[Federal Register Volume 64, Number 215 (Monday, November 8, 1999)]
[Rules and Regulations]
[Pages 60675-60678]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-29083]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 211
RIN 0596-AB63
Administration; Cooperative Funding
AGENCY: Forest Service, USDA.
ACTION: Final rule.
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SUMMARY: The Department is amending current regulations to establish
minimum requirements applicable to written agreements between the
Forest Service and cooperators, such as individuals, States and local
governments, and other non-Federal entities. This rulemaking implements
amendments to the Act of June 30, 1914, which expand the basis for
accepting contributions for cooperative work, allow reimbursable
payments by cooperators, and adequately protect the Government's
interest. The intended effect is to fully implement the new statutory
provisions to facilitate cooperative ventures.
EFFECTIVE DATE: This rule is effective December 8, 1999.
[[Page 60676]]
FOR FURTHER INFORMATION CONTACT: Debbie Pressman, Wildlife, Fish and
Rare Plants Staff, 202-205-1205.
SUPPLEMENTARY INFORMATION:
Background
On May 18, 1998, the Forest Service published a proposed rule (63
FR 27245) that would implement recent amendments to the Act of June 30,
1914 (16 U.S.C. 498). This Act authorizes the Secretary of Agriculture
to receive and subsequently use money as contributions toward
cooperative work in forest investigations or for the protection and
improvement of the national forests. The proposed rule would implement
amendments to the Act of June 30, 1914, ( 16 U.S.C. 498) by: (1)
Providing for the use of contributions for cooperative work on the
entire National Forest System; (2) Adding ``management'' to the list of
activities for which contributions for cooperative work may be
accepted; and (3) Providing specific authority to accomplish
cooperative work using Forest Service funds prior to reimbursement by
the cooperator pursuant to a written agreement.
Response to Comments Received
Public comment on the proposed rule was invited. The comment period
closed on July, 17, 1998. Seven respondents provided comments on the
proposed rule: 4 national conservation organizations, 1 State fish and
wildlife agency, 1 utility company, and 1 Member of Congress. All
respondents expressed support of the agency's effort to enhance
cooperative partnerships on National Forest System lands by removing
administrative barriers requiring cooperators to contribute funds in
advance of any work to be accomplished.
A summary of specific comments by broad subject and the
Department's response to these comments follows.
Comment: Interpretation of Allowable Management Activities. One
respondent suggested adding the word ``evaluation'' to the list of
management activities proposed at Sec. 211.6(a), Purpose and scope,
that can be cooperatively funded.
Response: The word ``management'' is a broad term that would
include ``such work as planning, analysis, related studies and
evaluations, as well as resource activities.'' The examples provided in
the rule are added for clarity and are not intended to be inclusive of
all potential ``management'' activities. Therefore, this suggestion has
not been adopted in the final rule.
Comment: Use of Cooperator Contributions for Administrative
Support. At Sec. 211.6(a), Purpose and scope, the proposed rule
described National Forest management activities which may be
cooperatively funded as including such work as planning, analysis, and
related studies, as well as resource activities. One respondent raised
the issue of whether this language is inconsistent with the intent of
the law. This respondent also expressed concern that cooperator funds
could be used for administration, planning, and research, instead of
field work and that the proposed rule lacked safeguards limiting the
amount that the Forest Service can use from contributed funds for non-
field work.
Response: The Department interprets the management of National
Forest System lands to include field resource work, administrative
studies, project planning, and all related tasks necessary to carry out
the mission of the Forest Service. The development of cooperative
projects and associated cooperative agreements requires the full
disclosure of all costs associated with the project. Negotiations and
joint discussions between the Forest Service and cooperators afford
cooperators the opportunity to fund as much or as little of the project
cost as they deem appropriate. Cooperators must agree on how their
funds will be expended. Given that cooperative project costs are fully
disclosed and mutually agreed upon, the Department is of the opinion
that the proposed rule was consistent with the Act of June 30, 1914, as
amended, and that additional language prohibiting non-field work is not
necessary in the final rule.
Comment: Reimbursements to the Forest Service. One respondent
suggested that a cooperator be permitted to provide the required
reimbursement payments within the first 60 days of the fiscal year
immediately following the fiscal year in which the expenditure of
Forest Service funds was completed, if such expenditures by the Forest
Service occur within the last 60 days of a fiscal year.
Response: The Department agrees with this suggestion but does not
believe that a change in rule text is necessary. Forest Service Manual
Sec. 6533.3 already instructs employees on how to handle such
situations. Moreover, Forest Service bills for collection specify the
time period in which payment is due.
Comment: In-Kind Contributions. One respondent recommended that in-
kind contributions, such as goods and services, contributed by
cooperators in conjunction with cooperative agreements, not be subject
to the bonding provisions required in Sec. 211.6(b), Reimbursements and
bonding, of the proposed rule.
Response: In-kind contributions are not affected by this rule. The
Act of June 30, 1914, as amended, addresses only those situations in
which monies are received by the Forest Service as contributions toward
cooperative work. If a cooperator is making in-kind contributions
rather than financial contributions, the bonding provisions specified
in Sec. 211.6(c), Bonding, of the final rule would not be applicable.
Comment: Application of Bonding Threshold. One respondent expressed
support for protecting the government's interest by requiring bonds for
project costs exceeding $25,000, but expressed concern that the
provision should apply to the cost of individual projects, rather than
to total cooperative funds provided by partners on an annual basis.
Response: Paragraph Sec. 211.6(b), Reimbursements and bonding, of
the proposed rule would require a payment bond for agreements of
$25,000 or more to guarantee the cooperator's reimbursement, thereby
ensuring that the public interests are protected. This requirement
applies to individual cooperative agreements, rather than to individual
cooperative projects. The distinction is that a particular cooperative
agreement may encompass more than one cooperative project. The text of
Sec. 211.6(c), Bonding, of the final rule has been revised to clarify
this distinction.
Comment: Payment Assurances and Creditworthiness. One respondent
suggested that, on a case-by-case basis, assurances of payment, other
than the payment bonds required in Sec. 211.6(b), Reimbursements and
bonding, of the proposed rule should be acceptable, and further, that
the payment bond requirement should be waived where the cooperator has
a significant history of successfully completing payments in accordance
with other agreements or provides some other reliable assurance that
payment will be provided.
Response: The Department has carefully considered this comment but
remains convinced that the bonding requirement (Sec. 211.6(b),
Reimbursement and bonding, of the proposed rule) is necessary to
protect the interests of the public and should not be waived or
otherwise modified on a case-by-case basis. As specified in the
proposed rule, the bonding requirement would be consistently applied
throughout the agency whenever a non-Government cooperator agrees to
contribute $25,000 or more to the Forest Service on a reimbursable
basis. By providing a consistent mechanism for handling the bonding
requirement, all cooperators are
[[Page 60677]]
assured of equitable treatment across administrative units, thus
eliminating the potential for conflicting ``creditworthy
determinations'' for cooperative agreements at similar funding levels.
Accordingly, the Department has decided to retain the payment assurance
requirements set out in Sec. 211.6(b) of the proposed rule in a
separate paragraph Sec. 211.6(c), Bonding, of the final rule as the
more appropriate mechanism for protecting government interests as
required by the statute.
Comment: Effect of Rule on Existing Memorandums of Understanding.
One respondent asked if cooperators operating under existing
Memorandums of Understanding (MOUs) would be required to enter into new
MOUs to clarify the fiscal relationship between the cooperator and the
Forest Service.
Response: Memorandums of Understanding (MOUs) are viewed as
agreements documenting cooperation in those circumstances where nothing
of value transfers between parties or documenting a common
understanding of the nature of a relationship between parties.
Therefore, MOUs are not affected by this rule.
However, a written cooperative agreement, completed in accordance
with specific cooperative authority, must be executed prior to: (1) The
agency's receipt of contributions for cooperative work; or (2) The
expenditure of agency funds on a reimbursable basis. While the final
rule does not require revision of existing cooperative agreements, any
party to existing cooperative agreements may request changes in payment
terms or any other aspect of the agreement at any time.
Additional Modification
In the course of considering the comments on the proposed rule, the
agency became aware of the need to clarify the meaning of ``non-
Government cooperator.'' This has been addressed by adding a new
sentence to paragraph Sec. 211.6(c) in the final rule.
Conclusion
Having considered the comments received, the Department is adopting
a final rule implementing the recent statutory amendments to the Act of
June 30, 1914, which expand the basis for accepting contributions for
cooperative work between the Forest Service and cooperators. The final
rule provides for the planning and completion of projects using Forest
Service funds with reimbursement from cooperators. The Government's
interests are protected by securing reimbursement payments from non-
Government cooperators with payment bonds when payments due under a
cooperative agreement are $25,000 or more.
Regulatory Impact
This final rule has been reviewed under USDA procedures and
Executive Order 12866 on Regulatory and Review. It has been determined
that this is not a significant rule. This rule will not have an annual
effect of $100 million or more on the economy nor adversely affect
productivity, competition, jobs, the environment, public health or
safety, nor State or local governments. This rule will not interfere
with an action taken or planned by another agency nor raise new legal
or policy issues. Finally, this action will not alter the budgetary
impact of entitlements, grants, user fees, or loan programs or the
rights and obligations of recipients of such programs. Accordingly,
this final rule is not subject to OMB review under Executive Order
12866.
Moreover, this final rule has been considered in light of the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and it has been
determined that this action will not have a significant economic impact
on a substantial number of small entities as defined by the Act.
Unfunded Mandates Reform
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), the Department has assessed the effects of this
final rule on State, local, and tribal governments and the private
sector. This final rule does not compel any expenditure of funds by any
State, local, or tribal governments or anyone in the private sector.
Therefore, a statement under section 202 of the Act is not required.
Environmental Impact
This final rule affects the administrative requirements for
reimbursement payments to the agency by cooperators. Section 31.1b of
Forest Service Handbook 1909.15 (57 FR 43180; September 18, 1992)
excludes from documentation in an environmental assessment or impact
statement ``rules, regulations, or policies to establish Service-wide
administrative procedures, program processes or instructions.'' Based
on consideration of the comments received and the nature and scope of
this rulemaking, the Department has determined that this rule falls
within this category of actions and that no extraordinary circumstances
exist which would require preparation of an environmental assessment or
environmental impact statement.
No Takings Implications
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 12630, and it has been
determined that the final rule does not pose the risk of a taking of
constitutionally-protected private property since it sets forth
administrative requirements regarding the deposit of cooperator funds
for forest investigations or the protection, management, and
improvement of the National Forest System.
Civil Justice Reform Act
This final rule has been reviewed under Executive Order 12778,
Civil Justice Reform. Upon adoption of this final rule, (1) All State
and local laws and regulations that are in conflict with this final
rule or which would impede its full implementation would be preempted;
(2) No retroactive effect would be given to this final rule; and (3) It
would not require administrative proceedings before parties may file
suite in court challenging its provisions.
Controlling Paperwork Burdens on the Public
This final rule does not contain any record keeping or reporting
requirements or other information collection requirements as defined in
5 CFR 1320 and, therefore, imposes no paperwork burden on the public.
Accordingly, the review provisions of the Paperwork Reduction Act of
1995 (44 U.S.C. 3501 et seq.) and implementing regulations at 5 CFR
1320 do not apply.
List of Subjects in 36 CFR Part 211
Administrative practice and procedure, Intergovernmental relations
(Federal/State cooperation), and National forests.
Therefore, for the reasons set forth in the preamble, Part 211 of
Title 36 of the Code of Federal Regulations is amended as follows:
PART 211--ADMINISTRATION
1. The authority citation for part 211 is revised to read as
follows:
Authority: 16 U.S.C. 472, 498, 551.
Subpart A--Cooperation
2. Revise the heading for subpart A to read as set out above.
3. Add a new Sec. 211.6 to read as follows:
[[Page 60678]]
Sec. 211.6 Cooperation in forest investigations or the protection,
management, and improvement of the National Forest System.
(a) Purpose and scope. Forest Service officers, when engaged in
cooperative activities otherwise authorized, may receive monies from
cooperators only for cooperative work in forest investigations or for
the protection, management, and improvement of the National Forest
System and only in accordance with written cooperative agreements.
Management of the National Forest System may include such work as
planning, analysis, and related studies, as well as resource
activities.
(b) Reimbursements. Agency expenditures for work undertaken in
accordance with this section may be made from Forest Service
appropriations available for such work, with subsequent reimbursement
from the cooperator, in accordance with established written agreements.
Forest Service officers shall issue written bills for collection for
cooperator reimbursement payments within the same fiscal year as Forest
Service expenditures.
(c) Bonding. Each written agreement involving a non-Government
cooperator's total contribution of $25,000 or more to the Forest
Service on a reimbursable basis, must include a provision requiring a
payment bond to guarantee the cooperator's reimbursement payment.
Acceptable security for a payment bond includes Department of the
Treasury approved corporate sureties, Federal Government obligations,
and irrevocable letters of credit. For the purposes of this section, a
non-Government cooperator is an entity that is not a member, division,
or affiliate of a Federal, State, or local government.
(d) Avoiding conflict of interest. Forest Service officers shall
avoid acceptance of contributions from cooperators when such
contributions would reflect unfavorably upon the ability of the Forest
Service to carry out its responsibilities and duties. Forest Service
officers shall be guided by the provisions of 18 U.S.C. parts 201-209,
5 CFR part 2635, and applicable Department of Agriculture regulations,
in determining if a conflict of interest or potential conflict of
interest exists in a proposed cooperative effort. Forest Service ethics
officials or the designated Department of Agriculture ethics official
should be consulted on conflict of interest issues.
Dated: October 26, 1999.
Anne Kennedy,
Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 99-29083 Filed 11-5-99; 8:45 am]
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