[Federal Register Volume 77, Number 142 (Tuesday, July 24, 2012)]
[Rules and Regulations]
[Pages 43149-43151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-18017]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 77, No. 142 / Tuesday, July 24, 2012 / Rules
and Regulations
[[Page 43149]]
DEPARTMENT OF AGRICULTURE
Rural Utilities Service
7 CFR Part 1777
RIN 0572-AC26
Water and Waste Disposal Loans and Grants
AGENCY: Rural Utilities Service, USDA.
ACTION: Final rule.
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SUMMARY: The Rural Utilities Service (RUS) is amending its regulations
related to the Section 306C Water and Waste Disposal (WWD) Loans and
Grants Program, which provides water and waste disposal facilities and
services to low-income rural communities whose residents face
significant health risks. Specifically, RUS is modifying the priority
points system in order to give additional priority points to the
colonias that lack access to water or waste disposal systems and face
significant health problems. The intent is to ensure that the neediest
areas receive funding.
DATES: This rule is effective August 23, 2012.
FOR FURTHER INFORMATION CONTACT: Jacqueline M. Ponti-Lazaruk, Assistant
Administrator, Water and Environmental Programs, Rural Utilities
Service, Rural Development, U.S. Department of Agriculture, 1400
Independence Avenue SW., STOP 1548, Room 5147 S, Washington, DC 20250-
1590. Telephone number: (202) 720-2670, Facsimile: (202) 720-0718.
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.
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 that 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 the 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.
Regulatory Flexibility Act Certification
RUS has determined that this rule will not have a significant
economic impact on a substantial number of small entities, as defined
in the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). RUS provides
loans to borrowers at interest rates and on terms that are more
favorable than those generally available from the private sector. RUS
borrowers, as a result of obtaining federal financing, receive economic
benefits that exceed any direct economic costs associated with
complying with RUS regulations and requirements.
Information Collection and Recordkeeping Requirements
This rule contains no new reporting or recordkeeping burdens under
OMB control number 0572-0109 that would require approval under the
Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35).
E-Government Act Compliance
The Agency 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.
Catalog of Federal Domestic Assistance
The programs described by this rule are listed in the Catalog of
Federal Domestic Assistance Programs under number 10.770 Water and
Waste Disposal Loans and Grants (Section 306C). The Catalog is
available on the Internet at http://www.cfda.gov.
Executive Order 12372
This program is subject to the provisions of Executive Order 12372,
Intergovernmental Consultation, which requires intergovernmental
consultation with State and local officials.
Unfunded Mandates
This rule contains no Federal mandates (under the regulatory
provision of Title II of the Unfunded Mandate Reform Act of 1995) for
State, local, and tribal governments or the private sector. Thus, this
rule is not subject to the requirements of sections 202 and 205 of the
Unfunded Mandate Reform Act of 1995.
National Environmental Policy Act Certification
The Agency has determined that this rule will not significantly
affect the quality of the human environment as defined by the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). Therefore,
this action does not require an environmental impact statement or
assessment.
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 the states is not required.
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 final
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, during the Proposed Rule comment period no comments were
filed by elected leaders or staff of Federally Recognized Indian
Tribes. Thus, this final rule is not subject to the requirements of
Executive Order 13175. If a tribe determines that this rule has
implications of which Rural
[[Page 43150]]
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.
Background
USDA Rural Development (RD) is a mission area within the U.S.
Department of Agriculture comprised of the Rural Housing Service, Rural
Business/Cooperative Service and Rural Utilities Service. Rural
Development's mission is to increase economic opportunity and improve
the quality of life for all rural Americans. Rural Development meets
its mission by providing loans, loan guarantees, grants and technical
assistance through more than forty programs aimed at creating and
improving housing, businesses and infrastructure throughout rural
America.
The RUS loan, loan guarantee and grant programs act as a catalyst
for economic and community development. By financing improvements to
rural electric, water and waste, and telecom and broadband
infrastructure, RUS also plays a significant role in improving other
measures of quality of life in rural America, including public health
and safety, environmental protection, conservation, and cultural and
historic preservation.
The Consolidated Farm and Rural Development Act (CONACT) authorizes
USDA to provide loans and grants for the development, storage,
treatment, purification, or distribution of water; and for the
collection, treatment, or disposal of waste in rural areas. Section
306C of the CONACT directs USDA to provide loans and grants to Indian
Tribes and other targeted areas, such as colonias, for the construction
of new water and waste systems, or for the extension or improvement of
such systems, in rural areas. It should be noted that the changes to 7
CFR 1777 are meant to only affect those projects in colonias and do not
change the agency's rules for administering assistance that is
legislatively mandated to benefit Federally Recognized Indian Tribes.
The loans and grants are to be available to provide these facilities
only to communities whose residents face significant health risks, as
determined by the Secretary, due to the fact that a significant
proportion of the community's residents do not have access to, or are
not served by, adequate affordable water supply systems or waste
disposal facilities. The Agency provides such loans and grants through
its regulation, 7 CFR 1777, providing assistance to colonias along the
U.S. Mexican border.
This rule will change the Rural Utilities Service's current
prioritization of potential projects pursuant to 7 CFR part 1777, which
is based upon a point system, wherein the greatest possible number of
points (50) is given to proposed projects that seek to provide water
and/or waste disposal services to a colonia. Colonias are communities
along the U.S.-Mexico border that are defined in 7 CFR 1777.4 as ``Any
identifiable community designated in writing by the State or county in
which it is located; determined to be a colonia on the basis of
objective criteria including lack of potable water supply, lack of
adequate sewage systems, and lack of decent, safe and sanitary housing,
inadequate roads and drainage; and existed and was generally recognized
as a colonia before October 1, 1989.''
RUS remains committed to improving the quality of, and access to,
water and waste services in colonias areas, and often collaborates and
coordinates with other federal and state funders to do so. Since 1993,
RUS has provided $425.5 million in grants for 519 projects serving
colonias areas. RUS has also provided funding to Rural Development's
Rural Housing Service customers, resulting in $22,137,827 worth of
assistance to 6,693 colonia households, which provided access to
community water and waste systems. In addition, USDA continues to work
with state and local partners to seek new ways to improve program
delivery in these areas.
In December 2009, the Government Accountability Office (GAO)
released a report describing a number of perceived inadequacies in
Federal Government programs across various agencies focused on
assisting colonias areas. In the report, GAO recommended that the
Secretary of Agriculture direct Rural Development to revise its process
to ensure that the agency only provide Section 306C colonia funds to
projects that benefit colonias, as defined by Federal statute. While
USDA disagrees with GAO's assertion that 306C funds are currently
allocated contrary to statutory intent, the Agency understands that
more should be done to ensure that colonias areas most in need,
especially those that remain unserved, are better targeted for funding.
In an effort to better serve colonias areas, and to address
concerns raised by GAO, RUS amends 7 CFR 1777 as it pertains to
projects serving colonias.
Purpose of This Final Rule
This final rule clarifies 7 CFR 1777.12 by including specific
information on documentation to support a determination of a
significant health risk. The rule also revises 7 CFR 1777.13 to
specifically focus on the priority point system used in selecting
projects for 306C funding. This will ensure that the colonias that lack
access to water or waste disposal systems, and face significant health
problems, are given priority consideration for 306C funding.
Comments
RUS published a proposed rulemaking in the Federal Register on
March 9, 2012 at 77 FR 14307 and invited interested parties to comment.
One public submission was received with regard to the need for funding
and education in colonias area. No other comments were received from
any other source. A summary of the submission and the Agency's response
is summarized as follows:
Issue 1: Commenter agreed that the efforts of the Department of
Agriculture to provide further funding in the form of grants for
potable water and proper waste management is a good course of action.
Response: Agency concurs.
Issue 2: Commenter suggested that education and training must be a
key component in granting aid.
Response: Agency concurs. RUS has technical assistance providers
that work with colonias areas in terms of education and training.
Issue 3: Commenter would like USDA RD to focus on employment
projects, as this will begin to lessen dependency on federal aid.
Response: Agency concurs. RUS believes that modern, reliable water
and waste infrastructure can provide the foundation for economic growth
and future employment opportunities in colonias areas.
List of Subjects in 7 CFR Part 1777
Community development, Community facilities, Grant programs--
housing and community development, Loan programs--housing and community
development, Reporting and recordkeeping requirements, Rural areas,
Waste treatment and disposal, Water supply, Watersheds.
For the reasons discussed in the preamble, the Agency amends 7 CFR
part 1777 as follows:
PART 1777--SECTION 306C WWD LOANS AND GRANTS
0
1. The authority citation continues to read as follows:
Authority: 5 U.S.C. 301; 7 U.S.C. 1989; 16 U.S.C. 1005.
0
2. Amend Sec. 1777.12 add a sentence to the end of paragraph (b)
introductory
[[Page 43151]]
text and add paragraphs (b)(1) through (4) to read as follows:
Sec. 1777.12 Eligibility.
* * * * *
(b) * * * The following requirements regarding the documentation
must be followed:
(1) The originating documentation must come from an independent
third party source that has the experience in specifying the health or
sanitary problem that currently exists.
(2) The documentation must state specifically the health or
sanitary problems that exist. General statements of problems or support
for the project are not acceptable.
(3) Current users of the facility must be experiencing the current
health or sanitary problem and not future or possible users.
(4) If no facility exists, documentation must include specific
health and sanitary problems associated with individual facilities that
currently exist to warrant the health and sanitary determination.
0
3. Revise Sec. 1777.13 to read as follows:
Sec. 1777.13 Project priority.
Paragraphs (a) through (d) of this section indicate items and
conditions which must be considered in selecting applications for
further development. When ranking eligible applications for
consideration for limited funds, Agency officials must consider the
priority items met by each application and the degree to which those
priorities are met.
(a) Applications. The application and supporting information
submitted with it will be used to determine applicant eligibility and
the proposed project's priority for available funds. Applicants
determined ineligible will be advised of their appeal rights in
accordance with 7 CFR part 11.
(b) State Office review. All applications will be processed and
scored in the area office and then reviewed for funding priority at the
State Office using RUS Bulletin 1777-2. Eligible applicants that cannot
be funded will be advised that funds are not available and advised of
their appeal rights as set forth in 7 CFR part 11.
(c) National Office. The National Office will allocate funds on a
project-by-project basis as requests are received from the State
Office. If the amount of funds requested exceeds the amount of funds
available, the total project score will be used to select projects for
funding. The RUS Administrator may assign up to 35 additional points
which will be considered in the total points for items such as
geographic distribution of funds, severity of health risks, etc.
Unobligated funds will be pooled by mid-August of each year and made
available to all States with eligible colonias applicants on a case-by-
case basis.
(d) Selection priorities. The priorities described below will be
used to rate applications and in selecting projects for funding. Points
will be distributed as indicated in paragraphs (d)(1) through (d)(6) of
this section and will be used in selecting projects for funding.
(1) Population. The proposed project will serve an area with a
rural population:
(i) Not in excess of 1,500--30 points.
(ii) More than 1,500 and not in excess of 3,000--20 points.
(iii) More than 3,000 and not in excess of 5,500--10 points.
(2) Income. The median household income of population to be served
by the proposed project is:
(i) Not in excess of 50 percent of the statewide nonmetropolitan
median household income--40 points.
(ii) More than 50 percent and not in excess of 60 percent of the
statewide nonmetropolitan median household income--20 points.
(iii) More than 60 percent and not in excess of 70 percent of the
statewide nonmetropolitan median household income--10 points.
(3) Joint financing. The amount of joint financing committed to the
proposed project is:
(i) Twenty percent or more private, local, or State funds except
Federal funds channeled through a State agency--10 points.
(ii) Five to 19 percent private, local, or State funds except
Federal funds channeled through a State agency--5 points.
(4) Colonia. (See definition in Sec. 1777.4). The proposed project
will provide water and/or waste disposal services to the residents of a
colonia:--50 points. Additional points will be assigned as follows:
(5) Access and health risks for colonias. (i) A colonia that lacks
access to both water and waste disposal facilities, resulting in a
significant health risk--50 points.
(ii) A colonia that lacks access to either water or waste disposal
facilities, resulting in a significant health risk--40 points.
(iii) A colonia that has access to water and waste disposal
facilities, but is facing a significant health risk--15 points.
(6) Discretionary. In certain cases, and when a written
justification is prepared, the State Program Official with loan/grant
approval authority may assign up to 15 points for items such as natural
disaster, to improve compatibility/coordination between RUS' and other
agencies' selection systems, to assist those projects that are the most
cost effective, high unemployment rate, severity of health risks, etc.
Dated: July 18, 2012.
Jonathan Adelstein,
Administrator, Rural Utilities Service.
[FR Doc. 2012-18017 Filed 7-23-12; 8:45 am]
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