[Federal Register Volume 63, Number 95 (Monday, May 18, 1998)]
[Proposed Rules]
[Pages 27245-27247]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-13037]
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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
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. 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
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. 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
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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. 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
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
This proposed rule has been analyzed in accordance with the
principles and criteria contained in Executive Order 12630, and it has
been determined that the proposed 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 proposed rule has been reviewed under Executive Order 12778,
Civil Justice Reform. If this proposed rule were adopted, (1) all State
and local laws and regulations that are in conflict with this proposed
rule or which would impede its full implementation would be preempted;
(2) no retroactive effect would be given to this proposed rule; and (3)
it would not require administrative proceedings before parties may file
suit in court challenging its provisions.
Controlling Paperwork Burdens on 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
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
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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. 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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