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[Federal Register Volume 88, Number 222 (Monday, November 20, 2023)]
[Rules and Regulations]
[Pages 80584-80589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25067]

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DEPARTMENT OF THE TREASURY

31 CFR Part 35

RIN 1505-AC83

Coronavirus State and Local Fiscal Recovery Funds

AGENCY: Department of the Treasury.

ACTION: Interim final rule.

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SUMMARY: The Secretary of the Treasury is issuing an interim final rule 
to amend the definition of ``obligation'' set forth in the Department's 
regulations with respect to the Coronavirus State Fiscal Recovery Fund 
and the Coronavirus Local Fiscal Recovery Fund established under the 
American Rescue Plan Act of 2021.

DATES: 
    Effective date: The provisions in this interim final rule are 
effective November 20, 2023.
    Comment date: Comments must be received on or before December 20, 
2023.

ADDRESSES: Please submit comments electronically through the Federal

[[Page 80585]]

eRulemaking Portal at http://www.regulations.gov. Comments may be 
mailed to the Office of Recovery Programs, Department of the Treasury, 
1500 Pennsylvania Avenue NW, Washington, DC 20220. Because postal mail 
may be subject to processing delays, it is recommended that comments be 
submitted electronically. All comments should be captioned with 
``Coronavirus State and Local Fiscal Recovery Funds Obligation Interim 
Final Rule Comments.'' Please include your name, organization 
affiliation, address, email address, and telephone number in your 
comment. Where appropriate, a comment should include a short executive 
summary. In general, comments received will be posted at http://www.regulations.gov without change, including any business or personal 
information provided. Comments received, including attachments and 
other supporting materials, will be part of the public record and 
subject to public disclosure. Do not enclose any information in your 
comment or supporting materials that you consider confidential or 
inappropriate for public disclosure.

FOR FURTHER INFORMATION CONTACT: Jessica Milano, Chief Recovery 
Officer, Office of Recovery Programs, Department of the Treasury, (844) 
529-9527.

SUPPLEMENTARY INFORMATION: 

I. Background

    On March 11, 2021, the American Rescue Plan Act of 2021 (ARPA) was 
signed into law.\1\ The ARPA amended Title VI of the Social Security 
Act to add sections 602 and 603, which established the State and Local 
Fiscal Recovery Funds (SLFRF).\2\ The SLFRF program provides support to 
State, local, territorial, and Tribal governments (together, 
recipients) to mitigate the fiscal effects of the COVID-19 public 
health emergency.\3\ As enacted in 2021, recipients are authorized to 
use SLFRF award funds to respond to the COVID-19 public health 
emergency or its negative economic impacts; to provide premium pay to 
essential workers; to provide government services to the extent of a 
reduction in a recipient's revenue due to the COVID-19 public health 
emergency; or to make necessary investments in water, sewer, or 
broadband infrastructure.\4\ On November 15, 2021, the Infrastructure 
Investment and Jobs Act amended the SLFRF program to authorize 
recipients to use funds to satisfy any non-federal match requirement of 
an authorized Bureau of Reclamation project.\5\ On December 29, 2022, 
the Consolidated Appropriations Act, 2023 (2023 CAA), further amended 
the SLFRF program to authorize recipients to use funds to provide 
emergency relief from natural disasters or their negative economic 
impacts; to use funds for projects eligible under certain Department of 
Transportation programs (Surface Transportation projects); and to use 
funds for projects that are eligible under Title I of the Housing and 
Community Development Act of 1974 (Title I projects).\6\ The 2023 CAA 
also codified the $10 million ``standard allowance'' under the revenue 
loss eligible use category.\7\
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    \1\ Public Law 117-2 (Mar. 11, 2021).
    \2\ See section 9901 of the ARPA, codified at 42 U.S.C. 802 and 
803.
    \3\ See id. Sec. 802(a)(1), 803(a).
    \4\ See id. Sec. 802(c)(1), 803(c)(1).
    \5\ Section 40909, Public Law 117-58, 135 Stat. 429 (Nov. 15, 
2021).
    \6\ See section 102 of Division LL of Public Law 117-328, 136 
Stat. 4459 (Dec. 29, 2022).
    \7\ See id.
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    In May 2021, Treasury published an interim final rule (2021 IFR) 
that implemented the SLFRF program as established by the ARPA.\8\ In 
January 2022, Treasury published a final rule (2022 final rule), which 
responded to comments received on the 2021 IFR, made several 
clarifications to the 2021 IFR, and took effect on April 1, 2022.\9\ In 
September 2023, Treasury published an additional interim final rule 
(2023 IFR) to implement the changes made to the SLFRF program by the 
2023 CAA.\10\ The 2023 IFR generally did not change the eligible uses 
discussed in the 2022 final rule.
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    \8\ 86 FR 26786 (May 17, 2021).
    \9\ 87 FR 4338 (Jan. 27, 2022).
    \10\ 88 FR 64986 (Sept. 20, 2023).
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    Sections 602 and 603 of the Social Security Act provide that SLFRF 
funds may only be used to cover costs incurred by December 31, 
2024.\11\ The term ``cost incurred'' does not have a precise meaning in 
this context. One approach to implementing this requirement might have 
been to have set December 31, 2024, as the end of the period of 
performance for SLFRF awards. However, Congress expressly provided for 
water, sewer, and broadband projects as eligible uses of the SLFRF. If 
Treasury had set the end of period of performance as December 31, 2024, 
such that recipients would have had to not only obligate funds but 
complete expenditures by that date, it would have been very difficult 
for recipients to engage in significant water, sewer, and broadband 
projects. Instead, Treasury implemented the statutory requirement by 
providing that a cost is considered incurred by December 31, 2024, if a 
recipient has incurred an obligation with respect to the cost by 
December 31, 2024.\12\ Treasury defined ``obligation'' as ``an order 
placed for property and services and entering into contracts, 
subawards, and similar transactions that require payment,'' \13\ which 
is based on the definition of ``financial obligations'' in the Uniform 
Administrative Requirements, Cost Principles, and Audit Requirements 
for Federal Awards (Uniform Guidance).\14\ Treasury then set the period 
of performance as ending on December 31, 2026, which serves as the 
deadline for expenditures. Treasury's approach was confirmed by 
Congress in the amendments made to the SLFRF program in the CAA 2023. 
In providing authority for recipients to use SLFRF funds for the new 
eligible use categories, Congress expressly provided for the same 
framework of separate obligation and expenditure deadlines as is 
provided for in Treasury's SLFRF award terms and conditions and rule. 
Specifically, the CAA 2023 amendments provided that funds may be 
obligated for Surface Transportation projects and Title I projects 
until December 31, 2024, and must be expended by September 30, 2026.
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    \11\ 42 U.S.C. 802(c)(1), 803(c)(1). A recipient must return any 
funds not obligated by December 31, 2024. 31 CFR 35.5(c).
    \12\ 31 CFR 35.5(b). Typically, financial obligations incurred 
under a federal award must be liquidated no later than 120 calendar 
days after the end date of the period of performance specified in 
the terms and conditions of the award. This expenditure period 
exists to allow recipients time to receive goods ordered and make 
final payments. See 2 CFR 200.344.
    \13\ 31 CFR 35.3.
    \14\ 2 CFR 200.1 (defining ``financial obligation,'' when 
referencing a recipient's or subrecipient's use of funds under a 
Federal award, as orders placed for property and services, contracts 
and subawards made, and similar transactions that require payment). 
This definition aligns with a plain language understanding of 
``incur'' as meaning to become liable or subject to something. See, 
e.g., Webster's Third Int'l Dictionary (1961) (``to become liable or 
subject to: bring down upon oneself''); Black's Law Dictionary, 11th 
ed. 2019 (``to suffer or bring on oneself (a liability or 
expense)''); American Heritage Dictionary (5th ed. 2022) (``to 
become liable or subject to as a result of one's actions; bring upon 
oneself'').
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II. Revision to the Definition of Obligation in 31 CFR 35.3 and Related 
Guidance Updates

    Treasury is amending the definition of ``obligation'' to provide 
additional flexibility to recipients, providing clarification regarding 
the application of the obligation deadline to subrecipients, and 
providing guidance regarding the amendment and replacement of contracts 
and subawards. Additional guidance from Treasury regarding

[[Page 80586]]

closeout and specific deadlines by which recipients must return funds 
not obligated or expended will be forthcoming.

Amendment to the Definition of ``Obligation''

    Recipients have identified for Treasury that they anticipate 
difficulty using SLFRF funds to satisfy administrative and other legal 
requirements applicable to the SLFRF program after the obligation 
deadline has passed. The expenses associated with these requirements 
include payroll and benefits of personnel responsible for compliance 
and reporting and expenses of maintaining records. Recipients will not 
have incurred an obligation to make many of these types of expenditures 
prior to the obligation deadline. For example, Treasury understands 
that recipient personnel costs are typically obligated with respect to 
one pay period at a time because recipient personnel generally are not 
subject to long-term employment contracts. As such, expenses of 
personnel needed to comply with administrative and other legal 
requirements between the obligation deadline and the end of the period 
of performance could not be paid for using SLFRF funds (or at least, 
not after the end of the last pay period that begins prior to the 
obligation deadline). To the extent that recipients have been covering 
such expenses and other related administrative expenses under their 
current negotiated indirect costs rate agreement established with their 
federal cognizant agency or using the de minimis rate of 10 percent of 
modified total direct costs pursuant to 2 CFR 200.414(f), they may 
continue to do so, and this interim final rule will also provide 
recipients with an additional way to cover such costs when they are 
charged directly.
    In this interim final rule, Treasury is amending the definition of 
``obligation'' previously adopted at 31 CFR 35.3 in response to 
recipients' concerns. Under the revised definition, an ``obligation'' 
continues to include an order placed for property and services and 
entry into contracts, subawards, and similar transactions that require 
payment. However, under the revised definition, a recipient is also 
considered to have incurred an obligation by December 31, 2024, with 
respect to a requirement under federal law or regulation or a provision 
of the SLFRF award terms and conditions to which the recipient becomes 
subject as a result of receiving or expending SLFRF funds. A recipient 
may use the SLFRF funds to cover the cost of meeting such a 
requirement. Such expenditures include the following:
     Reporting and compliance requirements: Funds expended to 
comply with SLFRF reporting and compliance requirements, including in 
connection with the preparation and submission of recipients' required 
reports, review of subaward reports or subrecipient monitoring 
generally, maintenance of data and reporting tools, and review and 
processing of invoices.
     Single Audit costs: Funds expended for the conduct of 
audits required by the Single Audit Act, including on audit costs, on 
preparation for such audits, and on audit resolution, including funds 
spent by pass-through entities to carry out their responsibilities 
related to audit resolution of subawards.
     Record retention and internal control requirements: 
Expenditures to comply with records retention requirements and other 
expenditures necessary to ensure program integrity through the closeout 
of the award.
     Property standards: Expenditures on insurance, inventory 
and other recordkeeping requirements, and maintenance of equipment and 
other expenditures made to comply with the property standards of the 
Uniform Guidance (2 CFR 200.310-200.316).
     Environmental compliance requirements: Expenditures to 
comply with environmental requirements, including to obtain 
environmental permit renewals.
     Civil rights and nondiscrimination requirements: 
Expenditures related to comply with civil rights and nondiscrimination 
requirements, including the investigation of complaints arising from 
SLFRF-funded projects.
    In each case, these would include costs, calculated in compliance 
with the rules for compensation charged to federal awards set out at 2 
CFR 200.430, of recipient personnel whose time is required to comply 
with these requirements.
    To take advantage of this additional flexibility, recipients must 
(1) determine the amount of SLFRF funds the recipient estimates it will 
use to cover such expenditures, (2) document a reasonable justification 
for this estimate, (3) report that amount to Treasury by April 30, 
2024, with an explanation of how the amount was determined, and (4) 
report at award closeout the final amount expended for these costs. 
Recipients may not include within this estimate any expenditure that 
will be made after December 31, 2026, other than administrative 
expenditures necessary to close out the SLFRF award in accordance with 
the Uniform Guidance. Other than such closeout expenditures, recipients 
must expend all SLFRF funds by the end of the period of performance 
regardless of whether they continue to have expenses of the type 
outlined above after that date. A recipient's estimate of the amount 
that it expects to expend must be reasonable, based on the 
considerations listed at 2 CFR 200.404. If a recipient's estimate 
exceeds what is ultimately expended, the recipient must return the 
excess funds to Treasury. Treasury will update the SLFRF Compliance and 
Reporting Guidance to reflect the additional reporting requirements.
    In response to suggestions from recipients, Treasury considered 
whether ``costs incurred'' could be defined by reference to a standard 
other than ``obligation.'' However, for the reasons discussed above, 
the revised definition of ``obligation'' provides the best and most 
reasonable interpretation of the statutory requirement for recipients 
to incur costs by December 31, 2024. For example, some recipients 
recommended that Treasury revise the rule to define ``costs incurred'' 
by reference to recipient appropriation, budget, or allocation 
processes. This approach would not provide a standard that could be 
applied consistently across recipients. Further, as noted above, 
Congress, in the amendments made by the 2023 CAA with respect to the 
SLFRF program, has confirmed the definition of ``costs incurred'' by 
reference to the obligation of funds. The 2023 CAA was more specific 
than the ARPA, providing that SLFRF funds ``shall remain available for 
obligation'' for Surface Transportation projects and Title I projects 
until December 31, 2024, and that funds obligated for such uses must be 
expended by September 30, 2026.
    Treasury is also amending the provision of the rule requiring 
repayment of amounts not obligated and expended by the applicable 
deadlines to align with the amendment to the definition of 
``obligation.'' Pursuant to the amended definition, recipients must 
still return to Treasury any SLFRF funds not obligated by December 31, 
2024, pursuant to entry into a contract or subaward, but need not at 
that time pay back the amounts they previously reported to Treasury as 
estimates of the amounts that they will use during the remainder of the 
period of performance to comply with legal requirements; recipients 
will be required to repay after December 31, 2026, any part of the 
estimated amount that is not expended.

[[Page 80587]]

Application of Obligation Deadline to Subrecipients

    Recipients have asked whether the December 31, 2024, obligation 
deadline applies to subrecipients. Treasury is clarifying that 
subrecipients are not subject to this deadline. As stated in the SLFRF 
rule and as referenced above, Treasury defined obligation to include 
entry into a subaward. A cost is considered to have been incurred once 
a recipient enters into a subaward that obligates the recipient to 
cover that cost. Once a recipient has obligated funds, the requirement 
in the statute and Treasury's rule to obligate funds by December 31, 
2024, has been satisfied, such that subrecipients need not themselves 
also obligate funds received under a subaward by December 31, 2024. 
(Contractors also do not need to obligate funds received under a 
contract by December 31, 2024.) It remains the case that all SLFRF 
award funds must be expended by the recipient and any subrecipients by 
2026, given the termination of the period of performance on December 
31, 2026. In the case of funds used for Title I projects and Surface 
Transportation projects, all funds must be expended by September 30, 
2026. Further, as the provisions of the Uniform Guidance are generally 
applicable to the SLFRF program, recipients must comply with the 
Uniform Guidance provisions regarding the timing of payment to 
subrecipients as provided in 2 CFR 200.305.

Amendment and Replacement of Contracts and Subawards

    Recipients have asked to what extent they may, after December 31, 
2024, amend or replace contracts and subawards entered into prior to 
that date. In general, recipients may not re-obligate funds or obligate 
additional funds after the obligation deadline because to do so would 
violate the statutory deadline by which costs must be incurred. For 
example, if a contractor requests an unexpected change order due to a 
cost increase that requires a contract amendment after December 31, 
2024, the recipient would not be permitted to obligate additional SLFRF 
funds to the project because the December 31, 2024, obligation deadline 
would have passed and the recipient would be required to return to 
Treasury any funds that had not been obligated by that date.\15\
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    \15\ See 31 CFR 35.5(c).
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    Treasury is clarifying that after December 31, 2024, recipients are 
permitted to replace a contract or subaward entered into prior to 
December 31, 2024, if:
    (1) the recipient terminates the contract or subaward because of 
the contractor or subawardee's default, because the contractor or 
subawardee goes out of business, or because the recipient otherwise 
determines that the contractor or subawardee will not be able to 
perform under the contract or carry out the subaward; or
    (2) the recipient and contractor or subrecipient mutually agree to 
terminate the contract or subaward for convenience; \16\ or
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    \16\ Note that the Uniform Guidance provides that ``all 
contracts in excess of $10,000 must address termination for cause 
and for convenience by the non-Federal entity.'' See Appendix II.(B) 
to 2 CFR part 200.
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    (3) the recipient terminates the contract or subaward for 
convenience if the contract or subaward was not properly awarded (such 
as if the contractor was not eligible to receive the contract), there 
is clear evidence that the contract or subaward was improper, the 
recipient documents its determination that the contract or subaward was 
not properly awarded, and the original contract or subaward was entered 
into by the recipient in good faith.
    A contract will be considered made in good faith for purposes of 
clause (3) above if the parties followed standard procurement or 
subaward practices, as applicable, and the contract or subaward was not 
entered into for the purpose of evading the obligation deadline. A 
recipient that re-obligates funds to a new contractor or subrecipient 
after the obligation deadline will be considered to have used its funds 
to cover an obligation incurred prior to the obligation deadline if any 
of the three situations above is present and if the original contract 
or subaward being replaced was entered into by December 31, 2024.
    If a recipient enters into a replacement contract or subaward, the 
recipient still must expend all funds by the expenditure deadline. 
Treasury will update the SLFRF Compliance and Reporting Guidance to 
provide a means for recipients to report any contract or subaward 
replacements after the December 31, 2024, obligation deadline. 
Recipients should maintain documentation to justify their 
determinations, which should include an analysis of the factors 
discussed above. Treasury may ask recipients to provide this 
information in their periodic reports.

III. Public Comments and Effective Date

    Treasury is seeking comment from recipients regarding this interim 
final rule, and in particular, responses to the following question: 
What are the advantages and disadvantages of the change made by this 
interim final rule to the definition of ``obligation''?
    This interim final rule is being issued without advance notice and 
public comment to allow for immediate implementation of the amendment 
to the definition of ``obligation'' at 31 CFR 35.3. Immediate 
implementation of this amendment will enable recipients to complete 
their internal budgeting processes in time to meet the statutory 
deadline to incur costs by December 31, 2024. As discussed below, the 
requirements of advance notice and public comment do not apply ``to the 
extent that there is involved . . . a matter relating to agency . . . 
grants.'' This interim final rule revises the standard pursuant to 
which recipients satisfy the statutory requirement to incur costs for 
eligible uses of SLFRF funds by December 31, 2024. In addition and as 
discussed below, the Administrative Procedure Act provides an exception 
to ordinary notice-and-comment procedures ``when the agency for good 
cause finds (and incorporates the finding and a brief statement of 
reasons therefor in the rules issued) that notice and public procedure 
thereon are impracticable, unnecessary, or contrary to the public 
interest.'' This good cause justification also supports waiver of the 
60-day delayed effective date for major rules under the Congressional 
Review Act at 5 U.S.C. 808(2). Although this interim final rule is 
effective immediately, comments are solicited from interested members 
of the public and from recipient governments on all aspects of this 
interim final rule. These comments must be received on or before 
December 20, 2023.

IV. Regulatory Analyses

Executive Order 12866

    This interim final rule is not a ``significant regulatory action'' 
under section 3(f) of Executive Order 12866, as amended.

Executive Order 13132

    Executive Order 13132 (entitled Federalism) prohibits an agency 
from publishing any rule that has federalism implications if the rule 
either imposes substantial, direct compliance costs on state, local, 
and Tribal governments, and is not required by statute, or preempts 
state law, unless the agency meets the consultation and funding 
requirements of section 6 of the Executive Order. This interim final 
rule does not have federalism implications within the meaning of the 
Executive Order and

[[Page 80588]]

does not impose substantial, direct compliance costs on state, local, 
territorial, and Tribal governments or preempt state law within the 
meaning of the Executive Order. The compliance costs are imposed on 
state, local, territorial, and Tribal governments by sections 602 and 
603 of the Social Security Act. Pursuant to the requirements set forth 
in section 8(a) of Executive Order 13132, Treasury certifies that it 
has complied with the requirements of Executive Order 13132.

Administrative Procedure Act

    The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., 
generally requires public notice and an opportunity for comment before 
a rule becomes effective. However, the APA provides that the 
requirements of 5 U.S.C. 553 do not apply ``to the extent that there is 
involved . . . a matter relating to agency . . . grants.'' This interim 
final rule implements statutory conditions on recipients' eligible uses 
of their SLFRF award funds. The rule is thus ``both clearly and 
directly related to a federal grant program.'' National Wildlife 
Federation v. Snow, 561 F.2d 227, 232 (D.C. Cir. 1976). The rule sets 
forth the ``process necessary to maintain state . . . eligibility for 
federal funds,'' id., as well as other ``integral part[s] of the grant 
program,'' Center for Auto Safety v. Tiemann, 414 F. Supp. 215, 222 
(D.D.C. 1976). As a result, the requirements of 5 U.S.C. 553 do not 
apply.
    The APA also provides an exception to ordinary notice-and-comment 
procedures ``when the agency for good cause finds (and incorporates the 
finding and a brief statement of reasons therefor in the rules issued) 
that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest.'' 5 U.S.C. 
553(b)(3)(B); see also 5 U.S.C. 553(d)(3) (creating an exception to the 
requirement of a 30-day delay before the effective date of a rule ``for 
good cause found and published with the rule''). Assuming 5 U.S.C. 553 
applied, Treasury would still have good cause under sections 
553(b)(3)(B) and 553(d)(3) for not undertaking section 553's 
requirements. As discussed above, Congress authorizes recipients to use 
SLFRF funds for costs incurred for eligible purposes by December 31, 
2024. Given the rapidly approaching deadline, there is an urgent need 
for recipients to undertake the planning necessary for sound fiscal 
policymaking, which requires clarity on how SLFRF funds will augment 
and interact with existing budgetary resources. Treasury understands 
that many recipients require immediate rules on which they can rely, 
especially in light of the approaching obligation deadline. This 
statutory urgency and practical necessity are good cause to forego the 
ordinary requirements of notice-and-comment rulemaking.

Congressional Review Act

    This rule is not a major rule for purposes of the Congressional 
Review Act (5 U.S.C. 801 et seq.).

Paperwork Reduction Act

    The information collections associated with the SLFRF program have 
been reviewed and approved by OMB pursuant to the Paperwork Reduction 
Act (44 U.S.C. Chapter 35) (PRA) and assigned control number 1505-0271. 
Under the PRA, an agency may not conduct or sponsor, and a respondent 
is not required to respond to, an information collection unless it 
displays a valid OMB control number. This interim final rule is not 
altering the previously approved information collections for the SLFRF 
program. The table below includes the estimates of hourly burden under 
this program that have been approved in previously approved information 
collections.

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                                                                                                                                              Cost to
                                            Number          Number           Total                                         Total burden     respondents
               Reporting                  respondents    responses per     responses           Hours per response            in hours       ($48.80 per
                                                          respondent                                                                          hour *)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Recipient Payment Form................           5,050               1           5,050  .25 (15 minutes)................         1,262.5         $61,610
Acceptance of Award Terms.............           5,050               1           5,050  .25 (15 minutes)................         1,262.5          61,610
Title VI Assurances...................           5,050               1           5,050  .50 (30 minutes)................           2,525         123,220
Tribal Employment Information Form....             584               1             584  .75 (45 minutes)................             438          21,374
Request for Extension Form............              96               1              96  1...............................              96           4,685
Annual Recovery Plan Performance                   430               1             430  100.............................          43,000       2,098,400
 Report.
NEU Distribution Template.............              55               2             110  10..............................           1,100          53,680
Non-UGLG Distribution Template........              55               2             110  5...............................             550          26,840
Transfer Forms........................           1,500               1           1,500  1...............................           1,500          73,200
NEU Agreements and Supporting                   26,000               1          26,000  .5..............................          13,000         634,400
 Documentation.
Project and Expenditure Report                   2,000               4           8,000  6...............................          48,000       2,342,400
 (quarterly).
Project and Expenditure Report                  29,000               1          29,000  6...............................         174,000       8,491,200
 (annual).
                                       -----------------------------------------------------------------------------------------------------------------
    Total.............................          64,770  ..............          78,880  ................................         284,209      13,869,339
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, Accountants and Auditors, on the internet at https://www.bls.gov/ooh/business-and-financial/accountants-and-auditors.htm (visited March 28, 2020). Base wage of $33.89/hour increased by 44 percent to account for
  fully loaded employer cost of employee compensation (benefits, etc.) for a fully loaded wage rate of $48.80.

Regulatory Flexibility Analysis

    The Regulatory Flexibility Act (RFA) generally requires that when 
an agency issues a proposed rule, or a final rule pursuant to section 
553(b) of the APA or another law, the agency must prepare a regulatory 
flexibility analysis that meets the requirements of the RFA and publish 
such analysis in the Federal Register. 5 U.S.C. 603, 604.
    Rules that are exempt from notice and comment under the APA or any 
other law are also exempt from the RFA requirements, including the 
requirement to conduct a regulatory flexibility analysis, when among 
other things the agency for good cause finds that notice and public 
procedure are impracticable, unnecessary, or contrary to the public 
interest. Because this rule is exempt from the notice and comment 
requirements of the APA, Treasury is not required to conduct a 
regulatory flexibility analysis.

List of Subjects in 31 CFR Part 35

    Community development, Disaster assistance, Executive compensation, 
Public health emergency, State and Local Governments, Transportation, 
Tribal Governments.

    For the reasons stated in the preamble, the United States 
Department of the Treasury amends 31 CFR part 35 as set forth below:

[[Page 80589]]

PART 35--PANDEMIC RELIEF PROGRAMS

Subpart A--Coronavirus State and Local Fiscal Recovery Funds

0
1. The authority citation for part 35, subpart A continues to read as 
follows:

    Authority: 42 U.S.C. 802(f); 42 U.S.C. 803(f); section 102(c) of 
Division LL of the Consolidated Appropriations Act, 2023 (Pub. L. 
117-328).

0
2. Amend Sec.  35.3 by adding a new sentence at the end of the 
definition of ``Obligation'' to read as follows:

Sec.  35.3  Definitions.

* * * * *
    Obligation * * * An obligation also means a requirement under 
federal law or regulation or provision of the award terms and 
conditions to which a recipient becomes subject as a result of 
receiving or expending funds.
* * * * *

0
3. Revise Sec.  35.5(c) to read as follows:

Sec.  35.5  Use of funds.

* * * * *
    (c) Return of funds. A recipient must return any funds that have 
not been obligated by December 31, 2024, pursuant to orders placed for 
property and services or entry into contracts, subawards, and similar 
transactions that require payment other than funds in the amount 
reported to Treasury by April 30, 2024, as the estimate of funds that 
the recipient will expend to comply with a requirement under federal 
law or regulation or provision of the award terms and conditions to 
which a recipient becomes subject as a result of receiving or expending 
funds. A recipient must return funds obligated for a use identified in 
Sec.  35.6(b) through (g) by December 31, 2024, but not expended by 
December 31, 2026. A recipient must return funds obligated for a use 
identified in Sec.  35.6(h) by December 31, 2024, but not expended by 
September 30, 2026. A recipient must return funds in the amount 
reported to Treasury by April 30, 2024, as referenced above, but not 
expended by December 31, 2026, other than administrative expenses 
necessary to close out the award.

Jessica A. Milano,
Chief Recovery Officer, Office of Recovery Programs.
[FR Doc. 2023-25067 Filed 11-17-23; 8:45 am]
BILLING CODE 4810-AK-P
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