[Federal Register Volume 80, Number 8 (Tuesday, January 13, 2015)]
[Rules and Regulations]
[Pages 1584-1586]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-30675]


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GULF COAST ECOSYSTEM RESTORATION COUNCIL

40 CFR Part 1800

[Docket Number: 110142014-1111-02]
RIN 3600-AA00


RESTORE Act Spill Impact Component Planning Allocation

AGENCY: Gulf Coast Ecosystem Restoration Council.

ACTION: Final rule.

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SUMMARY: The Gulf Coast Ecosystem Restoration Council (Council) is 
issuing a final rule authorizing the Gulf Coast State members of the 
Council, or their administrative agents, and the Gulf Consortium of 
Florida counties to apply for grants to fund planning activities to 
develop individual State Expenditure Plans (SEP) using amounts up to 
the statutory minimum that each Gulf Coast State must receive under the 
Spill Impact Component of the Resources and Ecosystems Sustainability, 
Tourist Opportunities, and Revived Economies of the Gulf Coast States 
Act of 2012 (RESTORE Act).

DATES: This final rule becomes effective on January 13, 2015.

ADDRESSES: The Council posted all comments to the interim rule on its 
Web site, http://www.restorethegulf.gov/, without change, including any 
business or personal information provided, such as names, addresses, 
email addresses, or telephone numbers. All comments received are part 
of the public record and subject to public disclosure.

FOR FURTHER INFORMATION CONTACT: Jeffrey Roberson at 202-482-1315.

SUPPLEMENTARY INFORMATION:

I. Background

    The RESTORE Act, Public Law 112-141 (July 6, 2012), codified at 33 
U.S.C. 1321(t) and note, makes funds available for the restoration and 
protection of the Gulf Coast Region through a new trust fund in the 
Treasury of the United States, known as the Gulf Coast Restoration 
Trust Fund (Trust Fund). The Trust Fund will contain 80 percent of the 
administrative and civil penalties paid by the responsible parties 
after July 6, 2012, under the Federal Water Pollution Control Act in 
connection with the Deepwater Horizon oil spill. These funds will be 
invested and made available through five components of the RESTORE Act. 
On August 15, 2014, the Department of Treasury (Treasury) issued 
regulations (79 FR 48039) applicable to all five components, and which 
generally describe the responsibilities of the Federal and State 
entities that administer RESTORE Act programs and carry out restoration 
activities in the Gulf Coast Region.
    Two of the five components, the Comprehensive Plan and Spill Impact 
Components, are administered by the Council, an independent federal 
entity created by the RESTORE Act. Under the Spill Impact Component (33 
U.S.C. 1321(t)(3)), the subject of this final rule, 30 percent of funds 
in the Trust Fund will be disbursed to the five Gulf Coast States 
(Alabama, Florida, Louisiana, Mississippi, and Texas) or their 
administrative agents based on an allocation formula established by the 
Council by regulation based on criteria in the RESTORE Act. The RESTORE 
Act establishes a statutory minimum under which each of the five Gulf 
Coast States is guaranteed five percent of the funds made available 
under this component. In order for funds to be disbursed to a Gulf 
Coast State, the RESTORE Act requires each Gulf Coast State to develop 
a SEP and submit it to the Council for approval. The RESTORE Act 
specifies the particular entity within each Gulf Coast State that will 
prepare the individual SEPs: In Alabama, the Alabama Gulf Coast 
Recovery Council; in Florida, a consortium of local political 
subdivisions that includes a minimum of one representative of each 
affected county (officially named the ``Gulf Consortium'' as organized 
under Florida law); in Louisiana, the Coastal Protection and 
Restoration Authority of Louisiana; in Mississippi, the Office of the 
Governor or an appointee of the Office of the Governor; and in Texas, 
the Office of the Governor or an appointee of the Office of the 
Governor. 33 U.S.C. 1321(t)(3)(B)(iii).
    On August 22, 2014, the Council issued an interim final rule to 
permit the five eligible entities responsible for drafting SEPs to have 
access to amounts up to the statutory minimum to help draft a SEP that 
meets all statutory requirements.\1\ 79 FR 49690. The Council opened 
this interim final rule up for public comment for 30 days. The Council 
received substantive comments from three separate commenters.
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    \1\ SEPs must meet the statutory requirements of the RESTORE 
Act, including: (1) All projects, programs and activities included 
in the SEP are eligible activities as defined by the RESTORE Act; 
(2) all projects, programs and activities included in the SEP 
contribute to the overall economic and ecological recovery of the 
Gulf Coast; (3) the SEP takes the Council's Comprehensive Plan into 
consideration and is consistent with the goals and objectives of the 
Comprehensive Plan; and (4) no more than 25 percent of the allotted 
funds are used for infrastructure projects unless the SEP contains 
certain certifications from the Gulf Coast State submitting the SEP.
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    After considering public comments, the Council now issues the 
regulations as a final rule. The rule will take effect on January 13, 
2015. The Council will separately make available a guidance document 
that details the content and process requirements of both the planning 
SEP that is required to get access to the planning grants authorized 
under this rule and the full SEP that is required to get access to the 
entire amount of funds made available to each Gulf Coast State under 
the Spill Impact Component of the RESTORE Act. The Council is also 
currently developing another set of regulations to more fully implement 
the Spill Impact Component of the RESTORE Act. These regulations will 
be published in the Federal Register at a later date and will establish 
how funds made available from the Trust Fund will be allocated between 
the five Gulf Coast States based on the allocation formula.

II. Public Comments and Summary of Final Rule

    Each of the five Gulf Coast States, Alabama, Florida, Louisiana, 
Mississippi, and Texas, are statutorily guaranteed a minimum of five 
percent of amounts made available from the Trust Fund under the Spill 
Impact Component.\2\ 33 U.S.C.

[[Page 1585]]

1321(t)(3)(A)(iii). The Council originally issued this regulation as an 
interim final rule in order to facilitate expeditious development of 
full SEPs by the five entities required by the RESTORE Act to draft the 
SEPs and thus speed delivery of projects, programs and activities 
authorized under the Spill Impact Component to help restore and protect 
the Gulf Coast Region. The Council is now finalizing the rule without 
substantive change. Instead, minor clarifications have been made to the 
rule and preamble text to make the intent clearer.
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    \2\ A Gulf Coast State may receive more than the statutory 
minimum depending on the calculation of each Gulf Coast State's 
share under an allocation formula established by the Council by 
regulation based on criteria specified in the Act. 33 U.S.C. 
1321(t)(3)(A)(ii). The Council is developing a regulation to be 
published in the Federal Register at a later date establishing this 
allocation formula.
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    Under this final rule, an amount of funds less than or equal to the 
statutory minimum allocation (five percent of funds available under the 
Spill Impact Component) are available to the five eligible entities for 
development of a planning SEP that funds planning activities only, an 
eligible activity under the Spill Impact Component. 33 U.S.C. 
1321(t)(1)(B)(i)(VIII); 33 U.S.C. 1321(t)(3)(B)(i)(I). Eligible 
entities include the States of Mississippi and Texas, the Coastal 
Protection and Restoration Authority of Louisiana, the Alabama Gulf 
Coast Recovery Council, and the Gulf Consortium of Florida counties.
    The preamble to the interim final rule discussed in broad terms the 
grant submission process. Commenters requested clarification on that 
process because they felt the interim final rule was unclear on whether 
an SEP was required for the planning grant authorized by this Rule in 
addition to a grant application. Commenters also requested that if an 
SEP is required, that the Council remove that requirement. The Council 
did not make any changes to the text of the final rule because this 
issue is not implicated in the text itself. Rather, the Council is 
clarifying in the preamble that the process for receiving grant funds 
under the final rule involves two steps. First, the Council's 
interpretation of the sections of the RESTORE Act that authorize funds 
under the Spill Impact Component require an SEP prior to any 
distribution of funds. 33 U.S.C. 1321(t)(3)(B). As such, the Council 
has no discretion to do away with this requirement. However, the 
Council feels it is within its discretion to permit a much simpler SEP 
than would be required in order to receive a full distribution of funds 
under the Spill Impact Component once the allocation formula is 
complete. While the Treasury regulations (31 CFR 34.203(a)) state that 
that eligible entities may apply to the Council for a grant for 
planning purposes, the Council does not believe these regulations 
authorize to the Council to distribute such funds without an approved 
SEP, nor would it be appropriate for the Treasury regulations to do so, 
since it would be outside the scope of the Act to distribute funds 
without an SEP. The Council intends to release guidance materials 
separately from this final rule that will clarify the content 
requirements associated with a ``planning SEP'' under this final rule, 
and differentiating those requirements from those of a ``full SEP'' 
that would be required to get a full share of funds pursuant to the 
Council's allocation formula regulation that is in the process of being 
drafted. Second, an eligible entity that has submitted a planning SEP 
and had it approved by the Council would have to complete a standard 
grant application.
    Commenters also pointed out that in Florida, the process for 
submitting an SEP to the Council involves the administrative step of 
submitting the SEP to the Executive Office of the Governor of Florida. 
The Act requires that all SEPs be submitted to the Council by the Gulf 
Coast State. 33 U.S.C. 1321(t)(3)(B)(i).
    The final rule describes the eligible uses for the amounts made 
available under the final rule as including planning activities related 
solely to the development of a full SEP, including conceptual design 
and feasibility studies related to specific projects. It does not 
include engineering and environmental studies related to specific 
projects. Commenters pointed out that this definition of planning 
activities is narrower in scope than the definition provided by 
Treasury in its regulations (31 CFR 34.2) and asked that the Council 
modify its definition to match the Treasury definition. This narrower 
construction was intentional. The purpose of this rule is to permit an 
eligible entity access to a limited pool of funds in order to draft a 
full SEP. As such, the definition of planning assistance used in the 
Treasury regulations is too broad in scope, and would permit 
engineering and environmental studies related to specific projects or 
procurement of grant processing systems, activities that the Council 
does not intend to fund under this final rule. Those sorts of 
activities will be eligible uses once the full amount of funds is 
available under the Spill Impact Component pursuant to the forthcoming 
allocation formula. At this time, however, those sorts of activities 
are beyond the narrowly tailored purpose of this final rule, which is 
to fund the drafting of a full SEP only.
    Similarly, the final rule does not permit any pre-award costs 
incurred prior to the date of publication of the interim final rule on 
August 22, 2014, and provides that any pre-award costs incurred after 
that publication will be evaluated pursuant to 2 CFR part 200. 
Commenters requested that the Council remove this time limitation on 
when pre-award costs were incurred. The final rule retains this time 
limitation because of the narrow purpose of the rule, to fund the 
drafting of a full SEP. Under 2 CFR 200.458, pre-award costs must be 
directly linked to a particular grant and until the announcement of the 
interim final rule on August 22, 2014, eligible entities did not know 
that the Council would award grants for the purpose of drafting a full 
SEP. As such, the Council does not feel it is unreasonably constraining 
pre-award costs by imposing a limitation that it will consider pre-
award costs only if they were awarded after August 22, 2014. Further, 
to the extent that an eligible entity incurred costs prior to August 
22, 2014, that the entity thinks would qualify as legitimate pre-award 
costs under 2 CFR 200.458, the entity is free to request funding for 
such costs under the awards issued when a full SEP is submitted in 
order to access the full allocation under the Spill Impact Component.
    Commenters also advocated for changing the Rule to provide for a 
clear path for funding the Gulf Consortium of Florida. Given the narrow 
purpose of this Rule, to fund the drafting of a full SEP, the Council 
feels that this request goes beyond the scope of this Rule. Whether 
Spill Impact Component funds are available for this purpose is best 
addressed in the entity's application for pre-award costs associated 
with the full SEP required to access the full allocation under the 
Spill Impact Component or under the Council's broader forthcoming 
regulation establishing the allocation formula. The Council will keep 
this comment in mind as it drafts that future regulation.
    Finally, commenters requested that all forthcoming guidance and 
rulemakings from the Council be promulgated in a manner that will allow 
for comments prior to them being finalized, consistent with the 
Administrative Procedure Act, 5 U.S.C. 553. As is its custom, the 
Council intends to comply with the requirements of the Administrative 
Procedure Act.
    Minor clarifying edits were made to sections 1800.1 and 1800.20 to 
remove confusing, superfluous references to the fiscal year. The 
minimum allocation amount available to each Gulf Coast State will be at 
least equal to 5% of the total amount available in the Trust Fund for 
the Spill Impact Component over the life of the Trust Fund.

[[Page 1586]]

III. Procedural Requirements

A. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) generally 
requires agencies to prepare a regulatory flexibility analysis of any 
rule subject to notice and comment rulemaking requirements under the 
Administrative Procedure Act or any other statute, unless the agency 
certifies that this final rule will not have a significant economic 
impact on a substantial number of small entities. The Council hereby 
certifies that this final rule will not have a significant economic 
impact on a substantial number of small entities, for the following 
reasons.
    This final rule only affects those Gulf Coast States that are 
eligible recipients of these funds, and States are not considered 
``small entities'' under the Regulatory Flexibility Act. For two Gulf 
Coast States, Alabama and Florida, the Act mandates that entities not 
officially part of the Executive Office of the State's government 
develop the SEPs. The Alabama Gulf Coast Recovery Council, in the 
context of the Act, serves as an administrative agent of the State of 
Alabama, so the effects of this rule are still directed solely at the 
State. For the State of Florida, while the Gulf Consortium of counties 
is tasked with developing the SEP, it is a consortium of 23 counties 
with a total population of greater than 50,000. As such, neither entity 
is considered ``small entities'' under the Regulatory Flexibility Act.
    Additionally, while this final rule describes procedures concerning 
the allocation and expenditure of amounts from the Trust Fund under the 
Spill Impact Component, most of these requirements come from the 
RESTORE Act itself or other Federal law. The RESTORE Act determines the 
statutory minimum percentage of funds available to the Gulf Coast 
States under the Spill Impact Component.
    Because no small entities will be impacted by this final rule, no 
initial regulatory flexibility analysis is required, and none has been 
prepared.

B. Paperwork Reduction Act

    The collections of information contained in this final rule would 
at most require submissions of grant paperwork from five entities (four 
of the Gulf Coast States, or their administrative agents, and the Gulf 
Consortium) below the threshold requirement for application of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). As such, any 
request for information under this final rule is not considered a 
``collection of information'' subject to the Paperwork Reduction Act of 
1995.

C. Regulatory Planning and Review (Executive Orders 12866 and 13563)

    As an independent federal entity that is composed of, in part, six 
federal agencies, including the Departments of Agriculture, the Army, 
Commerce, and the Interior, the Department in which the Coast Guard is 
operating, and the Environmental Protection Agency, the requirements of 
Executive Orders 12866 and 13563 are inapplicable to this final rule.

List of Subjects in 40 CFR Part 1800

    Coastal zone, Fisheries, Grant programs, Grants administration, 
Gulf Coast Restoration Trust Fund, Gulf RESTORE Program, 
Intergovernmental relations, Marine resources, Natural resources, Oil 
pollution, Research, Science and technology, Trusts, Wildlife.

    Dated: December 8, 2014.
Justin R. Ehrenwerth,
Executive Director, Gulf Coast Ecosystem Restoration Council.
    For the reasons set forth in the preamble, the Gulf Coast Ecosystem 
Restoration Council amends 40 CFR chapter VIII, by revising part 1800 
to read as follows:

PART 1800--SPILL IMPACT COMPONENT

Subpart A--Definitions
Sec.
1800.1 Definitions.
Subpart B--Minimum Allocation Available for Planning Purposes
Sec.
1800.10 Purpose.
1800.20 Minimum allocation available for planning purposes.

    Authority: 33 U.S.C. 1321(t).

Subpart A--Definitions


Sec.  1800.1  Definitions.

    As used in this part:
    Gulf Coast State means any of the States of Alabama, Florida, 
Louisiana, Mississippi, and Texas.
    Gulf Consortium means the consortium of Florida counties formed to 
develop the Florida State Expenditure Plan pursuant to 33 U.S.C. 
1321(t)(3)(B)(iii)(II).
    Minimum allocation means the amount made available to each Gulf 
Coast State which totals at least five percent of the total allocation 
made available under the Spill Impact Component.
    RESTORE Act means the Resources and Ecosystems Sustainability, 
Tourist Opportunities, and Revived Economies of the Gulf Coast States 
Act of 2012.
    Spill Impact Component means the component of the Gulf RESTORE 
program authorized by section 311(t)(3) of the Federal Water Pollution 
Control Act (33 U.S.C. 1321(t)(3)), as added by section 1603 of the 
Act, in which Gulf Coast States are provided funds by the Council 
according to a formula that the Council establishes by regulation, 
using criteria listed in the Act.
    State Expenditure Plan means the plan for expenditure of amounts 
disbursed under the Spill Impact Component that each Gulf Coast State 
must submit to the Council for approval.

Subpart B--Minimum Allocation Available for Planning Purposes


Sec.  1800.10  Purpose.

    This subpart establishes that up to the statutory minimum 
allocation (five percent) is available under the Spill Impact Component 
of the Resources and Ecosystems Sustainability, Tourist Opportunities, 
and Revived Economies of the Gulf Coast States Act of 2012 (RESTORE 
Act) (Pub. L. 112-141, 126 Stat. 405, 588-607) for planning purposes 
associated with development of a State Expenditure Plan.


Sec.  1800.20  Minimum allocation available for planning purposes.

    A Gulf Coast State or its administrative agent, or the Gulf 
Consortium, may apply to the Council for a grant to use the minimum 
allocation available under the Spill Impact Component of the RESTORE 
Act for planning purposes. These planning purposes are limited to 
development of a State Expenditure Plan, and includes conceptual design 
and feasibility studies related to specific projects. It does not 
include engineering and environmental studies related to specific 
projects. It also does not include any pre-award costs incurred prior 
to August 22, 2014.

[FR Doc. 2014-30675 Filed 1-12-15; 8:45 am]
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