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[Federal Register Volume 75, Number 37 (Thursday, February 25, 2010)]
[Notices]
[Pages 8697-8698]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-3847]

[[Page 8697]]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9115-1]

Notice of Availability of Class Deviation; Disputes Resolution 
Procedures Related to Clean Water and Drinking Water State Revolving 
Fund (CWSRF and DWSRF, Respectively) Reallocation Under the American 
Reinvestment and Recovery Act of 2009 (ARRA)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of availability.

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SUMMARY: This document provides notice of availability of a Class 
Deviation from EPA's assistance agreement dispute procedures and also 
sets forth the procedures that will apply to the resolution of disputes 
that may arise in connection with the CWSRF and DWSRF reallocation 
decisions made by EPA under the ARRA. Currently, with respect to states 
and local governments, assistance agreement disputes and disagreements 
are resolved in accordance with EPA assistance agreement disputes 
procedures at 40 CFR 31.70. EPA has determined, however, through a 
Class Deviation, that these procedures are not practicable to use for 
CWSRF and DWSRF reallocation disputes and that it is appropriate to 
replace those procedures with the procedures contained in this 
document. The Class Deviation and this action only affect the dispute 
resolution procedures for CWSRF and DWSRF reallocation decisions under 
the ARRA.

DATES: These procedures are effective as of February 17, 2010.

FOR FURTHER INFORMATION CONTACT: Jordan Dorfman, (202) 564-0614.

SUPPLEMENTARY INFORMATION:  Under EPA's appropriation provisions 
contained in Division A, Title VII of the ARRA, the Administrator is 
required to ``reallocate funds appropriated * * * for the Clean and 
Drinking Water State Revolving Funds (Revolving Funds) where projects 
are not under contract or construction within 12 months of the date of 
enactment of this Act * * *.'' On December 24, 2009, EPA's Office of 
Water (OW) issued a memorandum to implement this requirement. See 
``Reallocation Process for Funds Deobligated after February 17, 2010 
under the American Reinvestment and Recovery Act of 2009.'' That 
memorandum, among other things, requires states to certify by March 1, 
2010, that they have complied with the statutory requirement that 
projects were under contract or construction, gives EPA the opportunity 
to assess the compliance, and describes the reallocation process. It 
also notes that EPA's Office of Grants and Debarment will provide 
guidance regarding the resolution of any reallocation disputes.
    In addition to the February 17, 2010, reallocation requirement, 
Section 1603 of the general provisions of the ARRA requires, with 
limited exceptions not applicable to the CWSRF or DWSRF programs, that 
all funds appropriated under the ARRA are available for obligation 
until September 30, 2010. To ensure that SRF funds are fully obligated 
for construction projects by September 30th, the OW guidance memorandum 
makes clear that any funds reallocated to a State that are not under 
assistance agreements and under contract by June 17, 2010 will be 
subject to further reallotment.
    As described in 40 CFR 31.70, the dispute resolution process can 
involve up to four levels of review and take several months to 
complete. Specifically, an entity disputing a decision can attempt to 
resolve the issue at the lowest level possible, request a final Agency 
decision, and request a reconsideration of the final decision. A 
possible fourth step is an EPA headquarters discretionary review of a 
final Regional decision. This timeframe is too long to permit the 
Agency to meet ARRA requirements for timely reallocation.
    EPA's Office of Grants and Debarment has therefore issued a Class 
Deviation to streamline the 40 CFR 31.70 procedures. The Class 
Deviation will allow the Agency to comply with ARRA reallocation 
requirements and at the same time provide States with a meaningful 
disputes resolution process in the event a State disagrees with a 
reallocation decision.
    Statutory and Executive Order Reviews: Under Executive Order 12866 
(58 FR 51735, October 4, 1993), this action is not a ``significant 
regulatory action'' and is therefore not subject to OMB review. Because 
this grant action is not subject to notice and comment requirements 
under the Administrative Procedures Act or any other statute, it is not 
subject to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) or 
sections 202 and 205 of the Unfunded Mandates Reform Act of 1999 (UMRA) 
(Pub. L. 104-4). In addition, this action does not significantly or 
uniquely affect small governments. This action does not have tribal 
implications, as specified in Executive Order 13175 (63 FR 67249, 
November 9, 2000). This action will not have federalism implications, 
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). 
This action is not subject to Executive Order 13211, ``Actions 
Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not a 
significant regulatory action under Executive Order 12866. This action 
does not involve technical standards; thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. This action does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The Congressional 
Review Act, 5 U.S.C. 801 et seq. generally provides that before certain 
actions may take affect, the agency promulgating the action must submit 
a report, which includes a copy of the action, to each House of the 
Congress and to the Comptroller General of the United States. Since 
this final grant action contains legally binding requirements, it is 
subject to the Congressional Review Act, and EPA will submit this 
action in its report to Congress under the Act.

List of Subjects in 40 CFR Part 31

    Environmental protection, Administrative practice and procedure, 
Reporting and recordkeeping requirements.
    ARRA CWSRF and DWSRF Assistance Agreement Reallocation Decision 
Dispute Resolution Procedures:
    EPA establishes ARRA CWSRF and DWSRF Assistance Agreement 
Reallocation dispute resolution procedures as follows:
    1. The authority citation for the ARRA CWSRF and DWSRF assistance 
agreement reallocation disputes resolution procedures in this document 
is the Federal Grant and Cooperative Agreement Act, 31 U.S.C. 6301(3).
    2. The disputes resolution procedures that will apply to ARRA CWSRF 
and DWSRF assistance agreement reallocation disputes are as follows:
    Dispute Resolution Procedures:
    1. After receiving certifications provided by states, but not later 
than March 2, 2010, EPA will assess the certifications. As soon as 
possible thereafter, EPA will notify states that have any amount of 
ARRA funds identified as not under contract by February 17, 2010, that 
those funds will be deobligated and reallocated to eligible states.
    2. If a state disagrees with the decision to deobligate funds or 
the amount of funds that the Agency determined is appropriate for 
deobligation of the state's CWSRF or DWSRF assistance agreement, it 
must

[[Page 8698]]

file a written request for reconsideration within three (3) calendar 
days of receiving the notification of intent to deobligate the funds. 
Any detail or arguments regarding why the state disagrees with the 
deobligation decision shall be provided at that time.
    3. The written request for reconsideration shall be sent via E-Mail 
(PDF) or Facsimile to Jordan Dorfman. E-Mail address is 
[email protected]; Fax is 202-501-2346.
    4. The Assistant Administrator for the Office of Water shall review 
all reconsideration submissions, and shall issue a decision in writing 
within three (3) calendar days of receiving the reconsideration 
request. This decision shall be the final decision of the Agency.
    5. The Agency will follow the same type of procedure for any 
subsequent reallotments.

Craig E. Hooks,
Assistant Administrator, Office of Administration and Resources 
Management.
[FR Doc. 2010-3847 Filed 2-24-10; 8:45 am]
BILLING CODE 6560-50-P
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