Federal Register, Volume 77 Issue 222 (Friday, November 16, 2012)

[Federal Register Volume 77, Number 222 (Friday, November 16, 2012)]
[Proposed Rules]
[Pages 68705-68711]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-27631]

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Proposed Rules
Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 77, No. 222 / Friday, November 16, 2012 /
Proposed Rules

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DEPARTMENT OF AGRICULTURE

Rural Utilities Service

7 CFR Part 1739

RIN 0572-AC30

Community Connect Broadband Grant Program

AGENCY: Rural Utilities Service, USDA.

ACTION: Proposed rule.

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SUMMARY: The Rural Utilities Service (RUS), a Rural Development agency
of the United States Department of Agriculture (USDA), hereinafter
referred to as RUS or the Agency, amends its regulations for the
Community-Oriented Connectivity Broadband Grant Program (Community
Connect Grant Program). The purpose of this regulatory change is to
provide the Agency the ability to target limited resources to
geographical as well as technological areas of need.
This rule is not applicable to Community Connect grant applications
filed for funding prior to the publication of a Notice of Funds
Availability (NOFA) under this regulation.

DATES: Comments must be submitted on or before January 15, 2013.

ADDRESSES: Submit comments by either of the following methods:
Federal eRulemaking Portal at http://www.regulations.gov.
Follow instructions for submitting comments.
Postal Mail/Commercial Delivery: Please send your comment
addressed to Michele Brooks, Director, Program Development and
Regulatory Analysis, USDA Rural Development, 1400 Independence Avenue,
STOP 1522, Room 5159, Washington, DC 20250-1522.
Additional information about the Agency and its programs is
available on the Internet at http://www.rurdev.usda.gov.

FOR FURTHER INFORMATION CONTACT: Kenneth Kuchno, Director, Broadband
Division, USDA Rural Utilities Service, STOP 1599, 1400 Independence
Avenue SW., Washington, DC 20250-1599, Telephone (202) 690-4673,
Facsimile (202) 690-4389. Email address: kenneth.kuchno@wdc.usda.gov.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

This rule has been determined to be not significant for purposes of
Executive Order 12866, and therefore has not been reviewed by the
Office of Management and Budget (OMB).

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance (CFDA) Program number
assigned to the Community Connect Grant Program is 10.863. The Catalog
is available on the Internet at http://www.cfda.gov.

Executive Order 12372

This program is not subject to the requirements of Executive Order
12372, ``Intergovernmental Review of Federal Programs,'' as implemented
under USDA's regulations at 7 CFR part 3015.

Executive Order 12988

This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. The Agency has determined that this rule meets the
applicable standards provided in section 3 of the Executive Order. In
addition, all state and local laws and regulations that are in conflict
with this rule will be preempted. No retroactive effect will be given
to this rule and, in accordance with section 212(e) of the Department
of Agriculture Reorganization Act of 1994 (7 U.S.C. 6912(e)),
administrative appeal procedures, must be exhausted before an action
against the Department or its agencies may be initiated.

Executive Order 13132, Federalism

The policies contained in this rule do not have any substantial
direct effect on states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government. Nor does this
rule impose substantial direct compliance costs on state and local
governments. Therefore, consultation with states is not required.

Regulatory Flexibility Certification

Pursuant to 5 U.S.C. 553(a)(2), this rule related to grants is
exempt from the rulemaking requirements of the Administrative Procedure
Act (5 U.S.C. 551 et seq.), including the requirement to provide prior
notice and an opportunity for public comment. Because this rule is not
subject to a requirement to provide prior notice and an opportunity for
public comment pursuant to 5 U.S.C. 553, or any other law, the
analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
et seq.) are inapplicable.

Unfunded Mandates

This rule contains no Federal mandates (under the regulatory
provision of Title II of the Unfunded Mandates Reform Act of 1995) for
State, local, and tribal governments or the private sector. Therefore,
this final rule is not subject to the requirements of sections 202 and
205 of the Unfunded Mandates Reform Act of 1995.

Environmental Impact Statement

This rule has been examined under Agency environmental regulations
at 7 CFR part 1794. The Administrator has determined that this action
is not a major Federal action significantly affecting the environment.
Therefore, in accordance with the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.), an Environmental Impact Statement or
Assessment is not required.

Information Collection and Recordkeeping Requirements

This rule contains no new reporting or recordkeeping burdens under
OMB control number 0572-0127 that would require approval under the
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).

Executive Order 13175

Executive Order 13175 imposes requirements on Rural Development in
the development of regulatory policies that have tribal implications or
preempt tribal laws. Rural Development has determined that this
proposed rule does not have a substantial direct effect on one or more
Indian tribe(s) or on either the relationship or the distribution of
powers and responsibilities between the Federal Government and Indian
tribes. Additionally, two of the changes contained in this rule (rural
eligibility based on a place recognized by the census or the Rand
McNally ^TM Atlas and priorities for substantially
underserved trust areas) in part respond to comments and suggestions
the

[[Page 68706]]

Agency has received from tribal leaders and personnel through
consultation, listening sessions and meetings. Thus, this rule is not
subject to the requirements of Executive Order 13175. If a tribe
determines that this rule has implications of which Rural Development
is not aware and would like to engage in consultation with Rural
Development on this rule, please contact Rural Development's Native
American Coordinator at (720) 544-2911 or AIAN@wdc.usda.gov.

E-Government Act Compliance

Rural Development is committed to the E-Government Act, which
requires Government agencies in general to provide the public the
option of submitting information or transacting business electronically
to the maximum extent possible.

Background/Overview

The Rural Utilities Service, a Rural Development agency of the
United States Department of Agriculture (the Agency) works to improve
the quality of life in rural America by providing investment capital,
in the form of loans and grants, for the deployment of rural
telecommunications, broadband, electric, water and environmental
infrastructure. Financial assistance is provided to rural utilities;
municipalities; commercial corporations; limited liability companies;
public utility districts; Indian tribes; and cooperative, nonprofit,
limited-dividend, or mutual associations. In order to achieve the goal
of increasing economic opportunity in rural America, the Agency
finances infrastructure that enables access to seamless, nation-wide
telecommunications and broadband networks. With access to the same
advanced telecommunications networks of its urban counterparts,
especially broadband networks designed to accommodate distance
learning, telework, e-government and telemedicine, rural America will
see improving educational opportunities, health care, economies, safety
and security, and ultimately higher employment. Of particular concern
to the Agency are communities where broadband service is not available
and where population densities are such that the cost of deployment to
them is so high that build-out of infrastructure is unlikely. The
Agency is committed to helping rural communities gain access to
affordable, reliable, advanced communications services, comparable to
those available throughout the rest of the United States, to provide a
healthy, safe and prosperous place to live and work.
The Community Connect Grant Program was started as a Pilot Program.
After administering the program as a pilot program for two years, the
Agency proposed rules for the program and on July 28, 2004, the program
was formally implemented. The regulations were amended to clarify,
among other things, which rural communities are eligible under the
program. The main purpose of this grant program is the construction of
broadband facilities in areas where no broadband exists today with a
secondary benefit of providing for a community center that provides
free broadband service to all critical community facilities in the
proposed funded service area for a two year period.

Discussion of Changes

The new rule addresses several areas to streamline and improve the
program for applicants and the Agency, with the goal of bringing
broadband to unserved communities. The new rules provide flexibility to
address the dynamic broadband needs of rural Americans and enhance the
Agency's ability to target funds to areas where they are needed the
most. The new rules also seek to make the application process easier
for applicants and evaluators. For example, a single concise project
summary and map can be used to inform USDA Rural Development State
Directors of pending applications within their states as well as the
general public. Major changes include:
1. Proposed Funded Service Territory. Since its inception, the
Community Connect Grant Program only permitted applicants to use grant
funds to serve a single community which included a place recognized by
the census or the Rand McNally^TM Atlas. This approach, while
administratively simple did not accommodate some of the most rural
communities which are not census designated places or recognized by a
commercial Atlas. It also precluded applicants from developing new
service territories in a logical and cost effective manner to maximize
the benefit of the grant. The new rule will allow applicants to define
their proposed funded service area by utilizing the web based RUS
mapping tool. By allowing an applicant the ability to define the exact
service area, it is important to note that all premises in the service
area must be offered service at the Broadband Grant Speed. The NOFA
will set the minimum and maximum dollar amounts per application.
2. Matching Fund Simplification. The current program requires
applicants to provide a match equal to 15 percent of the requested
funding to be used only for eligible grant purposes. The new rule
maintains the current program's 15 percent matching requirement but
clarifies that the match must be in cash and can also be used to fund
operations of the project. This change gives applicants new flexibility
on the use of matching funds and is administratively simpler for
applicants, reviewers and the Agency. Clarifying that the match must be
in cash available at closing, the new rule removes uncertainty related
to valuing and qualifying in-kind contributions. Notwithstanding the 15
percent match, all applicants must be able to demonstrate that they
have sufficient resources to construct, manage and sustain the project
through and beyond completion.
3. Scoring Simplification. The current program scores and ranks
applications on three criteria: (a) Rurality; (b) economic need; and
(c) benefits. The metrics used for economic need (Median Household
Income) and rurality (census and Rand McNally^TM) at times
did not fully accommodate situations where there was a high need for
assistance. The criteria may not have adequately measured need, for
example, in a small community with substantial unemployment and a high
cost of living, or in a community that was so small, rural and remote
that the community was not recognized as a census designated place; or
a community which is small and with very low-income, but in a county
which as a whole has a high median household income. The new criteria
focuses on ranking completed applications based on the community
connectivity benefits of the project to the proposed funded service
area. In making a final selection among and between applications with
comparable rankings, the Administrator will take into consideration:
(a) Service provided to communities in persistent poverty counties; (b)
service provided to communities in out-migration communities; (c) the
rurality of the proposed funded service area; (d) the speed of service
provided by the project; (e) service to substantially underserved trust
areas; (f) services provided to persons with disabilities; and (g) any
other socio-economic factors that may be described in the NOFA to
differentiate and rank applications.

List of Subjects in 7 CFR 1739

Broadband; Grant programs--Communications; Rural areas;
Telecommunications; and Telephone.

For reasons set forth in the preamble, the Rural Utilities Service
proposes to

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amend Chapter XVII of title 7 of the Code of Federal Regulations by
revising part 1739.
1. Revise Part 1739 to read as follows:

PART 1739--BROADBAND GRANT PROGRAM

Subpart A--Community Connect Grant Program
Secs.
1739.1 Purpose.
1739.2 Funding availability and application dates and submission.
1739.3 Definitions.
1739.4-1739.8 [Reserved]
1739.9 USDA Rural Development State Director notification.
1739.10 Eligible applicant.
1739.11 Eligible Community Connect Competitive Grant Project.
1739.12 Eligible grant purposes.
1739.13 Ineligible grant purposes
1739.14 Matching contributions.
1739.15 Completed application.
1739.16 Review of grant applications.
1739.17 Scoring of applications.
1739.18 Grant documents.
1739.19 Reporting and oversight requirements.
1739.20 Audit requirements.
1739.21 OMB control number.

Authority: Title III, Pub. L. 108-199, 118 Stat. 3.

Subpart A--Community Connect Grant Program

Sec. 1739.1 Purpose.

(a) The provision of broadband service is vital to the economic
development, education, health, and safety of rural Americans. The
purpose of the Community Connect Grant Program is to provide financial
assistance in the form of grants to eligible applicants that will
provide, on a ``community-oriented connectivity'' basis, broadband
service that fosters economic growth and delivers enhanced educational,
health care, and public safety benefits. The Agency will give priority
to rural areas that have the greatest need for broadband services,
based on the criteria contained herein and in the Notice of Funds
Availability (hereinafter referred to as NOFA) published in the Federal
Register.
(b) Grant authority will be used for the deployment of service to
all premises in eligible rural areas at the Broadband Grant Speed on a
``community-oriented connectivity'' basis. In addition to providing
service to all premises the ``community-oriented connectivity'' concept
will stimulate practical, everyday uses and applications of broadband
by cultivating the deployment of new broadband services that improve
economic development and provide enhanced educational and health care
opportunities in rural areas. Such an approach will also give rural
communities the opportunity to benefit from the advanced technologies
that are necessary to achieve these goals.

Sec. 1739.2 Funding availability and application dates and
submission.

(a) The Agency will periodically publish, (usually on an annual
basis) in the Federal Register, a NOFA that will set forth the total
amount of funding available; the maximum and minimum funding for each
grant; funding priority; the application submission dates; and the
appropriate addresses and agency contact information. The NOFA will
also outline and explain the procedures for submission of applications,
including electronic submissions. The Agency may publish more than one
NOFA should additional funding become available.
(b) Notwithstanding paragraph (a) of this section, the Agency may,
in response to a surplus of qualified eligible applications which could
not be funded from the previous fiscal year, decline to publish a NOFA
for the following fiscal year and fund said applications without
further public notice.

Sec. 1739.3 Definitions.

As used in this subpart:
Agency or RUS shall mean the Rural Utilities Service, which
administers the United States Department of Agriculture (USDA) Rural
Development Utilities Programs.
Broadband Service means any terrestrial technology having the
capacity to provide transmission facilities that enable subscribers of
the service to originate and receive high-quality voice, data,
graphics, and video at the minimum rate of data transmission described
in the NOFA. The broadband service speed may be different from the
broadband grant speed for the Community Connect program.
Broadband Grant Speed means the minimum bandwidth described in the
NOFA that an applicant must propose to deliver to every customer in the
proposed funded service area in order for the Agency to approve a
broadband grant. The Broadband Grant Speed may be different for fixed
and mobile broadband services and from the minimum rate of data
transmission required to determine the availability of broadband
service when qualifying a service area.
Community Center means a building within the Proposed Funded
Service Area that provides access to the public, or a section of a
public building with at least two (2) Computer Access Points and
wireless access, that is used for the purposes of providing free access
to and/or instruction in the use of broadband Internet service, and is
of the appropriate size to accommodate this purpose. The community
center must be open and accessible to area residents before, during,
and after normal working hours and on Saturdays or Sunday.
Computer Access Point means a new computer terminal with access to
service at the Broadband Grant Speed.
Critical Community Facilities means the Community Center; any
public school, public education center, public library, public medical
clinic, public hospital, community college, public university; or law
enforcement, fire or ambulance station in the Proposed Funded Service
Area.
Eligible Applicant shall have the meaning as set forth in Sec.
1739.10.
Eligible Grant Purposes shall have the meaning as set forth in
Sec. 1739.12.
Matching Contribution means the applicant's qualified contribution
to the Project, as outlined in Sec. 1739.14 of this part.
Project means the delivery of service at the Broadband Grant Speed
financed by the grant and Matching Contribution for the Proposed Funded
Service Area.
Proposed Funded Service Area (PFSA) means the contiguous geographic
area within an eligible Rural Area or eligible Rural Areas, in which
the applicant proposes to provide service at the Broadband Grant Speed.
Rural Area means any area, as confirmed by the latest decennial
census of the Bureau of the Census, which is not located within:
(i) A city, town, or incorporated area that has a population of
greater than 20,000 inhabitants; or
(ii) An urbanized area contiguous and adjacent to a city or town
that has a population of greater than 50,000 inhabitants. For purposes
of the definition of rural area, an urbanized area means a densely
populated territory as defined in the latest decennial census of the
U.S. Census Bureau.

Sec. Sec. 1739.4-1739.8 [Reserved]

Sec. 1735.9 USDA Rural Development State Director notification.

Applicants shall complete a notification form which will be a
public document that the RUS provides to USDA Rural Development State
Directors and others in the state(s) of the proposed funded service
area. The notification shall include a brief project description and
the location of the proposed funded service area.

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Sec. 1739.10 Eligible applicant.

To be eligible for a Community Connect competitive grant, the
applicant must:
(a) Be legally organized as an incorporated organization, an Indian
tribe or tribal organization, as defined in 25 U.S.C. 450b(b) and (c),
a state or local unit of government, or other legal entity, including
cooperatives or private corporations or limited liability companies
organized on a for-profit or not-for-profit basis.
(b) Have the legal capacity and authority to own and operate the
broadband facilities as proposed in its application, to enter into
contracts and to otherwise comply with applicable federal statutes and
regulations.
(c) As required by the Office of Management and Budget (OMB), all
applicants for grants must supply a Dun and Bradstreet Data Universal
Numbering System (DUNS) number when applying. The Standard Form 424
(SF-424) contains a field for you to use when supplying your DUNS
number. Obtaining a DUNS number costs nothing and requires a short
telephone call to Dun and Bradstreet. Please see http://www.grants.gov/applicants/request_duns_number.jsp for more information on how to
obtain a DUNS number or how to verify your organization's number.
(d) Register in the System for Award Management (SAM) (formerly
Central Contractor Registry (CCR).
(1) In accordance with 2 CFR part 25, applicants, whether applying
electronically or by paper, must be registered in the SAM prior to
submitting an application. Applicants may register for the SAM at
https://www.sam.gov/.
(2) The SAM registration must remain active, with current
information, at all times during which an entity has an application
under consideration by an agency or has an active Federal Award. To
remain registered in the SAM database after the initial registration,
the applicant is required to review and update, on an annual basis from
the date of initial registration or subsequent updates, its information
in the SAM database to ensure it is current, accurate and complete.

Sec. 1739.11 Eligible Community Connect Competitive Grant Project.

To be eligible for a Community Connect competitive grant, the
Project must:
(a) Serve a PFSA in which Broadband Service does not currently
exist.;
(b) Offer service at the Broadband Grant Speed to all residential
and business customers within the PFSA;
(c) Offer free service at the Broadband Grant Speed to all Critical
Community Facilities located within the PFSA for at least 2 years
starting from the time service becomes available to each Critical
Community Facility; and
(d) Provide a Community Center with at least two (2) Computer
Access Points and wireless access at the Broadband Grant Speed, free of
all charges to all users for at least 2 years.

Sec. 1739.12 Eligible grant purposes.

Grant funds may be used to finance the following:
(a) The construction, acquisition, or leasing of facilities,
including spectrum, land or buildings, used to deploy service at the
Broadband Grant Speed to all residential and business customers located
within the Proposed Funded Service Area and all participating Critical
Community Facilities, including funding for up to ten Computer Access
Points to be used in the Community Center. Leasing costs will only be
covered through the advance of funds period included in the award
documents;
(b) The improvement, expansion, construction, or acquisition of a
Community Center and provision of Computer Access Points. Grant funds
for the Community Center will be limited to ten percent of the
requested grant amount;
(c) The cost of providing the necessary bandwidth for service free
of charge to the Critical Community Facilities for 2 years.

Sec. 1739.13 Ineligible grant purposes.

Operating expenses not specifically permitted in Sec. 1739.12.

Sec. 1739.14 Matching contributions.

(a) At the time of closing of the award, the awardee must
contribute or demonstrate available cash reserves in an account(s) of
the awardee equal to at least 15% of the grant. Matching contributions
must be used solely for the Project and shall not include any financial
assistance from federal sources unless there is a federal statutory
exception specifically authorizing the federal financial assistance to
be considered as such. An applicant must provide evidence of its
ability to comply with this requirement in its application.
(b) At the end of every calendar quarter, the award must submit a
schedule to RUS that identifies how the match contribution was used to
support the project until the total contribution is expended.

Sec. 1739.15 Completed application.

Applications should be prepared in conformance with the provisions
of this part and all applicable USDA regulations, including 7 CFR parts
3015, 3016, and 3019. Applicants must also conform to the requirements
of the individual NOFA to be published when funds are available for the
program, and are advised to use the Agency's Application Guide for this
program, found at the Agency's Web site. The application guide contains
instructions and forms, as well as other important information needed
to prepare an application and may be updated periodically. Paper copies
of the application guide can be requested by contacting the, Director,
Broadband Division at the following address: Stop 1599, South
Agriculture Building, Room 2868, Washington, DC 20250. Completed
applications must include the following documentation, studies, reports
and information, in form and substance satisfactory to the Agency:
(a) An Application for Federal Assistance. A completed Standard
Form 424;
(b) An executive summary of the Project. A general project overview
that addresses the following categories:
(1) A description of why the Project is needed;
(2) A description of the applicant;
(3) An explanation of the total Project costs;
(4) A general overview of the broadband telecommunications system
to be developed, including the types of equipment, technologies, and
facilities to be used;
(5) Documentation describing the procedures used to determine the
unavailability of existing Broadband Service; and
(6) A list of the Critical Community Facilities that will take
service from the Applicant at the Broadband Grant Speed, and evidence
that any remaining Critical Community Facility located in the PFSA has
rejected the offer;
(c) Scoring Criteria Documentation. A narrative, with documentation
where necessary, addressing the elements listed in the scoring criteria
of Sec. 1739.17;
(d) System design. A system design of the Project that is
economical and practical, including a detailed description of the
facilities to be funded, technical specifications, data rates, and
costs. In addition, a network diagram detailing the prosed sytem must
be provided. The system design must also address the environmental
requirements specified in 7 CFR 1794;
(e) Service Area Demographics. The following information about the
PFSA:
(1) A map, submitted electronically through RUS' web-based Mapping
Tool,

[[Page 68709]]

which identifies the Rural Area boundaries of the PFSA; and
(2) The total population, number of households, and number of
businesses located within the PFSA;
(f) Scope of work. A description of the scope of work, which at a
minimum must include:
(1) The specific activities and services to be performed under the
Project;
(2) Who will carry out the activities and services;
(3) A construction build-out schedule and project milestones,
showing the time-frames for accomplishing the Project objectives and
activities on a quarterly basis; and
(4) A budget for all capital and administrative expenditures
reflecting the line item costs for Eligible Grant Purposes and other
sources of funds necessary to complete the Project;
(g) Community-Oriented Connectivity Plan. A community-oriented
connectivity plan consisting of the following:
(1) A listing of all participating Critical Community Facilities to
be connected. The applicant must also provide documentation that it has
consulted with the appropriate agent of every Critical Community
Facility in the PFSA, and must provide statements from each one as to
its willingness to participate, or not to participate, in the proposed
Project;
(2) A description of the services the applicant will make available
to local residents and businesses; and
(3) A list of any other telecommunications provider (including
interexchange carriers, cable television operators, enhanced service
providers, wireless service providers and providers of satellite
services) that is participating in the delivery of services and a
description of the consultations and the anticipated role of such
provider in the Project;
(h) Financial information and sustainability. A narrative
description demonstrating the sustainability of the Project: from the
commencement of construction to completion, and beyond the grant
period; the sufficiency of resources; how and when the matching
requirement is met; and the expertise necessary to undertake and
complete the Project. The following financial information is required:
(1) If the applicant is an existing company, it must provide
complete copies of audited financial statements, if available, for the
two fiscal years preceding the application submission. If audited
statements are unavailable, the applicant must submit unaudited
financial statements for those fiscal years. Applications from start-up
entities must, at minimum, provide an opening balance sheet dated
within 30 days of the application submission date; and
(2) Annual financial projections in the form of balance sheets,
income statements, and cash flow statements for a forecast period of
five years, which prove the sustainability of the Project for that
period and beyond. These projections must be inclusive of the
applicant's existing operations and the Project, and must be supported
by a detailed narrative that fully explains the methodology and
assumptions used to develop the projections, including details on the
number of subscribers projected to take the applicant's services.
Applicants submitting multiple applications for funding must
demonstrate that each Project is feasible and sustainable on its own,
funds are available to cover each of the matching requirements and that
all Projects for which funding is being requested are financially
feasible as a whole;
(i) Statement of Experience. A statement of experience which
includes information on the owners' and principal employees' relevant
work experience that would ensure the success of the Project. The
applicant must also provide a written narrative demonstrating its
capability and experience, if any, in operating a broadband
telecommunications system;
(j) Legal Authority. Evidence of the applicant's legal authority
and existence, and its ability to enter into a grant agreement with the
RUS, and to perform the activities proposed under the grant
application;
(k) Additional Funding. Evidence that funding agreements have been
attained, if the Project requires funding commitment(s) from sources
other than the grant. An applicant submitting multiple applications for
funding must demonstrate its financial wherewithal to support all
applications, if accepted, and that it can simultaneously complete and
operate all of the Projects under consideration. Additionally,
commitments for outside funding must be explicit that they will be
available if all applications are not funded;
(l) Federal Compliance. Evidence of compliance with other federal
statutes and regulations including, but not limited to the following:
(1) 7 CFR part 15, subpart A--Nondiscrimination in Federally
Assisted Programs of the Department of Agriculture--Effectuation of
Title VI of the Civil Rights Act of 1964;
(2) 7 CFR part 3015--Uniform Federal Assistance Regulations;
(3) 2 CFR part 417--Nonprocurement Debarment and Suspension;
(4) 7 CFR part 3018--New Restrictions on Lobbying;
(5) 2 CFR part 421--Requirements for Drug-Free Workplace (Financial
Assistance);
(6) Certification regarding Architectural Barriers;
(7) Certification regarding Flood Hazard Precautions;
(8) An environmental report/questionare, in accordance with 7 CFR
part 1794;
(9) A certification that grant funds will not be used to duplicate
lines, facilities, or systems providing Broadband Service;
(10) Federal Obligation Certification on Delinquent Debt; and
(11) Assurance Regarding Felony Conviction or Tax Delinquent Status
for Corporate Applicants.

Sec. 1739.16 Review of grant applications.

(a) All applications for grants must be delivered to the Agency at
the address and by the date specified in the NOFA (see Sec. 1739.2) to
be eligible for funding. The Agency will review each application for
conformance with the provisions of this part, and may contact the
applicant for clarification of information in the application.
(b) Incomplete applications as of the deadline for submission will
not be considered. If an application is determined to be incomplete,
the applicant will be notified in writing and the application will be
returned with no further action.
(c) If the Agency determines that the Project is technically or
financially infeasible or unsustainable, the Agency will notify the
applicant, in writing, and the application will be returned with no
further action.
(d) Applications conforming with this part will be evaluated
competitively by the Agency and will be ranked in accordance with Sec.
1739.17 below. Applications will then be awarded generally in rank
order until all grant funds are expended, subject to subparagraphs (e)
and (f) below.
(e) In addition to scoring, the Agency may take geographic
distribution into consideration when making final award determinations.
(f) An award may be made out of rank order if a higher ranked
application would require an award that exceeded available funding or
would consume a disproportionate amount of funds available relative to
its ranking.
(g) The Agency reserves the right to offer an applicant a lower
amount than proposed in the application.

Sec. 1739.17 Scoring of applications.

The ranking of the ``community-oriented connectivity'' benefits of
the

[[Page 68710]]

Project will be based on documentation in support of the need for
services, benefits derived from the proposed services, characteristics
of the PFSA, local community involvement in planning and implementation
of the Project, and the level of experience of the management team. In
ranking applications the Agency will consider the following criteria
based on a scale of 100 possible points:
(a) An analysis of the challenges of the following criteria, laid
out on a community-wide basis, and how the Project proposes to address
these issues (up to 50 point):
(1) The economic characteristics;
(2) Educational challenges;
(3) Health care needs; and
(4) Public safety issues;
(b) The extent of the Project's planning, development, and support
by local residents, institutions, and Critical Community Facilities.
Documentation must include evidence of community-wide involvement, as
exemplified by community meetings, public forums, and surveys. In
addition, applicants should provide evidence of local residents'
participation in the Project planning and development (up to 40
points).
(c) The level of experience and past success of operating broadband
systems for the management team. (up to 10 points)
(d) In making a final selection among and between applications with
comparable rankings and geographic distribution, the Administrator may
take into consideration the characteristics of the PFSA. Only
information provided in the application will be considered. Applicants
should therefore specifically address each of the following criteria to
differentiate their applications:
(i) Persistent poverty counties that will be served within the
PFSA;
(ii) Out-migration Communities that will be served within the PFSA;
(iii) The rurality of the PFSA;
(iv) The speed of service provided by the project;
(v) Substantially underserved trust areas that will be served
within the PFSA;
(vi) Community members with disabilities that will be served within
the PFSA; and
(vi) Any other additional factors that may be outlined in the NOFA.

Sec. 1739.18 Grant documents.

The terms and conditions of grants shall be set forth in grant
documents prepared by the Agency. The documents shall require the
applicant to own all equipment and facilities financed by the grant.
Among other matters, the Agency may prescribe conditions to the advance
of funds that address concerns regarding the Project feasibility and
sustainability. The Agency may also prescribe terms and conditions
applicable to the construction and operation of the Project and the
delivery of service at the Broadband Grant Speed to eligible Rural
Areas, as well as other terms and conditions applicable to the
individual Project. Dividend distributions will not be allowed until
all grant funds and matching contributions have been expended.

Sec. 1739.19 Reporting and oversight requirements.

(a) A project performance activity report will be required of all
recipients on an annual basis until the Project is complete and the
funds are expended by the applicant. The reporting period will start
with the calendar year the award is made and continue for every
calendar year through the term of the award. The report must be
submitted by January 31 of the following year if the reporting period.
Recipients are to submit an original and one copy of all project
performance reports, including, but not limited to, the following:
(1) A comparison of actual accomplishments to the objectives
established for that period;
(2) A description of any problems, delays, or adverse conditions
which have occurred, or are anticipated, and which may affect the
attainment of overall Project objectives, prevent the meeting of time
schedules or objectives, or preclude the attainment of particular
Project work elements during established time periods. This disclosure
shall be accompanied by a statement of the action taken or planned to
resolve the situation; and
(3) Objectives and timetable established for the next reporting
period.
(b) A final project performance report must be provided by the
recipient. It must provide an evaluation of the success of the Project
in meeting the objectives of the program. The final report may serve as
the last annual report.
(c) The Agency will monitor recipients, as it determines necessary,
to assure that Projects are completed in accordance with the approved
scope of work and that the grant is expended for Eligible Grant
Purposes.
(d) Recipients shall diligently monitor performance to ensure that
time schedules are being met, projected work within designated time
periods is being accomplished, and other performance objectives are
being achieved.
(e) The applicant must have the necessary processes and systems in
place to comply with the reporting requirements for first-tier sub-
awards and executive compensation under the Federal Funding
Accountability and Transparency Act of 2006 in the event the applicant
receives funding unless such applicant is exempt from such reporting
requirements pursuant to 2 CFR part 170, Sec. 170.110(b). The
reporting requirements under the Transparency Act pursuant to 2 CFR
part 170 are as follows:
(1) First Tier Sub-Awards of $25,000 or more in non-Recovery Act
funds (unless they are exempt under 2 CFR part 170) must be reported by
the Recipient to http://www.fsrs.gov no later than the end of the month
following the month the obligation was made.
(2) The Total Compensation of the Recipient's Executives (5 most
highly compensated executives) must be reported by the Recipient (if
the Recipient meets the criteria under 2 CFR part 170) to http://www.ccr.gov by the end of the month following the month in which the
award was made.
(3) The Total Compensation of the Subrecipient's Executives (5 most
highly compensated executives) must be reported by the Subrecipient (if
the Subrecipient meets the criteria under 2 CFR part 170) to the
Recipient by the end of the month following the month in which the
subaward was made.

Sec. 1739.20 Audit requirements.

A grant recipient shall provide the Agency with an audit for each
year in which a portion of the financial assistance is expended, in
accordance with the following:
(a) If the recipient is a for-profit entity, an existing
Telecommunications or Electric Borrower with the Agency, or any other
entity not covered by the following paragraph, the recipient shall
provide an independent audit report in accordance with 7 CFR part 1773,
``Policy on Audits of the Agency's Borrowers.''
(b) If the recipient is a State or local government, or non-profit
organization, the recipient shall provide an audit in accordance with 7
CFR part 3052, ``Audits of States, Local Governments, and Non-Profit
Organizations.''

Sec. 1739.21 OMB Control Number.

The information collection requirements in this part are approved
by the Office of Management and Budget (OMB) and assigned OMB control
number 0572-0127.

[[Page 68711]]

Dated: September 21, 2012.
John Charles Padalino,
Acting Administrator, Rural Utilities Service.
[FR Doc. 2012-27631 Filed 11-15-12; 8:45 am]
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