This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

21

Vol. 61, No. 1

Tuesday, January 2, 1996

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 930

[Docket No. AO–370–A5; FV93–930–1]

Proposed Tart Cherry Marketing

Agreement and Order; Reopening of

Comment Period To File Written

Exceptions to the Proposed Marketing

Agreement and Order for Tart Cherries

Grown in the States of Michigan, New

York, Pennsylvania, Oregon, Utah,

Washington and Wisconsin

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Reopening of the comment

period to file written exceptions to the

proposed marketing agreement and

order.

SUMMARY: Notice is hereby given that

the time period for filing written

exceptions to the proposed marketing

agreement and order for tart cherries

grown in the States of Michigan, New

York, Pennsylvania, Oregon, Utah,

Washington and Wisconsin is reopened

until January 16, 1996.

DATES: Comments must be received by

January 16, 1996.

ADDRESSES: Interested persons are

invited to submit written comments in

triplicate to the Hearing Clerk, U.S.

Department of Agriculture, room 1079–

S, Washington, DC, 20050–9200. All

written comments will be available for

public inspection at the Office of the

Hearing Clerk during regular business

hours.

FOR FURTHER INFORMATION CONTACT: (1)

R. Charles Martin or Kenneth G.

Johnson, Marketing Order

Administration Branch, Fruit and

Vegetable Division, room 2523–S, AMS,

USDA, P.O. Box 96456, Washington, DC

20090–6456; telephone number (202)

720–5053.

(2) Robert Curry, Northwest Marketing

Field Office, Marketing Order

Administration Branch, Fruit and

Vegetable Division, AMS, USDA, 1220

S.W. Third Avenue, room 369, Portland,

Oregon, 97204; telephone: (503) 326–

2725.

SUPPLEMENTARY INFORMATION: Prior

documents in this proceeding: Notice of

Hearing issued on November 23, 1993,

and published in the November 30,

1993, issue of the Federal Register (58

FR 63108); Notice of Additional

Hearings on the Proposed Agreement

and Order issued on December 20, 1993,

and published in the December 23,

1993, issue of the Federal Register (58

FR 68065); and an Amendment to the

Notice of Hearing issued on January 25,

1994, and published in the Federal

Register (59 FR 4259) on January 31,

1994. The Notice Reopening the Hearing

was issued on December 5, 1994, and

published in the Federal Register on

December 8, 1994 (59 FR 63273). The

Recommended Decision and

Opportunity To File Written Exceptions

to the proposed marketing agreement

and order was issued on November 20,

1995, and published in the November

29, 1995, Federal Register (60 FR

61292).

The proposed marketing agreement

and order are based on the record of a

public hearing held December 15–17,

1993, in Grand Rapids, Michigan;

January 10–11, 1994, in Rochester, New

York; January 13, 1994, in Provo, Utah;

February 15–17, 1994, in Portland,

Oregon; January 9–10, 1995, in Grand

Rapids, Michigan; and, January 12–13,

1995, in Portland, Oregon. These

multiple hearing sessions were held to

receive evidence on marketing order

proposals from growers, handlers,

processors and other interested parties

located throughout the proposed

production area.

The Recommended Decision was

issued pursuant to the provisions of the

Agricultural Marketing Agreement Act

of 1937, as amended [7 U.S.C. 601–674],

hereinafter referred to as the Act, and

the applicable rules of practice and

procedure governing the formulation of

marketing agreements and marketing

orders [7 CFR part 900]. The deadline

for filing written exceptions with the

Hearing Clerk on the Recommended

Decision was December 29, 1995.

The U.S. Department of Agriculture

(USDA) has received three requests from

interested parties to provide more time

for interested persons to analyze the

Recommended Decision and prepare

and file with the Hearing Clerk their

written comments. These requesters cite

severe weather (that led to extended

electrical power outages) in their

respective growing areas, the holiday

season and the voluminous hearing

record as the reasons for requesting a

30-day extension for filing written

comments to January 31, 1996.

Reopening the period in which

written comments may be filed will

provide interested persons more time to

review the Recommended Decision and

submit written comments thereto.

Extending the comment period by 18

days to January 16, 1996, would provide

additional time for commenters, to fairly

address their concerns. A delay of 18

days should not substantially add to the

time required to complete this

proceeding. Accordingly, the period in

which to file written comments is

reopened until January 16, 1996. This

notice is issued pursuant to the Act and

the applicable rules of practice

governing the formulation of marketing

agreements and marketing orders (7 CFR

part 900).

Authority: 7 U.S.C. 601–674.

Dated: December 27, 1995.

Kenneth C. Clayton,

Acting Administrator, Agricultural Marketing

Service.

[FR Doc. 95–31574 Filed 12–27–95; 3:36 pm]

BILLING CODE 3410–02–P

Rural Utilities Service

7 CFR 1789

RIN 0572–AB17

Use of Consultants Funded by

Borrowers

AGENCY: Rural Utilities Service, USDA.

ACTION: Proposed rule.

SUMMARY: The Rural Utilities Service

(RUS) hereby proposes to implement

recent amendments to the Rural

Electrification Act of 1936, as amended,

(RE Act) (7 U.S.C. 918(c)) and to amend

7 CFR chapter XVII by adding a new

Part 1789, Use of Consultants Funded

by Borrowers. This part would set forth

procedures and policies pursuant to

which a borrower under the RE Act may

fund consultants used by the

Administrator for financial, legal,

engineering, environmental and other

technical advice and services. The use

of the consultants will assist RUS in the
22 Federal Register / Vol. 61, No. 1 / Tuesday, January 2, 1996 / Proposed Rules

expeditious review of applications for

financial assistance or other approvals

sought by borrowers.

DATES: Written comments concerning

the proposed rule and/or its information

collection requirements must be

received by RUS or carry a postmark or

equivalent by March 4, 1996.

ADDRESSES: Written comments should

be addressed to F. Lamont Heppe, Jr.,

Deputy Director, Program Support Staff,

U.S. Department of Agriculture, Rural

Utilities Service, AG Box 1522,

Washington, DC 20250–1522. RUS

requires a signed original and 3 copies

of all comments (7 CFR 1700.30(e)).

Comments will be available for public

inspection during regular business

hours (7 CFR 1.27(b)).

FOR FURTHER INFORMATION CONTACT: F.

Lamont Heppe, Jr., Deputy Director,

Program Support Staff, (address as

above). Telephone: (202) 720–0736.

Facsimile: (202) 720–4120.

SUPPLEMENTARY INFORMATION: This

proposed rule has been determined to

be not significant for purposes of

Executive Order 12866, Regulatory

Planning and Review, and therefore has

not been reviewed by the Office of

Management and Budget (OMB). The

Administrator of RUS has determined

that the Regulatory Flexibility Act (5

U.S.C. 601 et seq.) does not apply to this

rule. The Administrator of RUS has

determined that this rule will not

significantly affect the quality of the

human environment as defined by the

National Environmental Policy Act of

1969 (42 U.S.C. 4321 et seq.). Therefore

this action does not require an

environmental impact statement or

assessment. This rule is excluded from

the scope of Executive Order 12372,

Intergovernmental Consultation, which

may require consultation with State and

local officials. A Notice of Final Rule

title Department Programs and

Activities Excluded from Executive

Order 12372 (50 FR 47034) exempts

RUS electric loans and loan guarantees

from coverage under this Order. This

rule has been reviewed under Executive

Order 12778, Civil Justice Reform. This

proposed rule: (1) Will not preempt any

State or local laws, regulations, or

policies, unless they present an

irreconcilable conflict with this rule; (2)

will not have any retroactive effect; and

(3) will not require administrative

proceedings before any parties may file

suit challenging the provisions of this

rule in accordance with existing law.

The programs covered by this rule are

listed in the Catalog of Federal Domestic

Assistance Programs under numbers

10.850, Rural Electrification Loans and

Loan Guarantees, 10.851, Rural

Telephone Loans and Loan Guarantees,

and 10.852, Rural Telephone Bank

Loans. This catalog is available on a

subscription basis from the

Superintendent of Documents, the

United States Government Printing

Office, Washington, DC 20402–9325.

Information Collection and

Recordkeeping Requirements

Summary: In accordance with the

Paperwork Reduction Act of 1995 (44

U.S.C. Chapter 35, as amended) RUS is

requesting comments on the information

collection incorporated in this proposed

rule.

Dates: Comment on this information

collection must be received by March 4,

1996.

Comments are invited on: (a) Whether

the proposed collection of information

is necessary for the proper performance

of the functions of the agency, including

whether the information will have

practical utility; (b) the accuracy of the

agency’s estimate of the burden of the

proposed collection of information; (c)

ways to enhance the quality, utility and

clarity of the information to be

collected; and (d) ways to minimize the

burden of the collection of information

on respondents, including through the

use of automated collection techniques

or other forms of information

technology.

For Further Information Contact: Sue

Arnold, Financial Analyst, Program

Support Staff, Rural Utilities Service,

U.S. Department of Agriculture, 14th &

Independence Avenue, SW., AG Box

1522, Washington, DC 20250.

Telephone: (202) 690–1078. FAX: (202)

720–4120.

Supplementary Information:

Title: Title 7 Part 1789, Use of

Consultants Funded by Borrowers.

Type of Request: New information

collection.

Abstract: On November 1, 1993,

Public Law 103–129 amended section

18 of the RE Act to provide a

mechanism for expediting RUS reviews.

As amended, section 18(c) authorized

RUS to use consultants voluntarily

funded by borrowers for financial, legal,

engineering, and other technical

services. The consultant may to be used

to facilitate timely action on

applications by borrowers for financial

assistance and for approvals required by

RUS, pursuant to the terms of

outstanding loans, or otherwise. RUS

may not require borrowers to fund

consultants. The provisions of section

18(c) may be utilized only at the

borrower’s request.

Estimate of Burden: Public reporting

burden for this collection of information

is estimated to average 2 hours per

response.

Respondents: Business or other forprofit, small businesses or

organizations.

Estimated Number of Respondents: 6.

Estimated Number of Responses per

Respondent: 1.

Estimated Total Annual Burden on

Respondents: 12.

Copies of this information collection

can be obtained from Dawn Wolfgang,

Program Support Staff, at (202) 720–

0812.

Comments: Send comments regarding

this information collection requirement

to the Office of Information and

Regulatory Affairs, OMB, ATTN: Desk

Officer, USDA, Room 10102, New

Executive Office Building, Washington,

DC 20503, and F. Lamont Heppe, Jr.,

Deputy Director, Program Support Staff,

Rural Utilities Service, AG Box 1522,

Washington, DC 20250–1522.

Comments to OMB are best assured of

having full effect if OMB receives them

within 30 days of publication in the

Federal Register.

All responses to this information

collection requirement will be

summarized and included in the final

rule. All comments will become a

matter of public record.

Background

Section 18 of the RE Act was

amended effective November 1, 1993,

pursuant to Public Law 103–129, 2(c)(4),

107 Stat. 1364. As amended, subsection

(c) of section 18 authorizes the RUS to

use consultants funded by borrowers for

financial, legal, engineering, and other

technical advice and services. The

consultants are to be used to facilitate

timely action on applications by

borrowers for financial assistance and

for approvals required by RUS pursuant

to the terms of outstanding loan or

security instruments or otherwise.

Subsection (c) expressly requires that

RUS establish procedures for the use of

consultants to ensure that the

consultants have no financial or other

conflicts of interest in the outcome of

the application. Subsection (c) further

provides that funding of consultants is

strictly voluntary with the borrowers,

that RUS may not require borrowers to

agree to fund consultants. This

proposed rule sets forth procedures and

policies implementing the authority

under subsection (c).

Policy

RUS believes that both RUS and its

borrowers will be well served by the

prudent use of this authority. It will

assist RUS in the processing of certain

complex transactions that have placed a
Federal Register / Vol. 61, No. 1 / Tuesday, January 2, 1996 / Proposed Rules 23

burden on its staff and resources. For

example, financial and legal consultants

may assist in the review of certain

transactions involving complicated

financing arrangements between

borrowers and third parties that

potentially impact on the feasibility of

and security for outstanding government

loans. Such transactions may require the

review and analysis of voluminous

documents and the development of an

extensive administrative record. The

transactions may involve complex

technical issues regarding which RUS

has limited expertise thus slowing the

review process. Such transactions may

be very time sensitive; any delays may

jeopardize the transaction or reduce the

benefits of the transaction to the

borrower. In some cases, the

transactions are very important to the

borrower but cannot be given

corresponding priority by the RUS as it

dedicates its resources to matters that

have program wide significance. It is in

the interests of both RUS and the

borrower to expedite review of such

transactions with borrower funded

consultants.

Examples of how RUS might use

borrower funded consultants include,

but are not limited to, the use of an

engineering firm to review proposed

generation projects for technical or

financial feasibility, e.g., wind or

hydroelectric projects utilizing

relatively new technology. RUS could

use consultants to make periodic visits

to major construction projects and

report to RUS on the status of

construction and whether or not the

project is on budget. Financial advisory

consultants may be used to evaluate

new financial products which are the

basis for requests to modify the RUS

mortgage. Legal support services will

enhance RUS’ ability to review and

process merger, consolidation and

holding company applications from

both telephone and electric borrowers.

RUS would also consider using

environmental consultants to prepare

environmental assessments and

environmental impact studies under

RUS’ direction and supervision.

RUS does not, however, believe that

use of subsection (c) authority is

authorized or appropriate for all

transactions requiring RUS review. The

authority will not be used unless it is

reasonably expected to facilitate timely

action on an application by RUS. Even

then, it may not always be in RUS’

interest to rely on consultants. For

example, transactions that involve

matters that RUS is particularly

qualified to address or which have

program wide implications may not be

well suited for expedited processing

facilitated with borrower funded

consultants. Thus, RUS will weigh its

use of the authority under subsection (c)

on a case by case basis.

Procedure

Under the proposed rule RUS may

enter into contracts on the basis of case

by case procurements or on a retainer

basis with a series of consultants having

different areas of expertise, i.e.

financial, legal, engineering, or

environmental. In order to assure that

sufficient consultant resources are

available and to allow for competition

in terms of both quality and cost, RUS

may contract with several different

consultants in a given area of expertise.

RUS will solicit bids for the services

of financial, legal, engineering, and

environmental consultants in

accordance with the provisions of the

Federal Acquisition Regulations (FAR),

48 CFR Chapter 1. Notwithstanding the

use of borrowers’ funds, it has been

determined that such funding must be

treated as appropriated funds and the

contracts are subject to the provisions of

FAR.

The proposed rule provides that RUS

will decide when timely consideration

of an application or approval would best

be facilitated by the use of borrower

funded consultants. When the RUS has

made such a determination, and the

borrower in question is willing to fund

consulting services, the borrower must

provide to RUS an appropriate notice of

proposal to fund consulting services.

RUS will consider the borrower’s

proposal, whether it is consistent with

this regulation and otherwise in the

interests of the government. If RUS

chooses to proceed with the borrower’s

proposal, RUS will require the borrower

and the consultant selected by RUS to

execute a funding agreement which

complies with the regulation. The

funding agreement will provide for the

borrower to establish and fund an

escrow account with a third-party

commercial institution prior to the

commencement of work by the

consultant.

The use of a third-party commercial

institution will allow for the escrow

account to be interest-bearing and

greatly ease the administrative burden

of arranging for any excess funds to be

remitted to the borrower upon the

closing out of a task order. With the

exception of an annual retainer fee, if

applicable, the consultants shall not be

entitled to any payments from RUS.

Rather, all payment obligations for work

performed must be satisfied by amounts

available in the escrow account and

RUS shall have sole discretion in

directing that payments be made from

the escrow account.

Once the escrow account is funded,

RUS will then issue a task order to the

consultant under the applicable contract

and the consultant will commence work

for RUS. Periodically, the consultant

will submit invoices to RUS. Upon due

authorization by RUS, the escrow agent

will make payments to the consultant.

The escrow account will be closed and

any remaining funds remitted to the

borrower upon direction from RUS.

The procedure outlined above

generally applies to financial, legal,

engineering and environmental

consultant services. The proposed rule

reserves the discretion, however, for

RUS to contract for any type of

consultant services on a case by case

basis after receipt of an appropriate

notice of proposal to fund from the

borrower.

Legal and Selected Other Consultants

The procedures and policies

applicable to the use of legal consultants

pursuant to subsection 18(c) differs from

the use of other consultants in several

key respects. First, pursuant to 7 CFR

part 2.47(a)(1), the Administrator may

utilize consultants and attorneys for the

provision of legal services with the

concurrence of the General Counsel.

The Secretary by regulation (7 CFR 2.31)

has designated the General Counsel as

the chief law officer of the Department

and legal advisor to the Secretary with

the responsibility for providing legal

services for all activities of the

Department; accordingly, any proposal

by RUS to use outside legal counsel will

require the approval of the General

Counsel. The approval will include a

review of the nature of the transaction

and the scope of legal services to be

provided. Moreover, any contracts for

legal consultants will provide that an

attorney from OGC will serve as a

technical representative and adviser to

the contracting officer. The technical

representative will be responsible for,

among other matters, evaluating the

adequacy of performance.

The conflict of interest provisions in

the proposed rule are different from the

FAR in certain respects, particularly in

the case of legal and financial

consultants. For all consultants,

however, it is important to protect

against the possibility, or the

appearance, that those consultants

providing services to RUS might handle

particular assignments in such a way as

to encourage their own future

employment with RUS program

beneficiaries after fulfilling their

government contract requirements. The

electric and telephone borrowers are
24 Federal Register / Vol. 61, No. 1 / Tuesday, January 2, 1996 / Proposed Rules

particularly closely tied to RUS since

RUS is responsible for a significant

percentage of their annual capital

requirements. Because of the unique

position of RUS vis a vis its borrowers,

it is in the government’s interest that

prospective legal counsel, financial

consultants and other consultants be

reasonably indifferent to the subsequent

marketing implications of having RUS

as a client. Additionally, because of the

special nature of the attorney/client

relationship, there is a need to provide

for maximum discretion on the part of

the RUS Administrator in the

determination of conflict criteria for

legal consultants. Accordingly,

proposed conflict provisions specific to

borrower funded RUS consultants are as

follows:

(1) Disclosure requirements

incorporated in procurements under the

proposed rule shall provide that

consultants disclose all business

relationships with current or former

RUS borrowers at the time proposals to

offer consulting services are made to

RUS and in the event additional

business relationships are entered into

subsequent to the original disclosure.

(2) Certification requirements

incorporated in procurements under the

proposed rule shall provide that

consultants certify, at the time a

proposal is made to provide consulting

services to RUS, to the best of their

knowledge and belief, that no

Organizational Conflict of Interest exists

and there are no relevant facts or

circumstances which could give rise to

an Organizational Conflict of Interest, or

the consultant has disclosed all such

relevant information. The

representations in the certificate shall be

deemed reaffirmed upon the execution

of the Consultant Contract and upon the

undertaking of each Task Order by the

contractor.

(3) The determination of whether or

not an Organizational Conflict of

Interest exists shall rest with the

Administrator in his sole discretion;

RUS shall not award a contract or Task

Order, as the case by be, to a consultant

if an Organizational Conflict of Interest

exists.

(4) Authority to waive an

Organizational Conflict of Interest vests

with the RUS Administrator; such

waivers must be in writing to be

effective.

(5) Consultant contracts with all legal

consultants, all financial consultants

and such other consultants as the RUS

may determine on a case by case basis

(selected other consultants) shall

provide that such consultants agree not

to undertake during the term of the

applicable contract, inclusive of option

or renewal periods, to represent any

RUS borrower on the same or other

matters without the express written

consent of RUS.

(6) Consultant contracts with all legal

consultants, all financial consultants

and selected other consultants shall

provide that such consultants agree not

to undertake, for a period of not less

than four years from the contract

expiration date, to represent any RUS

borrower or generation and transmission

(G&T) affiliate thereof, including a

borrower which may prepay

outstanding RUS indebtedness

subsequent to the consultant

undertaking to represent RUS, on any

matter in which RUS has a significant

interest in the outcome, where such

borrower(s) were the subject of

consulting services rendered by that

consultant during the tenure of the

applicable contract, without the express

written consent of RUS. G&T affiliate in

this context shall refer to all members of

the applicable generation and

transmission cooperative and the

cooperative(s) in which the borrower

was itself a member. Representation

includes any retainer or advisory

contract and is not limited to

representation relating to negotiations

with or applications before RUS.

(7) RUS may waive any of the

foregoing requirements or procedures by

determining that its application in a

particular situation would not be in the

government’s interest.

Key Personnel

Legal service contracts are

distinguished from other consulting

services funded by borrowers pursuant

to Section 18 of the RE Act with respect

to provisions relating to key personnel.

Factors such as trust, judgment,

negotiating style and presence and other

intangibles affect the quality and

effectiveness of representation and

client satisfaction. Borrower funded

legal service contracts will provide that

no substitution of key personnel may

occur without prior approval of the

contracting officer, who may confer

with the legal and RUS technical

representatives for the applicable

contract.

List of Subjects in 7 CFR Part 1789

Administrative practice and

procedure, legal services, Electric

power, Electric utilities, Loan

programs—energy, Loan programs—

telecommunications, escrow fund,

consulting contracts.

For the reasons stated, RUS proposes

to add a new part 1789 to chapter XVII

of title 7 of the Code of Federal

Regulations as follows:

PART 1789—USE OF CONSULTANTS

FUNDED BY BORROWERS

Subpart A—Policy and Procedures With

Respect to Consultant Services Funded by

Borrowers—General

Sec.

1789.150 Purpose.

1789.151 Definitions.

1789.152 Policy.

1789.153 Borrower funding.

1789.154 Eligible borrowers.

1789.155 Approval criteria.

1789.156 Proposal procedure.

1789.157 Consultant contract.

1789.158 Implementation.

1789.159 Contract administration.

1789.160 Access to information.

1789.161 Conflicts of interest.

1789.162 Indemnification agreement.

1789.163 Waiver.

1789.164–1789.165 [Reserved]

Subpart B—Escrow Account Funding and

Payments

Sec.

1789.166 Terms and conditions of funding

agreement.

1789.167 Terms and conditions of escrow

agreement.

1789.168–1789.175 [Reserved]

Authority: 7 U.S.C. 901 et seq.; Pub. L.

103–354, 108 Stat. 3178 (7 U.S.C. 6941 et

seq.); [Title I, Subtitle D, Pub. L. 100–203,

101 Stat. 1330].

Subpart A—Policy and Procedures

With Respect to Consultant Services

Funded by Borrowers—General

§ 1789.150 Purpose.

This part sets forth policies and the

procedures for implementing subsection

(c) of section 18 of the Rural

Electrification Act of 1936, as amended

(7 U.S.C. 901 et seq.) (RE Act) which

authorizes the Rural Utilities Service

(RUS) to use the services of Consultants

funded by the Borrowers to facilitate

timely action on Applications by

Borrowers for financial assistance and

other approvals.

§ 1789.151 Definitions.

As used in this part:

Administrator means the

Administrator of the Rural Utilities

Service (RUS).

Application means a request for

financial assistance under the RE Act or

such other approvals as may be required

of the RUS pursuant to the terms of

outstanding loan or security instruments

or otherwise.

Borrower means any organization

which has an outstanding loan(s) made

or guaranteed by RUS or its predecessor

agency, the Rural Electrification

Administration (REA) under the RE Act

or any organization which has an

Application before RUS.

Consultant means a person or firm

which has been retained by RUS under
Federal Register / Vol. 61, No. 1 / Tuesday, January 2, 1996 / Proposed Rules 25

a contract to provide financial, legal,

engineering, environmental, or other

technical advice and services.

Consultant Contract means a contract

for the performance of consulting

services for RUS, to be paid using funds

provided by a Borrower, which may be

in the form of a Retainer Contract,

purchase order, or such other form as

RUS may choose.

Escrow Account means an account

established pursuant to § 1789.158

herein.

Escrow Agreement means an

agreement, between a Borrower, a

Consultant and a Third-party

Commercial Institution, meeting the

requirements of § 1789.167.

Final Invoice means the closing

Invoice prepared for a given Task Order.

Financial Consultant means a

Consultant retained pursuant to this

part to provide financial advisory

services.

Funding Agreement means an

agreement, between a Borrower and a

Consultant providing for the Borrower

to fund the costs of a Task Order and

otherwise meeting the requirements of

§ 1789.166.

Indemnification Agreement means an

agreement by a Borrower meeting the

requirements of § 1789.162.

Invoice means an invoice, satisfactory

to RUS, prepared by a Consultant

pursuant to the terms of a Consultant

Contract.

Legal Consultant means any

Consultant retained pursuant to this

part to provide legal services to RUS.

Notice of Proposal to Fund means a

notice meeting the requirements of

§ 1789.156 provided to RUS by the

Borrower.

Organizational Conflict of Interest

means that because of other activities or

relationships with other persons, a

person is unable or potentially unable to

render impartial assistance or advice to

the Government, or the person’s

objectivity in performing the contract

work is or might be otherwise impaired,

or a person has an unfair competitive

advantage. Organizational conflicts of

interest shall include, but not be limited

to, a financial interest in the project

which is the subject of the Application;

and providing advice and services

concurrently to RUS and to the

Borrower which submitted the relevant

Application, on the same or different

matters. Organizational conflicts of

interest may also include activities or

relationships determined by the

Administrator pursuant to § 1789.161 to

constitute an organizational conflict of

interest.

Retainer Contract means a Consultant

Contract providing for a minimum

required payment to a Consultant

irrespective of whether services are

utilized by RUS thereunder.

Task Order means a written request

for consultant services made by RUS

pursuant to the terms of a Consultant

Contract.

Third-party Commercial Institution

means a commercial financial

institution mutually acceptable to the

Borrower and the Consultant.

§ 1789.152 Policy.

(a) As provided in this subpart, RUS

may, at its discretion, use the services

of Consultants funded by a Borrower

where such services will facilitate

timely action on an Application by such

Borrower for financial assistance or

other approvals. Such Consultants may

provide financial, legal, engineering,

environmental or other technical advice

and services in connection with the

review of an Application.

(b) With the approval of RUS, a

Borrower may fund the cost of

consulting services in connection with

the review by RUS of an Application by

such Borrower. Such funding shall be

provided pursuant to the terms of a

Funding Agreement between the

Borrower and the Consultant designated

by RUS.

(c) RUS may not, without the consent

of the Borrower, require, as a condition

of processing any Application for

approval, that the Borrower agree to pay

the costs of a Consultant hired to

provide services to RUS.

(d) RUS shall retain sole discretion in

the selection of Consultants to provide

services to RUS. RUS may use the

services of one or more Consultants

retained under Retainer Contracts to

provide services for projects to be

identified by RUS. Alternatively, RUS

may elect to retain a Consultant in

connection with a specific project. RUS

shall have sole discretion to prescribe

terms and conditions of Consultant

Contracts. The Borrower shall be

advised of the Consultant selected only

after committing to fund consultant

services.

§ 1789.153 Borrower funding.

Borrowers shall use their general

funds for the purposes of funding

consultant services hereunder.

Borrowers may not use the proceeds of

loans made or guaranteed under the RE

Act for costs incurred by Borrowers

pursuant to the funding of consultant

services for RUS.

§ 1789.154 Eligible borrowers.

All Borrowers are eligible to fund

consultant services under this part.

§ 1789.155 Approval criteria.

RUS will consider approving the use

of consultant services funded by a

Borrower on a case by case basis taking

into account, among other matters, the

following:

(a) Whether such services are required

to facilitate timely action on a

Borrower’s Application. RUS shall

determine what represents timely action

with respect to each Application

considering, among other matters, the

review period normally required for

such projects by RUS and other lenders

and the consequences to the Borrower of

adjusting the review period.

(b) The availability of staff resources,

the priorities of other projects then

before RUS, and the efficiencies to be

realized from the use of consultant

services.

(c) Whether it is in the best interest of

RUS to use Borrower-funded

Consultants. Certain types of projects,

such as those involving issues of

program-wide significance, may not be

well suited for the use of Borrower

funded Consultants.

§ 1789.156 Proposal procedure.

(a) In the event RUS determines that

consideration should be given to the use

of a Borrower-funded consultant in

connection with the review of an

Application, the RUS Regional Director

or the Director of the Power Supply

Division, as appropriate, will discuss

with the Borrower the nature of the

Application and the projected review

period required of RUS. If RUS

concludes that the projected review

period will not result in timely action

on the Application, and after being so

notified in writing by RUS the Borrower

wishes to fund consultant services to

facilitate RUS review, the Borrower

shall submit to the same Director a

funding proposal. The proposal shall set

forth the following:

(1) Identification in the heading or

caption as a Notice of Proposal to Fund

Consulting Services;

(2) Borrower’s REA/RUS designation;

(3) Borrower’s legal name and

address;

(4) A description of the Application,

critical issues and concerns relating to

the Application, time deadlines, and the

consequences of any delays in RUS

review;

(5) A description of the consulting

service(s) that would facilitate timely

RUS review of the Application; and

(6) Such additional documents and

information as RUS may request.

(b) RUS will review the Notice of

Proposal to Fund and any additional

information RUS deems relevant in

determining whether to proceed with
26 Federal Register / Vol. 61, No. 1 / Tuesday, January 2, 1996 / Proposed Rules

procuring Borrower funded Consultants.

If RUS proposes to utilize Legal

Consultants, RUS must obtain the

concurrence of the Office of General

Counsel (OGC) of the Department of

Agriculture. RUS will notify the

Borrower in writing of its

determination.

§ 1789.157 Consultant contract.

(a) The Federal Acquisition

Regulation (FAR), 48 CFR Ch. 1 and Ch.

4 of the Agriculture Acquisition

Regulation (AGAR) shall apply to all

Consultant Contracts entered into

pursuant to this part except as herein

provided. Where there is a conflict

between FAR and AGAR and the

provisions of this part, the provision of

this part shall apply. Exceptions to FAR

and/or AGAR shall be incorporated in

Consultant Contracts under this part as

follows:

(1) Contracts for Legal Consultants

shall provide for a technical

representative from OGC and that no

substitution of key personnel may occur

without the prior approval of the

applicable contracting officer.

(2) All Consultant Contracts shall

provide for an escrow account funding

mechanism pursuant to this part and for

RUS sole discretion in determining

whether payments are to be made from

the Escrow Account to the Consultant.

(3) All Consultant Contracts shall

provide that payment of all obligations

for work performed thereunder must be

satisfied by amounts available in the

Escrow Account; with the exception of

the annual retainer fee, if any,

Consultants shall not be entitled to any

payments from RUS.

(4) Consultant Contracts, as

applicable, shall incorporate the

applicable conflict of interest provisions

set forth in § 1789.161.

(b) Notice of the provisions herein

shall be given by RUS at such time as

requests for proposals are issued under

this part.

§ 1789.158 Implementation.

(a) Upon making a determination to

go forward with Borrower funding for

consulting services, RUS shall select a

Consultant to provide the services. RUS

may either contract with a Consultant

on a case by case basis or elect to use

a Consultant pursuant to an outstanding

Retainer Contract. The Borrower will

not be informed of the Consultant

selected by RUS until such time as RUS

provides the information set forth in

subparagraph (c)(3) of this section.

(b) If RUS determines to contract with

a Consultant on a case by case basis,

RUS shall notify the Borrower of the

applicable procedures.

(c) If RUS determines to contract with

a Consultant under an outstanding

Retainer Contract, the following

procedures will normally apply:

(1) Pursuant to the terms of the

contract, RUS will prepare a draft Task

Order requesting consultant services in

connection with the review of the

Borrower’s Application. The draft Task

Order shall set forth for the Consultant’s

review and acceptance a description of

the services to be provided and

applicable time frames for the provision

of such services.

(2) RUS will request that the

Consultant:

(i) notify RUS as to the acceptability

of the form and substance of the draft

Task Order;

(ii) notify RUS as to its ability to

provide RUS with a satisfactory conflict

of interest certification consistent with

the requirements of § 1789.161; and

(iii) provide a cost estimate for the

draft Task Order.

(3) When RUS is satisfied with the

response(s) received pursuant to

paragraph (c)(2) of this section, RUS

shall promptly provide to the Borrower:

(i) a copy of the draft Task Order

identifying the Consultant;

(ii) the Consultant’s cost estimate for

the draft Task Order; and

(iii) contract information required to

enable the Borrower to develop a

Funding Agreement, an Escrow

Agreement and an Indemnification

Agreement (the ‘‘agreements’’).

(4) The Borrower shall develop and

submit to RUS for approval executed

originals of:

(i) the agreements; and

(ii) a certified copy of a resolution of

the board of directors authorizing the

Borrower to enter into the agreements

and to take such other action as is

necessary to effect the purposes of the

agreements.

(5) Upon receiving written RUS

approval of the agreements and the form

and substance of the board resolution,

the Borrower shall:

(i) establish and fund the Escrow

Account; and

(ii) provide written notice to RUS of

the Escrow Account number, the

funding thereof, and such other

information as required pursuant to the

agreements.

(6) After the Borrower has funded the

Escrow Account, RUS shall issue Task

Order(s) for consultant services in

accordance with the terms and

conditions of the applicable Retainer

Contract.

§ 1789.159 Contract administration.

RUS shall be solely responsible for

the administration of a Consulting

Contract and shall have complete

control over the scope, content,

timeliness, and quality of the

Consultant’s work and the approval of

payment Invoices.

§ 1789.160 Access to information.

The Borrower shall not have rights in

nor right of access to the work product

of the Consultant. All analyses, studies,

opinions, memoranda, and other

documents and information provided by

the Consultant pursuant to a Consulting

Contract with RUS may be released and

made available to the Borrower only

with the approval of RUS. This section

does not restrict release of information

by RUS pursuant to the Freedom of

Information Act (5 U.S.C. 552(a)(2)) or

other legal process.

§ 1789.161 Conflicts of interest.

(a) Disclosure requirements

incorporated in procurements under

this part shall provide that Consultants

disclose all business relationships with

current or former RUS Borrowers at the

time proposals to offer consulting

services are made to RUS and in the

event additional business relationships

are entered into subsequent to the

original disclosure.

(b) Certification requirements

incorporated in procurements under

this part shall provide that Consultants

certify, at the time a proposal is made

to provide consulting services to RUS,

to the best of their knowledge and

belief, that no Organizational Conflict of

Interest exists and there are no relevant

facts or circumstances which could give

rise to an Organizational Conflict of

Interest, or the Consultant has disclosed

all such relevant information. The

representations in the certificate shall be

deemed reaffirmed upon the execution

of the Consultant Contract and upon the

undertaking of each Task Order by the

Contractor.

(c) The determination of whether or

not an Organizational Conflict of

Interest exists shall rest with the

Administrator in his sole discretion;

RUS shall not award a contract or task

order, as the case may be, to a

Consultant if an Organizational Conflict

of Interest exists.

(d) The Administrator may waive an

Organizational Conflict of Interest

pursuant to § 1789.163 hereof; such

waivers must be in writing to be

effective.

(e) Consultant Contracts with all Legal

Consultants, all Financial Consultants

and such other Consultants as the RUS

may determine on a case by case basis

(selected other Consultants) shall

provide that such Consultants agree not

to undertake during the term of the
Federal Register / Vol. 61, No. 1 / Tuesday, January 2, 1996 / Proposed Rules 27

applicable contract, inclusive of option

or renewal periods, to represent any

RUS Borrower on the same or other

matters, without the express written

consent of RUS.

(f) Consultant Contracts with all Legal

Consultants, all Financial Consultants

and selected other Consultants shall

provide that such Consultants agree not

to undertake, for a period of not less

than four years from the contract

expiration date, to represent any RUS

Borrower or G&T affiliate thereof,

including a Borrower which may prepay

outstanding RUS indebtedness

subsequent to the Consultant

undertaking to represent RUS, on any

matter in which RUS has a significant

interest in the outcome, where such

Borrower(s) were the subject of

consulting services rendered by that

Consultant during the tenure of the

applicable contract, without the express

written consent of RUS. G&T affiliate in

this context shall refer to all members of

the applicable generation and

transmission cooperative and the

cooperative(s) in which the Borrower

was itself a member. Representation

includes any retainer or advisory

contract and is not limited to

representation relating to negotiations

with or Applications before RUS.

§ 1789.162 Indemnification agreement.

As a condition of approving Borrower

funding, RUS will require the Borrower

to enter into an Indemnification

Agreement, in form and substance

satisfactory to RUS, providing that the

Borrower will indemnify and hold

harmless the government and any

officers, agents or employees of the

government from any and all liability,

including costs, fees, and settlements

arising out of, or in any way connected

with the administration and supervision

of, the contract funded by the Borrower

for consultant services relating to the

Borrower’s Application.

§ 1789.163 Waiver

RUS may waive any requirement or

procedure of this subpart by

determining that its application in a

particular situation would not be in the

government’s interest.

§§ 1789.164–1789.165 [Reserved]

Subpart B—Escrow Account Funding

and Payments

§ 1789.166 Terms and conditions of

funding agreement.

Funding Agreements between the

Borrower and a Consultant shall be in

form and substance satisfactory to RUS

and provide for, among other matters,

the following:

(a) Specific reference by number to

the applicable Consulting Contract

entered into between RUS and the

Consultant;

(b) Specific reference by number to

the applicable Task Order (where

applicable);

(c) A brief description of the

Application;

(d) A requirement that Invoices make

specific reference to:

(1) The applicable contract and Task

Order(s); and

(2) The Escrow Account from which

payment is to be made;

(e) A requirement that the Final

Invoice for a Task Order be clearly

identified as such;

(f) A description of the services to be

provided by the Consultant to RUS and

the applicable time frames for the

provision of such services;

(g) Agreement that the Borrower shall

pay for the Consultant services provided

to RUS under the applicable contract

through an Escrow Account established

pursuant to an Escrow Agreement, the

Consultant shall not provide services to

RUS under the applicable contract

unless there are sufficient funds in the

Escrow Account to pay for such

services, the Consultant shall seek

compensation for services provided

under the applicable contract from, and

only from, funds made available

through the Escrow Account, and the

Consultant must submit all Invoices to

RUS for approval.

(h) A form of Escrow Agreement

satisfactory to the Borrower, Consultant

and the designated Third-party

Commercial Institution;

(i) A schedule setting forth when and

in what amounts the Borrower shall

fund the Escrow Account;

(j) Acknowledgment by the

Consultant of the Indemnification

Agreement provided by the Borrower to

the government; and

(k) The Funding Agreement shall not

be effective unless and until approved

in writing by RUS.

§ 1789.167 Terms and conditions of

escrow agreement.

Escrow Agreements between and

among the Borrower, Consultant and

Third-party Commercial Institution

shall be in form and substance

satisfactory to RUS and provide for,

among other matters, the following:

(a) Specific reference by number to

the applicable contract for services

entered into between RUS and the

Consultant;

(b) Specific reference by number to

the applicable Task Order;

(c) Specific reference by number to

the Escrow Account into which funds

are to be deposited;

(d) Invoices to specifically identify

the applicable contract and Task

Order(s);

(e) Funds to be held in the Escrow

Account by the escrow agent until paid

to the Consultant pursuant to RUS

direction;

(f) The Escrow Account to be closed

and all remaining funds remitted to the

Borrower after payment of the Final

Invoice, or upon notice from RUS to the

escrow agent that RUS is satisfied no

further payments are required under the

Funding Agreement; and

(g) RUS, the Consultant and the

Borrower to have the right to be

informed, in a timely manner and in

such form as they may reasonably

request, as to the status of and activity

in the Escrow Account.

§§ 1789.168–1789.175 [Reserved]

Dated: December 21, 1995.

Jill Long Thompson,

Under Secretary, Rural Economic and

Community Development.

[FR Doc. 95–31452 Filed 12–29–95; 8:45 am]

BILLING CODE 3410–15–P

NUCLEAR REGULATORY

COMMISSION

10 CFR Part 26

Meeting Regarding Onsite Fitness-forDuty Testing

AGENCY: Nuclear Regulatory

Commission.

ACTION: Notice of Open Meeting.

SUMMARY: The Nuclear Regulatory

Commission (NRC) will conduct an

open meeting to discuss regulatory

options under the provisions of 10 CFR

Part 26 for performing onsite screening

tests by the Washington Public Power

Supply System (WPPS) of urine

specimens collected by the Utilities

Service Alliance (USA) members. The

WPPS requested the meeting to discuss

its proposed approach to conduct initial

screening tests of urine specimens sent

to them by USA members to determine

which specimens are negtive and need

no further testing at an HHS-certified

laboratory. A summary of the meeting

will be prepared and will be available

upon request.

DATES: The meeting will be held at 9:30

a.m. on January 11, 1996.

ADDRESSES: The meeting will be in

Room 1–F5 at NRC Headquarters, One

White Flint North, 11555 Rockville

Pike, Rockville, Maryland.

Dated at Rockville, Maryland this 26th day

of December 1995.