Streamlining the Rural Utilities Service Water and Waste Program Regulations

Federal RegisterJun 19, 1997

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DEPARTMENT OF AGRICULTURE

Rural Utilities Service

7 CFR Parts 1775, 1777, 1778, 1780, and 1781

Rural Housing Service

Rural Business-Cooperative Service

Rural Utilities Service

Farm Service Agency

7 CFR Parts 1901, 1940, 1942, 1951, and 1956

Rural Business-Cooperative Service

Rural Utilities Service

7 CFR Part 4284

RIN 0572-AB20

Streamlining the Rural Utilities Service Water and Waste Program

Regulations

AGENCIES: Rural Housing Service, Rural Business-Cooperative Service,

Rural Utilities Service, and Farm Service Agency; USDA.

ACTION: Final rule.

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SUMMARY: The Rural Utilities Service (RUS) hereby amends the

regulations utilized to administer the water and waste loan and grant

programs. The final rule will combine the water and waste loan and

grant regulations into one regulation. Unnecessary and burdensome

requirements for entities seeking water and waste loan and grant

financial assistance under the program are eliminated. The streamlining

of the water and waste loan and grant regulation will allow RUS to

provide better service to rural entities needing assistance in

correcting and alleviating health and sanitary problems in their

communities, and in general improve the quality of life in rural areas.

This rule incorporates changes in the water and waste loan and grant

program, the emergency community water assistance grant program, and

the resource conversation and watershed loan programs mandated by the

1996 Farm Bill.

This rule also amends the regulations originally published by the

former Farmers Home Administration (FmHA) and the former Rural

Development Administration (RDA). These amendments implement

legislation directing the Secretary of Agriculture to establish the

Rural Utilities Service (RUS) with responsibility for the water and

waste programs formerly administered by FmHA and RDA. The amendments

published in this document consist solely of nomenclature changes

required by law and of amendments necessary to conform to these

nomenclature changes. The substance of the regulations is not affected

by these amendments.

This rule could impact the amount of water and waste loan and grant

funds an applicant could receive. Therefore, RUS will honor all written

commitments of water and waste loan and grant amounts issued prior to

the effective date of this rule.

EFFECTIVE DATE: June 19, 1997.

FOR FURTHER INFORMATION CONTACT: Jerry W. Cooper, Loan Specialist,

Water and Waste Division, Rural Utilities Service, USDA, South

Agriculture Building, Room 2229, STOP 1570, Washington, DC 20250,

telephone: (202) 720-9589.

SUPPLEMENTARY INFORMATION:

Classification

We are issuing this final rule in conformance with Executive Order

12866 and the Office of Management and Budget has determined that it is

a ``significant regulatory action''.

Intergovernmental Review

These programs are listed in the Catalog of Federal Domestic

Assistance under numbers 10.760, Water and Waste Disposal Systems For

Rural Communities; 10.763, Emergency Community Water Assistance Grants;

10.764, Resource Conversation and Development Loans; 10.765, Watershed

Protection and Flood Preventation Loans; and 10.770, Water and Waste

Disposal Loans and Grants (Section 306C) and are subject to the

provisions of Executive Order 12372 which requires intergovernmental

consultation with State and local officials.

Environmental Impact Statement

This action has been reviewed in accordance with 7 CFR part 1940,

subpart G, ``Environmental Program.'' It has been determined that the

action does not constitute a major Federal action significantly

affecting the quality of the human environment, and in accordance with

the National Environmental Policy Act of 1969, Pub. L. 91-190, an

Environmental Impact Statement is not required.

Compliance With Executive Order 12778

The regulation has been reviewed in light of Executive Order 12778

and meets the applicable standards provided in sections 2(a) and

(2)(b)(2) of that Order. Provisions within this part which are

inconsistent with State law are controlling. All administrative

remedies pursuant to 7 CFR part 11 must be exhausted prior to filing

suit.

Information Collection and Paperwork Requirements

The recordkeeping and reporting burden in this rule, under OMB

control number 0575-0015, is not fully effective until approved by OMB.

For further information contact Jerry W. Cooper, Loan Specialist,

Water and Waste Division, Rural Utilities Service, U.S. Department of

Agriculture, 1400 Independence Ave., SW., STOP 1570, Washington, DC

20250-1548, telephone: (202) 720-9589.

National Performance Review

This regulatory action is being taken as part of the National

Performance Review program to eliminate unnecessary regulations and

improve those that remain in force.

Unfunded Mandate Reform Act

This rule contains no Federal mandates (under the regulatory

provisions of Title II of the Unfunded Mandate Reform Act of 1995) for

State, local, and tribal governments or the private sector. Thus

today's rule is not subject to the requirements of sections 202 and 205

of the Unfunded Mandate Reform Act of 1995.

Cross References of Regulations

The Rural Utilities Service is an Agency resulting from a

reorganization of programs administered by the former Farmers Home

Administration, the former Rural Development Administration, and the

former Rural Electrification Administration. Dual-references or cross-

references to former Farmers Home Administration regulations and forms

are provided for by the Department of Agriculture Reorganization Act of

1994.

Regulatory Flexibility Act Certification

The Administrator of RUS has determined that the Regulatory

Flexibility Act (5. U.S.C. 601 et seq.) does not apply to this rule.

Background

The water and waste loan and grant programs are authorized by

various sections of the Consolidated Farm and Rural Development Act, (7

U.S.C. 1921 et seq.), as amended. The regulations for these programs,

particularly the loan program, have not been completely reviewed for

many years. The recent streamlining and reorganization of the

Department of Agriculture provided an opportunity to review and rewrite

the

[[Page 33463]]

water and waste loan and grant regulations. A task force was formed to

review and rewrite the regulations. The aim of the task force was to

make the regulations easier to understand, eliminate unnecessary

requirements, and continue to protect the interest of the U.S.

taxpayer.

The program provides loan and grant funds for water and waste

disposal projects serving the most financially needy rural communities.

Financial assistance should result in reasonable user costs for rural

residents, rural businesses, and other rural users. The program is

limited to rural areas and small towns with a population of 10,000 or

less.

The final rule will divide the regulation into four subparts: A, B,

C, and D. Subpart A contains the general policies and requirements of

the loan and grant program. Subpart B contains the loan and grant

application processing requirements. Subpart C contains all the

requirements for planning, designing, bidding, contracting,

constructing, and inspections. Subpart D has information required in

the preparation of notes or bonds and bond transcript documents for

public body applicants.

Major changes are:

1. Redirects additional grant funds to communities that truly need

the assistance in order to construct a project. Communities with

incomes over 100 percent of the State nonmetropolitan median household

income will not qualify for any grant funds as in the current

regulations.

2. Stretches the grant dollars appropriated by Congress to help

more communities by changing the maximum percentage of grant funds that

a higher income community can receive from 55 percent to 45 percent of

RUS's share of the project costs. This change could have an indirect

effect of having an incentive for development of regional projects.

3. The process used to select projects for funding has been revised

to direct funds to low income, small communities that need to correct

health problems. Also, the priority points awarded for regional systems

have been increased.

4. The application process has been streamlined to reduce

unnecessary paperwork and improve service to the rural communities.

There will be less regulations and the number of pages will be greatly

reduced.

5. The application process has been shortened by eliminating the

preapplication process. However, an applicant will have the option of

requesting an Agency eligibility review before submitting a complete

application.

6. A preliminary engineering report (PER) must be submitted earlier

in the application process. The requirement of submitting a PER earlier

in the process will assist the staff in making better decisions. Also,

applicants have to have this type of document to help them determine

what, where, and how they are going to build needed facilities. This

change will force applicants to have a clear picture of what they want

to construct prior to applying for assistance. A majority of applicants

have a PER at the preapplication stage now, therefore the change will

tend to put all applicants on a level field.

7. The functions of former Farmers Home Administration (FmHA) and

the Rural Development Administration (RDA) relating to the water and

waste loan and grant programs authorized by various sections of the

Consolidated Farm and Rural Development Act, (7 U.S.C. 1926(a)), as

amended have been transferred to RUS. Therefore in order to enhance the

delivery of customer services and better assist the public, RUS is

amending regulations originally published by FmHA and RDA. These

amendments will replace references to FmHA and RDA and its officials

with references to RUS and to appropriate officials. This action will

also separate the regulation now utilized by RUS and Rural Housing

Service (RHS) to administering the water and waste loan and community

facilities loan programs, respectively. All parts pertaining to the

water and waste loan program will be moved into 7 CFR part 1780. This

action will have no effect on RHS's community facilities loan program

as this action makes no changes in the regulation. The following

programs are affected by these amendments: (1) Water and Waste Loans

and Grants, (2) Technical Assistance and Planning Grants, (3) Emergency

Community Water Assistance Grants, (4) Section 306C WWD Loans and

Grants, and (5) Resource Conservation and Development Loans and

Watershed Loans and Advances.

8. The criteria utilized to allocate water and waste program funds

has been moved from 7 CFR part 1940, subpart L to 7 CFR part 1780.

The major 1996 Farm Bill changes are:

1. Funds made available for these programs may be made available

for a water system that is making significant progress toward meeting

the Safe Drinking Water Act standards.

2. Funds made available for water treatment discharge or waste

disposal system must meet applicable Federal and State water pollution

control standards.

3. Within 60 days of filing an application for loan or grant

assistance, a notice of intent shall be published in a general

circulation newspaper.

4. When applicants hire outside engineers, the applicant shall

publicly announce all requirements for engineering and architectural

services, and negotiate contracts for such services on the basis of

demonstrated competence and qualifications for the type professional

service required and at a fair and reasonable price. When project

design services are procured separately, the selection of the engineer

or architect shall be done by a request for proposal.

5. Assistance under any rural development program administered by

the Secretary or any agency of the Department of Agriculture shall not

be conditioned on any requirement that the recipient of the assistance

accept or receive electric service from any particular utility,

supplier, or cooperative. This is being implemented for the water and

waste loan and grant programs.

6. Section 306B of the Consolidated Farm and Rural Development Act

(7 U.S.C. 1926b) was repealed. References to section 306B were deleted

from the regulations and the amendments to section 306A are included.

7. The interest rate formula for Resource Conversation and

Development Loans, and Watershed Protection and Flood Preventation

Loans was amended to establish the interest rate on these loans based

on current market yield for outstanding municipal obligations with

remaining periods to maturity comparable to the average maturity for

the loan, adjusted to the nearest 1/8 of 1 percent.

Comments on the Proposed Rule

RUS published a proposed rule in the Federal Register on September

12, 1996, (61 FR 48075) and asked for written comments on or before

October 15, 1996. The Agency received seventy-nine comments from the

public review process. All comments were considered when preparing the

final rule; however, all comments have not been addressed separately

since many could be addressed collectively. Responses to comments

received are grouped according to corresponding sections of the rule

and are as follows:

[[Page 33464]]

Subpart A--General Policies and Requirements

Sec.

1780.1 General.

1. Sec. 1780.1(k)--Include the Brooks Architect-Engineer Act, Title

40 of the U.S. Code subchapter VI, Sections 541, 542, 543, and 544 as

the federal statute applicants should be aware of and comply with

relative to the procurement of engineering services.

Agency response: The Agency has not implemented this suggested

change. The Brooks Architect-Engineer Act only applies to Federal

procurement and would not be applicable to non-profit organizations and

units of local and State government who are the recipients of the

financial assistance.

1780.3 Definitions and grammatical rules of construction.

1. Add a definition of Agency Identified Target Areas referred to

in Sec. 1780.17.

Agency response: The Agency agrees and has added a definition.

2. Sec. 1780.3(a)--Similar System Cost--Recommend establishment of

similar system cost based on a comparison of rate structure for the

same amount of water usage.

Agency response: The Agency does not agree with this

recommendation. While this might be possible for a water system, the

Agency funds other types of projects where this type information would

not be available. The proposed language would be broad enough to cover

all types of projects funded by the Agency, including similar usage

levels.

3. Sec. 1780.3(a)--Equivalent Dwelling Unit--Add after ``typical

rural residential dwelling'' add the following, ``or users whose total

water needs could be met by a single residential sized water meter.'' A

property with a permanent residence and a stop gap housing structure

should only be considered as one connection.

Agency response: The Agency made no change in the definition.

Number of individual meters or residential dwellings are not what

determines an equivalent dwelling unit (EDU). An EDU is based on the

average consumption of a typical rural residential household.

4. Sec. 1780.3(a)--Rural and rural areas--Should be written as

broadly as possible to avoid defining a rural area as a local

government unit.

Agency response: The Agency made no change in the definition of

rural and rural areas. The Agency does not define a rural area outside

a city or town by the type of local governmental unit.

1780.7 Eligibility.

1. Sec. 1780.7(c)(2)--Delete last sentence. The capacity for fire

protection is repeated in Sec. 1780.57(d) and should not be in this

section.

Agency response: The Agency agrees and made the change.

2. Sec. 1780.7(d)--Place a period after the word ``terms'' and

delete ``or other funding sources.''

Agency response: The Agency agreed and made the change.

3. Sec. 1780.7(e)--What is meant by ``reasonable rates and terms?''

Agency response: The words ``and terms'' should have not been

included in that sentence. The applicant would be responsible for

providing continued availability and use of the proposed facility at

reasonable rates. The Agency has made the change.

1780.9 Eligible loan and grant purposes.

1. Sec. 1780.9(e)(1)(iv)--Change to specify that only ``hired''

applicant labor be reimbursable and not for people already on payroll.

Agency response: The Agency agrees and limited the use of funds to

``additional'' applicant labor necessary to install and extend service.

2. Sec. 1780.9(f)(1)--After the word ``obligations for'' add

``engineering and other services used to prepare the application or.''

Agency response: The Agency agrees and changed the word

``construction'' to ``eligible project costs.'' This would cover all

project costs incurred before loan or grant approval.

3. Sec. 1780.9(e)(1)(v)--2 commenters--Should provide clearer

guidance on what circumstances may warrant using funds for connecting

users to the system.

Agency response: The Agency made no change. The wording ``unusual

cases'' means that using loan and grant funds to connect users to the

main service line would be the exception rather than the rule. This

should only be considered in situations where the users cannot pay the

cost or from an engineering standpoint that it is the logical thing to

do.

4. Sec. 1780.9(e)(1)(i)--Revise to include training as an eligible

cost. Would assure that equipment and processes will function as

intended. The lack of technical expertise to properly operate and

maintain new equipment or treatment processes can be a major problem

with small systems.

Agency response: The Agency made no change. The proposed language

is broad enough to allow the use of funds to provide necessary training

to operators to assure proper operation and maintenance of equipment.

1780.10 Limitations.

1. Sec. 1780.10(c)(2)--13 commenters--Do not change the formula

from 55 percent grant to 45 percent grant.

Agency response: The Agency made no change. The Agency has a

limited amount of grant funds available for rural communities. The

Agency is directing these funds to the communities that have the

greatest need for these funds. The reduction from 55 percent to 45

percent will make additional grant funds available to low income

communities that have the greatest need for the limited grant funds.

2. Sec. 1780.10(c)--2 commenters--Revise the requirement that

restricts the amount of grant to RUS's share of project costs. Change

the wording ``RUS funded project development costs'' to ``RUS eligible

project development costs.''

Agency response: The Agency agrees and has made the change.

3. Sec. 1780.10(c)(2)--Allow grants up to 75 percent to all

existing borrowers where funding is considered servicing action.

Agency response: The Agency does not agree with this

recommendation. The amount of grant funds an applicant can receive

should be based on eligibility and not if they are an existing RUS

borrower.

4. Sec. 1780.10(a)(6)--Recommend that the limitation on allowing

rental of applicant owned equipment be deleted. Should allow for

community owned equipment to be rented for the project if it is the

most cost effective option.

Agency response: This recommendation was not adopted. Program funds

should not be used to rent equipment an applicant owns. Program funds

should be used to cover services and equipment not available to the

applicant.

5. Sec. 1780.10(c)(1)--2 commenters--Recommend removing the

requirement regarding health or sanitary problem. If not removed, need

to clarify that if there is no health or sanitary problem, the amount

of grant that could be obtained is based on income only.

Agency response: The Agency made no change. The eligibility for the

maximum 75 percent grant should be based on need as well as income. The

addition of health or sanitary problems makes eligibility for the 75

percent grant consistent with the eligibility for the poverty interest

rate.

6. Sec. 1780.10(c)(2)--Recommend changing 45 percent grant to 50

percent grant.

[[Page 33465]]

Agency response: The Agency made no change. The 45 percent grant

amount will make more grant funds available to communities with a

median household income of less than 80 percent of the nonmetropolitian

median household income of the State. This will allow the Agency to

target grant funds to more low income communities.

7. Sec. 1780.10(c)(1)--Recommend increasing maximum grant

percentage to 85 percent.

Agency response: Agency made no change. The maximum grant is

limited by law to 75 percent.

8. Sec. 1780.10(b)(3)--As written, this section is confusing.

Should rephrase to read: ``Pay project costs when other loan funding

for the project is available at reasonable rates and terms.''

Agency response: The Agency made no change. This is a limitation on

when grant funds can be used. The proposed language would prohibit a

grant being made when the interest rate or length of repayment are not

in line with those received by other communities with similar economic

conditions.

1780.11 Service area requirements.

1. Sec. 1780.11(a)(2)--Recommend that this paragraph be deleted.

System officials should make decisions regarding areas to serve based

on financial, environmental, and design factors.

Agency response: The Agency made no change. The Agency agrees that

in installing a facility the decisions regarding areas to be served

should be based on financial, environmental, and design factors. This

paragraph allows the decisions regarding areas to be served to be based

on these factors.

1780.13 Rates and terms.

1. Sec. 1780.13(d)--There are currently four weekly Bond Buyer

indices used to measure interest rates. This section needs to

specifically identify which index is used.

Agency response: The Agency agrees and has made the change.

2. Sec. 1780.13(e) Add a new paragraph (4) to read as follows:

``Principal and interest may be deferred in whole or in part for a

period not to exceed 36 months prior to the date of the first

installment due. This would be only in those cases where the

development of the water source and treatment facility or sanitary

treatment facilities are needed prior to the water or sewer being

available to the rural users.''

Agency response: The Agency has not made this change. The

regulations allow for deferment of principal and loan funds can be used

to pay interest. By putting these together the same purpose can be

accomplished as the suggested change.

1780.14 Security.

1. Sec. 1780.14(c)--Recommend that the parity security requirement

be deleted.

Agency response: The Agency did not make this change. Eliminating

the parity security requirement would not adequately protect the

security interest of the Government. The Agency should be in a

``parity'' security position with other lenders when jointly financing

a project. If the project is financially sound, there is no problem

with the parity requirement. The government should not guarantee other

lenders loans by taking junior lien positions when jointly funded

projects are developed.

1780.17 Selection priorities and process.

1. Sec. 1780.17(a)(1)--Reduce population from 1,000 to 500 and add

5 points.

Agency response: The Agency agrees to make part of the suggested

change. The Agency agrees to change the population points for

communities with a population not in excess of 1,000 to 25 points. The

Agency did not reduce the population to 500. Leaving the breaking point

at 1,000 or less will give balance between financial feasibility and

population priority.

2. Sec. 1780.17(b)--The points for ``health'' should equal those

for ``income.'' Recommend increasing points in Sec. 1780.17(b) (1) and

(2) to 30 points and increasing points in Sec. 1780.17(b)(3) to 20.

Agency response: The Agency did not make this change. The Agency

agrees that the protection of public health is a high priority.

However, low income communities can least afford to construct the

infrastructure that is needed to improve their health. By giving more

priority to income and equal priority to small populations and health,

funds can be directed to communities with the greatest need.

3. Sec. 1780.17(b)--Recommends that there be a gradation within the

25 points allowed for health priorities for severity of health hazard.

This would give more points to the greatest health hazards and less

points to ``lesser'' health issues.

Agency response: The Agency did not make this change. The health

priority pertaining to a water system are required by the Federal

statute that authorizes the program. This would make it difficult to

develop an equitable graduation scale within the health priority points

for each category.

4. Sec. 1780.17(b)--Should there be health priority points for

storm drainage?

Agency response: The Agency did not make a change. There could be

measurable health problems associated with a storm drainage project,

the majority are safety related. Storm drainage would receive priority

points under other categories, but would not rank as high as a drinking

water or sewer project that directly corrects a health problem.

5. Sec. 1780.17(c)--Change heading to ``Median Household Income.''

Also, word ``household'' should be in (c)(1).

Agency response: Agency made the change.

6. Sec. 1780.17(f)--Delete the phase ``exceeding 20% of the

development cost at time of loan or grant approval or.'' Placing an

arbitrary limit would further compound the problem at hand and would

hinder the resolution of the funding problem.

Agency response: The Agency made no change. Project cost overruns

that exceed 20 percent should not be given priority for receiving

additional funding from the Agency. The Agency is trying to reduce

funds that go into project cost overruns and by reducing the funding

priority is one way this can be accomplished.

1780.18 Public information.

1. Sec. 1780.18(a)--The publishing of a notice of intent to file an

application is nothing but extra cost to the applicant.

Agency response: The Agency made no change. This is a requirement

of the 1996 Farm Bill.

2. Sec. 1780.18(a)--Should increase the notice of intent from 60

days to 180 days.

Agency response: The Agency made no change. This 60 day requirement

was part of the 1996 Farm Bill.

3. Sec. 1780.18(a)--Recommend allowing alternative means of

notifying public such as fliers or mailers in small communities.

Agency response: The Agency has not made the changed. The 1996 Farm

Bill requires that the notice of intent to file a application be

published in a general circulation newspaper.

4. Sec. 1780.18(b)--Recommend giving applicant's the option to hold

the public meeting prior to the application submittal. Delete ``after

the application is filed and'' add ``The public meeting must be held

not later than loan or grant approval.''

Agency response: The Agency agrees to this change.

5. Sec. 1780.18(b)--2 commenters--Eliminate the requirement for a

public meeting.

Agency response: The Agency made no change. It is extremely

important that applicants keep the general public

[[Page 33466]]

informed about the development of a proposed project. Support from the

general public for a water or waste project is one of the most

important ingredients for success.

Subpart B--Loan and Grant Application Processing

1780.31 General.

1. Sec. 1780.31(d)--Change ``State Environmental Coordinator'' to

State Environmental Coordinator or designee.''

Agency response: The Agency made no change. The State Environmental

Coordinator should be involved in the application process to assure

that important environmental issues are properly addressed.

1780.32 Timeframes for application processing.

1. Sec. 1780.32(a)--2 commenters--Revise to 15 working days or

delete the 15 day requirement for notifying applicants that application

is incomplete.

Agency response: The Agency agrees and has made this change.

1780.33 Application requirements.

1. Should continue with preapplication process--14 commenters--The

preapplication allows determination if a project is workable in RUS's

view before spending time and money on formal application. This makes

the overall funding process more workable and gives time needed to

explore options before an application is formally filed.

Agency response: The Agency has considered this recommendation and

has given communities another option. If a community wishes to know if

they are eligible for financial assistance they can make a written

request to the Agency.

2. Eliminate requiring a PER and 1940-20 at initial stage of

application process.

Agency response: The Agency did not make this change. The

Preliminary Engineering Report contains information on the proposed

project that the Agency must have at this stage of the application

process. Form RD 1940-20 provides the information necessary for the

Agency to start the environmental review process and is needed at this

stage of the application process.

3. Sec. 1780.33(c)--2 commenters--Should delete last sentence as

the completion of a PER is covered in Sec. 1780.55 or insert ``PER

guidelines for water, sanitary sewer, solid waste, and storm drainage

are available from the agency.''

Agency response: The Agency agrees and has deleted the sentence.

4. Sec. 1780.33(c)--Recommend that RUS provide up front funds in

form of a loan to cover cost of preliminary engineering report for

poorest communities.

Agency response: The Agency made no change. The Agency has a

limited amount of loan funds available and uses these funds toward the

total project costs rather than partial up front costs. The Agency

believes that it is important to utilize its limited funds to build

projects, rather than funding a preliminary engineering report for a

project that may never be built.

5. Sec. 1780.33(f)--Delete reference to Form RD 1940-20, insert

``The applicant will consult with the processing office to determine

the appropriate environmental information that should be provided.''

Agency response: The Agency revised to allow applicant to provide

comparable information without using Form RD 1940-20.

6. Sec. 1780.33(h)--2 commenters--Combine all certifications into

one form called ``General Borrower Certification.'' or include a

statement and check off on the application indicating that these

requirements will apply and allowing the applicant to complete such

certificates if and when the loan actually closes.

Agency response: The Agency made no change. However, this is a

issue that will be reviewed in the future to determine what can be done

in this area.

1780.35 Processing office review.

1. Sec. 1780.35(b)(2)--Recommends that a actual monthly rate

ceilings for the poverty and intermediate categories be established.

Agency response: The Agency made no change. While an actual monthly

rate ceiling might work for a small geographic area it would be

impossible to establish one for the entire United States that would be

fair to all areas. When the debt service portion of the annual user

costs exceeds the appropriate percentage of median household income,

the Agency can determine the grant amount based on similar system cost.

2. Sec. 1780.35(b)(2)--Recommend that the relationship to total

debt service and the project O&M cost be considered in determining

grant eligibility.

Agency response: The Agency made no change. The relationship

between median household income and debt service is used because grant

funds can only be used to reduce the debt. However, the similar system

cost method used in (b)(3) does take into consideration other user

costs in determining the grant amount.

1780.39 Application processing.

1. Sec. 1780.39(a)--In first sentence remove ``and after the

applicant selects its professional and technical representative.''

Agency response: The Agency agrees and made the change.

2. Sec. 1780.39(b)(1)--27 commenters--Request for proposals should

be deleted. Could cause potential conflicts and drive cost up.

Applicants should be allowed to choose the engineer based on knowledge

and experience.

Agency response: The Agency has not deleted this requirement. This

is a requirement of the 1996 Farm Bill and must be complied with.

However, the Agency has revised to make it clear that the selection of

the engineer to develop the preliminary engineering report is not

subject to this requirement. Also, clarified is that the selection of

engineering services should be on the basis of all relevant factors.

3. Sec. 1780.39(b)(1)--4 commenters--When applicants hire outside

engineers, the selection of an engineer for a project design shall be

conducted pursuant to state procurement laws or in the absence thereof,

pursuant to the Federal Brooks Act, Public Law 92-582.

Agency response: The Agency revised the paragraph to reflect state

statutes or local requirements. The Brooks Act only applies to Federal

procurement and construction. This act would not apply because the

Federal government is not selecting the engineer. Revised rule to

reflect that the owner may procure engineering services in accordance

with applicable state laws providing the procurement meets the intent

of this section.

4. Sec. 1780.39(b)(1)--4 commenters--Request for proposals should

be required for all engineering services not only project design.

Delete phase ``for project design.''

Agency response: The Agency revised to make this optional, but not

a requirement. It should be left up to the applicant to make this

decision and not made mandatory by the Agency.

5. Sec. 1780.39(b)(1)--Change all references to request for

proposal to ``Request For Qualifications and/or Request for Proposal or

add a definition for Request For Proposal that includes qualification

and request for engineering services.

Agency response: The Agency has revised the selection of

engineering services to reflect all relevant factors.

6. Sec. 1780.39(b)(1)--Consider moving to Sec. 1780.54 and clarify

how engineers are to be selected in (1).

[[Page 33467]]

Agency response: The Agency did not make this change. The section

was revised to clarify how engineers are to be selected. This section

pertains to all professional services and contracts related to the

facility and the Agency believes that this is the best place to address

engineering services.

7. Sec. 1780.39(b)(1)--Suggest that the regulation make provision

to allow an ``ongoing'' contract or relationship with a community to

continue without a new selection procedure.

Agency response: The Agency made no change. The 1996 Farm Bill

requires that when project design is procured separately, the selection

of the engineer shall be done by a request for proposal.

8. Sec. 1780.39(b)(1)--The rule is silent on the procurement of

engineering services for the planning phase of a project.

Agency response: The Agency has revised the rule to require

applicants to publicly announce all requirements for engineering

services.

9. Sec. 1780.39(b)(1)--2 commenters--Should be made clear that if

engineer has already been selected through an RFP then the process does

not have to be repeated for design phase.

Agency response: The Agency agrees that only one public

announcement covering requirements for engineering services is

necessary for a project. The revision will allow for this situation.

10. Sec. 1780.39(b)(1)--If a project is funded in phases, would an

RFP have to be done for each phase? When can noncompetitive

negotiations be utilized for engineering services?

Agency response: If a project has been divided into phases and the

procurement of engineering services covering all phases has been done

in accordance with Agency requirements, the process would not have to

be repeated as each phase is constructed. Noncompetitive negotiations

could be utilized for the planning and preliminary engineering work

done on a project after the applicant publicly announces all

requirements for engineering services.

11. Sec. 1780.39(b)(1)--Honor agreements for engineering services

entered into prior to submitting an application.

Agency response: The Agency made no change. If engineering services

were selected in accordance with Agency requirements, then the process

would not have to be repeated.

12. Sec. 1780.39(c)(2)--What is ``meaningful user cash

contributions?''

Agency response: To clarify the intent of this paragraph, the

Agency has changed the word ``meaningful'' to ``new.'' This should make

it clear that only users not presently receiving service will be

required to make an up front cash payment to indicate interest in

receiving service when it becomes available.

13. Sec. 1780.39(e)(2)--Divide into two paragraphs by adding a

(e)(3) to read as follows and deleting reference to maintenance,

extensions, etc. in (e)(2): Facility Maintenance Reserve. Additional

reserves will need to be established for emergency maintenance,

improvements to facilities, replacement of short-lived assets and other

restricted reserves as deemed necessary by the governing body and

lender.

Agency response: The Agency made no change. The rule would allow

for the establishment of debt service reserve and a facility

maintenance reserve. The amount of funds that would be placed in the

reserve accounts would be determined by the applicant and the Agency.

The one-tenth of an average annual loan installment is the minimum

requirement and the requirement could be larger.

14. Sec. 1780.39(e)(2)--2 commenters--Recommend that the reserve be

fully funded over the first 10 years of the loan and not over the life

of the loan.

Agency response: Agency made no change. It is important that

borrowers maintain adequate reserves to cover unexpected short-falls of

revenue and to adequately maintain their systems.

15. Sec. 1780.39(f)--Delete last sentence in (f), and all of (1)

and (2).

Agency response: The Agency has made a revision to clarify, but did

not delete the sentence.

16. Sec. 1780.39(g)(3)--Should require fidelity bond coverage be

specifically for RUS funded project.

Agency response: It is not necessary that a fidelity or employee

dishonesty bond cover only the RUS funded project. However, the amount

of fidelity or employee dishonesty bond coverage must be enough to

cover not only RUS requirements, but other claims that could be made on

the bond.

17. Sec. 1780.39(i)--Should be allowed to issue a Letter of

Conditions when funds are not available or at least some percentage.

Agency response: The Agency made no change. Letter of Conditions

are taken by the general public to mean a commitment has been made by

the Agency to fund a project. By not issuing a Letter of Conditions

until funds are available for a project, problems associated with an

applicant thinking that funds are available when in fact they are not

can be avoided.

1780.44 Actions prior to loan or grant closing or start of

construction, whichever occurs first.

1. Sec. 1780.44(e)--Allow deobligation of funds in the same

percentage as funds were obligated.

Agency response: The Agency did not make this change. The amount of

deobligated funds is based on an reassessment of the need for grant

funds to achieve a reasonable user rate. Deobligation of funds based on

percentage of funds obligated could result in an applicant receiving

more grant funds than needed to have reasonable user rates. With the

limited amount of grant funds that the Agency has available, the funds

must be stretched as far as possible in order to serve the maximum

number of communities who need funds to construct projects.

2. Sec. 1780.44(e)--Provide an incentive for communities to save

money by applying savings against the loan first rather than grant.

Agency response: The Agency made no change. The Agency believes

that the best approach is to work with communities early in the process

to reduce the project costs. Once the Agency has committed funds to a

community to construct a project, both parties have agreed on an amount

of loan that can be repaid. Any reduction in the loan amount at this

point could result in the community receiving more grant funds than

needed in order to have reasonable user rates.

3. Sec. 1780.44(e)--Recommend waiting until completion of

construction before deobligating any unused funds.

Agency response: The Agency made no change. All construction

projects have contingency funds set aside to cover unanticipated

expenses during construction. Therefore, funds that are not needed for

project costs should be deobligated and made available to another

community.

1780.45 Loan and grant closing and delivery of funds.

1. Sec. 1780.45(f)(1)--Revise to allow remaining funds to be used

by a community to improve its existing system.

Agency response: The Agency made a change. The language was

broadened to allow use of Agency funds not needed for the project to be

used for the facility being financed. Any improvements must not result

in major changes to the applicant's facility. For example, if RUS funds

were used to construct a water project, then RUS funds that remain

after completion could be used for any RUS eligible purpose on the

applicant's whole water system.

[[Page 33468]]

2. Sec. 1780.45(f)(3)--Delete the requirement to notify the

attorney and engineer when funds are deobligated.

Agency response: The Agency did not make this change. Many of the

engineer's or attorney's are helping the applicant with completion of a

project. It is important that all interested parties be notified before

funds are canceled.

1780.49 Rural or Native Alaskan villages.

1. Sec. 1780.49(c)(4)--Revise to allow use of federal and non-

federal sources of funds.

Agency response: The Agency made no change. The law that authorizes

the funds for rural or native Alaskan villages requires that the

matching funds be non-federal funds.

2. Sec. 1780.49(f)(1)--Revise to authorize projects of Alaska Area

Native Health Service.

Agency response: The Agency made no change. In order to assure that

the projects are properly constructed the Agency will continue to

restrict the waiver of construction requirements contained in this

subpart to projects that are jointly funded with the State of Alaska.

3. Should contain a specific reference that solid waste disposal

projects are eligible grant purposes.

Agency Response: The Agency made no change. The Agency considers

solid waste disposal to be included in waste disposal services

authorized by this paragraph.

Subpart C--Planning, Designing, Bidding, Contracting, Constructing and

Inspections

1780.54 Technical services.

1. Consider including Architects in this section as they are

sometimes involved in water and waste projects.

Agency response: The Agency agrees and made change.

2. Does ``in house'' mean one on the applicant's staff or one under

previous contract with applicant or both?

Agency response: ``in house'' means one on the applicant's staff.

1780.57 Design policies.

1. Sec. 1780.57(c)--Recommend encouraging the procurement of

environmentally preferable products and services.

Agency response: The Agency revised to reflect both energy-

efficient and environmentally-sound products and services.

2. Sec. 1780.57(b)--Delete words ``or reside.'' Do not construct

occupied dwellings.

Agency response: The Agency made the change.

3. Sec. 1780.57(h)--Delete the wording ``Agency determines.''

Agency response: The Agency made no change. This language is

required by the 1996 Farm Bill.

1780.67 Performing construction.

1. Recommend design build and construction management that is in

existing regulations be added as an option.

Agency response: Agency has made no change. The proposed language

would not exclude design build and construction management.

2. Strengthen language by inserting ``using their own personnel or

designated, qualified, and supervised volunteers.''

Agency response: The Agency did not make this change. This section

does not prohibit use of volunteers in addition to an applicant's own

personnel.

1780.70 Owner's procurement regulations.

1. Sec. 1780.70(b)--Recommend deleting the word ``comprehensive''

or the entire last two sentences.

Agency response: The Agency made no change. The Agency cannot make

this change as it is required by law.

1780.72 Procurement methods.

1. Sec. 1780.72--2 commenters--Recommend that design/build be added

to section as an option for procurement.

Agency response: The Agency made no change. The proposed language

would allow design build as a construction option.

2. Sec. 1780.72(a)--The requirements in 1780.75(b) and (d) should

be included for any small purchase over $10,000.

Agency response: The Agency made no change. The provision for

termination and equal employment opportunity would apply to any

contract exceeding $10,000. The type of procurement would not influence

this requirement.

3. Sec. 1780.72(a)--What does the phrase ``costing in the aggregate

not more than $100,000'' mean?

Agency response: The phrase ``costing in the aggregate not more

than $100,000'' means the total dollar amount of an item or product

that is being purchased for a project. For example, a water system

could utilize the small purchase procedures to procure $90,000 for

water meters and $20,000 for equipment. In this example, each item

procured was under $100,000, but the total was over $100,000.

4. Sec. 1780.72(a) and Sec. 1780.72(d)(6)--Recommend deleting small

purchase and using noncompetitive negotiation in its place.

Agency response: The Agency did not make this change. While these

two procurement methods are similar each has its place in the

construction of water and waste projects.

5. Sec. 1780.72(c)--6 commenters--Delete the competitive

negotiation for engineering services.

Agency response: The Agency has not deleted this requirement. This

is a requirement of the 1996 Farm Bill and must be complied with. The

requirement has been clarified to reflect that the selection of

engineering services should be on the basis of all relative factors.

The Agency moved the selection of engineering services to

Sec. 1780.39(b)(1).

6. Sec. 1780.72(c)--2 commenters--Certain States have enacted

legislation that specifically prohibits State and Local Agencies from

seeking formal or informal submission of verbal or written estimates of

costs or price proposals. The rule should be amended to delete any and

all provisions that require or allow the use of cost or price as a

consideration in the selection of a design professional.

Agency response: The Agency made a change by revising

Sec. 1780.39(b)(1) and deleting engineering procurement from this

section.

7. Sec. 1780.72(c)--2 commenters--Should revise to require only one

competitive negotiation procedure which should be at the ``Step I''

phase and not wait until the design phase. Allow credit to those

applicants that can properly document that their engineer selection in

Step I of a project was in conformance with competitive negotiation and

would not have to be repeated at the ``design phase.''

Agency response: The Agency agrees that only one public

announcement covering requirements for engineering services is

necessary for a project. The revision to Sec. 1780.39(b)(1) will allow

for this situation.

8. Sec. 1780.72(c)--Revise by removing reference to obtaining

proposals from other sources.

Agency response: Agency made no change. The procurement of

engineering services was moved to Sec. 1780.39(b)(1).

9. Sec. 1780.72(c)--Delete reference to engineering services,

implies competitive negotiations can only be used for engineering

services.

Agency response: Agency made the change. The procurement of

engineering services was moved to Sec. 1780.39(b)(1).

10. Sec. 1780.72(c)--Should clarify that the applicant could select

an engineer through the noncompetitive process to perform the PER and

assist in the production of the application.

[[Page 33469]]

Agency response: Agency revised the procurement of engineering

services in Sec. 1780.39(b)(1) to clarify this issue.

11. Sec. 1780.72(c)(2)--3 commenters--Modify by deleting references

to price or cost for obtaining engineering services. The significant

evaluation factors to be based on a firm's professional qualifications,

specialized experience, technical competence and so forth.

Agency response: The Agency made a change by removing reference to

cost or price as a consideration in Sec. 1780.39(b)(1).

12. Sec. 1780.72(c)(5)--Delete the word ``other'' before

``professional services.'' This will clarify that competitive

negotiations is an acceptable method of procurement for any

professional service.

Agency response: Agency removed all references to procurement of

professional service from Sec. 1780.72(c) and moved to

Sec. 1780.39(b)(1). Sec. 1780.39(b)(1) contains all procurement

requirements for engineering and architectural services.

13. Sec. 1780.72(d)(5)--Delete word ``design'' so that it covers

all engineering services.

Agency response: Agency removed all references to procurement of

professional service from Sec. 1780.72(c) and moved to

Sec. 1780.39(b)(1).

Sec. 1780.39(b)(1) contains all procurement requirements for

engineering and architectural services.

1780.75 Contract provisions.

1. Sec. 1780.75(a)--Should be made clear that liquidated damages

only applies to construction contracts.

Agency response: The Agency made the change.

2. Sec. 1780.75(c)--Change ``be legally doing business in the State

where the facility is located'' to ``the surety must be listed in the

Treasury Circular 570 as amended as having a license to do business in

the State where the facility is located.''

Agency response: The Agency made the change.

3. Sec. 1780.75 (b) and (f)--Recommend raising the $10,000 to

$100,000.

Agency response: The Agency did not make this change. It is

important to have a termination clause in contracts. The $10,000 cut

off point for this requirement is as high as it should be to adequately

protect the owner. The equal employment provision is required by other

Federal regulations.

4. Sec. 1780.75(c)--Recommend retaining U.S. Government as co-

obligee on payment and performance bonds.

Agency response: The Agency made no change. The Agency is not a

party to the contract and should not be included on any payment or

performance bond.

5. Sec. 1780.75(j)--Recommend adding the ability to modify the

retainage amount to match other funding source requirements on jointly

funded projects.

Agency response: The Agency made no change. Five percent retainage

is the minimum amount that should be withheld to assure that

construction is completed in a satisfactorily and timely manner. The

regulations would allow for more than 5 percent, if required by other

funding sources.

6. Sec. 1780.75(j)--Five percent retainage on approved partial pay

estimates is too low. Leave at 10 percent.

Agency response: The Agency made no change. The 5 percent retainage

is in line with the industry standard. Also, the funds retained will be

held until the project is substantially completed and accepted by the

owner.

1780.76 Contract administration.

1. Sec. 1780.76(c)--Should be clearly stated that the Agency, not

the project engineer, have sole authority to grant or refuse the

owner's request for a particular independent resident inspector.

Agency response: The Agency agrees and has revised.

2. Sec. 1780.76(d)--Add at end of last sentence ``or similar form

approved by the Agency.''

Agency response: The Agency made the change.

List of Subjects

7 CFR Parts 1775, 1777, 1778, 1780 and 1781

Business and industry, Community development, Community facilities,

Grant programs--housing and community development, Reporting and

recordkeeping requirements, Rural areas, Waste treatment and disposal,

Water supply, Watersheds.

7 CFR Part 1901

Civil rights, Fair housing, Rural areas.

7 CFR Part 1940

Agriculture, Grant programs--housing and community development,

Loan programs--agriculture, Rural areas.

7 CFR Parts 1942 and 4284

Business and industry, Community development, Community facilities,

Grant programs--housing and community development, Loan programs--

housing and community development, Reporting and recordkeeping

requirements, Rural areas, Soil conservation, Waste treatment and

disposal, Water supply.

7 CFR Part 1951

Accounting, Grant programs--housing and community development,

Reporting and recordkeeping requirements, Rural areas.

7 CFR Part 1956

Accounting, Loan programs--agriculture, Rural areas.

Therefore, RUS amends chapters XVII, XVIII and XLII, title 7, Code

of Federal Regulations as follows:

Part 1942, Subpart J--[Redesignated as Part 1775 and Revised]

1. Subpart J of 7 CFR part 1942 is redesignated as 7 CFR part 1775

and is revised to read as follows:

PART 1775--TECHNICAL ASSISTANCE AND TRAINING GRANTS

Sec.

1775.1 General.

1775.2 [Reserved]

1775.3 Objectives.

1775.4 Definitions.

1775.5 Source of funds.

1775.6 Allocation of funds.

1775.7 Eligibility.

1775.8 Purpose.

1775.9 [Reserved]

1775.10 Limitations.

1775.11 Equal opportunity requirements.

1775.12 Environmental requirements.

1775.13 Preapplications.

1775.14 Priority.

1775.15 [Reserved]

1775.16 Application processing.

1775.17 [Reserved]

1775.18 Grant approval and obligation of funds.

1775.19 Fidelity bond.

1775.20-11775.21 [Reserved]

1775.22 Fund disbursement.

1775.23 Grant cancellation or major changes.

1775.24 Reporting.

1775.25 Audit.

1775.26 Grant Agreement.

1775.27 Grant servicing.

1775.28 Delegation of authority.

1775.29-1775.99 [Reserved]

1775.100 OMB control number.

Authority: 5 U.S.C. 301; 7 U.S.C. 1989; 16 U.S.C. 1005.

Sec. 1775.1 General.

This part sets forth the policies and procedures for making

Technical Assistance grants. Grants for technical assistance and

training for water and waste disposal facilities are authorized under

section 306(a)(16)(A) of the Consolidated Farm and Rural Development

Act, (CONACT), (7 U.S.C. 1926(a)), as amended. Grants for solid waste

management are authorized under Section 310B of the CONACT, (7 U.S.C.

1932), as amended. Any processing or servicing activity conducted

pursuant to this part involving authorized assistance to Agency

employees, members of their

[[Page 33470]]

families, known close relatives, or business or close personal

associates, is subject to the provisions of subpart D of part 1900 of

this title. Applicants for this assistance are required to identify any

known relationship or association with an Agency employee.

Sec. 1775.2 [Reserved]

Sec. 1775.3 Objectives.

(a) The objectives of the Technical Assistance and Training Grant

Program are to:

(1) Identify and evaluate solutions to water and waste disposal

problems in rural areas.

(2) Assist applicants in preparing applications for water and waste

grants made in accordance with part 1780 of this chapter.

(3) Improve operation and maintenance of existing water and waste

disposal facilities in rural areas.

(b) The objectives of the Solid Waste Management Grant Program are

to:

(1) Reduce or eliminate pollution of water resources.

(2) Improve planning and management of solid waste sites.

Sec. 1775.4 Definitions.

Association. An entity, including a small city or town, that is

eligible for Rural Utilities Service (RUS) water and waste financial

assistance in accordance with Sec. 1780.7 of this chapter.

Grantee. An entity with whom The Agency has entered into a grant

agreement under this program to provide technical assistance and/or

training to associations as defined in this section.

Low income. Median household income below the poverty line for a

family of four as defined in Section 673(2) of the Community Services

Block Grant Act (42 U.S.C. 9902(2)), or below 80 percent of the

Statewide nonmetropolitan median household income.

Regional. For purposes of the Solid Waste Management grant program,

as implemented through this part, regional is defined as any multi-

jurisdictional area including multi-State or any multi-jurisdictional

area within a State.

Rural area. For water and waste disposal facilities the terms

``rural'' or ``rural area'' will not include any area in a city or town

with population in excess of 10,000 inhabitants according to the latest

decennial census of the United States.

State. Any of the fifty States, the Commonwealth of Puerto Rico,

the Western Pacific Territories, Marshall Islands, Federated States of

Micronesia, Republic of Palau, and the U.S. Virgin Islands.

Sec. 1775.5 Source of funds.

Technical Assistance and Training grants awarded will be made from

not less than one (1) percent or, at the discretion of the Agency

Administrator, not more than three (3) percent of any appropriations

for grants under Section 306(a)(2) of the CONACT, (7 U.S.C. 1926(a)).

Technical Assistance and Training grant funds not obligated by

September 1 of each fiscal year will be used for water and waste grants

made in accordance with part 1780 of this chapter. This section does

not apply to Solid Waste Management grants.

Sec. 1775.6 Allocation of funds.

Control of Technical Assistance and Training grant and Solid Waste

Management grant funds will be retained in the National office and

allocated on a project case basis. These funds are not available for

obligation by States.

Sec. 1775.7 Eligibility.

(a) Entities eligible for Technical Assistance and Training (TAT)

grants are private nonprofit organizations that have been granted tax

exempt status by the Internal Revenue Service (IRS) of the United

States.

(b) Entities eligible for Solid Waste Management (SWM) grants are

nonprofit organizations, including:

(1) Private nonprofit organizations that have been granted tax

exempt status by the IRS; and

(2) Public bodies including local governmental-based multi-

jurisdictional organizations.

(c) Applicants for either TAT or SWM grants must also have the

proven ability, background, experience, legal authority, and actual

capacity to provide technical assistance and/or training on a regional

basis to associations as provided in Sec. 1775.3.

Sec. 1775.8 Purpose.

(a) Technical Assistance and/or Training Grants may be used to:

(1) Identify and evaluate solutions to water problems of

associations in rural areas relating to:

(i) Source.

(ii) Storage.

(iii) Treatment.

(iv) Distribution.

(2) Identify and evaluate solutions to waste problems of

associations in rural areas relating to:

(i) Collection.

(ii) Treatment.

(iii) Disposal.

(3) Assist associations that have filed a preapplication with the

Agency in the preparation of water and/or waste loan and/or grant

applications.

(4) Provide training to association personnel that will improve the

management, operation and maintenance of water and waste disposal

facilities.

(5) To pay the expenses associated with providing the technical

assistance and/or training authorized in paragraphs (a) (1) through (4)

of this section.

(b) Solid Waste Management grants may be used to:

(1) Evaluate current landfill conditions to determine threats to

water resources.

(2) Provide technical assistance and/or training to enhance

operator skills in the maintenance and operation of active landfills.

(3) Provide technical assistance and/or training to help

communities reduce the solid waste stream.

(4) Provide technical assistance and/or training for operators of

landfills which are closed or will be closed in the near future with

the development/implementation of closure plans, future land use plans,

safety and maintenance planning, and closure scheduling within permit

requirements.

Sec. 1775.9 [Reserved]

Sec. 1775.10 Limitations.

Grant funds may not be used to:

(a) Recruit applications for the Agency's water and waste loan and/

or any loan and/or grant program.

(b) Duplicate current services, replacement or substitution of

support previously provided such as those performed by an association's

consultant in developing a project.

(c) Fund political activities.

(d) Pay for capital assets, the purchase of real estate or

vehicles, improve and renovate office space, or repair and maintain

privately-owned property.

(e) Pay for construction or operation and maintenance costs.

(f) Pay costs incurred prior to the effective date of grants made

under this part.

(g) Pay for technical assistance as defined in this part which

duplicates assistance provided to implement an action plan funded by

Forest Service (FS) under the National Forest-Dependent Rural

Communities Economic Diversification Act (7 U.S.C. 6601 note) for 5

continuous years from the date of grant approval by the FS. To avoid

duplicate assistance, the grantee shall coordinate with the FS and RUS

to ascertain if a grant has been made in a substantially similar

geographical or defined local area in a State for technical assistance

under the above program. The grantee will provide

[[Page 33471]]

documentation to FS and RUS regarding the contact with each agency.

Under its program, the FS assists rural communities dependent upon

national forest resources by establishing rural forestry and economic

diversification action teams which prepare action plans. Action plans

are intended to provide opportunities to promote economic

diversification and enhance local economies dependent upon national

forest resources.

Sec. 1775.11 Equal opportunity requirements.

The policies and regulations contained in subpart E of part 1901 of

this title apply to grants made under this part.

Sec. 1775.12 Environmental requirements.

The policies and regulations contained in subpart G of part 1940 of

this title apply to grants made for the purposes in Sec. 1775.8.

Sec. 1775.13 Preapplications.

(a) Applicants will file an original and one copy of SF-424.1,

``Application for Federal Assistance (For Non-construction),'' with the

appropriate Agency office between October 1 and December 31 each fiscal

year. This form is available in all Agency offices. Applicants

proposing to provide technical assistance and/or training in only one

State will apply through the appropriate State Office. The State Office

will review and forward preapplications, with their recommendations,

within seven working days to the National Office, Attention: Water and

Waste Disposal. Applicants providing technical assistance and/or

training in more than one State will forward the preapplication to the

Assistant Administrator, Water and Waste, Rural Utilities Service,

Washington, DC 20250. Preapplications for Solid Waste Management grants

that cannot be funded in the fiscal year received will not be retained

for consideration for funding in the following fiscal year and will be

handled as outlined in paragraph (g) of this section.

(b) All preapplications shall be accompanied by:

(1) Evidence of applicant's legal existence and authority in the

form of certified copies of organizational documents and a certified

list of directors and officers with their respective terms.

(2) Evidence tax exempt status from the Internal Revenue Service.

(3) Brief written narrative which includes items such as:

(i) The proposed service(s) to be provided, including the benefits

of the technical assistance and/or training.

(ii) Area to be served.

(iii) Name of association(s) or type of association(s) that will be

served.

(iv) Median household income of the population to be served by each

association(s).

(v) Grantee's experience, including experience of key staff members

and person(s) providing the technical assistance and/or training.

(vi) The number of months duration of the project or service and

the estimated time it will take from grant approval to beginning of

service.

(vii) Method used to select the association(s) that will receive

the service.

(viii) Brief description of how the service will be provided, such

as, through currently employed personnel or some other method.

(ix) Method to be used for delivery of the service, including

personnel to be utilized and tasks to be contracted, if any.

(4) Latest financial information to show the organization's

financial capacity to carry out the proposed work. As a minimum, the

information should include a balance sheet and an income statement. A

current audit report is preferred.

(5) Estimated breakdown of costs including those to be funded by

grantee as well as other sources.

(6) Budget and accounting system in place or proposed.

(7) Evaluation method to determine if objective(s) of the proposed

activity is being accomplished.

(c) Upon receipt of a preapplication, the National Office will:

(1) Review and evaluate the preapplication and accompanying

documents;

(2) Request from the Office of General Counsel (OGC), a legal

determination of applicant's legal existence and authority to provide

technical assistance and/or training. The legal opinion will be

obtained from the Regional Attorney servicing the area where the

applicant's headquarters is located; and

(3) Normally, respond to the applicant within 45 days after

December 31 of each year using Form AD-622, ``Notice of Preapplication

Review Action,'' indicating the action taken on the preapplication.

(d) Applicants whose preapplications are found to be ineligible

will be given notice by use of Form AD-622 and advised of their appeal

rights under subpart B of part 1900 of this title.

(e) Applicants who are eligible, but do not have the priority

necessary for further consideration will be notified with Form AD-622,

which includes the following statements:

``Your proposal cannot be funded within the available funds.''

``You are advised against incurring obligations which cannot be

fulfilled without Agency funds.''

(f) Applicants that are eligible for funding within the available

funds will be provided forms and instructions for filing a complete

application. Applicants should be advised against incurring obligations

which cannot be fulfilled without Agency funds.

(g) Applicants who have filed preapplications for solid waste

management grant funds that cannot be funded within the available funds

will be notified, using Form AD-622, that their preapplication will not

be retained. They will also be notified that they may file a new

preapplication when funds again become available using the following

statement:

``If the Agency receives funding for the program in FY __, you

may file a new preapplication on or after October 1, 19__.''

Sec. 1775.14 Priority.

(a) The preapplication and supporting information will be used to

determine the applicant's priority for available funds for the

Technical Assistance and Training Grant program. The following specific

criteria will be considered in the competitive selection of Technical

Assistance and Training Grant recipients:

(1) Applicant's demonstrated capability and past performance in

providing technical assistance and/or training to rural associations.

(2) The extent to which the population of the associations served

have low income.

(3) Applicant's financial and if applicable, in-kind resource that

will maximize use of technical assistance and/or training funds for

direct staffing of activities that are delivered to the associations.

(4) The extent to which the project will be cost effective,

including but not limited to the ratio of proposed personnel to the

cost of the project, the cost per associations served by the project,

and the expected benefits from the project.

(5) How well the proposal coincides with the objectives of the

Agency's Water and Waste Disposal program authorized in part 1780 of

this chapter.

(6) Applicants proposing to serve multi-state, regional, or

nationwide areas.

(7) Applicants whose timeframe for completion of the technical

assistance and/or training grant project is 12 months or less.

(b) Preapplications received from local governmental-based, multi-

[[Page 33472]]

jurisdictional organizations for the SWM grant program will be given

priority within the available funds.

Sec. 1775.15 [Reserved]

Sec. 1775.16 Application processing.

(a) Upon notification on Form AD-622 that the applicant is eligible

for funding, the following will be submitted to the National Office by

the applicant:

(1) SF-424.1.

(2) Proposed scope of work detailing the training and/or technical

assistance to be accomplished and timeframes for completion of each

task.

(3) Proposed budget.

(4) Other requested information needed by the Agency to make a

grant award determination.

(b) The following forms and documents will be part of the grant

docket:

(1) Form RD 400-1, ``Equal Opportunity Agreement.''

(2) Form RD 400-4, ``Assurance Agreement.''

(3) Grant Agreement signed by the applicant.

(4) Scope of work prepared by the applicant.

(5) Form RD 1940-1, ``Request for Obligation of Funds.''

(c) If the applicant fails to submit the application and related

material by the date shown on Form AD-622 (normally 30 days from the

date of Form AD-622), the Agency may discontinue consideration of the

application.

Sec. 1775.17 [Reserved]

Sec. 1775.18 Grant approval and obligation of funds.

(a) The National Office will review the application and other

documents to determine whether the proposal complies with this part.

(b) All grants made under this part will be approved and obligated

by the Agency Administrator or designee.

(c) The obligation of funds will be handled in accordance with part

1780 of this chapter.

(d) An executed copy of the Grant Agreement and scope of work will

be sent to the applicant on the obligation date, along with a copy of

Form RD 1940-1. The Agency will retain the executed original of the

Grant Agreement. The grant will be considered closed on the obligation

date.

(e) If the grant is not approved, the applicant will be notified in

writing of the reason(s) for rejection. The notification to the

applicant will state that a review of this decision by the Agency may

be requested by the applicant under subpart B of part 1900 of this

title.

Sec. 1775.19 Fidelity bond.

Prior to the advancing of funds, the grantee will provide fidelity

bond coverage for the positions of persons entrusted with the receipt

and disbursement of its funds and the custody of valuable property. The

amount of the bond will be at least equal to the maximum amount of

monies that the grantee will have on hand at any one time for technical

assistance and/or training provided in accordance with the Grant

Agreement. Unless prohibited by State Law, the United States, acting

through the Agency, will be named as co-obligee in the bond. The bond

must be obtained from a company listed in Department of Treasury

Circular 570, as amended. Form RD 440-24, ``Position Fidelity Schedule

Bond Declarations,'' may be used. A certified power-of-attorney with

effective date will be attached to the bond.

Secs. 1775.20-1775.21 [Reserved]

Sec. 1775.22 Fund disbursement.

Grantees will be reimbursed as follows:

(a) Standard Form (SF) 270, ``Request for Advance or

Reimbursement,'' will be completed by the applicant and submitted to

the National Office not more frequently than monthly.

(b) Upon receipt of a properly completed SF 270, the funds will be

requested through the field office terminal system. Ordinarily, payment

will be made within 30 days after receipt of a proper request for

reimbursement.

(c) Grantees are encouraged to use minority banks (a bank which is

owned by at least 50 percent minority group members) for the deposit

and disbursement of funds. A list of minority owned banks can be

obtained from the Office of Minority Business Enterprise, Department of

Commerce, Washington, DC 20230.

Sec. 1775.23 Grant cancellation or major changes.

If it is determined that a project will not be funded or if major

changes in the scope of the project are made after release of the

approval announcement, the Administrator will notify the Director of

Legislative Affairs and Public Information Staff (LAPIS) giving the

reasons for such action. In the case of a grant cancellation, Form RD

1940-10, ``Cancellation of U.S. Treasury Check and/or Obligation,''

will not be submitted to the Finance Office until 5 working days after

notifying the Director of LAPIS, and grant obligation cancellations

will not be submitted to the National Office until 5 working days after

notifying the Director of LAPIS.

Sec. 1775.24 Reporting.

Standard Form (SF) 269, ``Financial Status Report,'' SF 272,

``Federal Cash Transactions Report,'' and a project performance

activity report will be required of all grantees on a quarterly basis.

A final project performance report will be required with the last SF

269. The final report may serve as the last quarterly report. Grantees

shall constantly monitor performance to ensure that time schedules are

being met, projected work by time periods is being accomplished, and

other performance objectives are being achieved. All multi-state,

regional, and nationwide grantees are to submit an original of each

report to the National Office. Grantees serving only one State are to

submit an original of each report to the State Program Official. The

State Program Official will review and forward to the National Office

the report with comments. The project performance reports shall

include, but not be limited to, the following:

(a) A comparison of actual accomplishments to the objectives

established for that period;

(b) Reasons why established objectives were not met;

(c) Problems, delays, or adverse conditions which will affect

attainment of overall project objectives, prevent meeting 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

(d) Objectives and timetable established for the next reporting

period.

Sec. 1775.25 Audit.

The grantee will provide an audit report prepared in accordance

with Sec. 1780.47 of this chapter within 90 days after project

completion.

Sec. 1775.26 Grant Agreement.

RUS Bulletin 1775-1 is a Grant Agreement which sets forth the

procedures for making and servicing grants made under this part.

Bulletins, instructions and forms referenced are for use in

administering grants made under this part and are available from any

USDA/Rural Development office or the Rural Utilities Service, United

States Department of Agriculture, Washington, D.C. 20250-1500.

Sec. 1775.27 Grant servicing.

Grants will be serviced in accordance with the grant agreement and

subpart E

[[Page 33473]]

of part 1951 of this title. Subpart B of part 1900 of this title will

be followed when grants are terminated for cause.

Sec. 1775.28 Delegation of authority.

The authority under this part is redelegated to the Assistant

Administrator, Water and Waste, except for the discretionary authority

contained in Sec. 1775.5. The Assistant Administrator, Water and Waste

may redelegate the authority in this section.

Secs. 1775.29-1775.99 [Reserved]

Sec. 1775.100 OMB control number.

The collection of information requirements contained in this part

have been approved by the Office of Management and Budget and have been

assigned OMB control number 0575-0123. Public reporting for this

collection of information is estimated to vary from 15 minutes to 4

hours per response, with an average of 1 hour per response including

time for reviewing instructions, searching existing data sources,

gathering and maintaining the data needed, and completing and reviewing

the collection of information. Send comments regarding this burden

estimate or any other aspect of this collection of information,

including suggestions for reducing this burden, to Department of

Agriculture, Clearance Officer, OIRM, Room 404-W, Washington, DC 20250;

and to the Office of Management and Budget, Paperwork Reduction Project

(OMB 0575-0123), Washington, DC 20503.

Part 4284, Subpart E [Redesignated as Part 1777 and Revised]

2. Subpart E of 7 CFR part 4284 is redesignated as 7 CFR part 1777

and is revised to read as follows:

PART 1777--SECTION 306C WWD LOANS AND GRANTS

Sec.

1777.1 General.

1777.2 [Reserved]

1777.3 Objective.

1777.4 Definitions.

1777.5-1777.10 [Reserved]

1777.11 Making, processing, and servicing loans and grants.

1777.12 Eligibility.

1777.13 Project priority.

1777.14-1777.20 [Reserved]

1777.21 Use of funds.

1777.22-1777.30 [Reserved]

1777.31 Rates.

1777.32-1777.40 [Reserved]

1777.41 Individual loans and grants.

1777.42 Delegation of authority.

1777.43 Bulletins.

1777.44-1777.99 [Reserved]

1777.100 OMB control number.

Authority: 5 U.S.C. 301; 7 U.S.C. 1989; 16 U.S.C. 1005.

Sec. 1777.1 General.

(a) This part outlines Rural Utilities Service (RUS) policies and

procedures for making Water and Waste Disposal (WWD) loans and grants

authorized under section 306C of the Consolidated Farm and Rural

Development Act (7 U.S.C. 1926(c)), as amended.

(b) Agency officials will maintain liaison with officials of other

Federal, State, regional, and local development agencies to coordinate

related programs to achieve rural development objectives.

(c) Agency officials shall cooperate with appropriate State

agencies in making loans and/or grants that support State strategies

for rural area development.

(d) Funds allocated in accordance with this part will be considered

for use by Indian tribes within the State regardless of whether State

development strategies include Indian reservations within the State's

boundaries. Indians residing on such reservations must have an equal

opportunity to participate in this program.

(e) Federal statutes provide for extending the Agency's financial

programs without regard to race, color, religion, sex, national origin,

marital status, age, or physical/mental handicap (provided the

participant possesses the capacity to enter into legal contracts).

Sec. 1777.2 [Reserved]

Sec. 1777.3 Objective.

The objective of the Section 306C WWD Loans and Grants program is

to provide water and waste disposal facilities and services to low-

income rural communities whose residents face significant health risks.

Sec. 1777.4 Definitions.

Applicant. Entity that receives the Agency loan or grant under this

part. The entities can be public bodies such as municipalities,

counties, districts, authorities, or other political subdivisions of a

State, and organizations operated on a not-for-profit basis such as

associations, cooperatives, private corporations, or Indian tribes on

Federal and State reservations, and other Federally recognized Indian

tribes.

Colonia. 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.

Cooperative. A cooperative formed specifically for the purpose of

the installation, expansion, improvement, or operation of water supply

or waste disposal facilities or systems.

Individual. Recipient of a loan or grant through the applicant to

facilitate use of the applicant's water and/or waste disposal system.

Rural areas. Includes unincorporated areas and any city or town

with a population not in excess of 10,000 inhabitants according to the

most recent decennial census of the United States. They can be located

in any of the 50 States, the Commonwealth of Puerto Rico, the Western

Pacific Territories, Marshall Islands, Federated States of Micronesia,

Republic of Palau, and the U.S. Virgin Islands.

Secs. 1777.5-1777.10 [Reserved]

Sec. 1777.11 Making, processing, and servicing loans and grants.

Unless specifically modified by this part, loans and/or grants will

be made, processed, and serviced in accordance with part 1780 of this

chapter.

Sec. 1777.12 Eligibility.

(a) The provisions of paragraphs (a) (1) and (2) of this section do

not apply to a rural area recognized as a colonia. Otherwise, the

facility financed under this part must provide water and/or waste

disposal services to rural areas of a county where, on the date

preapplication is received by the Agency, the:

(1) Per capita income of the residents is not more than 70 percent

of the most recent national average per capita income, as determined by

the Department of Commerce; and

(2) Unemployment rate of the residents is not less than 125 percent

of the most recent national average unemployment rate, as determined by

the Bureau of Labor Statistics.

(b) Residents of the rural area to be served must face significant

health risks 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 and/or waste disposal systems. The file

should contain documentation to support this determination.

Sec. 1777.13 Project priority.

Paragraphs (a) through (d) of this section indicate items and

conditions which must be considered in selecting preapplications for

further development. When ranking eligible preapplications for

consideration for limited funds, Agency officials must consider the

priority items met by each

[[Page 33474]]

preapplication and the degree to which those priorities are met.

(a) Preapplications. The preapplication 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 preapplications will be reviewed and

scored for funding priority at each State Office using RUS Bulletin

1777-2. Funds will be requested from the National Office, Attention:

Water and Waste Processing, using RUS Bulletin 1777-3. Eligible

applicants that cannot be funded should 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. 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 that will be

considered in the total points for items such as geographic

distribution of funds, severity of health risks, etc.

(d) Selection priorities. The priorities described below will be

used to rate preapplications and in selecting projects for funding.

Points will be distributed as indicated in paragraphs (d)(1) through

(d)(5) of this section and will be used in selecting projects for

funding. A copy of RUS Bulletin 1777-2, used to rate applications,

should be placed in the case file for future reference.

(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.

(5) Discretionary. In certain cases, the State Program Official may

assign up to 15 points for items such as natural disaster, to improve

compatibility/coordination between the Agency's and other agencies'

selection systems, to assist those projects that are the most cost

effective, high unemployment rate, severity of health risks, etc. A

written justification must be prepared and attached to RUS Bulletin

1777-2 each time these points are assigned.

Secs. 1777.14-1777.20 [Reserved]

Sec. 1777.21 Use of funds.

(a) Applicant. Funds may be used to:

(1) Construct, enlarge, extend, or otherwise improve community

water and/or waste disposal systems. Otherwise improve would include

extending service lines to and/or connecting residence's plumbing to

the system.

(2) Make loans and grants to individuals for extending service

lines to and/or connecting residences to the applicant's system. The

approval official must determine that this is a practical and

economical method of connecting individuals to the community water and/

or waste disposal system. Loan funds can only be used for loans, and

grant funds can only be used for grants.

(3) Make improvements to individual's residence when needed to

allow use of the water and/or waste disposal system.

(4) Grants can be made up to 100 percent of eligible project costs.

(b) Individuals. Funds may be used to:

(1) Extend service lines to residence.

(2) Connect service lines to residence's plumbing.

(3) Pay reasonable charges or fees for connecting to a community

water and/or waste disposal system.

(4) Pay for necessary installation of plumbing and related fixtures

within dwellings lacking such facilities. This is limited to one

bathtub, sink, commode, kitchen sink, water heater, and outside spigot.

(5) Construction and/or partitioning off a portion of dwelling for

a bathroom, not to exceed 4.6 square meters (48 square feet) in size.

(6) Pay reasonable costs for closing abandoned septic tanks and

water wells when necessary to protect the health and safety of

recipients of a grant in paragraphs (b)(1) or (b)(2) of this section

and is required by local or State law.

Secs. 1777.22-1777.30 [Reserved]

Sec. 1777.31 Rates.

(a) Applicant loans will bear interest at the rate of 5 percent per

annum.

(b) Individual loans will bear interest at the rate of:

(1) Five percent per annum; or

(2) The Federal Financing Bank rate for loans of a similar term at

the time of Agency loan approval, whichever is less.

Secs. 1777.32-1777.40 [Reserved]

Sec. 1777.41 Individual loans and grants.

(a) The amount of loan and grant funds approved by the Agency will

be based on the need shown in the application and an implementation

plan submitted by the applicant. The implementation plan will include

such things as: purpose, how funds will be used, proposed application

process, construction requirements, control and disbursement of funds,

etc. The implementation plan will be attached to RUS Bulletin 1777-1.

(b) RUS Bulletin 1777-1 is a Memorandum of Agreement which sets

forth the procedures and regulations for making and servicing loans and

grants made by applicants to individuals. The State Program Official is

authorized to enter into a Memorandum of Agreement with any applicant

providing loans and/or grants to individuals. The Memorandum of

Agreement can be amended to comply with State law and recommendations

by the Office of General Counsel. It may also be amended to eliminate

references to loans and/or grants if no loan and/or grant is involved.

The State Program Official is responsible for:

(1) Ensuring that all provisions of the Agreement are understood.

(2) Determining that the applicant has the ability to make and

service loans and/or grants in the manner outlined in the Agreement.

(c) Agency funds remaining after providing individual loans and/or

grants will be returned to the Agency. The funds should be disbursed to

individuals within 1 year from the date water and/or waste disposal

service is available to the individuals. The State Program Official can

make an exception to this 1 year requirement if written justification

is provided by the applicant.

[[Page 33475]]

Sec. 1777.42 Delegation of authority.

The State Program Official is responsible for the overall

implementation of the authorities contained in this part and may

redelegate any such authority to appropriate Agency employees.

Sec. 1777.43 Bulletins.

RUS Bulletin 1780-12 referenced in part 1780 of this chapter and

RUS Bulletin 1777-1, 1777-2 and 1777-3 are for use in administering

loans and/or grants made under this part. Bulletins, instructions and

forms are available from any USDA/Rural Development office or the Rural

Utilities Service, United States Department of Agriculture, Washington,

DC 20250-1500.

Secs. 1777.44-1777.99 [Reserved]

Sec. 1777.100 OMB control number.

The reporting and recordkeeping requirements contained in this part

have been approved by the Office of Management and Budget and assigned

OMB control number 0570-0001. Public reporting burden for this

collection of information is estimated to vary from 5 to 30 hours per

response with an average of 17.5 hours per response, including the time

for reviewing instructions, searching existing data sources, gathering

and maintaining the data needed, and completing and reviewing the

collection of information. Send comments regarding this burden estimate

or any other aspect of this collection of information, including

suggestions for reducing this burden, to U.S. Department of

Agriculture, Clearance Officer, OIRM, Room 404-W, Washington, DC 20250;

and to the Office of Information and Regulatory Affairs, Office of

Management and Budget, Washington, DC 20503.

Part 1942, Subpart K [Redesignated as Part 1778 and Revised]

3. Subpart K of 7 CFR part 1942 is redesignated as 7 CFR part 1778

and is revised to read as follows:

PART 1778--EMERGENCY COMMUNITY WATER ASSISTANCE GRANTS

Sec.

1778.1 General.

1778.2 [Reserved]

1778.3 Objective.

1778.4 Definitions.

1778.5 [Reserved]

1778.6 Eligibility.

1778.7 Project priority.

1778.8 [Reserved]

1778.9 Uses.

1778.10 Restrictions.

1778.11 Maximum grants.

1778.12 [Reserved]

1778.13 Set-aside.

1778.14 Other considerations.

1778.15-1778.20 [Reserved]

1778.21 Application processing.

1778.22 Planning development and procurement.

1778.23 Grant closing and disbursement of funds.

1778.24-1778.30 [Reserved].

1778.31 Performing development.

1778.32 Grant cancellation.

1778.33 [Reserved]

1778.34 Grant servicing.

1778.35 Subsequent grants.

1778.36 [Reserved]

1778.37 Forms, Instructions and Bulletins.

1778.38-1778.99 [Reserved]

1778.100 OMB control number.

Authority: 5 U.S.C. 301; 7 U.S.C. 1989; 16 U.S.C. 1005.

Sec. 1778.1 General.

(a) This part outlines policies and procedures for making Emergency

Community Water Assistance Grants authorized under Section 306A of the

Consolidated Farm and Rural Development Act, (7 U.S.C. 1926(a)), as

amended. Any processing or servicing activity conducted pursuant to

this part involving authorized assistance to Agency employees, members

of their families, known close relatives, or business or close personal

associates, is subject to the provisions of subpart D of part 1900 of

this title. Applicants for this assistance are required to identify any

known relationship or association with an Agency employee.

(b) Agency officials will maintain liaison with officials of other

Federal, State, regional and local development agencies to coordinate

related programs to achieve rural development objectives.

(c) Agency officials shall cooperate with appropriate State

agencies in making grants that support State strategies for rural area

development.

(d) Funds allocated for use in accordance with this part are also

to be considered for use by Indian tribes within the State regardless

of whether State development strategies include Indian reservations

within the State's boundaries. Indians residing on such reservations

must have an equal opportunity along with other rural residents to

participate in the benefits of this program. This includes equal

application of outreach activities of Field Offices.

(e) Federal statutes provide for extending the Agency financial

programs without regard to race, color, religion, sex, national origin,

marital status, age, or physical/mental handicap (provided the

participant possesses the capacity to enter into legal contracts).

Sec. 1778.2 [Reserved]

Sec. 1778.3 Objective.

The objective of the Emergency Community Water Assistance Grant

Program is to assist the residents of rural areas that have experienced

a significant decline in quantity or quality of water to obtain

adequate quantities of water that meet the standards set by the Safe

Drinking Water Act (42 U.S.C. 300f et seq.) (SDWA).

Sec. 1778.4 Definitions.

Emergency. Occurrence of an incident such as, but not limited to, a

drought, earthquake, flood, hurricane, disease outbreak, or chemical

spill.

Rural areas. Includes any area in any city or town with a

population not in excess of 10,000 inhabitants according to the most

recent decennial census of the United States, located in any of the

fifty States, the Commonwealth of Puerto Rico, the Western Pacific

Territories, Marshall Islands, Federated States of Micronesia, Republic

of Palau, and the U.S. Virgin Islands.

Significant decline in quality. A significant decline in quality of

potable water is where the present community source or delivery system

does not meet, as a result of an emergency, the current SDWA

requirements. For a private source or delivery system a significant

decline in quality is where the water is no longer potable as a result

of an emergency.

Significant decline in quantity. A significant decline in the

quantity is caused by a disruption of the potable water supply by an

emergency. The disruption in quantity of water prevents the present

source or delivery system from supplying potable water needs to rural

residents. This would not include a decline in excess water capacity.

Sec. 1778.5 [Reserved]

Sec. 1778.6 Eligibility.

(a) Grants may be made to public bodies and private nonprofit

corporations serving rural areas. Public bodies include counties,

cities, townships, incorporated towns and villages, boroughs,

authorities, districts, and other political subdivisions of a State.

Public bodies also includes Indian tribes on Federal and State

reservations and other Federally recognized Indian Tribal groups in

rural areas.

(b) In the case of grants made to alleviate a significant decline

in quantity or quality of water available from the water supplies of

rural residents, the applicant must demonstrate that the decline

occurred within two years of the date the application was filed with

the Agency.

[[Page 33476]]

This would not apply to grants made for repairs, partial replacement,

or significant maintenance on an established water system.

Sec. 1778.7 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 the proposed project's

priority for available funds.

(b) State Office review. All applications will be reviewed and

scored for funding priority using RUS Bulletin 1778-1. The State

Program Official will request funds from the National Office,

Attention: Assistant Administrator, Water and Waste, using RUS

Bulletins 1778-1 and 1778-2. If an application cannot be funded, the

State Program Official will be notified. Eligible applicants that

cannot be funded should be advised that funds are not available.

(c) National Office review. Each year all funding requests will be

reviewed by the National Office starting November 1 and will continue

as long as funds are available except for the first year in which funds

are made available for this grant program. A review of funding requests

the first year will start 30 days after funds are made available.

Projects selected for funding will be considered based on the priority

criteria and available funds. Projects must compete on a national basis

for available funds, and the National Office will allocate funds to

State offices on a project by project basis.

(d) Selection priorities. The priorities described below will be

used by the State Program Official to rate applications and by the

Assistant Administrator of Water and Waste to select projects for

funding. Points will be distributed as indicated in paragraphs (d)(1)

through (d)(5) of this section and will be considered in selecting

projects for funding. A copy of RUS Bulletins 1778-1 and 1778-2 used to

rate applications, should be placed in the case file for future

reference.

(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 5,000--15 points.

(2) Income. The median household income of population to be served

by the proposed project is:

(i) Not in excess of 70% of the statewide nonmetropolitan median

household income--30 points.

(ii) More than 70% and not in excess of 80% of the statewide

nonmetropolitan median household income--20 points.

(iii) More than 80% and not in excess of 90% of the statewide

nonmetropolitan median household income--10 points.

(iv) Over 90% of the statewide nonmetropolitan median household

income--0 points.

(3) Significant decline. Points will only be assigned for one of

the following paragraphs when the primary purpose of the proposed

project is to correct a significant decline in the:

(i) Quantity of water available from private individually owned

wells or other individual sources of water--30 points; or

(ii) Quantity of water available from an established system's

source of water--20 points; or

(iii) Quality of water available from private individually owned

wells or other individual sources of water--30 points; or

(iv) Quality of water available from an established system's source

of water--20 points.

(4) Acute shortage. Grants made in accordance with Sec. 1778.11(b)

to assist an established water system remedy an acute shortage of

quality water or correct a significant decline in the quantity or

quality of water that is available--10 points.

(5) Discretionary. In certain cases the Administrator may assign up

to 30 points for items such as geographic distribution of funds, rural

residents hauling water, severe contamination levels, etc.

Sec. 1778.8 [Reserved]

Sec. 1778.9 Uses.

Grant funds may be used for the following purposes:

(a) Waterline extensions from existing systems.

(b) Construction of new waterlines.

(c) Repairs to an existing system.

(d) Significant maintenance to an existing system.

(e) Construction of new wells, reservoirs, transmission lines,

treatment plants, and other sources of water.

(f) Equipment replacement.

(g) Connection and/or tap fees.

(h) Pay costs that were incurred within six months of the date an

application was filed with the Agency to correct an emergency situation

that would have been eligible for funding under this part.

(i) Any other appropriate purpose such as legal fees, engineering

fees, recording costs, environmental impact analyses, archaeological

surveys, possible salvage or other mitigation measures, planning,

establishing or acquiring rights associated with developing sources of,

treating, storing, or distributing water.

(j) Assist rural water systems to comply with the requirements of

the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.)

(FWPCA) or the SDWA when such failure to comply is directly related to

a recent decline in quality of potable water. This would not apply to

changes in the requirements of FWPCA or SDWA.

Sec. 1778.10 Restrictions.

(a) Grant funds may not be used to:

(1) Assist any city or town with a population in excess of 10,000

inhabitants according to the most recent decennial census of the United

States.

(2) Assist a rural area that has a median household income in

excess of the statewide nonmetropolitan median household income

according to the most recent decennial census of the United States.

(3) Finance facilities which are not modest in size, design, cost,

and are not directly related to correcting the potable water quantity

or quality problem.

(4) Pay loan or grant finder's fees.

(5) Pay any annual recurring costs that are considered to be

operational expenses.

(6) Pay rental for the use of equipment or machinery owned by the

rural community.

(7) Purchase existing systems.

(8) Refinance existing indebtedness, except for short-term debt

incurred in accordance with Sec. 1778.9(h).

(9) Make reimbursement for projects developed with other grant

funds.

(10) Finance facilities that are not for public use.

(b) Nothing in paragraph (a)(1) of this section shall preclude

rural areas from submitting joint proposals for assistance under this

part. Each entity applying for financial assistance under this part to

fund their share of a joint project will be considered individually.

Sec. 1778.11 Maximum grants.

(a) Grants made to alleviate a significant decline in quantity or

quality of water available from the water supplies in rural areas that

occurred within two years of filing an application with the Agency

cannot exceed $500,000.

[[Page 33477]]

(b) Grants made for repairs, partial replacement, or significant

maintenance on an established system to remedy an acute shortage or

significant decline in the quality or quantity of potable water cannot

exceed $75,000.

(c) Grants under this part, subject to paragraphs (a) and (b) of

this section, shall be made for 100 percent of eligible project costs.

Sec. 1778.12 [Reserved]

Sec. 1778.13 Set-aside.

(a) At least 70 percent of all grants made under these grant

programs shall be for projects funded in accordance with

Sec. 1778.11(a).

(b) At least 50 percent of the funds appropriated for this grant

program shall be allocated to rural areas with populations not in

excess of 3,000 inhabitants according to the most recent decennial

census of the United States.

Sec. 1778.14 Other considerations.

(a) Civil rights compliance requirements. All grants made under

this part are subject to Title VI of the Civil Rights Act of 1964 (42

U.S.C. 2000d et seq.), as outlined in subpart E of part 1901 of this

title.

(b) Environmental requirements. All projects must have appropriate

environmental reviews in accordance with RUS requirements.

(c) Uniform Relocation and Real Property Acquisition Policies Act

(42 U.S.C. 4601 et seq.). All projects must comply with the

requirements set forth in 7 CFR part 21.

(d) Flood and mudslide hazard area precautions. If the project is

located in a flood or mudslide area, then flood or mudslide insurance

must be provided as required in subpart A of part 1806 of this title

(RD Instruction 426.2).

(e) Governmentwide debarment and suspension (nonprocurement) and

requirements for drug-free work place. All projects must comply with

the requirements set forth in the U.S. Department of Agriculture

regulations 7 CFR part 3017 and RD Instruction 1940-M.

(f) Intergovernmental review. All projects funded under this part

are subject to Executive Order 12372 (3 CFR, 1983 Comp., p. 197), which

requires intergovernmental consultation with State and local officials.

These requirements are set forth in U.S. Department of Agriculture

regulations 7 CFR part 3015, subpart V, and RD Instruction 1940-J.

Secs. 1778.15-1778.20 [Reserved]

Sec. 1778.21 Application processing.

(a) To the extent possible, an application under this part will be

approved or disapproved within 60 days of the date that a complete

application and all related material is submitted to the Agency.

(b) The material submitted with the application should include the

Preliminary Engineer Report, population and median household income of

the area to be served, description of project, and nature of emergency

that caused the problem(s) being addressed by the project. The

documentation must clearly show that the applicant has had a

significant decline in the quantity and/or quality of potable water or

an acute shortage of potable water and the proposed project will

eliminate the problem. For projects to be funded in accordance with

Sec. 1778.11(a), evidence must be furnished that a significant decline

in quantity or quality occurred within two years of filing the

application with the Agency.

(c) The processing office should assist the applicant in

application assembly and processing.

(d) Appropriate application review and approval procedures outlined

in subpart B of part 1780 of this chapter.

(e) Each application for assistance will be carefully reviewed in

accordance with the priorities established in Sec. 1778.7. A priority

rating will be assigned to each application by the State Program

Official.

(f) When the National Office has allocated funds to the State for a

project, applicable provisions outlined in subpart B of part 1780 of

this chapter will be followed in preparation of the grant docket. This

would include development of an operating budget showing that the

applicant can meet all its obligations and provide the intended

services.

(g) When favorable action will not be taken on an application, the

applicant will be notified in writing by the State Program Official of

the reasons why the request was not favorably considered. Notification

to the applicant will state that a review of this decision by the

Agency may be requested by the applicant in accordance with 7 CFR part

11.

(h) State Program Officials are authorized to approve grants made

in accordance with this part and RUS Staff Instruction 1780-1.

(i) Funds will be obligated and approval announcement made in

accordance with the provisions of subpart B of part 1780 of this

chapter.

Sec. 1778.22 Planning development and procurement.

Planning development and procurement for grants made under this

part will be in accordance with subpart C of part 1780 of this chapter.

A certification should be obtained from the State agency or the

Environmental Protection Agency if the State does not have primacy,

stating that the proposed improvements will be in compliance with

requirements of the SDWA.

Sec. 1778.23 Grant closing and disbursement of funds.

(a) Grants will be closed in accordance with Sec. 1780.45 of this

chapter.

(b) RUS Bulletin 1780-12, ``Water or Waste Grant Agreement,'' will

be executed by all applicants. State Program Officials are authorized

to execute the agreement on behalf of the Agency.

(c) The grant will be considered closed on the date RUS Bulletin

1780-12 is signed by the Agency. The Finance Office will be notified of

the grant closing date. The Agency will retain the original of the

Grant Agreement.

(d) The Agency's policy is not to disburse grant funds from the

Treasury until they are actually needed by the applicant. Grant funds

will be disbursed by using multiple advances.

Secs. 1778.24-1778.30 [Reserved]

Sec. 1778.31 Performing development.

(a) Applicable provisions of subpart C of part 1780 of this chapter

will be followed in performing development for grants made under this

part.

(b) After filing an application in accordance with Sec. 1778.21 and

when immediate action is necessary, the State Program Official may

concur in an applicant's request to proceed with construction before

funds are obligated provided the RUS environmental requirements are

complied with. The applicant must be advised in writing that:

(1) Any authorization to proceed or any concurrence in bid awards,

contract concurrence, or other project development activity, is not a

commitment by the Agency to provide grant funds under this part.

(2) The Agency is not liable for any debt incurred by the applicant

in the event that funds are not provided under this part.

Sec. 1778.32 Grant cancellation.

The State Program Official may prepare and execute Form RD 1940-10,

``Cancellation of U.S. Treasury Check and/or Obligation,'' in

accordance with the Forms Manual Insert. If the docket has been

forwarded to OGC, that office should receive a copy of Form RD 1940-10.

The applicant's attorney and engineer may be provided a copy of

[[Page 33478]]

Form RD 1940-10. A copy should also be sent to the National Office,

Attention: Water and Waste Processing.

Sec. 1778.33 [Reserved]

Sec. 1778.34 Grant servicing.

(a) Grants will be serviced in accordance with Sec. 1951.215 of

subpart E of part 1951 of this title and subpart O of part 1951 of this

title.

(b) The grantee will provide an audit report in accordance with

Sec. 1780.47 of this chapter.

Sec. 1778.35 Subsequent grants.

Subsequent grants will be processed in accordance with the

requirements set forth in this part. The initial and subsequent grants

made to complete a previously approved project must comply with the

maximum grant requirements set forth in Sec. 1778.11.

Sec. 1778.36 [Reserved]

Sec. 1778.37 Forms, Instructions and Bulletins.

Bulletins, instructions and forms referenced are for use in

administering grants made under this part and are available from any

USDA/Rural Development office or the Rural Utilities Service, United

States Department of Agriculture, Washington, DC 20250-1500.

Secs. 1778.38-1778.99 [Reserved]

Sec. 1778.100 OMB control number.

The reporting and recordkeeping requirements contained in this part

have been approved by the Office of Management and Budget and assigned

OMB control number 0575-0074. Public reporting burden for this

collection of information is estimated to average two hours per

response, including the time for reviewing instructions, searching

existing data sources, gathering and maintaining the data needed, and

completing and reviewing the collection of information. Send comments

regarding this burden estimate or any other aspect of this collection

of information, including suggestions for reducing this burden, to

Department of Agriculture, Clearance Officer, OIRM, Room 404-W,

Washington, DC 20250; and to the Office of Information and Regulatory

Affairs, Office of Management and Budget, Washington, DC 20503.

4. Part 1780, is added to read as follows:

PART 1780--WATER AND WASTE LOANS AND GRANTS

Subpart A--General Policies and Requirements

Sec.

1780.1 General.

1780.2 Purpose.

1780.3 Definitions and grammatical rules of construction.

1780.4 Availability of forms and regulations.

1780.5 [Reserved]

1780.6 Application information.

1780.7 Eligibility.

1780.8 [Reserved]

1780.9 Eligible loan and grant purposes.

1780.10 Limitations.

1780.11 Service area requirements.

1780.12 [Reserved]

1780.13 Rates and terms.

1780.14 Security.

1780.15 Other Federal, State, and local requirements.

1780.16 [Reserved]

1780.17 Selection priorities and process.

1780.18 Allocation of program funds.

1780.19 Public information.

1780.20-1780.23 [Reserved]

1780.24 Approval authorities.

1780.25 Exception authority.

1780.26-1780.30 [Reserved]

Subpart B--Loan and Grant Application Processing

1780.31 General.

1780.32 Timeframes for application processing.

1780.33 Application requirements.

1780.34 [Reserved]

1780.35 Processing office review.

1780.36 Approving official review.

1780.37 Applications determined ineligible.

1780.38 [Reserved]

1780.39 Application processing.

1780.40 [Reserved]

1780.41 Loan or grant approval.

1780.42 Transfer of obligations.

1780.43 [Reserved]

1780.44 Actions prior to loan or grant closing or start of

construction, whichever occurs first.

1780.45 Loan and grant closing and delivery of funds.

1780.46 [Reserved]

1780.47 Borrower accounting methods, management reporting and

audits.

1780.48 Regional commission grants.

1780.49 Rural or Native Alaskan villages.

1780.50-1780.52 [Reserved]

Subpart C--Planning, Designing, Bidding, Contracting, Constructing and

Inspections

1780.53 General.

1780.54 Technical services.

1780.55 Preliminary engineering reports.

1780.56 [Reserved]

1780.57 Design policies.

1780.58-1780.60 [Reserved]

1780.61 Construction contracts.

1780.62 Utility purchase contracts.

1780.63 Sewage treatment and bulk water sales contracts.

1780.64-1780.66 [Reserved]

1780.67 Performing construction.

1780.68 Owner's contractual responsibility.

1780.69 [Reserved]

1780.70 Owner's procurement regulations.

1780.71 [Reserved]

1780.72 Procurement methods.

1780.73 [Reserved]

1780.74 Contracts awarded prior to applications.

1780.75 Contract provisions.

1780.76 Contract administration.

1780.77-1780.79 [Reserved]

Subpart D--Information Pertaining to Preparation of Notes or Bonds and

Bond Transcript Documents for Public Body Applicants

1780.80 General.

1780.81 Policies related to use of bond counsel.

1780.82 [Reserved]

1780.83 Bond transcript documents.

1780.84-1780.86 [Reserved]

1780.87 Permanent instruments for Agency loans.

1780.88 [Reserved]

1780.89 Multiple advances of Agency funds using permanent

instruments.

1780.90 Multiple advances of Agency funds using temporary debt

instruments.

1780.91-1780.93 [Reserved]

1780.94 Minimum bond specifications.

1780.95 Public bidding on bonds.

1780.96-1780.100 [Reserved]

Authority: 5 U.S.C. 301; 7 U.S.C. 1989; 16 U.S.C. 1005.

Subpart A--General Policies and Requirements

Sec. 1780.1 General.

(a) This part outlines the policies and procedures for making and

processing direct loans and grants for water and waste projects. The

Rural Utilities Service (RUS) shall cooperate fully with State and

local agencies in making loans and grants to assure maximum support to

the State strategy for rural development. Agency officials and their

staffs shall maintain coordination and liaison with State agency and

substate planning districts.

(b) The income data used in this part to determine median household

income must be that which most accurately reflects the income of the

service area. The median household income of the service area and the

nonmetropolitan median household income of the State will be determined

from income data from the most recent decennial census of the United

States. If there is reason to believe that the census data is not an

accurate representation of the median household income within the area

to be served, the reasons will be documented and the applicant may

furnish, or the Agency may obtain, additional information regarding

such median household income. Information will consist of reliable data

from local, regional, State or Federal sources or from a survey

conducted by a reliable

[[Page 33479]]

impartial source. The nonmetropolitan median household income of the

State may only be updated on a national basis by the RUS National

Office. This will be done only when median household income data for

the same year for all Bureau of the Census areas is available from the

Bureau of the Census or other reliable sources. Bureau of the Census

areas would include areas such as: Counties, County Subdivisions,

Cities, Towns, Townships, Boroughs, and other places.

(c) RUS debt instruments will require an agreement that if at any

time it shall appear to the Government that the borrower is able to

refinance the amount of the indebtedness to the Government then

outstanding, in whole or in part, by obtaining a loan for such purposes

from responsible cooperative or private credit sources, at reasonable

rates and terms for loans for similar purposes and periods of time, the

borrower will, upon request of the Government, apply for and accept

such loan in sufficient amount to repay the Government and will take

all such actions as may be required in connection with such loan.

(d) Funds allocated for use under this part are also for the use of

Indian tribes within the State, regardless of whether State development

strategies include Indian reservations within the State's boundaries.

Native Americans residing on such reservations must have equal

opportunity to participate in the benefits of these programs as

compared with other residents of the State. Such tribes might not be

subject to State and local laws or jurisdiction. However, any

requirements of this part that affect applicant eligibility, the

adequacy of RUS's security, or the adequacy of service to users of the

facility and all other requirements of this part must be met.

(e) RUS financial programs must be extended without regard to race,

color, religion, sex, national origin, marital status, age, or physical

or mental handicap.

(f) Any processing or servicing activity conducted pursuant to this

part involving authorized assistance to Agency employees, members of

their families, known close relatives, or business or close personal

associates, is subject to the provisions of subpart D of part 1900 of

this title. Applicants for assistance are required to identify any

known relationship or association with a RUS employee.

(g) Water and waste facilities will be designed, installed, and

operated in accordance with applicable laws which include but are not

limited to the Safe Drinking Water Act, Clean Water Act and the

Resource Conservation and Recovery Act.

(h) RUS financed facilities will be consistent with any current

development plans of State, multijurisdictional areas, counties, or

municipalities in which the proposed project is located.

(i) Each RUS financed facility will be in compliance with

appropriate State or Federal agency regulations which have control of

the appropriation, diversion, storage and use of water and disposal of

excess water.

(j) Water and waste applicants must demonstrate that they possess

the financial, technical, and managerial capability necessary to

consistently comply with pertinent Federal and State laws and

requirements. In developing water and waste systems, applicants must

consider alternatives of ownership, system design, and the sharing of

services.

(k) Applicants should be aware of and comply with other Federal

statute requirements including but not limited to:

(1) Section 504 of the Rehabilitation Act of 1973. Under section

504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794 et

seq.), no handicapped individual in the United States shall, solely by

reason of their handicap, be excluded from participation in, be denied

the benefits of, or be subjected to discrimination under any program or

activity receiving RUS financial assistance;

(2) Civil Rights Act of 1964. All borrowers are subject to, and

facilities must be operated in accordance with, title VI of the Civil

Rights Act of 1964 (42 U.S.C. 2000d et seq.) and subpart E of part 1901

of this title, particularly as it relates to conducting and reporting

of compliance reviews. Instruments of conveyance for loans and/or

grants subject to the Act must contain the covenant required by

Sec. 1901.202(e) of this title;

(3) The Americans with Disabilities Act (ADA) of 1990. This Act (42

U.S.C. 12101 et seq.) prohibits discrimination on the basis of

disability in employment, State and local government services, public

transportation, public accommodations, facilities, and

telecommunications. Title II of the Act applies to facilities operated

by State and local public entities which provides services, programs

and activities. Title III of the Act applies to facilities owned,

leased, or operated by private entities which accommodate the public;

and

(4) Age Discrimination Act of 1975. This Act (42 U.S.C. 6101 et

seq.) provides that no person in the United States shall on the basis

of age, be excluded from participation in, be denied the benefits of,

or be subjected to discrimination under any program or activity

receiving Federal financial assistance.

Sec. 1780.2 Purpose.

Provide loan and grant funds for water and waste projects serving

the most financially needy communities. Financial assistance should

result in reasonable user costs for rural residents, rural businesses,

and other rural users.

Sec. 1780.3 Definitions and grammatical rules of construction.

(a) Definitions. For the purposes of this part:

Agency means the Rural Utilities Service and any United States

Department of Agriculture (USDA) employee acting on behalf of the Rural

Utilities Service in accordance with appropriate delegations of

authority.

Agency identified target areas means an identified area in the

State strategic plan or other plans developed by the Rural Development

State Director.

Approval official means the USDA official at the State level who

has been delegated the authority to approve loans or grants.

Equivalent Dwelling Unit (EDU) means the level of service provided

to a typical rural residential dwelling.

Parity bonds means bonds which have equal standing with other bonds

of the same Issuer.

Poverty line means the level of income for a family of four, as

defined in section 673(2) of the Community Services Block Grant Act (42

U.S.C. 9902(2)).

Processing office means the office designated by the State program

official to accept and process applications for water and waste

disposal assistance.

Project means all activity that an applicant is currently

undertaking to be financed in whole or part with RUS assistance.

Protective advances are payments made by a lender for items such as

insurance or taxes in order to preserve and protect the security or the

lien or priority of the lien securing the loan.

Rural and rural areas means any area not in a city or town with a

population in excess of 10,000 inhabitants, according to the latest

decennial census of the United States.

Rural Development means the mission area of the Under Secretary for

Rural Development. Rural Development State and local offices will

administer this water and waste program on behalf of the Rural

Utilities Service.

RUS means the Rural Utilities Service, an agency of the United

States

[[Page 33480]]

Department of Agriculture established pursuant to section 232 of the

Department of Agriculture Reorganization Act of 1994 (Pub. L. 103-354,

108 Stat. 3178), successor to the Farmer's Home Administration and the

Rural Development Administration with respect to certain water and

waste disposal loan and grant programs.

Service area means the area reasonably expected to be served by the

project.

Servicing office means the office designated by the State program

official to service water and waste disposal loans and grants.

Similar system cost means the average annual EDU user cost of a

system within a community having similar economic conditions and being

served by the same type of established system. Similar system cost

shall include all charges, taxes, and assessments attributable to the

system including debt service, reserves and operation and maintenance

costs.

State program official means the USDA official at the State level

who has been delegated the responsibility of administering the water

and waste disposal programs under this regulation for a particular

State or States.

Statewide nonmetropolitan median household income means the median

household income of all rural areas of a state.

(b) Rules of grammatical construction. Unless the context otherwise

indicates, ``includes'' and ``including'' are not limiting, and ``or''

is not exclusive. The terms defined in paragraph (a) of this section

include the plural as well as the singular, and the singular as well as

the plural.

Sec. 1780.4 Availability of forms and regulations.

Information about the availability of forms, instructions,

regulations, bulletins, OMB Circulars, Treasury Circulars, standards,

documents and publications cited in this part is available from any

USDA/Rural Development office or the Rural Utilities Service, United

States Department of Agriculture, Washington, DC 20250-1500.

Sec. 1780.5 [Reserved]

Sec. 1780.6 Application information.

(a) The Rural Development State Director in each State will

determine the office and staff that will be responsible for delivery of

the program (processing office) and designate an approving office.

Applications will be accepted by the processing office.

(b) The applicant's governing body should designate one person to

act as contact person with the Agency during loan and grant processing.

Agency personnel should make every effort to involve the applicant's

contact person when meeting with the applicant's professional

consultants or agents.

Sec. 1780.7 Eligibility.

Facilities financed by water and waste disposal loans or grants

must serve rural areas.

(a) Eligible applicant. An applicant must be:

(1) A public body, such as a municipality, county, district,

authority, or other political subdivision of a state, territory or

commonwealth;

(2) An organization operated on a not-for-profit basis, such as an

association, cooperative, or private corporation. The organization must

be an association controlled by a local public body or bodies, or have

a broadly based ownership by or membership of people of the local

community; or

(3) Indian tribes on Federal and State reservations and other

Federally recognized Indian tribes.

(b) Eligible facilities. Facilities financed by RUS may be located

in non-rural areas. However, loan and grant funds may be used to

finance only that portion of the facility serving rural areas,

regardless of facility location.

(c) Eligible projects. (1) Projects must serve a rural area which,

if such project is completed, is not likely to decline in population

below that for which the project was designed.

(2) Projects must be designed and constructed so that adequate

capacity will or can be made available to serve the present population

of the area to the extent feasible and to serve the reasonably

foreseeable growth needs of the area to the extent practicable.

(3) Projects must be necessary for orderly community development

and consistent with a current comprehensive community water, waste

disposal, or other current development plan for the rural area.

(d) Credit elsewhere. Applicants must certify in writing and the

Agency shall determine and document that the applicant is unable to

finance the proposed project from their own resources or through

commercial credit at reasonable rates and terms.

(e) Legal authority and responsibility. Each applicant must have or

will obtain the legal authority necessary for owning, constructing,

operating, and maintaining the proposed facility or service and for

obtaining, giving security for, and repaying the proposed loan. The

applicant shall be responsible for operating, maintaining, and managing

the facility, and providing for its continued availability and use at

reasonable user rates and charges. This responsibility shall be

exercised by the applicant even though the facility may be operated,

maintained, or managed by a third party under contract or management

agreement. Guidance for preparing a management agreement is available

from the Agency. Such contracts, management agreements, or leases must

not contain options or other provisions for transfer of ownership.

(f) Economic feasibility. All projects financed under the

provisions of this section must be based on taxes, assessments, income,

fees, or other satisfactory sources of revenues in an amount sufficient

to provide for facility operation and maintenance, reasonable reserves,

and debt payment. If the primary use of the facility is by business and

the success or failure of the facility is dependent on the business,

then the economic viability of that business must be assessed.

(g) Federal Debt Collection Act of 1990 (28 U.S.C. 3001 et seq.).

An outstanding judgment obtained by the United States in a Federal

Court (other than in the United States Tax Court), which has been

recorded, shall cause the applicant to be ineligible to receive a loan

or grant until the judgment is paid in full or otherwise satisfied.

(h) Expanded eligibility for timber-dependent communities in

Pacific Northwest. In the Pacific Northwest, defined as an area

containing national forest covered by the Federal document entitled,

``Forest Plan for a Sustainable Economy and a Sustainable

Environment,'' dated July 1, 1993, the population limits contained in

Sec. 1780.3(a) are expanded to include communities with not more than

25,000 inhabitants until September 30, 1998, if:

(1) Part or all of the community lies within 100 miles of the

boundary of a national forest covered by the Federal document entitled,

``Forest Plan for a Sustainable Economy and a Sustainable

Environment,'' dated July 1, 1993; and

(2) The community is located in a county in which at least 15

percent of the total primary and secondary labor and proprietor income

is derived from forestry, wood products, or forest-related industries

such as recreation and tourism.

Sec. 1780.8 [Reserved]

Sec. 1780.9 Eligible loan and grant purposes.

Loan and grant funds may be used only for the following purposes:

(a) To construct, enlarge, extend, or otherwise improve rural

water, sanitary sewage, solid waste disposal, and storm wastewater

disposal facilities.

[[Page 33481]]

(b) To construct or relocate public buildings, roads, bridges,

fences, or utilities, and to make other public improvements necessary

for the successful operation or protection of facilities authorized in

paragraph (a) of this section.

(c) To relocate private buildings, roads, bridges, fences, or

utilities, and other private improvements necessary for the successful

operation or protection of facilities authorized in paragraph (a) of

this section.

(d) For payment of other utility connection charges as provided in

service contracts between utility systems.

(e) When a necessary part of the project relates to those

facilities authorized in paragraphs (a), (b),(c) or (d) of this section

the following may be considered:

(1) Loan or grant funds may be used for:

(i) Reasonable fees and costs such as: legal, engineering,

administrative services, fiscal advisory, recording, environmental

analyses and surveys, possible salvage or other mitigation measures,

planning, establishing or acquiring rights;

(ii) Costs of acquiring interest in land; rights, such as water

rights, leases, permits, rights-of-way; and other evidence of land or

water control or protection necessary for development of the facility;

(iii) Purchasing or renting equipment necessary to install,

operate, maintain, extend, or protect facilities;

(iv) Cost of additional applicant labor and other expenses

necessary to install and extend service; and

(v) In unusual cases, the cost for connecting the user to the main

service line.

(2) Only loan funds may be used for:

(i) Interest incurred during construction in conjunction with

multiple advances or interest on interim financing;

(ii) Initial operating expenses, including interest, for a period

ordinarily not exceeding one year when the applicant is unable to pay

such expenses;

(iii) The purchase of existing facilities when it is necessary

either to improve service or prevent the loss of service;

(iv) Refinancing debts incurred by, or on behalf of, an applicant

when all of the following conditions exist:

(A) The debts being refinanced are a secondary part of the total

loan;

(B) The debts were incurred for the facility or service being

financed or any part thereof; and

(C) Arrangements cannot be made with the creditors to extend or

modify the terms of the debts so that a sound basis will exist for

making a loan; and

(v) Prepayment of costs for which RUS grant funds were obligated.

(3) Grant funds may be used to restore loan funds used to prepay

grant obligated costs.

(f) Construction incurred before loan or grant approval.

(1) Funds may be used to pay obligations for eligible project costs

incurred before loan or grant approval if such requests are made in

writing by the applicant and the Agency determines that:

(i) Compelling reasons exist for incurring obligations before loan

or grant approval;

(ii) The obligations will be incurred for authorized loan or grant

purposes; and

(iii) The Agency's authorization to pay such obligations is on the

condition that it is not committed to make the loan or grant; it

assumes no responsibility for any obligations incurred by the

applicant; and the applicant must subsequently meet all loan or grant

approval requirements, including environmental and contracting

requirements.

(2) If construction is started without Agency approval, post-

approval in accordance with this section may be considered, provided

the construction meets applicable requirements including those

regarding approval and environmental matters.

(g) Water or sewer service may be provided through individual

installations or small clusters of users within an applicant's service

area. The approval official should consider items such as: quantity and

quality of the individual installations that may be developed; cost

effectiveness of the individual facility compared with the initial and

long term user cost on a central system; health and pollution problems

attributable to individual facilities; operational or management

problems peculiar to individual installations; and permit and

regulatory agency requirements.

(1) Applicants providing service through individual facilities must

meet the eligibility requirements in Sec. 1780.7.

(2) The Agency must approve the form of agreement between the

applicant and individual users for the installation, operation,

maintenance and payment for individual facilities.

(3) If taxes or assessments are not pledged as security, applicants

providing service through individual facilities must obtain security

necessary to assure collection of any sum the individual user is

obligated to pay the applicant.

(4) Notes representing indebtedness owed the applicant by a user

for an individual facility will be scheduled for payment over a period

not to exceed the useful life of the individual facility or the RUS

loan, whichever is shorter. The interest rate will not exceed the

interest rate charged the applicant on the RUS indebtedness.

(5) Applicants providing service through individual or cluster

facilities must obtain:

(i) Easements for the installation and ingress to and egress from

the facility if determined necessary by RUS; and

(ii) An adequate method for denying service in the event of

nonpayment of user fees.

Sec. 1780.10 Limitations.

(a) Loan and grant funds may not be used to finance:

(1) Facilities which are not modest in size, design, and cost;

(2) Loan or grant finder's fees;

(3) The construction of any new combined storm and sanitary sewer

facilities;

(4) Any portion of the cost of a facility which does not serve a

rural area;

(5) That portion of project costs normally provided by a business

or industrial user, such as wastewater pretreatment, etc.;

(6) Rental for the use of equipment or machinery owned by the

applicant;

(7) For other purposes not directly related to operating and

maintenance of the facility being installed or improved; and

(8) A judgment which would disqualify an applicant for a loan or

grant as provided for in Sec. 1780.7(g).

(b) Grant funds may not be used to:

(1) Reduce EDU costs to a level less than similar system cost;

(2) Pay any costs of a project when the median household income of

the service area is and more than 100 percent of the nonmetropolitan

median household income of the State;

(3) Pay project costs when other loan funding for the project is

not at reasonable rates and terms; and

(4) Pay project costs when other funding is a guaranteed loan

obtained in accordance with subpart I of part 1980 of this title.

(c) Grants may not be made in excess of the following percentages

of the RUS eligible project development costs. Facilities previously

installed will not be considered in determining the development costs.

(1) 75 percent when the median household income of the service area

is below the higher of the poverty line or 80% of the state

nonmetropolitan median income and the project is

[[Page 33482]]

necessary to alleviate a health or sanitary problem.

(2) 45 percent when the median household income of the service area

exceeds the 80 percent requirements described in paragraph (c)(1) of

this section but is not more than 100 percent of the statewide

nonmetropolitan median household income.

(3) Applicants are advised that the percentages contained in

paragraphs (c)(1) and (c)(2) of this section are maximum amounts and

may be further limited due to availability of funds or the grant

determination procedures contained in Sec. 1780.35 (b).

Sec. 1780.11 Service area requirements.

(a) All facilities financed under the provisions of this part shall

be for public use. The facilities will be installed so as to serve any

potential user within the service area who desires service and can be

feasibly and legally served. This does not preclude:

(1) Financing or constructing projects in phases when it is not

practical to finance or construct the entire project at one time; and

(2) Financing or constructing facilities where it is not

economically feasible to serve the entire area, provided economic

feasibility is determined on the basis of the entire system and not by

considering the cost of separate extensions to or parts thereof; the

applicant publicly announces a plan for extending service to areas not

initially receiving service from the system; and potential users

located in the areas not to be initially served receive written notice

from the applicant that service will not be provided until such time as

it is economically feasible to do so.

(b) Should the Agency determine that inequities exist within the

applicants service area for the same type service proposed (i.e., water

or waste disposal) such inequities will be remedied by the applicant

prior to loan or grant approval or included as part of the project.

Inequities are defined as unjustified variations in availability,

adequacy or quality of service. User rate schedules for portions of

existing systems that were developed under different financing, rates,

terms or conditions do not necessarily constitute inequities.

(c) Developers are normally expected to provide utility-type

facilities in new or developing areas in compliance with appropriate

State statutes. RUS financing will be considered to an eligible

applicant only in such cases when failure to complete development would

result in an adverse economic condition for the rural area (not the

community being developed); the proposal is necessary to the success of

a current area development plan; and loan repayment can be assured by:

(1) The applicant already having sufficient assured revenues to

repay the loan; or

(2) Developers providing a bond or escrowed security deposit as a

guarantee sufficient to meet expenses attributable to the area in

question until a sufficient number of the building sites are occupied

and connected to the facility to provide enough revenues to meet

operating, maintenance, debt service, and reserve requirements. Such

guarantees from developers will meet the requirements in

Sec. 1780.39(c)(4)(ii); or

(3) Developers paying cash for the increased capital cost and any

increased operating expenses until the developing area will support the

increased costs; or

(4) The full faith and credit of a public body where the debt is

evidenced by general obligation bonds; or

(5) The loan is to a public body evidenced by a pledge of tax

revenue or assessments; or

(6) The user charges can become a lien upon the property being

served and income from such lien can be collected in sufficient time to

be used for its intended purposes.

Sec. 1780.12 [Reserved]

Sec. 1780.13 Rates and terms.

(a) General. (1) Each loan will bear interest at the rate

prescribed in RD Instruction 440.1, exhibit B. The interest rates will

be set by the Agency for each quarter of the fiscal year. All rates

will be adjusted to the nearest one-eighth of one per centum. The rate

will be the lower of the rate in effect at the time of loan approval or

the rate in effect at the time of loan closing unless the applicant

otherwise chooses.

(2) If the interest rate is to be that in effect at loan closing on

a loan involving multiple advances of RUS funds using temporary debt

instruments, the interest rate charged shall be that in effect on the

date when the first temporary debt instrument is issued.

(b) Poverty rate. The poverty interest rate will not exceed 5 per

centum per annum. All poverty rate loans must comply with the following

conditions:

(1) The primary purpose of the loan is to upgrade existing

facilities or construct new facilities required to meet applicable

health or sanitary standards; and

(2) The median household income of the service area is below the

higher of the poverty line, or 80 percent of the Statewide

nonmetropolitan median household income.

(c) Intermediate rate. The intermediate interest rate will be set

at the poverty rate plus one-half of the difference between the poverty

rate and the market rate, not to exceed 7 percent per annum. It will

apply to loans that do not meet the requirements for the poverty rate

and for which the median household income of the service area is not

more than 100 percent of the nonmetropolitan median household income of

the State.

(d) Market rate. The market interest rate will be set using as

guidance the average of the Bond Buyer (11-GO Bond) Index for the four

weeks prior to the first Friday of the last month before the beginning

of the quarter. The market rate will apply to all loans that do not

qualify for a different rate under paragraph (b) or (c) of this

section.

(e) Repayment terms. The loan repayment period shall not exceed the

useful life of the facility, State statute or 40 years from the date of

the note or bond, whichever is less. Where RUS grant funds are used in

connection with an RUS loan, the loan will be for the maximum term

permitted by this part, State statute, or the useful life of the

facility, whichever is less, unless there is an exceptional case where

circumstances justify making an RUS loan for less than the maximum term

permitted. In such cases, the reasons must be fully documented.

(1) Principal payments may be deferred in whole or in part for a

period not to exceed 36 months following the date the first interest

installment is due. If for any reason it appears necessary to permit a

longer period of deferment, the Agency may authorize such deferment.

Deferments of principal will not be used to:

(i) Postpone the levying of taxes or assessments;

(ii) Delay collection of the full rates which the borrower has

agreed to charge users for its services as soon as those services

become available;

(iii) Create reserves for normal operation and maintenance;

(iv) Make any capital improvements except those approved by the

Agency which are determined to be essential to the repayment of the

loan or to maintain adequate security; and

(v) Make payment on other debt.

(2) Payment date. Loan payments will be scheduled to coincide with

income availability and be in accordance with State law. If State law

only permits principal plus interest (P&I) type bonds, annual or

semiannual payments will be used. Insofar as practical monthly payments

will be scheduled one full month following the date of loan closing; or

semiannual or annual payments will be scheduled six or twelve full

months, respectively,

[[Page 33483]]

following the date of loan closing or any deferment period. Due dates

falling on the 29th, 30th or 31st day of the month will be avoided.

(3) In all cases, including those in which RUS is jointly financing

with another lender, the RUS payments of principal and interest should

approximate amortized installments.

Sec. 1780.14 Security.

Loans will be secured by the best security position practicable in

a manner which will adequately protect the interest of RUS during the

repayment period of the loan. Specific security requirements for each

loan will be included in a letter of conditions.

(a) Public bodies. Loans to such borrowers, including Federally

recognized Indian tribes as appropriate, will be evidenced by notes,

bonds, warrants, or other contractual obligations as may be authorized

by relevant laws and by borrower's documents, resolutions, and

ordinances. Security, in the following order of preference, will

consist of:

(1) The full faith and credit of the borrower when the debt is

evidenced by general obligation bonds; and/or

(2) Pledges of taxes or assessments; and/or

(3) Pledges of facility revenue and, when it is the customary

financial practice in the State, liens will be taken on the interest of

the applicant in all land, easements, rights-of-way, water rights,

water purchase contracts, water sales contracts, sewage treatment

contracts, and similar property rights, including leasehold interests,

used or to be used in connection with the facility whether owned at the

time the loan is approved or acquired with loan funds.

(b) Other-than-public bodies. Loans to other-than-public body

applicants and Federally recognized Indian tribes, as appropriate, will

be secured in the following order of preference:

(1) Assignments of borrower income will be taken and perfected by

filing, if legally permissible; and

(2) A lien will be taken on the interest of the applicant in all

land, easements, rights-of-way, water rights, water purchase contracts,

water sales contracts, sewage treatment contracts and similar property

rights, including leasehold interest, used, or to be used in connection

with the facility whether owned at the time the loan is approved or

acquired with loan funds. In unusual circumstances where it is not

legally permissible or feasible to obtain a lien on such land (such as

land rights obtained from Federal or local government agencies, and

from railroads) and the approval official determines that the interest

of RUS is otherwise adequately secured, the lien requirement may be

omitted as to such land rights. For existing borrowers where the Agency

already has a security position on real property, the approval official

may determine that the interest of the Government is adequately secured

and not require additional liens on such land rights. When the

subsequent loan is approved or the acquisition of real property is

subject to an outstanding lien indebtedness, the next highest priority

lien obtainable will be taken if the approval official determines that

the loan is adequately secured.

(c) Joint financing security. For projects utilizing joint

financing, when adequate security of more than one type is available,

the other lender may take one type of security with RUS taking another

type. For projects utilizing joint financing with the same security to

be shared by RUS and another lender, RUS will obtain at least a parity

position with the other lender. A parity position is to ensure that

with joint security, in the event of default, each lender will be

affected on a proportionate basis. A parity position will conform with

the following unless an exception is granted by the approval official:

(1) It is not necessary for loans to have the same repayment terms.

Loans made by other lenders involved in joint financing with RUS should

be scheduled for repayment on terms similar to those customarily used

in the State for financing such facilities.

(2) The use of a trustee or other similar paying agent by the other

lender in a joint financing arrangement is acceptable to RUS. A trustee

or other similar paying agent will not normally be used for the RUS

portion of the funding unless required to comply with State law. The

responsibilities and authorities of any trustee or other similar paying

agent on projects that include RUS funds must be clearly specified by

written agreement and approved by the State program official and the

Office of the General Counsel (OGC). RUS must be able to deal directly

with the borrower to enforce the provisions of loan and grant

agreements and perform necessary servicing actions.

(3) In the event adequate funds are not available to meet regular

installments on parity loans, the funds available will be apportioned

to the lenders based on the respective current installments of

principal and interest due.

(4) Funds obtained from the sale or liquidation of secured property

or fixed assets will be apportioned to the lenders on the basis of the

pro rata amount outstanding; provided, however, funds obtained from

such sale or liquidation for a project that included RUS grant funds

will be apportioned as required by the grant agreement.

(5) Protective advances must be charged to the borrower's account

and be secured by a lien on the security property. To the extent

consistent with State law and customary lending practices in the area,

repayment of protective advances made by either lender, for the mutual

protection of both lenders, should receive first priority in

apportionment of funds between the lenders. To ensure agreement between

lenders, efforts should be made to obtain the concurrence of both

lenders before one lender makes a protective advance.

Sec. 1780.15 Other Federal, State, and local requirements.

Proposals for facilities financed in whole or in part with RUS

funds will be coordinated with appropriate Federal, State and local

agencies. If there are conflicts between this part and State or local

laws or regulatory commission regulations, the provisions of this part

will control. Applicants will be required to comply with Federal,

State, and local laws and any regulatory commission rules and

regulations pertaining to:

(a) Organization of the applicant and its authority to own,

construct, operate, and maintain the proposed facilities;

(b) Borrowing money, giving security therefore, and raising

revenues for the repayment thereof;

(c) Land use zoning; and

(d) Health and sanitation standards and design and installation

standards unless an exception is granted by RUS.

Sec. 1780.16 [Reserved]

Sec. 1780.17 Selection priorities and process.

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. Points

will be awarded as follows:

(a) Population priorities. (1) The proposed project will primarily

serve a rural area having a population not in excess of 1,000--25

points;

(2) The proposed project primarily serves a rural area having a

population between 1,001 and 2,500--15 points;

(3) The proposed project primarily serves a rural area having a

population between 2,501 and 5,500--5 points.

(b) Health priorities. The proposed project is:

(1) Needed to alleviate an emergency situation, correct

unanticipated diminution or deterioration of a water supply, or to meet

Safe Drinking Water

[[Page 33484]]

Act requirements which pertain to a water system--25 points;

(2) Required to correct inadequacies of a wastewater disposal

system, or to meet health standards which pertain to a wastewater

disposal system--25 points;

(3) Required to meet administrative orders issued to correct local,

State, or Federal solid waste violations--15 points.

(c) Median household income priorities. The median household income

of the population to be served by the proposed project is:

(1) Less than the poverty line if the poverty line is less than 80%

of the statewide nonmetropolitan median household income--30 points;

(2) Less than 80 percent of the statewide nonmetropolitan median

household income--20 points;

(3) Equal to or more than the poverty line and between 80% and

100%, inclusive, of the State's nonmetropolitan median household

income--15 points.

(d) Other priorities. (1) The proposed project will: merge

ownership, management, and operation of smaller facilities providing

for more efficient management and economical service--15 points;

(2) The proposed project will enlarge, extend, or otherwise modify

existing facilities to provide service to additional rural areas--10

points;

(3) Applicant is a public body or Indian tribe--5 points;

(4) Amount of other than RUS funds committed to the project is:

(i) 50% or more--15 points;

(ii) 20% to 49%--10 points;

(iii) 5%--19%--5 points;

(5) Projects that will serve Agency identified target areas--10

points;

(6) Projects that primarily recycle solid waste products thereby

limiting the need for solid waste disposal--5 points;

(7) The proposed project will serve an area that has an unreliable

quality or supply of drinking water--10 points.

(e) In certain cases the State program official may assign up to 15

points to a project. The points may be awarded to projects in order to

improve compatibility and coordination between RUS's and other

agencies' selection systems, to ensure effective RUS fund utilization,

and to assist those projects that are the most cost effective. A

written justification must be prepared and placed in the project file

each time these points are assigned.

(f) Cost overruns. An application may receive consideration for

funding before others at the State or National Office level when it is

a subsequent request for a previously approved project which has

encountered construction cost overruns. The cost overruns must be due

to high bids or unexpected construction problems that cannot be reduced

by negotiations, redesign, use of bid alternatives, rebidding or other

means. Cost overruns exceeding 20% of the development cost at time of

loan or grant approval or where the scope of the original purpose has

changed will not be considered under this paragraph.

(g) National office priorities. In selecting projects for funding

at the National Office level State program official points may or may

not be considered. The Administrator may assign up to 15 additional

points to account for items such as geographic distribution of funds,

the highest priority projects within a state, and emergency conditions

caused by economic problems or natural disasters. The Administrator may

delegate the authority to assign the 15 points to appropriate National

Office staff.

Sec. 1780.18 Allocation of program funds.

(a) General. (1) The purpose of this part is to set forth the

methodology and formulas by which the Administrator of the RUS

allocates program funds to the States. (The term ``State'' means any of

the States of the United States, the Commonwealth of Puerto Rico, any

territory or possession of the United States, or the Western Pacific

Areas.)

(2) The formulas in this part are used to allocate program loan and

grant funds to Rural Development State offices so that the overall

mission of the Agency can be carried out. Considerations used when

developing the formulas include enabling legislation, congressional

direction, and administration policies. Allocation formulas ensure that

program resources are available on an equal basis to all eligible

individuals and organizations.

(3) The actual amounts of funds, as computed by the methodology and

formulas contained herein, allocated to a State for a funding period,

are distributed to each State office. The allocated amounts are

available for review in any Rural Development State office.

(b) Definitions.--(1) Amount available for allocations. Funds

appropriated or otherwise made available to the Agency for use in

authorized programs. On occasion, the allocation of funds to States may

not be practical for a particular program due to funding or

administrative constraints. In these cases, funds will be controlled by

the National Office.

(2) Basic formula criteria, data source and weight. Basic formulas

are used to calculate a basic State factor as a part of the methodology

for allocating funds to the States. The formulas take a number of

criteria that reflect the funding needs for a particular program and

through a normalization and weighting process for each of the criteria

calculate the basic State factor (SF). The data sources used for each

criteria are believed to be the most current and reliable information

that adequately quantifies the criterion. The weight, expressed as a

percentage, gives a relative value to the importance of each of the

criteria.

(3) Basic formula allocation. The result of multiplying the amount

available for allocation less the total of any amounts held in reserve

or distributed by base or administrative allocation times the basic

State factor for each State. The basic formula allocation (BFA) for an

individual State is equal to:

BFA=(Amount available for allocation-NO reserve-total base and

administrative allocations) x SF.

(4) Transition formula. (i) A formula based on a proportional

amount of previous year allocation used to maintain program continuity

by preventing large fluctuations in individual State allocations. The

transition formula limits allocation shifts to any particular State in

the event of changes from year to year of the basic formula, the basic

criteria, or the weights given the criteria. The transition formula

first checks whether the current year's basic formula allocation is

within the transition range (plus or minus 20 percentage points of the

proportional amount of the previous year's BFA). The formula follows:

[GRAPHIC] [TIFF OMITTED] TR19JN97.000

(ii) If the current year's State BFA is not within the transition

range in paragraph (b)(4)(i) of this section, the State formula

allocation is changed to the amount of the transition range limit

closest to the BFA amount. After having

[[Page 33485]]

performed this transition adjustment for each State, the sum o

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Streamlining the Rural Utilities Service Water and Waste Program Regulations · 62 FR 33462 | Frix