[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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