[Federal Register Volume 80, Number 167 (Friday, August 28, 2015)]
[Notices]
[Pages 52258-52264]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-21355]
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
Guidelines for Carrying Out Section 221(a)(4) of the Flood
Control Act of 1970, as Amended
AGENCY: United States Army Corps of Engineers, Department of Defense.
ACTION: Notice.
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SUMMARY: The U.S. Army Corps of Engineers (Corps) has updated the
existing guidance for providing in-kind credit under Section 221(a)(4)
of the Flood Control Act of 1970, as further amended by Section 1018 of
the Water Resources Reform and Development Act of 2014.
DATES: Written comments must be submitted on or before September 28,
2015.
ADDRESSES: You may submit comments, identified by docket number COE-
2015-0013 by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov . Follow the
instructions for submitting comments.
Email: [email protected]. Include the docket number,
COE-2015-0013, in the subject line of the message.
Mail: U.S. Army Corps of Engineers, Attn: CECW-CE, Janice E.
Rasgus, 441 G Street NW., Washington, DC 20314-1000.
Hand Delivery/Courier: Due to security requirements, we cannot
receive comments by hand delivery or courier.
Instructions: Direct your comments to docket number COE-2015-0013.
All comments received will be included in the public docket without
change and may be made available on-line at http://www.regulations.gov,
including any personal information provided, unless the commenter
indicates that the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI, or otherwise protected, through regulations.gov or
email. The regulations.gov Web site is an anonymous access system,
which means we will not know your identity or contact information
unless you provide it in the body of your comment. If you send an email
directly to the Corps without going through regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, we recommend that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If we cannot read your
comment because of technical difficulties and cannot contact you for
clarification, we may not be able to consider your comment. Electronic
comments should avoid the use of any special characters, any form of
encryption, and be free of any defects or viruses.
Docket: For access to the docket to read background documents or
comments received, go to www.regulations.gov. All documents in the
docket are listed. Although listed in the index, some information is
not publicly available, such as CBI or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form.
FOR FURTHER INFORMATION CONTACT: Janice E. Rasgus, Planning and Policy
Division, Washington, DC at 202-761-7674.
SUPPLEMENTARY INFORMATION: Section 1018(d) of WRRDA 2014 requires the
Corps to update and publish this draft of ER 1165-2-208 in the Federal
Register and offer the public an opportunity to comment on the proposed
guidelines. The Corps will review all comments received by the deadline
and will make its response to those comments available when then ER is
finalized and published on the Corps Web site.
Authority: We are proposing to issue this Engineering Regulation
under the authority of Section 221 (a)(4) of the Flood Control Act of
1970, as amended.
Dated: August 24, 2015.
Theodore A. Brown,
Chief, Planning and Policy Division, Directorate of Civil Works.
Engineering Regulation, ER 1165-2-208, In-Kind Contribution Credit
Provisions of Section 221(a)(4) of the Flood Control Act of 1970, as
amended.
1. Purpose. This regulation provides guidance on the implementation
of the in-kind contribution credit provisions of Section 221(a)(4) of
the Flood Control Act of 1970, as further amended by Section 1018 of
the Water Resources Reform and Development Act of 2014 (WRRDA 2014) (42
U.S.C. 1962d-5b(a)(4)) (hereinafter referred to as ``Section 221'').
Section 221(a)(4) of the Flood Control Act of 1970, as amended, and
Section 1018 of WRRDA 2014 are provided in Appendix A. This regulation
supersedes ER 1165-2-208 dated 17 February 2012.
2. Distribution Statement. Approved for public release.
Distribution is unlimited.
3. Applicability. This regulation applies to all HQUSACE elements,
Major Subordinate Commands (MSCs), and district commands having Civil
Works responsibility and is effective immediately.
a. The Section 221 crediting provisions apply to the study, design,
and construction of water resources development projects authorized in
the Water Resources Development Act of 1986 or later laws, including
projects initiated after November 16, 1986 without specific
authorization in law. In addition, the crediting provisions apply to
the correction of design deficiencies for projects authorized prior to
the Water Resources Development Act of 1986. Finally, these provisions
are also applicable to a project under the an environmental
infrastructure assistance program.
(1) For a project with a project partnership agreement (PPA) that
was executed on or after November 8, 2007, such PPA may be amended to
include work by the non-Federal sponsor that
[[Page 52259]]
has not yet been initiated for credit toward any remaining non-Federal
cost share under that agreement.
(2) Furthermore, in general, the crediting provisions of Section
221 will be used in lieu of Section 104 of WRDA 1986 and Section 215 of
the Flood Control Act of 1968. However, any eligibility for credit
under Section 104 of WRDA 1986 that was approved previously by the
Secretary will be honored.
b. The authority for credit under Section 221 credit is in addition
to any other authority to provide credit for in-kind contributions.
Section 221 credit may be applied in lieu of other crediting provisions
if requested by the non-federal sponsor.
4. Key Principles.
a. In General. Section 221 is a comprehensive authority that
addresses the affording of credit for the value of in-kind
contributions provided by a non-Federal sponsor toward its required
cost share (excluding the required 5 percent cash for structural flood
damage reduction projects and the additional 10 percent cash payment
over 30 years for navigation projects) if those in-kind contributions
are determined to be integral to a study or project.
b. Types of In-Kind Contributions. The types of in-kind
contributions eligible for credit include planning activities
(including data collection and other services needed for a feasibility
study); design related to construction; and construction (including
management; mitigation; and construction materials and services).
c. Compliance with Applicable Federal Laws, Regulations, and
Policies. Eligibility for credit is subject to the non-Federal sponsor
complying with all applicable Federal laws and implementing
regulations, including, but not limited to Section 601 of the Civil
Rights Act of 1964, as amended (42 U.S.C. 2000d), and Department of
Defense Directive 5500.11 issued pursuant thereto; the Age
Discrimination Act of 1975 (42 U.S.C. 6102); the Rehabilitation Act of
1973, as amended (29 U.S.C. 794), and Army Regulation 600-7 issued
pursuant thereto; and 40 U.S.C. 3141-3148 and 40 U.S.C. 3701-3708
(labor standards originally enacted as the Davis-Bacon Act, the
Contract Work Hours and Safety Standards Act, the Copeland Anti-
Kickback Act); and the National Environmental Policy Act and other
environmental laws and regulations.
d. In-Kind Memorandum of Understanding (MOU).
(1) Construction. Section 221 provides that any construction work
that has not been carried out as of November 8, 2007 is eligible for
credit only if the non-Federal sponsor executes an agreement with the
Secretary prior to carrying out such work. For purposes of section 221
crediting only, ``carrying out'' construction work means initiation of
construction using the non-Federal sponsor's labor force or issuance of
the notice to proceed for such construction if undertaken by contract.
Therefore, in those cases where there is not yet an executed PPA, the
non-Federal sponsor must execute an in-kind MOU with the Corps of
Engineers prior to initiating construction or issuing the notice to
proceed. Design work associated with that construction is eligible for
credit as long as an in-kind MOU or PPA is executed prior to the
construction being carried out. In addition, the construction carried
out by the non-Federal sponsor is not considered as part of the future
without project condition.
(a) Projects Specifically Authorized. For projects that are or will
be specifically authorized for construction, an In-Kind MOU for
construction may be executed once there is vertical team concurrence
with the Tentatively Selected Plan (TSP Milestone). The TSP milestone
is the point at which there is vertical team concurrence on the plan
that will be released in the draft study report for public and agency
review. Given the new SMART Planning Process, the TSP Milestone should
occur much earlier in the planning process than what was previously
achieved. Requests from non-Federal sponsors to execute an in-kind MOU
for construction prior to the TSP Milestone will be considered on a
case-by- case basis and must be approved by the Assistant Secretary of
the Army (Civil Works). Since each project presents its own unique
combination of circumstances, each request will require an individual
evaluation that will include consideration of, but not limited to, the
following criteria:
(i) Whether the proposed work is a modification of an existing
Federal project;
(ii) Whether the proposed work will follow an existing levee
alignment in the case of a flood risk management project;
(iii) Whether the proposed work balances and integrates the wise
use of flood plains to ensure public safety;
(iv) Whether the proposed work significantly reduces flood damage
risk to human life, property or critical infrastructure; and
(iv) Whether the proposed work will likely be included in the final
project recommendation.
(b) Continuing Authority Program. For projects implemented under
the Continuing Authority Program or a regional authority that does not
require additional authorization to implement the project, an In-Kind
MOU for design and implementation may be executed after the MSC
Commander approves the decision document for the project.
(2) Design. For projects that are or will be specifically
authorized for construction, an In-Kind MOU for design may be executed
after the TSP milestone, i.e., the point at which there is vertical
team concurrence on the tentatively selected plan that will be released
in the draft study report for public and agency review.
(3) Planning.
(a) Projects Specifically Authorized. For projects that are or will
be specifically authorized for construction, Section 1002 of WRRDA 2014
eliminated the full Federal reconnaissance phase that used to be
undertaken prior to execution of a feasibility cost sharing agreement.
In the past, a project management plan, which established the scope of
the planning, including activities needed to carry out the study, was
developed during this reconnaissance phase. Under the new single phase
study process mandated by WRRDA 2014, the project management plan will
not be developed until after execution of feasibility cost sharing
agreement. Therefore, an In-Kind MOU for planning is not permitted as
the project management plan, including a determination of the scope of
the study, will not be developed until after execution of a feasibility
cost sharing agreement.
(b) Continuing Authority Program. For projects implemented under
the Continuing Authority Program or a regional authority that does not
require additional authorization to implement the project, sections
905(c) and 105(a)(3) of WRDA 1986, as amended, provide that the first
$100,000 of these studies is a Federal expense. Therefore, once a PMP
has been developed and the MSC Commander has approved initiation of the
feasibility study, an In-Kind MOU for planning may be executed.
(4) Any work undertaken by a non-Federal sponsor pursuant to an In-
Kind MOU is at its own risk and responsibility. An In-Kind MOU provides
no assurance that the non-Federal sponsor's work will be determined to
be integral to the Federal project or that any construction undertaken
by the non-Federal sponsor will be included as part of any ultimately
recommended Federal project. Execution of an In-Kind MOU in no way
obligates the Corps to enter
[[Page 52260]]
into any future agreement for the project.
(5) MSC Commanders may approve a District Engineer's execution of
Model In-Kind MOUs for Construction or for Design, provided that the
MOUs do not include any deviations. Any proposed deviations must be
submitted to HQUSACE for approval prior to execution. Models for the
In-kind MOU for construction, including design work, and for design
work only are available at www.Corpsplanning.us.
e. Integral Determinations.
(1) Section 221 provides that credit may be afforded only if the
Secretary determines that the material or service provided as an in-
kind contribution by a non-Federal sponsor is integral to the study or
project.\1\ To be integral to the study or project, the material or
service must be part of the work that the Federal Government would
otherwise have undertaken for the study or for construction of what is
ultimately determined to be the Federal project. See Appendix B for
additional guidance on criteria and procedures for processing integral
determinations.
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\1\ The costs of Coordination Team participation and audits are
not in-kind contributions and are not included in ``shared costs''
for cost sharing purposes. The costs of the non-Federal Sponsor's
performance of investigations for hazardous substances are eligible
for inclusion as a shared costs and for credit as an in-kind
contribution and do not require a separate integral determination.
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(2) The approval of integral determinations is delegated to the MSC
Commander. The approval authority delegated to the MSC Commander is
subject to the full compliance of each integral determination to law
and policy and may not be further delegated within the MSC or to the
District Commander. A separate integral determination is not required
for planning activities included in the project management plan,
approved by the MSC Commander, as required for the study effort.
f. Determining the Amount of Credit.
(1) The amount of in-kind contributions that may be eligible for
inclusion in shared costs for cost sharing purposes under the
applicable cost sharing agreement will be subject to an audit by the
Government to determine the reasonableness, allocability, and
allowability of such amount.
(2) The creditable amount is the lesser of the costs incurred by
the non-Federal sponsor to obtain such materials or services; the
market value of such materials or services as of the date that the non-
Federal sponsor provides such materials or services for use in the
study or project; or the Government's estimate of the cost for such
work if it had been accomplished by the Government. This amount is not
subject to interest charges or to adjustment to reflect changes in
price levels between the time the in-kind contributions were completed
and the time the amount is credited.
(3) Any in-kind contributions performed or paid for by the non-
Federal sponsor using funds provided by another Federal agency (as well
as any non-Federal matching share or contribution that was required by
such Federal agency for such program or grant) are not eligible for
credit unless the Federal agency providing the Federal portion of such
funds verifies in writing that the funds are authorized to be used to
carry out the study or project.
(4) After execution of the applicable FCSA, DA, or PPA, the non-
Federal sponsor will submit to the Government (not less frequently than
every 6 months) credit request(s) for eligible in-kind contributions
under that agreement. The credit requests will contain the following:
(a) Written certification by the non-Federal sponsor of the payments
made to contractors, suppliers, or employees for in-kind contributions;
(b) copies of all relevant invoices and evidence of such payments; (c)
written identification of costs that have been paid with funds or
grants provided by a Federal agency as well as any non-Federal matching
share or contribution that was required by such Federal agency for such
program or grant; and (d) a written request for credit of a specific
amount not in excess of such specified payments. Failure to provide
sufficient documentation supporting the credit request will result in a
denial of credit in accordance with the terms of the applicable cost
sharing agreement.
(5) In-kind contributions are subject to a review (for feasibility
level and design activities) or on-site inspection (construction), as
applicable, and certification by the Government that the work was
accomplished in a satisfactory manner and in accordance with applicable
Federal laws, regulations, and policies. The Government will not
include in the costs to be shared under the applicable cost sharing
agreement or afford credit for any work the Government determines was
not accomplished in a satisfactory manner or in accordance with
applicable Federal laws, regulations, and policies.
(6) In general, the amount of credit for in-kind contributions that
can be afforded under a FCSA or a PPA is limited to the amount of the
non-Federal sponsor's cost share under that agreement. As the costs of
design under a Design Agreement (DA) are included in total project
costs under a PPA, credit for in-kind contributions under a DA is
carried over to the PPA, and the maximum of amount of credit for in-
kind contributions under a PPA is limited to the non-Federal sponsor's
required cost share under the PPA. Credit for in-kind contributions may
not be afforded toward the required 5 percent cash payment for
structural flood damage reduction projects or the additional 10 percent
cash payment for navigation projects.
(7) Credit for in-kind contributions for planning is limited to
credit that can be afforded under a specific FCSA. In other words,
excess credit may not be carried over to design or construction of the
project. Credit for planning work by the non-Federal sponsor is limited
to its 50 percent of planning costs and will be done in accordance with
the PMP, under the terms and conditions in the FCSA.
(8) Credit for in-kind contributions provided by a non-Federal
sponsor for the construction of a project, or separable element
thereof, that are in excess of the non-Federal cost share for an
authorized separable element of a project may be applied toward the
non-federal cost share for a different authorized separable element of
the same project. Additional Federal appropriations will be required to
offset the application of any excess credit to another separable
element.
(9) If the value of eligible in-kind contributions exceeds the
amount of credit that can be afforded pursuant to the provisions of a
PPA (i.e., exceeds the required non-Federal cost share for all features
covered by that PPA), only the amount of credit afforded should be
included in total project costs. Recalculation of total project costs
will be required to exclude from total project costs the value of in-
kind contributions that exceed the amount of credit that can be
afforded. In addition, the amount excluded will not be considered part
of total costs for the purposes of Section 902 of WRDA 1986
calculations.
(10) No reimbursements are authorized for in-kind contributions
under Section 221 except as provided in paragraph 4 g., below.
g. Lands, Easements, Relocations, Rights-of-Way, and Areas for
Disposal of Dredged Material (LERRDs). Section 221 does not alter any
other requirement for the non-Federal sponsor to provide LERRDs for a
project. Any LERRDs associated with in-kind contributions determined to
be integral to the project will be credited to the project as LERRDs.
For a navigation project, LERRs are creditable only toward the
requirement for the non-Federal sponsor
[[Page 52261]]
to pay an additional 10 percent of the cost of the general navigation
features.
(1) Previously, credit for in-kind contributions was afforded only
toward the non-Federal sponsor's required cash contribution after
consideration of the value of LERRDs provided by the non-Federal
sponsor. WRRDA 2014 changes how credit for in-kind contributions is
calculated. For projects other than navigation projects, to the extent
that credit for LERRDs combined with credit for the value of in-kind
contributions exceed the non-Federal share of the cost of a project,
WRRDA 2014 provides that the Secretary, subject to the availability of
funds, shall enter into a separate reimbursement agreement to reimburse
the non-Federal sponsor for the difference between creditable LERRDs
and in-kind contributions and the non-Federal cost share. Therefore, at
the final accounting for the project, to the extent funds for the
project remain available, the Secretary shall execute an agreement with
the non-Federal sponsor for reimbursement of the difference.
(2) If funds remaining on a project are insufficient to provide
full reimbursement under paragraph f.(1), the non-Federal sponsor may
request reimbursement. The Secretary shall prioritize such requests,
and enter into reimbursements agreements, in the order the requests
were received, as funds become available for reimbursements.
5. Design. Design by the non-Federal sponsor must be performed in
accordance with the requirements in ER 1110-2-1150, reviewed in
accordance with ER 1110-1-12, and subject to the applicable peer review
guidance. In accordance with section 105(c) of WRDA 1986, the costs of
design shall be shared in the same percentages as the purposes of such
project.
a. If the value of eligible in-kind contributions is less than the
non-Federal sponsor's share of design costs, the non-Federal sponsor
must contribute sufficient funds to equal its share of total design
costs.
b. If the value of eligible in-kind contributions is greater than
the non-Federal sponsor's share of total design costs, then no cash
payment from the non-Federal sponsor is required. The value of all of
the non-Federal sponsor's eligible in-kind contributions (including
those in excess of its share of total design costs) will be included in
total project costs in the PPA. The maximum amount of credit that may
be afforded pursuant to the PPA is limited to the non-Federal sponsor's
cost share under that agreement.
6. Construction.
a. To be eligible for credit, in-kind contributions prior to
execution of the PPA must have been provided or performed after
execution of an In-Kind MOU. Credit for in-kind contributions will not
be afforded toward the non-Federal sponsor's requirement to provide in
cash 5 percent of the costs for structural flood damage reduction
projects (either specifically authorized or implemented pursuant to
Continuing Authority Program Sections 14, 205, or 208 projects); the
non-Federal sponsor's requirement to pay for betterments or any other
work performed by the Government on behalf of the non-Federal sponsor;
the non-Federal sponsor's requirement to provide lands, easements,
rights-of-way, relocations, or improvements to enable the disposal of
dredged or excavated material required for the project or separable
element of the project; or the non-Federal sponsor's additional payment
of 10 percent of the cost of general navigation features for a
navigation project.
b. The non-Federal sponsor may not initiate construction following
execution of a PPA until the designs, detailed plans and
specifications, and arrangements for the prosecution of such work have
been approved by the Government. In addition, any proposed changes to
approved designs and plans and specifications must be approved by the
Government in advance of such construction. Upon completion of
construction, the non-Federal sponsor will furnish to the Government a
copy of all final as-built drawings.
c. For CAP authorities and regional authorities that are
implemented with a single agreement covering design and implementation,
if a non-Federal sponsor proposes to provide or perform all or a
portion of the design for a project as in-kind contributions, a PPA
addressing both design and construction is required.
FOR THE COMMANDER:
Colonel, Corps of Engineers
Chief of Staff
Enclosures: 2 Appendices
Appendix A--Section 221(a)(4) of the Flood Control Act of 1970, as
amended (42 U.S.C. 1962d-5b(a)(4) Section 221(a)(4) of the Flood
Control Act of 1970, as amended, and Section 1018 of WRRDA 2014
Appendix B--Criteria for In-Kind Contribution Integral Determinations
APPENDIX A
Section 221(a)(4) of the Flood Control Act of 1970, as amended (42
U.S.C. 1962d-5b(a)(4))
SEC. 221. WRITTEN AGREEMENT REQUIREMENT FOR WATER RESOURCES PROJECTS.
COOPERATION OF NON-FEDERAL INTEREST.
(4) Credit for in-kind contributions.
(A) In general. A partnership agreement described in paragraph (1)
may provide with respect to a project that the Secretary shall credit
toward the non-Federal share of the cost of the project, including a
project implemented without specific authorization in law or a project
under an environmental infrastructure assistance program, the value of
in-kind contributions made by the non-Federal interest, including--
(i) the costs of planning (including data collection), design,
management, mitigation, construction, and construction services that
are provided by the non-Federal interest for implementation of the
project;
(ii) the value of materials or services provided before execution
of the partnership agreement, including efforts on constructed elements
incorporated into the project; and
(iii) the value of materials and services provided after execution
of the partnership agreement.
(B) Condition. The Secretary may credit an in-kind contribution
under subparagraph (A) only if the Secretary determines that the
material or service provided as an in-kind contribution is integral to
the project.
(C) Work performed before partnership agreement.
(i) Construction.
(I) In general. In any case in which the non-Federal interest is to
receive credit under subparagraph (A) for the cost of construction
carried out by the non-Federal interest before execution of a
partnership agreement and that construction has not been carried out as
of November 8, 2007, the Secretary and the non-Federal interest shall
enter into an agreement under which the non-Federal interest shall
carry out such work and shall do so prior to the non-Federal interest
initiating construction or issuing a written notice to proceed for the
construction.
(II) Eligibility. Construction that is carried out after the
execution of an agreement to carry out work described in subclause (I)
and any design activities that are required for that construction, even
if the design activity is carried out prior to the execution of the
agreement to carry out work, shall be eligible for credit.
(ii) Planning.
(I) In general. In any case in which the non-Federal interest is to
receive credit
[[Page 52262]]
under subparagraph (A) for the cost of planning carried out by the non-
Federal interest before execution of a feasibility cost-sharing
agreement, the Secretary and the non-Federal interest shall enter into
an agreement under which the non-Federal interest shall carry out such
work and shall do so prior to the non-Federal interest initiating that
planning.
(II) Eligibility. Planning that is carried out by the non-Federal
interest after the execution of an agreement to carry out work
described in subclause (I) shall be eligible for credit.
(D) Limitations. Credit authorized under this paragraph for a
project--
(i) shall not exceed the non-Federal share of the cost of the
project;
(ii) shall not alter any other requirement that a non-Federal
interest provide lands, easements, relocations, rights-of-way, or areas
for disposal of dredged material for the project;
(iii) shall not alter any requirement that a non-Federal interest
pay a portion of the costs of construction of the project under
sections 101(a)(2) and 103(a)(1)(A) of the Water Resources Development
Act of 1986 (33 U.S.C. 2211(a)(2); 33 U.S.C. 2213(a)(1)(A)) of the
Water Resources Development Act of 1986 (33 U.S.C. 2211; 33 U.S.C.
2213); and
(iv) shall not exceed the actual and reasonable costs of the
materials, services, or other things provided by the non-Federal
interest, as determined by the Secretary.
(E) Analysis of costs and benefits. In the evaluation of the costs
and benefits of a project, the Secretary shall not consider
construction carried out by a non-Federal interest under this
subsection as part of the future without project condition.
(F) Transfer of credit between separable elements of a project.
Credit for in-kind contributions provided by a non-Federal interest
that are in excess of the non-Federal cost share for an authorized
separable element of a project may be applied toward the non-Federal
cost share for a different authorized separable element of the same
project.
(G) Application of credit.
(i) In general. To the extent that credit for in-kind
contributions, as limited by subparagraph (D), and credit for required
land, easements, rights-of-way, dredged material disposal areas, and
relocations provided by the non-Federal interest exceed the non-Federal
share of the cost of construction of a project other than a navigation
project, the Secretary, subject to the availability of funds, shall
enter into a reimbursement agreement with the non-Federal interest,
which shall be in addition to a partnership agreement under
subparagraph (A), to reimburse the difference to the non-Federal
interest.
(ii) Priority. If appropriated funds are insufficient to cover the
full cost of all requested reimbursement agreements under clause (i),
the Secretary shall enter into reimbursement agreements in the order in
which requests for such agreements are received.''; and
(H) Applicability.
(i) In general. This paragraph shall apply to water resources
projects authorized after November 16, 1986, including projects
initiated after November 16, 1986, without specific authorization in
law, and to water resources projects authorized prior to the date of
enactment of the Water Resources Development Act of 1986 (Public Law
99-662) [enacted June 10, 2014], if correction of design deficiencies
is necessary.
(ii) Authorization as addition to other authorizations. The
authority of the Secretary to provide credit for in-kind contributions
pursuant to this paragraph shall be in addition to any other
authorization to provide credit for in-kind contributions and shall not
be construed as a limitation on such other authorization. The Secretary
shall apply the provisions of this paragraph, in lieu of provisions
under other crediting authority, only if so requested by the non-
Federal interest.
Section 1018 of the Water Resources Reform and Development Act of 2014
Sec. 1018. CREDIT FOR IN-KIND CONTRIBUTIONS.
(a) In General.--Section 221(a)(4) of the Flood Control Act of 1970
(42 U.S.C. 1962d-5b(a)(4)) is amended--
(1) in subparagraph (A), in the matter preceding clause (i), by
inserting ``or a project under an environmental infrastructure
assistance program'' after ``law'';
(2) in subparagraph (C) by striking ``In any case'' and all that
follows through the period at the end and inserting the following:
``(i) CONSTRUCTION.--
``(I) In General.--In any case in which the non-Federal interest is
to receive credit under subparagraph (A) for the cost of construction
carried out by the non-Federal interest before execution of a
partnership agreement and that construction has not been carried out as
of November 8, 2007, the Secretary and the non-Federal interest shall
enter into an agreement under which the non-Federal interest shall
carry out such work and shall do so prior to the non-Federal interest
initiating construction or issuing a written notice to proceed for the
construction.
``(II) Eligibility.--Construction that is carried out after the
execution of an agreement to carry out work described in subclause (I)
and any design activities that are required for that construction, even
if the design activity is carried out prior to the execution of the
agreement to carry out work, shall be eligible for credit.
``(ii) PLANNING.--
``(I) In General.--In any case in which the non-Federal interest is
to receive credit under subparagraph (A) for the cost of planning
carried out by the non-Federal interest before execution of a
feasibility cost-sharing agreement, the Secretary and the non-Federal
interest shall enter into an agreement under which the non-Federal
interest shall carry out such work and shall do so prior to the non-
Federal interest initiating that planning.
``(II) Eligibility.--Planning that is carried out by the non-
Federal interest after the execution of an agreement to carry out work
described in subclause (I) shall be eligible for credit.'';
(3) in subparagraph (D)(iii) by striking ``sections 101 and 103''
and inserting ``sections 101(a)(2) and 103(a)(1)(A) of the Water
Resources Development Act of 1986 (33 U.S.C. 2211(a)(2); 33 U.S.C.
2213(a)(1)(A))'';
(4) by redesignating subparagraph (E) as subparagraph (H);
(5) by inserting after subparagraph (D) the following:
``(E) Analysis of Costs and Benefits.--In the evaluation of the
costs and benefits of a project, the Secretary shall not consider
construction carried out by a non-Federal interest under this
subsection as part of the future without project condition.
``(F) Transfer of Credit Between Separable Elements of a Project.--
Credit for in-kind contributions provided by a non-Federal interest
that are in excess of the non-Federal cost share for an authorized
separable element of a project may be applied toward the non-Federal
cost share for a different authorized separable element of the same
project.
``(G) APPLICATION OF CREDIT.--
``(i) In General.--To the extent that credit for in-kind
contributions, as limited by subparagraph (D), and credit for required
land, easements, rights-of-way, dredged material disposal areas, and
relocations provided by the non-Federal interest exceed the non-Federal
share of the cost of construction of a project other than a navigation
project, the Secretary, subject to the availability of funds, shall
enter into a reimbursement agreement with the non-Federal interest,
which shall be in addition to a partnership agreement
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under subparagraph (A), to reimburse the difference to the non-Federal
interest.
``(ii) Priority.--If appropriated funds are insufficient to cover
the full cost of all requested reimbursement agreements under clause
(i), the Secretary shall enter into reimbursement agreements in the
order in which requests for such agreements are received.''; and
(6) in subparagraph (H) (as redesignated by paragraph (4))--
(A) in clause (i) by inserting ``, and to water resources projects
authorized prior to the date of enactment of the Water Resources
Development Act of 1986 (Public Law 99-662), if correction of design
deficiencies is necessary'' before the period at the end; and
(B) by striking clause (ii) and inserting the following:
``(ii) Authorization As Addition to Other Authorizations.--The
authority of the Secretary to provide credit for in-kind contributions
pursuant to this paragraph shall be in addition to any other
authorization to provide credit for in-kind contributions and shall not
be construed as a limitation on such other authorization. The Secretary
shall apply the provisions of this paragraph, in lieu of provisions
under other crediting authority, only if so requested by the non-
Federal interest.''.
(b) Applicability.--Section 2003(e) of the Water Resources
Development Act of 2007 (42 U.S.C. 1962d-5b note) is amended--
(1) by inserting ``, or construction of design deficiency
corrections on the project,'' after ``construction on the project'';
and
(2) by inserting ``, or under which construction of the project has
not been completed and the work to be performed by the non-Federal
interests has not been carried out and is creditable only toward any
remaining non-Federal cost share,'' after ``has not been initiated''.
(c) Effective Date.--The amendments made by subsections (a) and (b)
take effect on November 8, 2007.
(d) Guidelines.--
(1) In General.-- Not later than 1 year after the date of enactment
of this Act, the Secretary shall update any guidance or regulations for
carrying out section 221(a)(4) of the Flood Control Act of 1970 (42
U.S.C. 1962d-5b(a)(4)) (as amended by subsection (a)) that are in
existence on the date of enactment of this Act or issue new guidelines,
as determined to be appropriate by the Secretary.
(2) Inclusions.-- Any guidance, regulations, or guidelines updated
or issued under paragraph (1) shall include, at a minimum--
(A) the milestone for executing an in-kind memorandum of
understanding for construction by a non-Federal interest;
(B) criteria and procedures for evaluating a request to execute an
in-kind memorandum of understanding for construction by a non-Federal
interest that is earlier than the milestone under subparagraph (A) for
that execution; and
(C) criteria and procedures for determining whether work carried
out by a non-Federal interest is integral to a project.
(3) Public and Stakeholder Participation.-- Before issuing any new
or revised guidance, regulations, or guidelines or any subsequent
updates to those documents, the Secretary shall--
(A) consult with affected non-Federal interests;
(B) publish the proposed guidelines developed under this subsection
in the Federal Register; and
(C) provide the public with an opportunity to comment on the
proposed guidelines.
(e) Other Credit.--Nothing in section 221(a)(4) of the Flood
Control Act of 1970 (42 U.S.C. 1962d-5b(a)(4)) (as amended by
subsection (a)) affects any eligibility for credit under section 104 of
the Water Resources Development of 1986 (33 U.S.C. 2214) that was
approved by the Secretary prior to the date of enactment of this Act.
APPENDIX B
Criteria and Procedures for In-Kind Contribution Integral
Determinations
C-1. Determining if In-Kind Contributions Are Integral to the
Study/Project. Establishing and allowing credit is a two step process
whereby: 1) eligibility is determined by performing the integral
determination, and 2) actual affording of credit is accomplished by
audit of the non-Federal work by the District Engineer under the terms
of the FCSA, DA, or PPA, as appropriate. The Government must determine
that the in-kind contributions are integral to the study or project for
those contributions to be considered eligible for credit.
a. Approval Level of Integral Determinations. Under the terms of
Paragraph 4.e.. of this regulation, approval of integral determinations
is delegated to the MSC Commander. This authority may not be further
delegated.
b. Timing of Integral Determinations.
(1) The integral determination must be completed immediately prior
to review and approval of a DA or PPA, or amendment as applicable, that
provides for the affording of credit. The integral determination for
planning efforts is accomplished as part of the development of the PMP.
An integral determination is not required prior to execution of an In-
Kind MOU for design or construction.
(2) Include at least 30 days in the project schedule for processing
at the MSC of the Integral Determinations by the MSC Commander. These
times are recommended for scheduling purposes and should be extended if
processing identifies significant issues requiring resolution.
c. Procedures for Processing.
(1) For a feasibility study, planning activities, including data
collection, must be included in the approved Project Management Plan in
order for those contributions to be eligible for credit.
(2) The District will prepare an Integral Determination Report
(IDR) for design and construction work that includes at a minimum the
information contained in the following paragraphs. A suggested format
for an IDR can be found at www.Corpsplanning.us. The IDR shall contain
a description of the activities required to perform the design or
construction, as applicable, of the Federal project or separable
element in sufficient detail to allow a comparison with the description
of the proposed in-kind contributions; a detailed description of the
work items proposed to be provided or performed as in-kind
contributions; a discussion of how each work item proposed to be
provided or performed as an in-kind contribution is integral to the
project; an estimate of the costs of each work item proposed to be
provided or performed as an in-kind contribution; the estimated amount
of credit to be afforded for each work item proposed to be provided or
performed as an in-kind contribution; and a District Commander
recommendation identifying which of the proposed in-kind contributions
should be considered integral to the project. If the in-kind
contributions were provided or performed prior to execution of the
applicable cost sharing agreement, then also include in the IDR the
results of the review or inspection, as applicable, and certification
by the District Commander on whether the work was accomplished in a
satisfactory manner and in accordance with applicable Federal laws,
regulations, and policies; and documentation of satisfactory
environmental compliance for the construction portion of the in-kind
contributions.
(3) The district will submit the IDR to the MSC District Support
Team for action. The MSC District Support Team will perform the MSC
review of the IDR. The MSC review team also will include members from
the MSC Office of Counsel and from the MSC Planning Community of
Practice (CoP), MSC
[[Page 52264]]
Engineering and Construction CoP, MSC Real Estate CoP, and other CoPs,
as needed. In addition, if the proposed in-kind contributions consist
of design or construction of dams, levees, or bridges, the MSC review
team must include the MSC Dam, Levee, or Bridge Safety Officer. After
satisfactory resolution of all comments on the IDR and a determination
that the IDR complies with all applicable law and policy, the MSC
District Support Team shall prepare an Integral Determination memo for
approval and signature by the MSC Commander. If the IDR does not or
cannot be modified to comply with law and policy, then the MSC should
contact the HQUSACE RIT to facilitate the resolution of the concerns.
(4) The Integral Determination approval memo will state whether the
work identified in the IDR, or a portion thereof, has been determined
to be integral to the project. In addition, the memo should state that
determination of the actual value of the in-kind contributions and
affording credit for such amount will be accomplished by the Government
in accordance with the limitations, conditions, and terms of the
applicable cost sharing agreement.
C-2. The following may be accepted as integral:
The proposed in-kind contributions are a part of the Federal
project.
b. The proposed in-kind contributions consist of work that the
Government would have otherwise provided or performed for the project,
except for performance of activities that are inherently Governmental
responsibilities (see paragraph C-3 below). Examples of activities that
are acceptable in-kind contributions: performance of design of all or a
portion of the Federal project, including data collection related to
design work; demolition of buildings on lands required for the project;
performance of design or construction related studies for historic
preservation activities; performance of cost shared monitoring and
adaptive management; and construction of a portion of the project.
c. For proposed in-kind contributions performed prior to execution
of the applicable cost sharing agreement, the in-kind contributions
have been reviewed or inspected, as applicable, and certified by the
Government that the work was accomplished in a satisfactory manner and
in accordance with applicable Federal laws, regulations, and policies.
d. For any proposed in-kind contributions proposed to be performed
after execution of the PPA, the plans and specifications will be
approved by the District Commander prior to initiation of the
construction work.
e. For materials provided for use in construction work managed by
the Government, the materials meet the minimum Government requirements
for materials and any substitute materials have been determined to be a
functional equivalent in accordance with policies governing contractor
substitution of materials.
C-3. The following will not be accepted as integral:
a. The proposed in-kind contributions are not part of the Federal
project.
b. The proposed in-kind contributions consist of performance of
activities that are inherently Governmental responsibilities (e.g.,
management of Government contracts; performance of District Quality
Review, Agency Technical Review, Independent External Peer Review, or
Policy Compliance Review; determining if Value Engineering evaluations
are acceptable; determining the LERRD required for the project or
separable element of the project; determining the value of LERRD for
crediting purposes; or making determinations as to compliance with
applicable environmental laws and regulations).
c. The proposed in-kind contributions are features or obligations
that are a 100 percent non-Federal sponsor responsibility (e.g.,
purposes of land reclamation, local drainage, to protect against land
or bank erosion, and/or the removal of hazardous, toxic, or radioactive
wastes; local service facilities; betterments; acquisition and
performance of LERRD, except for the provision of dredged or excavated
material disposal facilities for commercial navigation projects; and
performance of OMRR&R);
d. The proposed in-kind contributions have or will create a hazard
to human life or property.
e. The proposed in-kind contributions have been determined to be
environmentally unacceptable.
f. For proposed in-kind contributions performed prior to execution
of the applicable cost sharing agreement, after review or inspection,
as applicable, the Government cannot certify the proposed in-kind
contributions were accomplished in a satisfactory manner and in
accordance with applicable Federal laws, regulations, and policies.
g. For proposed in-kind contributions performed prior to execution
of the applicable cost sharing agreement, the non-Federal sponsor has
not performed the necessary operation, maintenance, repair,
rehabilitation, or replacement.
[FR Doc. 2015-21355 Filed 8-27-15; 8:45 am]
BILLING CODE 3720-58-P