council before the hearing or may appear and be heard in support of or opposition to the approval of the project at the time of hearing. Any petition forjudicial review of a decision of the City Council shall be filed within the time required by, and controlled by, Sections 1094.5 and 1094.6 of the California Code of Civil Procedure. In any such action or proceeding seeking judicial review of, which attacks or seeks to set aside, or void any decision of the City Council, shall be limited to those issues raised at the hearing or in written correspondence delivered to the City Clerk at, or prior to, the public hearing described in this notice. The proposed draft ordinance may be viewed at the public information counter, Temecula Civic Center, Community Services Department, 41000 Main Street, Mondaythrough Friday from 8:00 a.m. until 5:00 p.m. Questions concerning the project(s) may be addressed to Mark Collins, City of Temecula Community Development Department, (951) 506-5172. City of Temecula Community Development 41000 Main Street • Temecula, CA 92590 Phone (951) 694-6400 • Fax (951) 694-6477 • TemeculaCA.gov VIA -ELECTRONIC SUBMITTAL CEQAProces sing_gasrclkrec. com August 23, 2023 Supervising Legal Certification Clerk County of Riverside P.O. Box 751 Riverside, CA 92501-0751 SUBJECT: Filing of a Notice of Exemption for Long Range Application No. LR23-0050, Quality of Life Ordinance Dear Sir/Madam: Enclosed is the Notice of Exemption for the above referenced project. In addition, pursuant to Assembly Bill 3158 (Chapter 1706) please find a receipt in the amount of $50.00, for the County Administrative fee to enable the City to file the Notice of Exemption required under Public Resources Code Section 21152 and 14 California Code Regulations 1507. The City of Temecula is paying the $50.00 filing fee under protest. It is the opinion of the City that the administrative fee has been increased in a manner inconsistent with the provisions of State Law. Under Public Resources Code Section 21152 and 14 California Code Regulations 1507, the County is entitled to receive a $25.00 filing fee. Also, please email a stamped copy of the Notice of Exemption within five working days after the 30-day posting to the email listed below. If you have any questions regarding this matter, please contact Mark Collins at email Mark. CollinskTemeculaCA. gov. Sincerely, Luke Watson Deputy City Manager Attachments: Project Notice of Exemption Form County Administrative Filing Fee Receipt City of Temecula Community Development Planning Division Notice of Exemption TO: County Clerk and Recorders Office FROM: Planning Division County of Riverside City of Temecula P.O. Box 751 41000 Main Street Riverside, CA 92501-0751 Temecula, CA 92590 Project Title: Long Range Application No. LR23-0050, Quality of Life Ordinance Description of Project: An ordinance of the City Council of the City of Temecula amending Titles 5, 8, and 17 of the Temecula Municipal Code to (1) amend massage establishment regulations, (2) add definitions for tobacco shop, tobacco shop permit and update definitions of tobacco product and tobacco paraphernalia, (3) implement a Tobacco shop permit Program to include structural and operational requirements, (4) update tobacco retailers license processes, (5) Amend regulations on smoking in hotel rooms, (6) remove tobacco shop as a conditionally permitted use in table 17.08.030, (7) implement Tobacco shop permit requirements in planned development overlay zoning designations 1 and 4. Project Location: Citywide Applicant/Proponent: City of Temecula The City Council approved the above described project on August 22, 2023 and found that the project is exempt from the provisions of the California Environmental Quality Act, as amended. Exempt Status: (check one) ❑ Ministerial (Section 21080(b)(1); Section 15268); ❑ Declared Emergency (Section 21080(b)(3); Section 15269(a)); ❑ Emergency Project (Section 21080(b)(4); Section 15269(b)(c)); ❑ Statutory Exemptions (Section Number: ) ® Categorical Exemption; (Section Number 15061 (b)(3)) ❑ Other: Section 15162 Categorical Exemption Statement of Reasons Supporting the Finding that the Project is Exempt: In accordance with the California Environmental Quality Act (CEQA), the proposed ordinance has been deemed to be exempt from further environmental review as there is no possibility that the proposed ordinance would have a significant impact on the environment pursuant to State CEQA Guidelines Section 15061(b)(3). The proposed ordinance amends Titles 5, 8, and 17 of the Temecula Municipal Code to (1) amend massage establishment regulations, (2) add definitions for tobacco shop, tobacco shop permit and update definitions of tobacco product and tobacco paraphernalia, (3) implement a Tobacco shop permit Program to include structural and operational requirements, (4) update tobacco retailers license processes, (5) Amend regulations on smoking in hotel rooms, (6) remove tobacco shop as a conditionally permitted use in table 17.08.030, (7) implement Tobacco shop permit requirements in planned development overlay zoning designations I and 4. The Ordinance does not permit any physical changes to the environment and no construction of any kind will occur due to the passage of this Ordinance. Contact Person/Title: Mark Collins/Assistant Planner Phone Number: (951) 506-5172 Signature: Luke Watson, Deputy City Manager Date received for filing at the County Clerk and Recorders Office: Date: Item No. 18 CITY OF TEMECULA AGENDA REPORT TO: City Manager/City Council FROM: Luke Watson, Deputy City Manager DATE: August 22, 2023 SUBJECT: Community Development Department Monthly Report RECOMMENDATION: That the City Council receive and file the Community Development Department monthly report. The following are the highlights for Community Development for the months of June and July 2023. CURRENT PLANNING ACTIVITIES Planning processed seventy-eight (78) new applications and conducted five (5) Public Hearings in June and July 2023. A detailed account of planning activities is attached to this report. Planning Statistics Dime July Long Range 1 1 12 Conditional Use Permit 1 1 Development Plan 1 D Entertainment License 0 1 General Plan Amendment 1 D Histroical.1ppropriatenen 1 4 Minor Exception 4 1 Modifications 9 12. Planned Deyelopment Overlay 4 1 Pre -Application 7 6 Public Conyenience or Necenity 1 0 Sign Program 2 0 Temporar- U,e Permit 3 2 Zoning Letter 3 1 Tort l 41 37 Paseo Del Sol Tentative Tract Map No. 36483 (PA14-0087): The City is processing a Tentative Tract Map (No. 36483) for 168 single-family homes and 11 open space lots located at the northwest corner of Temecula Parkway and Butterfield Stage Road. (COOPER) Temecula Valley Hospital Master Plan Update (PA21-1525): The City is processing a Modification to the previously approved Temecula Valley Hospital Master Plan. The updated Master Plan, at buildout will include the existing 237,305 square foot hospital building and 5,180 square foot storage building along with an approximately 130,000 square foot, four story Behavioral Health Building in Phase 2, an approximately 10,000 square foot expansion to the emergency department, a 125,000 square foot, five story second hospital tower, a 80,000 square foot medical office buildings, and a 14,000 square foot utility plant in Phase 3, and an approximately 125,000 square foot, five story third hospital tower, a 80,000 square three story foot medical office building, and a four story parking structure with the existing helipad relocated to the roof of the structure in Phase 4. The project is located at 31700 Temecula Parkway. A public scoping meeting for the Subsequent Environmental Impact Report (SEIR) was held on March 23, 2022, at the Ronald H. Roberts Temecula Public Library. The public review period for the SEIR has ended. The Final SEIR has been completed by the consultant and meetings have taken place with the City Council and Planning Commission Subcommittee's. A tour of a similar Behavioral Health Facility took place on June 6, 2023, for the City Council and Planning Commission. (COOPER) Temecula Resort and Spa (PAs 22-0035, 22-0037): The City is processing a Development Plan and Tentative Parcel Map for an approximately 474,137 square foot, seven (7) story, 90-foot high full service hotel that includes a parking garage, conference facilitiesiballrooms, gallery/event space, full service spa, restaurants, bars/lounges, retail outlets, workout facility, outdoor pool area, and a wedding garden located on the east side of Front Street between First Street and Second Street. The project was presented to the Old Town Steering Subcommittee on July 26, 2022, September 27, 2022, April 25, 2023, and May 23, 2023, and the Old Town Temecula Planning Commission Subcommittee on October 19, 2022. (COOPER) Seraphina Tentative Tract Map No. 38267 (PA22-0830): The City is processing a Tentative Tract Map (TTM 38267) for the creation of 39 single family lots and two (2) open space lots on 12.77 acres located on the southwest corner of Joseph Road and Rita Way (APN: 957-080-027). (COOPER) Boutique Luxury Hotel (PAs 22-0929, 0930, 0931): The City is processing a Development Plan for an approximately 54,699 square foot, four-story, 45 room hotel that includes retail spaces, a gym, meeting space, and a rooftop restaurant and pool area. The project is located on the west side of Old Town Front Street approximately 400' south of Santiago Road adjacent to the U-Haul dealership. The application package also includes requests for a Minor Exception for the height of the building to accommodate architectural tower elements and a Variance to allow for parking within the setback due to the narrow width of the project site. The project is scheduled for Planning Commission on September 6, 2023. (COOPER) Parker Medical Center II (PA22-0987): The City is processing a Development Plan for an approximately 35,601 square -foot, three story, medical office building located on the west side of Avenida De Missiones approximately 425 feet south of Temecula Parkway. (COOPER) Rally's Burgers (PA22-1012): The City is processing a Modification to a previously approved Development Plan (PA15-1572) for an approximately 998 square foot drive thru restaurant located on the southwest corner of Temecula Parkway and Mahlon Vail Road. (COOPER) Paradise Chevrolet (PAs 22-1124, 1125): The City is processing a Development Plan and Conditional Use Permit for an approximately 47,727 square foot, two story structure that includes rooftop parking for a commercial and fleet truck dealership that includes maintenance and repair services for Paradise Chevrolet. The project is located on an undeveloped site at 42105 DLR Drive. An environmental consultant has been selected and is under contract to prepare an environmental document for the project. (COOPER) FORE Temecula (PA23-0057): The City is processing a Development Plan for a 213-unit apartment community built on 6.6 acres located at 27468 Ynez Road in the Temecula Town Center Shopping Center. The project is taking advantage of a mixed -use overlay within the City of Temecula General Plan. The project applicant met with the City Council General Plan Update Ad Hoc Subcommittee on March 14, 2023. (COOPER) U-HAUL (PA23-0056): The City is processing a Development Plan for an approximately 40,883 square foot four story self -storage facility located on the southwest corner of Las Haciendas Street and Jefferson Avenue. (COOPER) Linfield Christian School PDO Amendment (PA23-0260): The City is processing a Planned Development Overlay Amendment for Linfield Christian School to adjust the boundaries of three (3) of the Planning Areas. The project does not propose any development within the Linfield Christian School Planned Development Overlay District. The project is scheduled for Planning Commission on August 16, 2023. (COOPER) Rancho-12 Tentative Tract Map (PA22-0047): A Tentative Tract Map for a 12-lot single-family development located at 31670 Rancho California Road. (JONES) Starbucks Ynez Road Modification (PA22-0722): A Major Modification application to allow revisions to an existing commercial site. Revisions will include fagade and site improvements. The project is located at 27425 Ynez Road. (JONES) White Barn Development Plan (PA22-0874): A Development Plan Application for a proposed 9,100 square -foot daycare facility on the vacant 2.46-acre parcel located at 39970 Cantrell Road. (JONES) Be Good Hotel (PA22-0995): A Development Plan Application to review a four-story hotel featuring nine rooms, restaurant and subterranean parking. The project is generally located on the northwest corner of Fourth Street and Mercedes Street. (JONES) Amazon Delivery Van Parking Lot (PA22-1025): A modification application to allow a parking lot expansion to accommodate delivery van parking. The project is located at 27731 Diaz Road. (JONES) Better Buzz/Ono BBQ Development Plan (PA23-0030): A Development Plan to allow the construction of two commercial structures totaling approximately 4,414 square feet. Structures will be used for a restaurant and coffee shop. The project is located at 29540 Rancho California Road. (JONES) Old Town Townhomes Development Plan (PA22-0941): The City is processing a Development Plan Application for the construction of 14 multifamily residential units on the vacant .68-acre parcel located at 42146 Sixth Street. (CARDENAS) LONG RANGE PLANNING General Plan Update: The Long Range Planning Division has developed a four -phase, multi -year process to update the General Plan. Phase I is complete and included updates to Housing and Public Safety Elements. Phase I also included an update to the City's Traffic Impact Analysis (TIA) Guidelines to analyze Vehicle Miles Travelled (VMT) for the California Environmental Quality Act (CEQA). Phase II is in process and includes an update to the Quality of Life Master Plan (QLMP), reconciling the City's GIS Maps on a parcel by parcel basis, a baseline EIR analysis of the City's Circulation Element, and developing a Complete Streets Policy document. Phase III will include a Fiscal Land Use Study to analyze the City's remaining development capacity and market absorption potential for residential, commercial, and industrial development. The final phase is to work with a General Plan Advisory Committee to update to the General Plan and EIR over an 18 to 24-month timeframe. (PETERS) Quality of Life Master Plan Update: On April 27, 2021, the City Council established a Blue Ribbon Committee (BRC) to update the Quality of Life Master Plan (QLMP). The QLMP identifies the City's six core values, including: 1) Healthy and Livable City; 2) Economic Prosperity; 3) Safe and Prepared Community; 4) Sustainable City; 5) Transportation Mobility and Connectivity; and 6) Accountable and Responsive City Government. Projects and programs proposed in the City's Annual Operating Budget and Capital Improvements Program must be consistent with the City's Core Values. Performance measures (indicators) are measured annually to track progress and the completion of goals and objectives. The last BRC meeting was held on July 21, 2022. The Preliminary Draft document was presented to all the Commissions in October and November. The Final Draft QLMP was approved by the City Council on November 15, 2022. The QLMP will serve as the foundation for the General plan update. The final document is available online and hard copies have been distributed to the City Council, City Staff, Boards, and Commissions. (PETERS) QLMP Website for Measuring Progress (Dashboard): As part of the Quality of Life Master Plan Update, Planning staff is working with a consultant, MIG, and the IT Department to develop a website for the QLMP. The intent of the website is to provide a "dashboard" to display the seven Core Values and eventually incorporate the goals and policies of the updated General Plan. The website will also be used to measure the city's progress towards achieving the Citizen's 20-Year Priorities identified in the QLMP. The dashboard will be displayed on a third -party website and will incorporate links and useful indicators intended for user- friendly navigation. MIG is currently working on finalizing the website and addressing final comments. (GARCIA) Uptown Temecula Specific Plan Amendment (LR19-1458): An amendment to the Uptown Specific Plan to implement the following changes: modify graphics to reflect consistency with text regarding allowable frontage types, amend street cross sections (graphics), amend plant pallet and Silva cell requirements for street trees, implement a street naming convention, amend streetlight spacing and other typographical errors. Staff has reached out to Spurlock Consulting for assistance in updating the Sidewalk and Streetscape Standards and is awaiting a scope of work and timeline. Public Works is drafting new street sections for the Specific Plan. Spurlock Consulting has provided a scope of work for the proposed changes to the streetscape and sidewalk standards and staff has executed the agreement for services and will begin updating the graphics as requested. Planning and Traffic Engineering have been working on updated street cross sections and a map to identify cross section placements. (COLLINS) Transportation Discovery and Existing Conditions Analysis (LR20-1071): The City received an SB 2 Grant from the State Department of Housing and Community Development (HCD) to prepare an internal document for staff to identify potential transportation focused areas as part of Phase 2 of our General Plan Update process and timeline. The City has retained Fehr & Peers (F&P) Transportation Consultants to document existing transportation conditions in the City, provide benchmarking information on how transportation facilities, transportation use and policies compares to other peer agencies (through benchmarking) and will evaluate how much of the current Circulation Element has been implemented. Staff worked with F&P to identify methodology, thresholds, and mitigation to address VMT for the California Environmental Quality Act evaluation, which the City Council adopted in May 2020. On July 19, 2021, Staff has a scheduled internal meeting with Fehr & Peers, they present to staff the Data Collection Status. Currently, the consultant is developing the three scenario runs to be reviewed by staff prior to conducting a full model run. (PETERS) Old Town Parklets (LR22-1112): The previous Old Town Outdoor Dining Program was a project intended to make the Temporary Expanded Dining/Retail Program (TED) permanent that was sparked by the COVID- 19 pandemic restrictions. However, due to the potential barriers that came to light such as loss of parking, ADA requirements, outside agency fees and more, the decision was made by City Council and staff to end the outdoor dining program when the license agreements expired on July 1, 2022. With that, other outdoor dining amenities were explored for Old Town which led to the Old Town Parklet Project. Parklets are the conversion of parking spaces on urban streets into a small public `park' or enclosed seating area. The intent of the Parklet Project is to provide an additional amenity to the community and promote an increase in pedestrian activity and convenience. Staff is working with a consultant, Placeworks, to design and implement the Old Town Parklets. Locations and design themes will be determined throughout the process with direction from the Old Town Steering Subcommittee. The consultant is currently working on parklet designs to present at a community workshop that will be held on October I Ith in the Conference Center. (GARCIA) Complete Streets (LR23-0043): This project will draft a citywide policy for the city to ensure transportation infrastructure is designed to enhance safety, accessibility, and mobility for all users. A Complete Streets Checklist will be developed to be used internally to ensure that transportation infrastructure projects are implementing Complete Streets where practical by considering the feasibility of Complete Streets improvements and ensuring consistency with other planning documents. The City has retained Fehr & Peers Transportation Consultants to draft the Complete Streets Policy, implementation checklist, and mid -block crosswalk criteria. This project is being funded by the Local Early Action Planning (LEAP) grant that was awarded by the State Department of Housing and Community Development (HCD). The consultant is currently drafting the Resolution and Complete Streets Checklist to be adopted by City Council in November 2023. (GARCIA) Climate Action Plan (CAP) Baseline Evaluation (LR23-0083): The City was awarded funds from the Local Early Action Planning (LEAP) grant opportunity by the State Department of Housing and Community Development (HCD) to prepare an internal report of the city's baseline Greenhouse Gas Emissions (GHG) inventory. The intent is for the City to have full documentation of a baseline emissions inventory that can be used as the City develops a Climate Action Plan. The City has hired WSP to collect data needed to estimate GHG emissions and include vehicle fuel economy standards, electric vehicle mandates, renewable electricity standards, waste reduction targets, and water use restrictions. The project kickoff meeting with city staff is scheduled for June 13, 2023. (GARCIA) Wayfinding Guide (LR23-0167): The city is working with a consultant, Alta Planning + Design, Inc., to implement a bicycle wayfinding system for the bike lanes and trails throughout the city. Alta will draft a wayfinding strategy memo that outlines best practices for destination selection, sign placement, and sign programming. The Multi -Use Trails and Bikeways Master Plan that was adopted in 2016 will act as an implementation and style guide to create an interconnected network designed to encourage more residents to use active transportation. The project kickoff meeting was held on July 24th with city staff and the consultant. (GARCIA) Bicycle Friendly Community Application (LR23-0220): The City was awarded a Bronze Level Bicycle Friendly Community Award in 2021. One of the aspirations in the Quality of Life Master Plan (QLMP) is to strive for a Gold Level. Staff is currently working on the application that will be submitted to The League of American Bicyclists. The League's Bicycle Friendly America program provides advocates and change makers with a roadmap and hands-on assistance to build places more welcoming to people who bike. The application is due August 30, 2023. Land Use Economic Opportunity Study (LR23-0078): In preparation for the General Plan Update staff has engaged Keyser Marston Associates (KMA) to complete a new Land Use Economic Opportunity Study. Staff is presently working on the agreement, funded through a LEAP Grant and services will commence once executed. Staff is working to provide KMA with the requested documents to complete the fiscal land use study. (COLLINS) Temecula Creek Wildfire Risk Reduction Community Plan (LR21-1331): Temecula applied for and was awarded a $300,000 grant to develop Temecula's first Community Wildfire Protection Plan (CWPP). The grant has a $78,000 match (staff time), the remainder is to onboard a consultant to draft the plan. RFP has closed and SWCA Environmental was selected as the winning candidate. The contract was approved at the January 1 Oth City Council Meeting and a kickoff is scheduled for February 61h in the conference center. The kickoff meeting was held with 18 in attendance, the Development Team has been assigned and consultant is planning for fieldwork in the coming weeks. Fieldwork was performed on March 281h and associated studies will be provided in due time. Consultant continues fieldwork and fire modeling with maps to be presented early this fall. (COLLINS) Housing Element Implementation Ordinance (LR22-0664): An agreement between WRCOG and the City to provide consultation services to provide analysis of required municipal code updates as they relate to the new slate of housing laws, such as SB-9, ADU Laws, etc. Additionally, would evaluate changes to the municipal code required after the adoption of the 6th Cycle Housing Element. The cost is included as a benefit to member agencies of WRCOG. WSP is the consultant selected by WRCOG to assist the city review its Municipal Code in relation to the new housing bills passed. Staff has bi-weekly meetings with the consultant to address the changes and will discuss proposed changes at a future date in consultation with the City Attorney's Office. Staff has received the draft analysis and will be reaching out for policy direction. Staff approached the consultant to include recently approved legislation in their analysis, and was unwilling. For this reason, staff with the assistance of the City Attorney's office will draft the Ordinance and the consultant has been released from the agreement through WRCOG. Staff has worked with the City Attorneys Office to complete the Draft Ordinance, and is currently preparing supporting documents and is scheduled for PC Subcommittee on August 16th and CC Subcommittee on August 22nd. (COLLINS) Old Town Parking Management White Paper (LR22-0857): The project will allow for the creation of a white paper discussing various technology solutions designed to track and report on parking in Old Town in real time. The project encompasses the entire Old Town Specific Plan area. Staff has retained Fehr & Peers to create the document and recommend technology for monitoring parking in real time. (JONES) Quality of Life Ordinance (LR23-0050): An Ordinance to address some concerns in 4 key areas that Staff has public safety concerns, 1) Massage Businesses attempting to circumvent the exemptions provided for in the Municipal Code and address some operational concerns raise by RSO, 2) Tobacco or "Smoke" Shops increasing number within the City and the process of licensing such establishments, 3) Smoking along public sidewalks with a focus on Old Town and the impacts to the walkable family feel the City and business owners have worked so hard to create, Staff met with the City Council Public Safety Ad Hoc Subcommittee (JA/BK) on 4/25 to discuss the proposed scope of the ordinance and to obtain Councilmembers feedback and direction on the proposed ordinance. The Draft Ordinance will be presented to Planning Commission Municipal Code Maintenance Subcommittee on June 7th and City Council Public Safety Ad Hoc Subcommittee on June 13th with PC and CC Hearings to follow. The Planning Commission passed Resolution No. 2023-14 recommending the City Council adopt the proposed ordinance and will be presented to the City Council on August 22"d. (COLLINS) Annual Title 17 Cleanup (LR23-0180): An annual effort of Community Development to identify areas of the code that need clarification, correction or an update. This is also performed to implement various components of state law. Staff has begun compiling the proposed changes and an ordinance will be drafted shortly thereafter. (COLLINS) HOUSING Las Haciendas Affordable Housing Project: The City has approved the construction of a 77-unit affordable multi -family housing community consisting of two residential buildings, a community building and tuck -under parking located at 28715 Las Haciendas. Community HousingWorks (CHW), the developer, has closed their interest list to the public, the lottery has taken place, and the property management company ConAm Management is working on getting future tenants approved before the move in date. The project is currently under construction in Uptown Jefferson. (URIAS) Old Town Temecula Town Homes: The City is reviewing a Development Plan application for the construction of 14 multi -family residential units on the vacant .68-acre parcel located at 42146 Sixth Street. (CARDENAS) Habitat (6) Homes Affordable Project: The City has approved and executed the Disposition and Development agreement for the construction of six (6) homes that will be available for purchase to families that qualify under low income or very low-income homebuyer income qualifications. The developer is Habitat for Humanity Inland Valley, Inc., a California nonprofit developer, the City is working with the developer to get escrow opened in the upcoming weeks. (URIAS) Request For Proposal (RFP) of the Jefferson Ave/Uptown Vacant Parcel: The City is working on starting the process to RFP the vacant parcel located in Uptown on Jefferson Avenue to the South of the French Valley Interchange exit. This parcel has an Affordable Housing Overlay Zone and The City plans to build affordable housing on this parcel. (URIAS) BUILDING & SAFETY Building and Safety statistics for June and July 2023 are highlighted in the following table. Building & Safety Statistics .Tune July Permits 509 445 New Single Family Unity 36 44 Acces�,onr Dwelling Units (ADLr) 4 3 New Commercial Building 0 0 Phot>voltaic 215 1453 Tenant Emprovement 12 9 Non Constructioa G of O 34 38 Number of Asti-,-e Plan Checks 312 259 -Lieber of�eiv Plan Checks 30 93 Number of Finaled Permits 300 323 Inspections 3086 3307 Inspections Per Dad- 16s 165 Inspections Per Per sor. Per Dat- 34 33 Stops Per Mcmth 1246 1336 Vixitofs to Counter 54 i 671 Non -Construction Certificate of Occupancy ❑ Great Harvest Bread Company (2,261 SF) ❑ Synergy Orthopedic Specialists (1,424 SF) Tenant Improvement ❑ Kompoocha Brewing (2,116 SF) ❑ HOTWORX Fitness Studio (12,751 sq ft) ❑ Crown Dental (1,054 SF) ❑ BioLife Plasma Services (16,940 SF) CODE ENFORCEMENT During the months of June and July, Code Enforcement responded to 192 web inquiries. In addition, the division opened 316 code cases, conducted 660 regular inspections and forwarded 64 referrals. Code Enforcement Statistics June July Abandoned or Inoperable Vehicle 2 1 Vacant Home/ Prop. Maintenance :Infestation Mold 6 Business or Home Occupation w. o license CUP 5 4 Trash and Debris ,' Dumping 22 Overgrown Vegetation . �1-'eeds :' Fire Hazard 20 51 Green Pool:: Vector Control.: Stagnant Water 7 Graffiti 7 5 Itioim'Nuisance.-Animal. Control 7 13 Trailer :' lam' Stored Boat. Parking 6 23 Construction w o Permit Building Cade 35 Encroach Public ROW. Trash Cans 15 2 ToningiSigns Public Safety- & Health 3 8 Total Number of Cases 173 Foreclosure Tracking: Code Enforcement works with the local real estate community to monitor foreclosures, defaults and real estate owned properties. Foreclosure Statistics July Residential - Default —Jmb� 36 33 Residential - Foreclo5ure 2.2 Residential - REO 12 9 Total - Residential Commercial - Defauh commercial - Foreclosure 2 2 Commercial - REO Total - Commercial 2 2 ATTACHMENT: Current Planning Activity Report PLANNING ACTIVITY REPORT Assigned Planner Approval PA Number Project Address APN Apply Date Date Applicant PA23-0227 42974 Roick Dr 909-320-056 Eric Jones 06/01/2023 Sherrie Munroe Temecula, CA 92590 Case Title / Description: Sailhouse Temecula Development Plan: A Development Plan for an approximately 7,066 square foot warehouse building with office space. The project is located at 42974 Roick Drive. Company Owner Plan Type Status Copan PL Development Out Diagnostics Inc. Plan PA23-0229 43195 Business Park Dr 921-020-072 Jaime Cardenas 06/01/2023 06/14/2023 Taylor Menge saed PL Zoning or Completed Temecula, CA 92590 investments Planning Letter Case Title / Description: 43195 Business Park Drive ZL: a zoning verification letter for the property located at 43195 Business Park Drive (APN 921-020-072). PA23-0231 916-400-043 Jaime Cardenas 06/02/2023 06/22/2023 Stacey Burdick LANTERN PL Zoning or Completed Temecula, CA CRESTAT Planning Letter TEMECULA Case Title / Description: 916400043 ZL: a Zoning Letter for the property associated with the Assessor Parcel Number 916-400-043. PA23-0234 29750 Rancho California Rd 921-760-001 Yannin Marquez 06/05/2023 Richard Jeff Hilton PL Sign Program Out Temecula, CA 92591 Guadamuz Case Title / Description: 7 Eleven Sign Program: A New Sign Program application for 7 Eleven convenience store located at 29750 Rancho California Road. PA23-0235 33320 Temecula Pky 965-410-003 Yannin Marquez 06/05/2023 07/05/2023 Rose Corona Corona Family PL Temporary Approved Temecula, CA 92592 LTD Partnership Use Permit Case Title / Description: Annual Corn Maze & Harvest Festival TUP: a Temporary Use Permit (Major) for a corn maze and harvest festival with food and alcohol from September 30, 2023, to October 31, 2023, from 10:00 AM to 5:00 PM, Monday through Sunday, located at 33320 Temecula Parkway. PA23-0236 28588 Old Town Front St 922-033-021 Eric Jones 06/05/2023 Jose Bahena Ronald Darling PL Modifications Out Temecula, CA 92590 Case Title / Description: Kalaveras CUP MOD: A Modification Application to revise previously approved Conditional Use Permit Conditions of Approval related to operating hours for a new restaurant. The project is located at 28588 Old Town Front Street. Page 1 of 9 Assigned Planner Approval PA Number Project Address APN Apply Date Date Applicant PA23-0238 27340 Nicolas Rd 920-100-019 Scott Cooper 06/06/2023 06/13/2023 Daniel Bowman Temecula, CA 92591 Case Title / Description: Vineyard Ranch MOD: A Modification to a previously approved Development Plan (PA15-0172) to revise Phase II to increase the size of the basin, reduce the fire lane distance while increasing the amount of landscaping, and reduce the amount of provided parking spaces from 79 to 76 which meets the amount of required parking spaces for the project. The project is located at 27350 Nicolas Road. PA23-0240 27590 Jefferson Ave 910-310-004 Jaime Cardenas 06/07/2023 Marcus Paris Temecula, CA 92590 Case Title / Description: Camping World MOD: a Modification Application to include 'Parcel 2' to the existing CUP and to modify the site with new security fencing, parking, landscaping a service building conversion, and demolition of the former restaurant building located at 27600 Jefferson Avenue. PA23-0241 43890 Butterfield Stage Rd 966-010-013 Yannin Marquez 06/08/2023 07/10/2023 Stephanie Temecula, CA 92592 Silen-Flood Case Title / Description: Les Schwab Tires Temecula Solar MOD: a Modification Application (Planning Review Only) for the installation of 139 roof -mounted solar modules located at 43890 Butterfield Stage Road. PA23-0246 31634 Loma Linda Rd 961-101-008 Yannin Marquez 06/09/2023 07/10/2023 Alfonso Temecula, CA 92592 Buitrago-Jimenez Case Title / Description: Arredondo Residence Addition MOD: a Modification Application (Planning Review Only) for a 451.48 square foot one-story addition to the rear of the residence located at 31634 Loma Linda Road. PA23-0249 42433 Avenida Alvarado 909-290-001 Yannin Marquez 06/12/2023 08/01/2023 Michael Asaro Temecula, CA 92590 Case Title / Description: MS Mountain View Bldg 1 MOD: A Modification Application (Planning Review Only) to a previously approved development plan (PA20-0533) for the addition of two parking spaces located at 42433 Avenida Alvarado. This project includes a Minor Exception (PA23-0276). Company Owner Plan Type Status Irwin Partner PROTEA PL Modifications Approved Architects SENIOR LIVING TEMECULA PA23-0250 30237 Corte Cantania 921-690-007 Yannin Marquez 06/14/2023 07/03/2023 Steven Hill Seven Hills Temecula, CA 92591 Engineering Case Title / Description: Carr Addition MOD: A Modification Application (Planning Review Only) for anew 73 square foot addition for a bathroom and closet at the front west end of the existing residence located at 30237 Corte Cantania Prime Steaks & PL Modifications Corrections Spirits Les Schwab Tire PL Modifications Approved Center #571 Chris Arredondo PI -Modifications Approved Tim Hoag PL Modifications Approved David Carr PL Modifications Approved Page 2 of 9 Assigned Planner Approval PA Number Project Address APN Apply Date Date Applicant Company Owner Plan Type Status PA23-0251 45100 Redhawk Pky 962-040-012 Eric Jones 06/15/2023 James Wood RAINBOW PL Conditional Plan Review Temecula, CA 92592 BRIDGE Use Permit MANAGEMENT Case Title / Description: Redhawk Event Center CUP: A Conditional Use Permit to allow an event center to be operated as part of an existing golf course. The project is located at 45100 Temecula Parkway. PA23-0252 28717 Pujol St 922-062-008 Eric Jones 06/15/2023 Al Aguirre LAIRD PL Historical Out Temecula, CA 92590 CAMERON Appropriateness Case Title / Description: McCoy Historical Structure Certificate of Historical Appropriateness: A Certificate of Historical Appropriateness to demolish a historic structure (Al Otto House). The project is located at 28717 Pujol Street. PA23-0255 29375 Rancho California Rd 944-330-015 Yannin Marquez 06/20/2023 06/23/2023 Chansler SRA Ventures PL Temporary Approved Temecula, CA 92592 Skousen Use Permit Case Title / Description: Girls Day Out Market TUP: a Major Temporary Use Permit for a vendor market with 40 vendors with no outside food or alcohol on June 25, 2023, from 11:00 AM to 3:00 PM located on the east side parking lot of Oscars Brewing Company located at 29375 Rancho California Road. PA23-0256 27165 Madison Ave 910-272-022 Scott Cooper 06/21/2023 07/13/2023 Philip Powers Temecula TEMECULA PL Modifications Approved Temecula, CA 92590 Extended Stay, EXTENDED LLC STAY Case Title / Description: Everhome Suites MOD: A Modification (Planning Review Only) to a previously approved Development Plan (PA21-1350) for the addition of a ADA lift and exterior door without adding square footage to the project located at 27165 Madison Avenue. PA23-0257 31845 Temecula Pky, , 106 961-080-008 Jaime Cardenas 06/21/2023 Tiffany Del Gatto GALILEO VAIL PL Sign Program Corrections Temecula, CA 92592 RANCH LP Case Title / Description: Vail Ranch Center Sign Program Amendment: a Sign Program Amendment application to modify the existing sign program to accommodate a converted multitenant building located at 31845 Temecula Parkway. PA23-0258 27500 Jefferson Ave 910-310-007 Jaime Cardenas 06/21/2023 07/03/2023 Dyana Tucker Heritage Inn of PL Zoning or Completed Temecula, CA 92590 Temecula, LLC Planning Letter Case Title / Description: 27500 Jefferson Avenue ZL: a zoning verification letter for the property located at 27500 Jefferson Avenue. Page 3 of 9 Assigned Planner Approval PA Number Project Address APN Apply Date Date Applicant Company Owner Plan Type Status PA23-0260 31950 Pauba Rd 955-020-019 Scott Cooper 06/23/2023 Deanna Elliano Linfield Christian PL General Plan Hearing Temecula, CA 92592 School Amendment Case Title / Description: Linfield Christian School PDO-A: A Planned Development Overlay Amendment for Linfield Christian School to adjust the boundaries of three (3) of the Planning Areas. PA23-0267 32273 Daybrook Terrace 964-750-007 Scott Cooper 06/28/2023 Dena Upp escrow acct SHAWOOD PL Temporary Plan Review Temecula, CA 92591 5074 authorized COMMUNITIES Use Permit user Case Title / Description: Sommers Bend SHAWOOD Construction Trailer TUP: A Temporary Use Permit to allow for a temporary construction trailer on site throughout the construction of Sommers Bend SHAWOOD PA23-0269 28636 Old Town Front St 922-034-036 Eric Jones 06/30/2023 Andrew Doty Front & Main PL Modifications Plan Review Temecula, CA 92590 Case Title / Description: Old Town Blues Club Modification: A Modification application to review an existing awning located on the north side of an existing structure. The project is located at 28636 Old Town Front Street. PA23-0270 28636 Old Town Front St 922-034-036 Eric Jones 06/30/2023 Andrew Doty Front & Main PL Public Plan Review Temecula, CA 92590 Convenience or Necessity Application Case Title / Description: Old Town Blues Club PC&N: A PC&N for the Old Town Blues Club. The project is located at 28636 Old Town Front Street. Related application PA23-0182 (CUP Modification to Obtain a Type 990 ABC License). PA23-0271 26469 Ynez Rd 910-300-014 Yannin Marquez 07/03/2023 Chad Williams KIMCO PALM PL Conditional Out Temecula, CA 92591 PLAZA Use Permit Case Title / Description: Portals Entertainment Center CUP: A Conditional Use Permit for an arcade, laser tag, mini golf course and restaurant located at 26469 Ynez Road. PA23-0274 26478 Ynez Rd 910-320-048 Yannin Marquez 07/05/2023 Chris Krstevski ART OF DEV PL Modifications Plan Review Temecula, CA 92591 Case Title / Description: Express Carwash Solar MOD: A Modification Application (Planning Review Only) for 76 solar panels to be mounted on the roof of the building and 235 solar panels to be mounted on the two carports located 26476 Ynez Road. Page 4 of 9 Assigned Planner Approval PA Number Project Address APN Apply Date Date Applicant Company Owner Plan Type Status PA23-0275 43223 Business Park Dr 921-710-010 Yannin Marquez 07/05/2023 Vicki Ayala EPX Group LLC NORDEEN PL Modifications Applied Temecula, CA 92590 LIVING TRUST DATED 8/23/2010 Case Title / Description: Business Park Solar MOD: A Modification Application (Planning Review Only) for 269 roof mounted solar panels located at 43223 Business Park Drive. PA23-0276 42433 Avenida Alvarado 909-290-001 Yannin Marquez 07/07/2023 08/01/2023 Michael Asaro JT-BRESSI PL Minor Approved Temecula, CA 92590 Exception Case Title / Description: MS Mountain View - Bldg 1 ME: A Minor Exception for a15% reduction in required parking spaces from a total of 21 required spaces to 19 required spaces. The project is located at 42433 Avenida Alvarado. PA23-0277 32937 Temecula Pky 960-030-043 Jaime Cardenas 07/12/2023 Gregory Cary UG2 TEMECULA PL Modifications Plan Review Temecula, CA 92592 Case Title / Description: Smart & Final MOD: a Modification Application to allow facade changes for Smart & Final to occupy the former 'Best Buy" building located at 32937 Temecula Parkway. PA23-0280 922-210-042 Eric Jones 07/12/2023 Brandon Humann Catalyst PL Planned Plan Review Temecula, CA Commercial Development Group, LLC Overlay Case Title / Description: Car Wash and Coffee Shop Planned Development Overlay: A Planned Development Overlay to provide development standards for a proposed coffee shop and car wash. The project is located approximately 160 feet south of the Temecula Parkway and Bedford Court intersection at APN: 922-210-042. PA23-0283 27725 Jefferson Ave 921-400-031 Eric Jones 07/14/2023 Salvador Herrera JEFFERSON PL Entertainment Plan Review Temecula, CA 92590 PLAZA CENTER License Case Title / Description: Salud Lounge Entertainment License: An Entertainment License application to allow Salud Lounge to conduct indoor entertainment. The project is located at 27725 Jefferson Avenue. PA23-0284 27624 Jefferson Ave 921-480-074 Yannin Marquez 07/17/2023 Alan Ibarra Rocket Roofing Philip Chang PL Modifications Plan Review Temecula, CA 92590 Case Title / Description: 27624 Jefferson Avenue MOD: A Modification Application (Planning Review Only) for the installation of new roof materials located at 27624 Jefferson Avenue. The roof materials are changing from wood shakes to forest brown shingles. PA23-0285 43223 Business Park Dr 921-710-010 Yannin Marquez 07/17/2023 Vicki Ayala EPX Group LLC Richard Nordeen PL Modifications Plan Review Temecula, CA 92590 Case Title / Description: EPX Group, LLC Solar MOD: A Modification Application (Planning Review Only) for the installation of 269 roof -mounted solar modules located at 43223 Business Park Drive. Page 5 of 9 Assigned Planner Approval PA Number Project Address APN Apply Date Date Applicant Company Owner Plan Type Status PA23-0286 32381 Daybrook Terrace 964-740-001 Scott Cooper 07/17/2023 08/02/2023 Dena Upp escrow acct SHAWOOD PL Modifications Approved Temecula, CA 92591 5074 authorized COMMUNITIES user Case Title / Description: Sommers Bend PAs 19, 20B, & 21 Shawood MOD: A Modification to previously HPRs (PA22-0494, PA22-0495, PA22-0496) for revisions to the elevations including window locations, sizes, and type, optional sliding doors, extending veneer wrap, and front door options within Planning Areas PAs 19, 20B, & 21 of Sommers Bend. PA23-0289 41915 Business Park Dr 921-020-043 Jaime Cardenas 07/18/2023 07/27/2023 Cory Hudson International PL Zoning or Completed Temecula, CA 92590 Rectifier Co Planning Letter Case Title / Description: International Rectifier Corp ZL: a Zoning Verification Letter for International Rectifier Corporation located at 41915 Business Park (APN 921-020-043). PA23-0290 33320 Temecula Pky 965-410-003 Yannin Marquez 07/19/2023 Karin Corona Family PL Temporary Plan Review Temecula, CA 92592 Raubenheimer LTD Partnership Use Permit Case Title / Description: ABC Tree Farms, LLC TUP: ATemporary Use Permit to allow a pumpkin patch event from September 29, 2023 to October 31, 2023 and a Christmas Tree Lot sales and event from November 24, 2023 to December 24, 2023.The project is located at 33320 Temecula Parkway. PA23-0291 42661 Avenida Alvarado 909-290-078 Scott Cooper 07/20/2023 07/25/2023 Mario Calvillo MS -MOUNTAIN PL Modifications Approved Temecula, CA 92590 VIEW Case Title / Description: MS Mountain View - Bldg 19 MOD: A Modification (Planning Review Only) to a previously approved Development Plan (PA22-0595) to add two (2) access doors located at 42661Avenida Alvarado PA23-0292 27562 Via Industria 909-290-048 Scott Cooper 07/20/2023 07/25/2023 Mario Calvillo MS -MOUNTAIN PL Modifications Approved Temecula, CA 92590 VIEW Case Title / Description: MS Mountain View - Bldg 15 MOD: A Modification (Planning Review Only) to a previously approved Development Plan (PA22-1034) to add one (1) access door located at 27562 Via Industria PA23-0293 27550 Via Industria 909-290-023 Scott Cooper 07/20/2023 07/25/2023 Mario Calvillo MS -MOUNTAIN PL Modifications Approved Temecula, CA 92590 VIEW Case Title / Description: MS Mountain View - Bldg 16 MOD: A Modification (Planning Review Only) to a previously approved Development Plan (PA22-1035) to add one (1) access door located at 27550 Via Industria Page 6 of 9 Assigned Planner Approval PA Number Project Address APN Apply Date Date Applicant Company Owner Plan Type Status PA23-0298 27473 Ynez Rd , 1A 921-270-055 Yannin Marquez 07/20/2023 Pearl Bfar Temecula Plaza PL Modifications Applied Temecula, CA 92591 Center Case Title / Description: 85 Degrees Bakery MOD: A Modification Application (Planning Review Only) to remove and relocate one exterior door at the rear south end of an existing building. This project is located at 27473 Ynez Road, Suite 1A. PA23-0300 41892 Motor Car Pky 921-680-003 Yannin Marquez 07/21/2023 DANIEL FLORES Oremor Of PL Modifications Plan Review Temecula, CA 92591 Temecula LLC Case Title / Description: Temecula Toyota Inventory Solar MOD: A Modification Application (Planning Review Only) for the installation of 144 roof -mounted solar modules on an existing building located at 41892 Motor Car Parkway. PA23-0304 28676 Old Town Front St 922-044-009 Yannin Marquez 07/27/2023 Dean Norris Front Street Dean Norris PL Temporary Plan Review Temecula, CA 92590 Holdings, LLC Use Permit Case Title / Description: Swing Inn TUP: A Major Temporary Use Permit application for an anniversary celebration that consists of one person providing live music entertainment on August 18th, 2023, through August 20th, 2023, from 5:00 PM to 9:00 PM located at 28676 Old Town Front Street. PA23-0307 42624 Avenida Alvarado 909-290-071 Eric Jones 07/28/2023 Dave Mason Dave Mason PL Modifications Plan Review Temecula, CA 92590 Case Title / Description: Tri-State Mezzanine Modification: A Modification application for an approximately 3,200 square foot mezzanine. The project is located at 42624 Avenida Alvarado. PREAPP23-0 28645 Old Town Front St 922-036-011 Scott Cooper 06/01/2023 Heidi Luerra PL Plan Review 228 Temecula, CA 92590 Pre -Application Case Title / Description: The Bold Pre-App: A Pre -Application for a restaurant, cocktail bar, and live music and performance menu located at 41915 3rd Street PREAPP23-0 32937 Temecula Pky 960-030-043 Jaime Cardenas 06/02/2023 Gregory Cary UG2 TEMECULA PL Plan Review 233 Temecula, CA 92592 Pre -Application Case Title / Description: Smart & Final Preapp: a Pre -Application to review new facade, signs, and tenant improvements for Smart & Final to occupy the former "Best Buy" building located at 32937 Temecula Parkway. PREAPP23-0 40695 Winchester Rd 910-290-007 Yannin Marquez 06/07/2023 06/29/2023 Nima Noorzad Winchester PL Completed 239 Temecula, CA 92591 Marketplace Pre -Application Case Title / Description: Earth Bistro outdoor seating Pre-App: a Pre -Application for a modification to add a patio at the front of the storefront located at 40695 Winchester Road. Page 7 of 9 Assigned Planner Approval PA Number Project Address APN Apply Date Date Applicant Company PREAPP23-0 31709 Temecula Pky 961-080-004 Yannin Marquez 06/08/2023 06/22/2023 Noelia Santiago Valerio 242 Temecula, CA 92592 Architects Case Title / Description: Cava CUP Pre-App: a Pre -Application for the modification of a Conditional Use Permit (PA01-0082) and exterior of the building for a future dine -in restaurant located at 31709 Temecula Parkway Owner Plan Type New Plan Excel PL Realty Trust Inc. Pre -Application Status Completed PREAPP23-0 945-090-001 Scott Cooper 06/08/2023 Bill Parker PL Out 243 Temecula, CA Pre -Application Case Title / Description: Parker Ridge Pre-App: A Pre -Application for nine (9) single family lots on 11.4 acres located on the south side of Pauba Road approximately 600 feet of Showalter Road PREAPP23-0 940-310-015 Scott Cooper 06/09/2023 Colin Koch PL Out 247 Temecula, CA Pre -Application Case Title / Description: Altair Villages A, B, Cn Pre-App: A Pre -Application for Plotting of Villages A, B, and Cn of Altair PREAPP23-0 921-020-044 Eric Jones 06/30/2023 07/13/2023 Ryan Grove 268 Temecula, CA Case Title / Description: Parcel 6 - Business Park Drive: A Pre -Application to review an approximately 135,000 square foot warehouse/distribution spec building. The project is located approximately 1,300 feet north of the Single Oak Drive and Business Park Drive intersection at APN: 921-020-044. PREAPP23-0 921-280-002 Eric Jones 07/05/2023 07/20/2023 Richard Finkle 272 Temecula, CA Case Title / Description: Temecula Mixed Use: A Pre -application to review a three-story mixed -use structure consisting of retail and parking on the first floor and residential on the second and third floors (44 units total). The project is located approximately 240 feet from the Vincent Moraga Drive and Felix Valdez Drive intersection at APN: 921-280-002. PREAPP23-0 27635 Diaz Rd 921-030-043 Eric Jones 07/12/2023 07/20/2023 Christopher 278 Temecula, CA 92590 Arnold Case Title / Description: Telsa Collision and Repair Center Pre-Applicaiton: A Pre -Application to review a proposed automobile collision repair center (Tesla). The project is located at 27635 Diaz Road. PREAPP23-0 41975 4Th St 922-033-012 Eric Jones 07/12/2023 07/27/2023 Kellie Patry 279 Temecula, CA 92590 Case Title / Description: The Dram Pre -Application: A Pre -Application to review a proposed restaurant and bar that will be located within an existing building. The project is located at 41975 4th Street. International PL Completed Rectifier Cc Pre -Application SPX PL Completed INVESTMENT Pre -Application DIAZ RE PL Completed HOLDINGS Pre -Application PL Completed Pre -Application Page 8 of 9 Assigned Planner Approval PA Number Project Address APN Apply Date Date Applicant Company PREAPP23-0 921-020-067 Scott Cooper 07/13/2023 Brendan Smith 281 Temecula, CA Case Title / Description: Temecula RV Storage Pre-App: A Pre -Application for an RV and mini storage facility consisting of 172 outdoor parking storage spaces and a office building on the vacant lot on Business Park Drive at the terminus of Rancho Way. Owner Plan Type Status PL Cancelled Pre -Application PREAPP23-0 957-080-027 Scott Cooper 07/21/2023 Christopher PL Plan Review 299 Temecula, CA Shiota Pre -Application Case Title / Description: Seraphina Pre-App: A Pre -Application for the creation of 120 single family lots and 2 open space lots on 17.55 acres located on the southwest corner of Joseph Road and Rita Way (APN: 957-080-027) PREAPP23-0 921-280-002 Eric Jones 07/28/2023 Dan Morrar SPX PL Plan Review 306 Temecula, CA INVESTMENT Pre -Application Case Title / Description: Temecula Daycare Pre -Application: A Pre -Application to review an approximately 12,000 square foot day facility. The project is located at APN: 921-280-002 and is approximately 250 feet east of the Vincent Moraga and Felex Valdez intersection. Page 9 of 9 Item No. 19 CITY OF TEMECULA AGENDA REPORT TO: City Manager/City Council FROM: John Crater, Division Chief DATE: August 22, 2023 SUBJECT: Fire Department Monthly Report PREPARED BY: RECOMMENDATION: Report. Wendy Miller, Management Analyst That the City Council receive and file the Fire Department Monthly CITY OF TEMECULA FIRE DEPARTMENT Operations Prevention I Training I Emergency Management MONTHLY REPORT I JULY 2023 j P . M/Mj Ilf" Y/K 5 Stations 7 Engines I USAR 12 Truck I I Squad Population - 112,194 TYPE: iCOMMERCIAL FIRE MULTI -FAMILY FIRE RESIDENTIAL FIRE WILDLAND FIRE-7 "VEHICLE FIRE OTHER FIRE at RESCUE Y -w RINGING ALARM FALSE ALARM HAZMAT TOT) JULY CALL BREAKDOWN 5 .0 2- 82 3 L: 107 'Other TYPE: Fires --APR1..L'21123 False Alarm TRAFFIC COLLISION 5E MEDICAL EMERGENCY B55 TE OTHER MISCELLANEOUS H PUBLIC AS.SI ST 38 STANDBY,,, H N edical Emergencies ru 1 \%01ffibPb\\\\\\\1 2 17,1�5 ina Calls for Service in 2022 ­Q�Ztlql� - ��_7 Year to Date Calls CITY OF TEMECULA FIRE DEPARTMENT Operations I Prevention I Training I Emergency Management a MONTHLY REPORT JULY2023 "r i a Oil TI-ON—TRENDS f9,,'T. ri '; 711 oil T ward F 1► 1 F �.0—z?, .. G " 1r�r M .— R 7 J �~. JI W 11 17 CALLS THIS MONTH - r 717 q;go--- r CITY OF TEMECULA FIRE DEPARTMENT Operations I Prevention I Training I Emergency Management CHECKS/REVIEWS 755 • "' - .. _. - •mow i.d ,. Y: _ ww . • _ -. ��t • T MONTHLY REPORT JULY2023 a .. vg1111111q,:JULY INSPECTION BREAKDOWN SPECIAL EVENT ���-�;`'�`���,. NUAI PERMITS...,,.. ,.IN ECTIONS YTD:12 WU STRUCTIOL' 1 4+A .i q r lam' ✓ I i}, INSPECTIONS ; - S t YTD: 3230 PUBLIC INQUIRIES 34 _ YTD: 20B CITY OF TEMECULA FIRE DEPARTMENT ••`� Operations Prevention I Training I Emergency Management a 9 � MONTHLY REPO 2023 PROGRAM H I G H LI G HTS:-,,.,,,,''''i,,;,;,,��irrir}ff PLAN N ED COMMUNITY EVEI,,LJPPD RTE D: b r. 1111 f Illlllllll • OEM attended the Access and Functional Needs (AFN) Symposium with CalOES and other V'��_:regional partners regarding the new requirements for emergency planning and inclusion ���� 4PREPAREDNESS TRAINING / EVEN�S� • OEM executed a full EOC Activation Functional Exercise — planning process for a high visibility dignitary visit Conducted 3 pre -exercise training sessions on our EN Management System via MS Te0ms" . • Participated in the Riverside County EMD After Action Review of the 2023 Winter Storms response The 2023 City of Temecula Local Hazard Mitigation Plan (LHMP) has been adopted and remaifis Community Presentations:) -_• Participated in an Emergency Manageff -_ _ Student Interview for Grand Canyon University Community Preparedness Backpacks: o YTD: TotaE �~ effective until 2028 -„ - —�— 1,. �,..# �: �.�:. r GRANTS D CLAIMS. f. Winter Storms 2023 DR-4E83: Package eaIDES for decision • Recovery pictures taken at the request of CalOES and entered into the package as supplementa information CDVID Emergency Reimbursement Package: Under Review by FEMA Fairview Fire Management Assistance Grant (FMAG) Package: Under Review by FEMA EMERGENCY OPERATIONS CENTER CtA ivationS'- +� Current Status: Level 4 — Normal ns 4 - CITY OF TEMECULA FIRE DEPARTMENT Operations I Prevention I Training I Emergency Management Center c ' �e ®� -A CITY OF TEMECULA AGENDA REPORT TO: City Manager/City Council FROM: Chris Durham, Captain DATE: August 22, 2023 SUBJECT: Temecula Sheriff's Monthly Report (July 2023) PREPARED BY: Chris Mattson, Sergeant RECOMMENDATION: That the City Council receive and file monthly report. The following report reflects the activity of the Temecula Sheriff's Station for July 2023. PATROL SERVICES Overall calls for police service.................................................................................................6,186 "Priority One" calls for service......................................................................................................81 Average response time for "Priority One" calls.........................................................................5.19 VOLUNTEERS Chaplain..................................................................................................................................108.50 Community Action Patrol (CAP) hours..................................................................................561.55 Reserve officer hours (patrol)........................................................................................................18 Explorer..........................................................................................................................................63 Station/Administration ...................................................................................................................22 Total Volunteer hours.............................................................................................................773.05 OLD TOWN STOREFRONT Total customers served.....................................................................................701 Fingerprints/Live Scan.....................................................................................138 Policereports filed.............................................................................................10 Citationssigned off..........................................................................................13 Totalreceipts...........................................................................................................................$7,176 CRIME PREVENTION Crime prevention/Neighborhood watch meetings...........................................................................0 Safety presentations/Training................................................................................0 Specialevents...................................................................................................................................7 Residential/Business security surveys conducted............................................................................0 Residences/Businesses visited for past crime follow-up.................................................................0 StationTours....................................................................................................................................0 Planning Review Projects.......................................................................................3 Temp Outdoor Use Permits....................................................................................6 SPECIAL TEAMS (CORE) ReportsWritten...............................................................................................17 Onsight felony arrests..................................................................................................................... I On sight misdemeanor arrests................................................................................7 Felony arrest warrants served.................................................................................2 Misdemeanor arrest warrants served.............................................................................................14 AreaChecks.....................................................................................................71 CampChecks................................................................................................................................16 PedestrianChecks.....................................................................................................59 Traffic Stops/Vehicle Checks..................................................................................................... 2/5 Outreachattempts / Success........................................................................................................ 1/3 SPECIAL TEAMS (Metro District Team) Onsight, felony arrests......................................................................................12 On sight, misdemeanor arrests.......................................................................................................14 Felony arrest warrants served..........................................................................................................8 Misdemeanor arrest warrants served .............................................................................................78 Bar/Business checks........................................................................................................................8 D.U.I. Arrests..................................................................................................................................7 Traffic/Parking citations.............................................................................................................151 FirearmsSeized................................................................................................ I SPECIAL TEAMS (Special Enforcement Team) Onsight felony arrests......................................................................................................................5 On sight misdemeanor arrests...........................................................................................................9 Felony arrest warrants served...........................................................................................................4 Misdemeanor arrest warrants served..............................................................................................16 Follow-up investigations/search warrants....................................................................5 Parole/Probation Searches...............................................................................................................8 PedestrianChecks.................................................................................................12 Traffic Stops/Vehicle Checks...................................................................................................17/20 Marijuana Dispensary Checks.........................................................................................................0 ROBBERY/BURGLARY SUPPRESSION TEAM BeginningCaseload.......................................................................................................................58 TotalCases Assigned....................................................................................................................20 TotalCases Closed........................................................................................................................22 Search Warrants prepared/served.................................................................................................14 Arrests..............................................................................................................................................7 Outof Custody Filings............................................................................................3 TRAFFIC Citations issued for hazardous violations..................................................................................1029 Non -hazardous citations...............................................................................................................112 Parkingcitations...........................................................................................................................224 Stop Light Abuse/Intersection Program (S.L.A.P.) citations.........................................................49 Seatbelts.........................................................................................................................................17 CellPhone Cites...........................................................................................................................240 Injurycollisions.............................................................................................................................25 D.U.I. Arrests.................................................................................................................................25 Grant -funded D.U.I. Traffic safety checkpoints/saturation enforcement........................................0 Grant -funded traffic click it or ticket/traffic enforcement.............................................................. I INVESTIGATIONS BeginningCaseload.....................................................................................................................125 TotalCases Assigned....................................................................................................................31 TotalCases Closed........................................................................................................................42 Search Warrants prepared/served .................................................................................................21 Arrests.............................................................................................................................................. I Outof Custody Filings............................................................................................ I Sex Offenders Processed....................................................................................13 PROMENADE MALL TEAM Callsfor service...........................................................................................................................136 Felonyarrest/filings.........................................................................................................................3 Misdemeanor arrest/filings..............................................................................................................7 TrafficCitations..............................................................................................8 Total customers served................................................................................................................953 Fingerprints/Live Scans...............................................................................................................250 Totalreceipts............................................................................................ $7,403 SCHOOL RESOURCE OFFICERS (Out of session for the summer) Felonyarrest.....................................................................................................................................0 Misdemeanor arrests........................................................................................................................0 Reports.............................................................................................................................................0 Citations...........................................................................................................................................0 Meetings/Presentations....................................................................................................................2 Item No. 20 CITY OF TEMECULA AGENDA REPORT TO: City Manager/City Council FROM: Patrick Thomas, Director of Public Works/City Engineer DATE: August 22, 2023 SUBJECT: Public Works Department Monthly Report RECOMMENDATION: That the City Council receive and file the Public Works Department Monthly Report for Capital Improvement Projects, Maintenance Projects, and Land Development Projects. This report may also be viewed on the City's website at: hl!p://temeculaca.gov/270/Cgpital-improvement-Projects-CIP ATTACHMENT: Project Status Report City of Temecula DEPARTMENT OF PUBLIC WORKS PROJECT STATUS REPORT August 22, 2023 CAPITAL IMPROVEMENT PROJECTS CIRCULATION PROJECTS Cherry Street Extension & Murrieta Creek Crossing, PW19-15 Description: Preliminary design of the Extension of Cherry Street from Adams Avenue to Diaz Road, including a new crossing of Murrieta Creek. Cost: $37,831,090 Status: The City has received a general plan for a two -span bridge and a general plan for a bridge with a 500-foot long viaduct. Environmental agencies have stated that a low -flow crossing is a non -starter. The two -span bridge will exacerbate flooding. Consultant will prepare 30% design drawings of 2-span bridge. Diaz Road Expansion, PW17-25 Description Improve Diaz Road to meet the roadway classification of Major Arterial (4 Lanes Divided), between Cherry Street and Rancho California Road. The 2.2-mile stretch will be widened, extended, and/or improved to create a contiguous Major Arterial segment. The project will be developed and constructed in two phases. Phase 1 will include improvements on Diaz Road from Winchester Road to Rancho California Road. Phase 2 will include improvements on Diaz Road from Cherry Street to Winchester Road. Cost: $14,255,991 Status: The environmental Initial Study has been approved, Mitigated Negative Declaration adopted, and Notice of Determination filed in May 2022. Design is 90% complete. Regulatory permit applications have been submitted for USACE 404 Nationwide Permit and CDFW Streambed Alteration 1602. Current activities include consultant review of 90% plan check comments, design coordination with utility purveyors (SCE, RCWD, and EMWD) and City project PW16-05 Murrieta Creek Bridge at Overland Drive, Riverside County Flood Control review of 90% design plans and Encroachment Permit application, and preparation of regulatory permit applications for SWRCB 401 Water Quality Certification and USACE Section 408. Construction previously anticipated to start in Spring of 2023 is now delayed to Spring/Summer of 2024 due to EMWD sewer line project on Diaz Rd starting construction in Q2 of 2023. City of Temecula DEPARTMENT OF PUBLIC WORKS PROJECT STATUS REPORT August 22, 2023 CIRCULATION PROJECTS (Continued) French Valley Parkway/Interstate 15 Improvements- Phase 11, PW16-01 Description: Design and construction of the two-lane northbound collector/distributer road system beginning north of the Winchester Road interchange on -ramps and ending just north of the Interstate 15/Interstate 215 junction with connection to Interstate 15 and Interstate 215. Cost: $138,736,346 Status: Project is under construction May 2023 — May 2025. For detailed information, please visit the project website at TemeculaCA.gov/FVP2. 1-15 Congestion Relief, PW19-02 Description Design and construction of a single auxiliary lane, northbound Interstate 15 connecting the Temecula Parkway on -ramp to the Rancho California Road off -ramp. Cost: $8,971,710 Status: Design and environmental studies were completed in July 2023. City is preparing the construction contract bid package. Target for advertisement is August 2023, award September 2023, and begin construction December 2023. The selection process for RFP 272 Construction Management Services is complete and the City is conducting professional negotiations with the Most Qualified Proponent. Upon completion of negotiations, staff will recommend Council approval of the agreement. Rainbow Canyon Road Pavement Rehab, PW22-15 Description Design and construction of pavement rehab for Rainbow Canyon Rd from Pechanga Parkway to southern City Limits. Cost: $2,900,000 Status: The design consultant, SB&O, is in the conceptual design phase of the project where they are analyzing guardrail heights, plotting existing cross sections, looking at areas for potential placement of AC berms where there may be drainage issues, and analyzing turnouts for slower traffic and other problem areas. All of this will dictate the final design of the plans for construction. Construction anticipated to begin in spring 2024. City of Temecula DEPARTMENT OF PUBLIC WORKS PROJECT STATUS REPORT August 22, 2023 CIRCULATION PROJECTS (Continued) Murrieta Creek Bridge at Overland Drive, PW16-05 Description: Design and construction of a new bridge crossing over Murrieta Creek between Rancho California Road and Winchester Road. Cost: $26,073,374 Status: The City applied and was approved to receive Federal Highway Bridge Program (HBP) funds. City Council approved the design agreement with CNS Engineers Inc. at the March 12, 2019, meeting. Preliminary Environmental Study (PES) approved by Caltrans on August 15, 2019. Plans are 65% complete. RCA JPR Conformance is approved. Biological monitoring in Temecula Creek for potential mitigation site is complete as of July 2021. Project has received MSHCP conformance. Staff continues to work with Caltrans to advance HBP Grant Funds to earlier fiscal years. Caltrans HBP Program management had proposed reducing the curb -to -curb width of the bridge that is considered "participating" for grant funding purposes. Staff has been able to address this issue with Caltrans and the majority of the bridge width will remain as a participating cost. 2022 HBP Bridge Update was submitted in August. NEPA approval is anticipated in August of 2023, Caltrans review time has been longer than anticipated. Construction start is anticipated mid to late 2025 depending on availability of HBP funds. Overland Drive Widening, PW 20-11 Description This project includes widening Overland Drive from Jefferson Avenue to Commerce Center Drive, to two lanes in each direction, and the completion of missing segments of sidewalk, streetlights, and installation of the traffic signal at Commerce Center Drive and the modification of the traffic signal at Jefferson Avenue. Cost: $2,894,420 Status: 90% plan check submittal package was submitted in July 2023 and it is under staff review. City of Temecula DEPARTMENT OF PUBLIC WORKS PROJECT STATUS REPORT August 22, 2023 CIRCULATION PROJECTS (Continued) Pavement Rehabilitation Program — Ynez Road, Solana Way, Nicolas Road and Winchester Road, PW 21-10 Description: Pavement rehabilitation project on Ynez Road, Solana Way, Nicolas Road and Winchester Road. Pavement rehabilitation includes full width and/or edge grinding of existing asphalt, localized dig outs, preparation of grade, and placement of rubberized asphalt concrete pavement. Work also includes reconstruction of ADA curb ramps, removal and replacement of curb and gutter, adjustment of existing utilities to grade, installation and removal of temporary video detection and restoration of existing striping, and detector loops. Cost: $4,796,426.16 Status: Project is complete, finalizing last CCO. Anticipating to file NOC in September 2023. Pavement Rehabilitation Program- Meadowview/ Paloma Del Sol, PW21-06 Description: Rehabilitation of roads in interior streets in the Meadowview tract, and Paloma Del Sol tract Amarita Way, Montelegro Way, and Santiago Rd. Cost: $4,732,266.70 Status: Project is complete. Process of close out in progress. Rancho California Median Improvements, PW23-04 Description: Design and construction of missing raised concrete medians with landscaping between Humber Drive and Butterfield Stage Road. In addition, there will also be construction of missing improvements on the north side of Rancho California Road, between Riesling Court and Promenade chardonnay Hills. The improvements will include median curbs, curb and gutter, sidewalks, and landscape and irrigation. Cost: $3,855,000 Status: The City is planning on posting an RFP to PlanetBids in August for design services. Design is anticipated to begin in October 2023. City of Temecula DEPARTMENT OF PUBLIC WORKS PROJECT STATUS REPORT August 22, 2023 INFRASTRUCTURE PROJECTS Traffic Signal Installation — Citywide, Rancho California Road and Tee Drive, PW19-19 Description: This project includes the installation of a traffic signal on Rancho California Road at Tee Drive. Cost: $483,035 Status: Project is complete. Anticipating to file NOC in September 2023. Traffic Signal and Park & Ride Access Improvements, PW18-11 Description: This project includes the installation of a traffic signal on Temecula Parkway at Wabash Lane. The project also includes relocating the access to the Park and Ride facility on Temecula Parkway at La Paz Road from Vallejo Avenue to Wabash Lane. Cost: $1,347,674 Status: The traffic signal and the new access road to the Park and Ride are fully operational. Access to Park and Ride from Vallejo Avenue has been closed and a permanent block wall was constructed. Project is in the close out phase. Filing the Notice of Completion is scheduled for the August 22, 2023 City Council meeting Traffic Signal- System Upgrade (Protective/Permissive Signal Heads), PW19-09 Description: This project will modify traffic signals at three (3) locations in the City to provide protected/permissive signal operations. The three (3) intersections include Margarita Road/Verdes Lane, Redhawk Parkway/Paseo Parallon-Overland Trail, and Winchester Road/Enterprise Circle. Cost: $481,900 Status: Project is currently out to bid. City of Temecula DEPARTMENT OF PUBLIC WORKS PROJECT STATUS REPORT August 22, 2023 INFRASTRUCTURE PROJECTS (Continued) Bike and Trail Program — Great Oak Trail Lighting, PW21-16 Description: Project includes the installation of solar lights along the Great Oak Trail adjacent to the northeast side of Pechanga Parkway from Deer Hollow Way to Loma Linda Road. Cost: $828,600 Status: Project is currently in design. Citywide Drainage Master Plan, PW19-16 Description: Project will prepare a report that shows all drainage courses within the City. Also includes a master hydrology study showing the anticipated storm flows at build -out. Cost: $600,000 Status: GIS database has been 90% updated and is being used by staff. Consultant is working on citywide hydraulic model, to be completed by the end of September. Community Recreation Center (CRC) Renovations, PW19-07 Description: The project facilitates the rehabilitation, improvement, and reconfiguration of the Community Recreation Center. This project includes expansion and reconfiguration of teen center; conversion of office space to accommodate a dedicated police substation; renovation of key components of the building including safety features, flooring, roof, and restroom facility access; ADA compliance; renovation and expansion of existing office space and rec rooms including AV upgrades; expanded storage space and upgraded kitchen equipment. Cost: $10,708,232 Status: Construction contract for Phase 1 was awarded at the 9/27/2022 City Council meeting. Construction started 11/21/2022. The facility was opened to the public mid -June, 2023. Design for Phase 2 started in February 2023. City of Temecula DEPARTMENT OF PUBLIC WORKS PROJECT STATUS REPORT August 22, 2023 INFRASTRUCTURE PROJECTS (Continued) Fiber Optic Communication System Upgrade, PW 18-05 Description: This project will install fiber optic communication system upgrades including conduit, cable, CCTV cameras, traffic signal controllers, and related communication equipment to improve safety and operations with optimized traffic signal timing coordination. Various signalized intersections will be improved along the Winchester Road, Rancho California Road, and Temecula Parkway corridors. Cost: $1,208,200 Status: All communication infrastructure and traffic signal cabinet equipment has been installed. Project is in fiber optic communication testing stage. Fiber Optic Communications Systems- Citywide, PW 22-03 Description: This project will develop a communications masterplan that will provide a strategic plan outlining the approach and buildout design of fiber optic cable and conduit throughout the City. The masterplan document will provide a roadmap to connect all existing and future traffic signals, traffic monitoring devices, surveillance cameras, and City facilities to City -owned fiber communication lines. The ultimate project goal is to enhance the City's existing fiber optic communication system to ensure it can handle the future needs of the City. Cost: $120,150 Status: The project has just commenced, and the consultant is working on an existing systems assessment. Fire Station 84 Renovation, PW19-14 Description: This project includes the design, construction, and renovation to Fire Station 84. The renovations include, adding a Wellness Room, expanding the Storage Room, and upgrading the Training Room. Also, the upgrades include, electrical, windows, flooring, paint, tile, HVAC, cabinets, plumbing fixtures, garage bay doors and any necessary improvements needed to conform to ADA accessibility access. Cost: $1,641,028 Status: Preparing cost estimate for new design requests from Fire. After that, plans and specifications will be revised by end of 2023, anticipate to re -advertise the project in early 2024. City of Temecula DEPARTMENT OF PUBLIC WORKS PROJECT STATUS REPORT August 22, 2023 INFRASTRUCTURE PROJECTS (Continued) Interstate 15 / State Route 79 South Interchange Enhanced Landscaping, PW17-19 Description: Landscape beautification of the Interstate 15 corridor between French Valley Parkway and Temecula Parkway, including each interchange, in association with Visit Temecula Valley and the Pechanga Tribe. This project includes the design and construction of enhanced landscaping, hardscape, and irrigation between the freeway and ramps on the west side of the Interstate 15 / State Route 79S (Temecula Parkway) interchange. Cost: $3,558,483 Status: Design and environmental studies August 2019 — July 2023. Current activities include environmental revalidation and design of new power and irrigation water service. Estimated construction start in Fall 2023. Margarita Recreation Center, PW17-21 Description: Demolition and Reconstruction of New Margarita Recreation Center Building and Pool Cost: $12,601,508 Status: The Design -Build Contract was awarded at the March 9, 2021, City Council Meeting to De La Secura Builders, Inc., for a Guaranteed Maximum Price of $8,680,459.00. Major demolition activities commenced mid -March 2022. City Groundbreaking occurred on March 31, 2022. Roofing is near complete. Contractor is currently installing millwork inside the building and working on pool.. Anticipate building to have permanent power installed by July 21, 2023. Due to unforeseen supply issues with major components of the main building electrical system, the scheduled grand opening has been pushed back from July to October 2023. Mary Phillips Senior Center Enhancement and Renovation, PW20-13 Description: The project includes the enhancement and renovation of the Mary Phillips Senior Center. Work includes new exterior siding, painting, replacement of perimeter soffits, fascia boards, eaves, and select doors & windows. Cost: $1,262,025 Status: City Council awarded the construction contract at the 02/14/2023 meeting. Construction started 3/29/2023 and is anticipated to last for 5 months. City of Temecula DEPARTMENT OF PUBLIC WORKS PROJECT STATUS REPORT August 22, 2023 INFRASTRUCTURE PROJECTS (Continued) Mary Phillips Senior Center Outdoor Recreational Area, PW22-08 Description: The project includes the design and construction of a shuffleboard court area adjacent to Mary Phillips Senior Center. In addition, the HVAC units will be replaced. Cost: $650,000 Status: Construction is underway. Estimated completion is end of August. Sidewalks — Citywide (Ynez Road, Rancho Highland to Tierra Vista Road), PW17-28 Description: New sidewalks on the west side of Ynez Road from Rancho Highland to Tierra Vista Road. Cost: $164,997 Status: ADA Access Ramps have been revised and currently being reviewed. The project is scheduled to be advertised for construction bids in Summer 2023. Sidewalks — Citywide (Pauba Road, Elinda Road to Showalter Road), PW 19-20 Description: New sidewalks and street widening on the South side of Pauba Road from Elinda Road to Showalter Road. Cost: $639,295 Status: Project is at 95% design stage. Consultant is re -designing project to eliminate retaining wall. Design is anticipated to be completed by end of August 2023. Traffic Signal- Promenade Mall Ring Road, PW 21-15 Description: The project includes the installation of a traffic signal on Ring Road at Promenade Mall East. Cost: $412,206 Status: Construction contract was awarded by City Council on September 13, 2022. The construction of the traffic signal is nearly complete. The contractor is waiting for SCE to provide power. Anticipated signal turn on is early September. City of Temecula DEPARTMENT OF PUBLIC WORKS PROJECT STATUS REPORT August 22, 2023 PARKS AND RECREATION PROJECTS Murrieta Creek Improvements — Trail Lights, PW21-13 Description: This part of the project involves installing 27 solar lights along the Murrieta Creek trail on the east side of the creek from Rancho California Road to First Street. Cost: $200,000 Status: Riverside County Flood Control Permit submitted as of January 4, 2023. A US Army Corps of Engineers (USACE) 408 permit is required and an application has already been submitted Community Recreation Center Splash Pad & Shade Structures, PW21-07 Description: This project provides for the conversion of the CRC's wading pool into a splash pad, and the addition of shade structures in the area. Cost: $1,100,000 Status: Public bidding was suspended pending confirmation that design meets City's needs. Dog Park Renovation, PW21-14 Description: Design and construct a dog park including a small dog pen and large dog pen at Michael "Mike" Naggar Community Park. Cost: $430,000 Status: The City received additional funding through American Rescue Plan Act (ARPA) on July 26, 2023. Contract documents will be updated to satisfy requirements set forth by the federal funding. With the additional funding, a concrete sidewalk that surrounds the outer perimeter of the dog park will now be included. Project is anticipated to be posted on PlanetBids in September 2023. Construction is anticipated to start in by the end of 2023. City of Temecula DEPARTMENT OF PUBLIC WORKS PROJECT STATUS REPORT August 22, 2023 PARKS AND RECREATION PROJECTS (Continued) Park Restroom Renovations, Expansion and Americans with Disabilities Act (ADA), PW17-06 Description: Renovation of various park site restroom facilities, including Ronald Reagan Sports Park North/South Ball Field (new roof, cabinets, fixtures, and other building improvements), Vail Ranch Park and Long Canyon Creek Park. Cost: $1,127,800 Status: Project is ongoing. Ronald Reagan Sports Park North/South Ball Field Restroom building is currently in the design phase. Vail Ranch Park is in the scoping phase. PICKLEBALL COURTS, PW21-03 Description: Design and construct new, dedicated pickleball courts at Ronald Reagan Sports Park. Cost: $3,300,878 Status: Project is at 60% design stage. Construction bidding is anticipated to be early 2024. Playground Equipment Enhancement and Safety Surfacing Description: Re -design, enhancement of playground equipment, and safety surfacing to comply with current state and federal regulations and enhance the quality of the parks. Cost: $800,000 Status: An RFP is being prepared for the design, purchase & installation for three playground project sites — Redhawk Community Park, Long Canyon Creek Park & Temecula Creek Park. City of Temecula DEPARTMENT OF PUBLIC WORKS PROJECT STATUS REPORT August 22, 2023 PARKS AND RECREATION PROJECTS (Continued) Ronald Reagan Sports Park Pump Track Shade Structure, PW22-14 Description: Installation of shade structure adjacent to the Ronald Reagan Sports Park Pump Track and launch pad area. Cost: $75,000 Status: Installation of shade structure will begin on August 21, 2023 and be completed on August 25, 2023. Pump track will be open on Friday August 25, 2023 at 5 PM. Ronald Reagan Sports Park Hockey Rink Improvements, PW22-06 Description: This project will include the renovation of the existing hockey rink to install new flooring material and arena style roof structure and also address ADA noncompliance. Cost: $1,200,000 Status: A Request for Qualification is being drafted to compile a list of qualified design -builders. RFP to go out to qualified finalists. A list of improvements and performance standards has been drafted by DEA to include in the RFQ. Construction anticipated to start in Q1 of 2024. City of Temecula DEPARTMENT OF PUBLIC WORKS PROJECT STATUS REPORT August 22, 2023 LAND DEVELOPMENT OVERSIGHT PROJECTS American Tire Depot Description: A 7,303 square foot building to be used for tire retail and repair, as well as minor auto repair services, located at the southwest corner of Ynez Road and DLR Drive. Status: Parking lot has been paved. Wet utility tie-in construction has commenced. Arrive @ Rancho Highlands Description: A 270-unit multi -family community built on 12.32 acres that includes 55 affordable units. The project is located adjacent to the Temecula Duck Pond approximately 775 feet southeast of Rancho California Road on the north side of Ynez Road. Status: Grading and onsite storm drain permits were issued in October 2021. Grading and onsite storm drain construction has commenced. Overflow parking lot has been paved. Heirloom Farms Description: A Development Plan for a 321-unit single family residential community built on 27.86 acres consisting of detached homes and attached townhomes located on the southwest corner of Date Street and Ynez Road. Includes the installation of a new Traffic Signal at the intersection of Ynez Rod and Waverly Lane/Temecula Center Drive. Status: Rough grading permit has been issued in July 2021, the offsite and private onsite street and storm drain improvements permits were issued in October 2021 and the traffic signal permit was issued in September 2021. Precise grading is approved and in progress. Street Improvements in progress. Las Haciendas Apartments Description: A Development Plan to construct a 77-unit affordable housing project located at 28715 Las Haciendas Street in Uptown Temecula. Status: Precise grading permit was issued in December 2021. Grading has commenced in January 2022 and is ongoing. City of Temecula DEPARTMENT OF PUBLIC WORKS PROJECT STATUS REPORT August 22, 2023 LAND DEVELOPMENT OVERSIGHT PROJECTS (Continued) Mountain View Description: Thirteen industrial buildings on Avenida Alvarado Status: Thirteen precise grading permits have been issued and construction has commenced. Improvements on Avenida Alvarado, along with street light installations is in process. Onsite storm drain installation has commenced. Solana Assisted Living Description: A 90,000 square foot, two-story, Senior Assisted Living Facility located on the southeast corner of the Margarita Road and Solana Way. Status: A rough grading permit was issued in January 2022. Grading began on February 7, 2022. Street improvements and precise grading plans are near approval. Sommers Bend Description: Land Development has provided oversight of the following submittals for plan check and inspections: final maps, Community Sports Park, and recreation lots, precise grading; street and storm drain improvements; traffic signals; street lighting; and signing & striping. Status: The mass grading permit was issued in September 2018. Sommers Bend has been paved with streetlights installed. The community sports park, Ranch at Sommers Bend, construction is complete and has been accepted at the February 8, 2022, Council Meeting. The Sommers Bend recreation center construction is complete. Installation of streets, storm drains and streetlights on east end of project is in process. Grading has been completed in the Density Core, currently installing sewer. Installation of Santa Gertrudis Creek Channel improvements northwest end of project is in process. 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Public Comment: Non -Agenda Item: e Item Description or Item No 0-y C REQUEST TO SPEAK CITY OF TEMECULA Date: as a � Agenda Item: ❑ Future Agenda Item: f-�o g-,-� Request to Speak forms for Public Comments or items listed on the Consent Calendar may be submitted to the City Clerk prior to the City Council commencing the Public Comment period. For all Public Hearing or Council Business items on the Agenda, a Request to Speak form may be submitted to the City Clerk prior to the City Council addressing that item. Once the speaker is called to speak, please come forward to the podium and state your name for the record. Name: ��wx�--/ `f Phone Number: Address Email adc It you are representing an organization or group, please give the name: c6-tZ G/IGL Please note that all information presented at a City Council meeting becomes public record. 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