Administration; Cooperative Funding

DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 211

RIN 0596-AB63

Administration; Cooperative Funding

AGENCY: Forest Service, USDA.

ACTION: Proposed rule; request for comments.

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SUMMARY: The Forest Service proposes to amend current regulations to

establish minimum requirements applicable to written agreements between

cooperators, such as individuals, States and local governments, and

other non-Federal entities, and the Forest Service. 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.

DATES: Comments must be received in writing by July 17, 1998.

ADDRESSES: Send written comments to Director, Wildlife, Fish and Rare

Plants (MAIL STOP 1121), Forest Service, USDA, P.O. Box 96090,

Washington, DC 20090-6090.

The public may inspect comments received on this proposed rule in

the office of the Director, Wildlife, Fish, and Rare Plants Staff,

Forest Service, USDA, Cellar Central, Auditor's Building, 201 14th St.,

SW., Washington, DC 20250 between the hours of 8:30 a.m. and 4:30 p.m.

All comments, including name and address when provided, will become a

matter of public record and are available for inspection. Those wishing

to inspect comments are encouraged to call ahead at (202) 205-1205 to

facilitate entry into the building.

FOR FURTHER INFORMATION CONTACT: Debbie Pressman, Wildlife, Fish and

Rare Plants Staff, at (202) 205-1205.

SUPPLEMENTARY INFORMATION:

Background

All comments, including name and address when provided, will become a

matter of public record and are available for inspection. Those wishing

to inspect comments are encouraged to call ahead at (202) 205-1205 to

facilitate entry into the building.

FOR FURTHER INFORMATION CONTACT: Debbie Pressman, Wildlife, Fish and

Rare Plants Staff, at (202) 205-1205.

SUPPLEMENTARY INFORMATION:

Background

Eighty-four years ago, Congress passed the Act of June 30, 1914.

This legislation authorized the Forest Service to receive money as

contributions toward cooperative work in forest investigations or for

the protection and improvement of the national forests.

Since passage of the Act of June 30, 1914, the public has become

increasingly interested in the management of National Forest System

lands. These lands offer unparalleled recreational opportunities,

contain a spectacular array of wild animals and plants, possess

magnificent scenery, and provide social, ecological, and economic

benefits to the Nation. In addition to increased interest in the

management of these national resources, the public also is demanding

more services and benefits from National Forest System lands. While the

Forest Service mission includes providing services and benefits to the

public in addition to managing National Forest System lands, the agency

recognizes it cannot meet the public's increased demands for services

and benefits without seeking innovative ways of accomplishing its

mission. To that end, the Forest Service is building important

cooperative relationships with numerous groups, individuals, and

private and public agencies to help accomplish projects within the

National Forest System.

There have been impediments, however, to cooperative opportunities.

The Act of June 30, 1914, as amended, has been interpreted to restrict

the use of contributions for cooperative work to only projects on

national forest lands

important

cooperative relationships with numerous groups, individuals, and

private and public agencies to help accomplish projects within the

National Forest System.

There have been impediments, however, to cooperative opportunities.

The Act of June 30, 1914, as amended, has been interpreted to restrict

the use of contributions for cooperative work to only projects on

national forest lands. Such an interpretation prevented the completion

of cooperative projects on other portions of the National Forest

System, including national grasslands, land utilization projects,

administrative sites and other lands. Additionally, if the Forest

Service were to pay the entire cost of cooperative work from

appropriated funds, under law, there was no lawful means to reimburse

the Forest Service appropriation from cooperator funds. Therefore, the

Forest Service required cooperators to contribute funds in advance of

any work to be accomplished. However, projects for which cooperators

have already contributed funds, such as habitat enhancement, may be

subject to delay and uncertainty for a variety of reasons, including

the development of new information or controversy. Requiring

contributions prior to the start of work often creates difficulties for

cooperators by tying up their funds, sometimes for lengthy periods,

with a corresponding loss of interest income. Additionally, some

cooperators have policies requiring work to be completed before their

shares are paid, which directly conflict with the Government

requirement to receive a cooperator's money in advance of the start of

work.

Delays in project completion are also costly to the Forest Service

in that records of funds contributed prior to the start of work must be

maintained from receipt through expenditure, as well as subsequent

refund of any unspent funds.

Summary of Proposed Rule

es are paid, which directly conflict with the Government

requirement to receive a cooperator's money in advance of the start of

work.

Delays in project completion are also costly to the Forest Service

in that records of funds contributed prior to the start of work must be

maintained from receipt through expenditure, as well as subsequent

refund of any unspent funds.

Summary of Proposed Rule

On April 4, 1996, Congress enacted amendments to the Act of June

30, 1914, which eliminate these impediments. The amendments provide

authority to use contributions for cooperative work on the entire

National Forest System. Clarifying language adds ``management'' to the

list of activities for which contributions for cooperative work may be

accepted, and specific authority is provided to accomplish cooperative

work using Forest Service funds prior to reimbursement by the

cooperator pursuant to a written agreement.

This proposed rule is intended to implement these recent amendments

to the Act of June 30, 1914. The provisions would be set out at a new

Sec. 211.6 of Title 36 of the Code of Federal Regulations.

Proposed paragraph (a), Purpose and scope, restates the statutory

authority for Forest Officers to enter into written agreements with

cooperators to receive monies as contributions toward cooperative work

in forest investigations or the protection, management and improvement

of the National Forest System, which now includes such work as

planning, analysis, and related studies, as well as resource

activities.

Proposed paragraph (b), Reimbursements and bonding, states that,

when a written agreement so provides, projects may be planned and

completed using Forest Service funds available for similar type work

with subsequent reimbursement from a cooperator to be completed in the

same fiscal year as Forest Service expenditures. This proposed rule

restates the statute, which permits the Forest Service to bill

cooperators after work is completed

bonding, states that,

when a written agreement so provides, projects may be planned and

completed using Forest Service funds available for similar type work

with subsequent reimbursement from a cooperator to be completed in the

same fiscal year as Forest Service expenditures. This proposed rule

restates the statute, which permits the Forest Service to bill

cooperators after work is completed. This proposed provision will allow

cooperators to have access to their funds or to keep their funds in

interest-bearing accounts until after the work is completed. Also, as

previously noted, this provision is consistent with the policy

requirements of some cooperators that work be completed before their

funds are contributed to the Forest Service.

Proposed paragraph (b) also protects the interests of the

Government by requiring, as part of the written agreement with the

cooperator, a payment bond when a non-Government cooperator agrees to

contribute $25,000 or more on a reimbursable basis. Historically, the

Federal Government has required payment bonds for certain projects with

values exceeding $25,000. Acceptable security for payment bonds

includes Department of the Treasury approved corporate sureties,

Federal Government obligations, and irrevocable

letters of credit. Government cooperators are not required to execute a

payment bond.

Proposed paragraph (c), Avoiding conflict of interest, of the

proposed rule fulfills the statutory direction to protect the agency

from conflict of interest in these cooperative funding situations. The

proposed rule does not attempt to promulgate new conflict of interest

regulations, because conflict of interest statutes and regulations at

18 U.S.C. 201-209 and 5 CFR Part 2635 are sufficient. Accordingly,

proposed paragraph (c) provides that the Forest Service shall be guided

by provisions of 18 U.S.C

protect the agency

from conflict of interest in these cooperative funding situations. The

proposed rule does not attempt to promulgate new conflict of interest

regulations, because conflict of interest statutes and regulations at

18 U.S.C. 201-209 and 5 CFR Part 2635 are sufficient. Accordingly,

proposed paragraph (c) provides that the Forest Service shall be guided

by provisions of 18 U.S.C. 201-209, 5 CFR Part 2635, and applicable

Department of Agriculture regulations, in determining if a conflict of

interest or an appearance of a 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.

Regulatory Impact

This proposed rule has been reviewed under USDA procedures and

Executive Order 12866 on Regulatory Planning 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, or State or local governments. This proposed 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 proposed rule is not subject to OMB review under

Executive Order 12866.

Moreover, this proposed 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 that Act.

Unfunded Mandates Reform

ograms.

Accordingly, this proposed rule is not subject to OMB review under

Executive Order 12866.

Moreover, this proposed 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 that 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

proposed rule on State, local, and tribal governments and the private

sector. This proposed 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 proposed 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.'' The

agency's preliminary assessment is that this proposed 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. A final determination will be made upon

adoption of the final rule.

No Takings Implications

the Public

This proposed rule does not contain any recordkeeping or reporting

requirements or other information collection requirements as defined in

5 CFR part 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.

Conclusion

The proposed rule implements the statutory amendments to the Act of

June 30, 1914, and expands the basis for accepting contributions for

cooperative work between the Forest Service and cooperators. The

proposed rule also provides for the planning and completion of projects

using Forest Service funds with subsequent reimbursement from

cooperators. The Government's interests are protected in the proposed

rule by securing reimbursement payments from cooperators with payment

bonds when such payments are $25,000 or more. Government cooperators

are not required to execute payment bonds. The proposed rule also

addresses concerns about conflicts of interest by referring Forest

Service officials and employees to existing statutes and regulations,

as well as Forest Service and Department of Agriculture ethics

officials, concerning a conflict of interest or the appearance of a

conflict of interest.

The Forest Service invites comments on this proposal, which would

permit the agency to bill cooperators upon completion of a project and

to require non-Government cooperators to execute a payment bond as part

of the written agreement between the Cooperator and the Forest Service,

when cooperators have entered into an agreement to provide $25,000 or

more for a project on a reimbursable basis.

List of Subjects in 36 CFR Part 211

Administrative practice and procedure, Intergovernmental relations

and national forests.

Therefore, for the reasons set forth in the preamble, it is

proposed to amend Part 211 of Title 36 of the Code of Federal

Regulations as follows:

PART 211--ADMINISTRATION

ve entered into an agreement to provide $25,000 or

more for a project on a reimbursable basis.

List of Subjects in 36 CFR Part 211

Administrative practice and procedure, Intergovernmental relations

and national forests.

Therefore, for the reasons set forth in the preamble, it is

proposed to amend Part 211 of Title 36 of the Code of Federal

Regulations 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 section 211.6 to Subpart A to read as follows:

Sec. 211.6 Cooperation in forest investigations or the protection,

management, and improvement of the National Forest System.

(a) Purpose and scope. In accordance with the Act of June 30, 1914,

as amended (16 U.S.C. 498), forest officers may enter into written

agreements with cooperators to receive monies as contributions toward

cooperative work in forest investigations or for the protection,

management, and improvement of the National Forest System. Management

may include such

work as planning, analysis, and related studies, as well as resource

activities.

(b) Reimbursements and Bonding. Agency expenditures for work in

accordance with this section may be made from Forest Service

appropriations available for similar type work, with subsequent

reimbursement from the cooperator, when a written agreement so

provides. Reimbursement from the cooperator must occur in the same

fiscal year as Forest Service expenditures. When a non-Government

cooperator agrees to contribute $25,000 or more to the Forest Service

on a reimbursable basis, the authorized officer must require, as part

of the written agreement with the cooperator, a payment bond to

guarantee the reimbursement payment, thereby ensuring the public

interests are protected

e cooperator must occur in the same

fiscal year as Forest Service expenditures. When a non-Government

cooperator agrees to contribute $25,000 or more to the Forest Service

on a reimbursable basis, the authorized officer must require, as part

of the written agreement with the cooperator, a payment bond to

guarantee the reimbursement payment, thereby ensuring the public

interests are protected. Acceptable security for the payment bond

includes Department of the Treasury approved corporate sureties,

Federal Government obligations, and irrevocable letters of credit.

(c) Avoiding conflict of interest. Forest 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 officers shall be

guided by the provisions of 18 U.S.C. 201-209, 5 CFR 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: April 15, 1998.

Robert Lewis, Jr.,

Acting Associate Chief.

[FR Doc. 98-13037 Filed 5-15-98; 8:45 am]

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