QUESTIONS and ANSWERS: THE SECURE RURAL SCHOOLS AND COMMUNITY SELF- DETERMINATION ACT OF 2000 (PUBLIC LAW NO )

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1 QUESTIONS and ANSWERS: THE SECURE RURAL SCHOOLS AND COMMUNITY SELF- DETERMINATION ACT OF 2000 (PUBLIC LAW NO ) Resource Advisory Committees (RACs): Q: Does section 205 (d)(4), Geographic Distribution, of the Secure Rural Schools and Community Self-Determination Act of 2000 ( Act ) mean that the Ouachita National Forest would be required to have two separate RACs one for OK and another for AR? Does the Forest have an option of just establishing one committee for the entire forest? A: Section 205(a)(3) of the Act authorizes the Secretary to establish RACs for part of, or one or more, units of Federal land. Under this provision, the Secretary may establish a RAC that overlaps state boundaries. Section 205(d)(4) requires that the members of a RAC reside within the state in which the RAC has jurisdiction. If a RAC overlaps state boundaries, section 205(d)(4), read together with section 205(a)(3), requires that the RAC include members that reside in each state for which the RAC has jurisdiction. In the case of the Ouachita NF, the Secretary could establish one RAC for the entire forest or, alternatively, one RAC in OK and one RAC in AR. Q: How often can RACs be restructured? A: The charters for the RACs will expire two years from the date the charter is filed with the Library of Congress, unless the charter is renewed. The charter of a committee

2 can be revised whenever a committee deems it necessary, although for major revisions a clearance process similar to the initial clearance is required. Members terms are for three years. Replacements will be appointed to the committee as vacancies occur in the same manner as appointments were initially made. We note that the template charter provides for the initial appointment of three replacements, one for each category. Q: Is the Forest Service required to advertise in the Federal Register in order to solicit members for the RACs? A: No. Placement of local newspaper ads or other informal methods of notice will suffice. However, while none of the laws, regulations, or directives concerning federal advisory committees would require that notices be published in the Federal Register to solicit members for RACs, the Forest Service may use the Federal Register, along with other media, to solicit potential nominees. Q: Can counties that request RACs reimburse the FS for the cost of operating a RAC? A: No, because reimbursement by a county to the FS for the cost of operating a RAC would be an augmentation of appropriations. Q: Who has the authority to appoint members to the RACs? A: At this time, the authority to appoint members to a RAC rests with the Secretary of Agriculture. Delegation of this authority by the Secretary to the Forest Service is an option that is being considered. Q: Is a RAC required for a county receiving less than $100,000 that elects to allocate a portion of its payment for Title II projects? A: Yes; the Act requires the establishment of RACs when an eligible county elects to allocate funds for Title II projects regardless of the amount the county receives.

3 Q: If a county elects to allocate a portion of its payment for Title III projects only, is there still a requirement for establishing a RAC? A: No. The Act requires the establishment of RACs only when an eligible county elects to allocate funds for Title II projects. Under section 302(a)(2), a county must send a proposed Title III project to the appropriate RAC established under section 205, if one exists for the county. Q: What are the limits on the number of RACs that can be established? A: The Office of Management and Budget places numerical caps on the number of committees each Department, in its discretion, may establish under the Federal Advisory Committee Act. These numerical caps do not apply to the RACs because the Secure Rural Schools and Community Self-Determination Act of 2000 mandate the RACs. However, from a practical standpoint, chartering a RAC for each eligible county would be extremely costly. Q: Does FACA apply to the RACs created under this Act? Do all the FACA regs apply? A: Yes, these RACs will have to comply fully with FACA, the GSA regulations implementing FACA, and the USDA departmental regulations. Q: Can a RAC have more (or fewer) than 15 members? A: No. The Act s requirement for 15 members is not subject to variation. Q: What is covered by the no compensation clause in the Act? A: Section 205(c)(5) of the Act provides that members of the RACs shall not receive any compensation. This provision means that members may not receive any salary, stipend, honorarium, consulting fee, or other payment for time or services. However, the agency may pay for travel, per diem, and expenses, pursuant to federal

4 travel regulations. Q: How many nominees need to be forwarded to the Secretary to facilitate the appointment of members to RACs? A: In accordance with established Departmental practice, a slate of at least 36 nominees (10 for each of the 3 categories, and 2 for each of the 3 replacement positions) should be forwarded to the Secretary. If that is not possible, due to insufficient interest in serving on the RAC, a memo should be forwarded to the Secretary of Agriculture describing the outreach efforts and the factors limiting the number of candidates. Q: Should the slate of nominees forwarded to the Secretary indicate preferred nominees? A: Forest Supervisors, or other forwarding officials, should indicate those nominees they recommend the Secretary appoint to the RAC. Forwarding officials should document the basis for their recommendations, including how the recommended nominees best meet the criteria in section 205 of the Act. Criteria for identifying recommended nominees may also include a candidate s expertise in matters relating to Title II projects. Q: What is the role of the Designated Federal Officer (DFO)? A: Each RAC must have a Designated Federal Officer (DFO). The DFO must be present at every RAC meeting and, for the meetings to proceed, must approve the agenda. A DFO may adjourn a meeting if he or she considers adjournment to be in the public interest. Q: When may Replacements for RAC members be used? A: Replacements may only be used for permanent replacement of RAC members who are unable to complete their term. One replacement per RAC category (three total per RAC) will be appointed initially with the 15 RAC members so that vacancies can be filled in a timely manner.

5 Q: If an approved nominee is appointed to a RAC in one of the two categories statutorily limited to local elected officials or school superintendents, can they continue to serve in their respective categories if they are later defeated or retire from those positions that made them eligible to serve on the RAC in the first place? A: The answer is yes. If they were serving in that capacity at the time they were named to the RAC, they may continue until the end of their 3-year term. Payments: Q: How long will the Title II funds be available once they have been reserved? A: Under the law, the Secretary must reserve the amount each county in a State elects to allocate for Title II projects before the balance of the payment is transferred to the State. The reserved Title II funds will be deposited in a special account in the Treasury. The Act makes the Title II funds available, without further appropriation, until expended. However, the authority to initiate projects under Title II terminates on September 30, 2006, and any project funds not obligated by September 30, 2007, must be deposited in the Treasury under section 208 of the Act. Q: Should Title II projects be treated the same as projects funded by appropriated monies? If a Title II project is on non-federal land would the answer be different? A: Title II projects will be treated the same as projects funded by appropriated dollars. The Forest Service is responsible for complying with NEPA, ESA, and all other applicable law for these projects. Like other projects on NFS lands, Title II projects are subject to administrative appeal and judicial review.

6 Section 202 of the Act authorizes the Secretary to enter into cooperative agreements with willing Federal agencies, State and local governments, private and nonprofit entities, and landowners for protection, restoration and enhancement of fish and wildlife habitat, and other resource objectives consistent with the purposes of title II, on Federal land, and on non-federal land where projects would benefit these resources on Federal land. Title II projects carried out, in whole or on part, on non- Federal lands under section 202 would be treated in the same way as projects funded by appropriated dollars. Q: What about PILT payments? Are they affected in any way? A: Payments under P.L do not replace PILT payments; however, a county's PILT payments may be reduced if the county receives increased payments under the new Act. Any county that has been receiving PILT payments in addition to its 25 percent payments should continue to receive PILT. However, because PILT s payment formula considers other prior year Federal land payments in its calculation, counties that receive increased Payments to States funding under this Act may find that their PILT payments are reduced. This will not affect counties already receiving mandatory minimum PILT payments (i.e., counties that already receive large Federal land payments). PILT payments for these counties should remain unchanged. Q: The Osceola National Forest is probably going to increase in acreage substantially in the next year due to an imminent land exchange with the State. How would that new acreage be figured in returns to the county? If the two Osceola counties (Baker and Columbia) choose to go with the average high three years figure for the acreage that they have now and have had historically, how would new acreage be figured? A. The Act defines the term, full payment amount as the average of a State s three highest 25-percent payments for the years from For the State of Florida, the full payment amount is $2,351,133. The Act does not

7 adjust a state s full payment amount as a result of a subsequent change in acreage. A county s share of the state s full payment amount will depend on the state s formula for distributing the full payment amount. If the state bases its distribution to a county on the county s historic percentage, a change in acreage will not affect the county s share of the state s full payment amount. Q: May the Secretary of Agriculture delegate contracting authority to eligible counties for projects contemplated under Title II of the Act? A: No, the Secretary may not delegate the contracting authority to eligible counties for Title II projects. Since the Act does not provide for a delegation of the Secretary s contracting authority outside of the standard contracting procedures, the standard contracting procedures apply. Q: If an eligible county elects to receive its share of the state s full payment amount, when will that payment be made? A: The first payments under the Act will be the payments for FY Those payments will be made to the states in the first quarter of FY Q: In determining that 50% of Title II funds are used for road maintenance and decommissioning or for watersheds, will the Forest Service use a national average, or a regional or RAC average? A: The Forest Service has decided that 50% of the funding for projects proposed by each RAC will be used for road maintenance and decommissioning or for watersheds. Q: Can Title II monies be used to maintain county roads providing access to FS lands? A: Under section 202, the Secretary may enter into a cooperative agreement with a county to use Title II funds to maintain county roads if the maintenance of the roads

8 would benefit resources on Federal land. Q: Can Title II funds be used for maintenance and monitoring? A: Yes. Maintenance of existing infrastructure is among the statutory purposes of Title II projects under section 204(a)(5). Maintenance of Title II projects may be treated as a valid cost of those projects. Monitoring is a required component of project proposals under section 203(b)(6) and may also be treated as a valid project cost. Q: How and when will Title III funds be distributed? Will payments be made directly to the counties? A: Title III funds, along with the funds to be used for public roads and public schools, will be paid to a state in the first quarter of the fiscal year for which the payment is made. The state will distribute Title III funds to each county that has reserved these funds. Q: Do the Forest Supervisors have the authority to approve Title II special projects? A: Forest Supervisors currently have the authority to approve, disapprove, or make other decisions about projects like those envisioned under Title II and do not need an additional delegation of authority to approve Title II projects. Q: If a county s share of the state s full payment amount is less than $100,000, may the county elect to use the funds on Title II and/or Title III projects? A: Yes. A county whose share of the state s full payment amount is less than $100,000 may elect to allocate 15 to 20 percent of its payment on Title II and/or Title III projects. However, it is not required to do so. Q: May the county be reimbursed for readiness for search and rescue activities, or just for the actual cost of search and rescue activities?

9 A: Section 302(b)(1) of the Act states that an eligible county or applicable sheriff s department may use Title III funds as reimbursement for search and rescue and other emergency services, including fire fighting, performed on Federal lands and paid for by the county. A county may use Title III funds to pay for expenses necessary to its search and rescue activities on Federal land. The expenditure must bear a logical relationship to the search and rescue activity on Federal land, and it must not otherwise be provided for. In the case of an expenditure that is necessary for search and rescue activities on both county and Federal lands, Title III funds may be expended in proportion to the relative use of the expenditure on Federal land. Q: In the case of community service work camps, are only salary costs covered? May a county be reimbursed for the purchase of a van to transport juveniles to the Forest to perform community service? A: Section 302 (a)(2) of the Act limits reimbursement of county costs to salaries and benefits of county employees who supervise... The county purchase of a van described above would not be a salary or a benefit of a supervising employee, and so could not be reimbursed using Title III funds. Q: Would it be possible to set up a small-log sort yard under Title II? A: Section 204 (e)(3) of the Act requires the Secretary to establish a pilot program, to implement a certain percentage of approved projects involving the sale of merchantable material using separate contracts for (i) the harvesting or collection of merchantable material; and (ii) the sale of such material. It is possible that the Secretary could enter into a separate contract with a small-log sort yard for the sale of merchantable timber under the pilot program established pursuant to section 204(e)(3). Q: May Title II funds be used to pay for RAC expenses?

10 A: Title II funds may be used to pay for some RAC expenses such as travel and per diem of RAC members, meeting rooms, and facilitators. The Forest Supervisor should gain the concurrence of the RAC members that these expenditures are appropriate. Q: Once Title II funds are obligated for a specific project, must that project be completed within the same Fiscal Year for which the funds were allotted? A: No. Multi-year projects are explicitly permitted under the Act. (See Section 206 (a)(1)(c) as well as 206 (b)(1) and 206 (b)(3)). Q: May a county use money it reserves for projects under title III toward the non-federal component of a federal matching grant program? A: Section 301 (2) of title III defines county funds as, all funds an eligible county elects...to reserve for expenditure in accordance with [title III]. Additionally, section 302(a) of title III authorizes the county to approve a project using title III funds. Both of these provisions indicate that funds expended under title III are county funds, which would enable the county to use the money for the non-federal component of a federal matching grant. A county would need to review each federal matching grant program to ensure consistency with the requirements of title III, including assuring that the purpose of the federal matching grant is consistent with one of the authorized uses of funds under title III. Q: Does paragraph (6) of section 301(b) of title III authorize a county to use title III funds for any activity authorized under section 9 of the Cooperative Forestry Assistance Act of 1978, 16 U.S.C ( CFA Act ), in light of the authority in paragraph (6) to use title III funds towards the non- Federal cost-share requirements of section 9 of the CFA Act? A: The authorized uses of title III funds are found in paragraphs

11 (1) - (6) of section 302(b) of title III. Under rules of statutory construction, the specific grant of authority in paragraph (6) to utilize title III funds towards the non-federal cost-share requirements of section 9 of the CFA Act indicates a lack of authority in paragraph (6) to utilize title III funds for any other activity under section 9. Title III funds could be utilized for another activity under section 9 of the CFA Act if paragraphs (1) - (5) of section 302(b) of title III authorize that activity.