FEDERAL · 16 U.S.C. · Chapter 103
Pay-for-performance projects
Current through Pub. L. 119-102
Title 16 — Conservation·Ch. 103 — EXPANDING PUBLIC LANDS OUTDOOR RECREATION EXPERIENCES·Subch. I·Pt. E
(a)Definitions
In this section:
(1)Independent evaluator
The term "independent evaluator" means an individual or entity, including an institution of higher education, that is selected by the pay-for-performance beneficiary and pay-for-performance investor, as applicable, or by the pay-for-performance project developer, in consultation with the Secretary of Agriculture, to make the determinations and prepare the reports required under subsection (e).
(2)National Forest System land
The term "National Forest System land" means land in the National Forest System (as defined in section 1609(a) of this title).
(3)Pay-for-performance agreement
The term "pay-for-performance agreement" means a mutual benefit agreement (excluding a procurement contract, grant agreement, or cooperative agreement
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(a) Definitions
In this section:
(1) Independent evaluator
The term "independent evaluator" means an individual or entity, including an institution of higher education, that is selected by the pay-for-performance beneficiary and pay-for-performance investor, as applicable, or by the pay-for-performance project developer, in consultation with the Secretary of Agriculture, to make the determinations and prepare the reports required under subsection (e).
(2) National Forest System land
The term "National Forest System land" means land in the National Forest System (as defined in section 1609(a) of this title).
(3) Pay-for-performance agreement
The term "pay-for-performance agreement" means a mutual benefit agreement (excluding a procurement contract, grant agreement, or cooperative agreement described in chapter 63 of title 31) for a pay-for-performance project—
(A) with a term of—
(i) not less than 1 year; and
(ii) not more than 20 years; and
(B) that is executed, in accordance with applicable law, by—
(i) the Secretary of Agriculture; and
(ii) a pay-for-performance beneficiary or pay-for-performance project developer.
(4) Pay-for-performance beneficiary
The term "pay-for-performance beneficiary" means a State or local government, an Indian Tribe, or a nonprofit or for-profit organization that—
(A) repays capital loaned upfront by a pay-for-performance investor, based on a project outcome specified in a pay-for-performance agreement; or
(B) provides capital directly for costs associated with a pay-for-performance project.
(5) Pay-for-performance investor
The term "pay-for-performance investor" means a State or local government, an Indian Tribe, or a nonprofit or for-profit organization that provides upfront loaned capital for a pay-for-performance project with the expectation of a financial return dependent on a project outcome.
(6) Pay-for-performance project
The term "pay-for-performance project" means a project that—
(A) would provide or enhance a recreational opportunity;
(B) is conducted on—
(i) National Forest System land; or
(ii) other land, if the activities would benefit National Forest System land (including a recreational use of National Forest System land); and
(C) would use an innovative funding or financing model that leverages—
(i) loaned capital from a pay-for-performance investor to cover upfront costs associated with a pay-for-performance project, with the loaned capital repaid by a pay-for-performance beneficiary at a rate of return dependent on a project outcome, as measured by an independent evaluator; or
(ii) capital directly from a pay-for-performance beneficiary to support costs associated with a pay-for-performance project in an amount based on an anticipated project outcome.
(7) Pay-for-performance project developer
The term "pay-for-performance project developer" means a nonprofit or for-profit organization that serves as an intermediary to assist in developing or implementing a pay-for-performance agreement or a pay-for-performance project.
(8) Project outcome
The term "project outcome" means a measurable, beneficial result (whether economic, environmental, or social) that is attributable to a pay-for-performance project and described in a pay-for-performance agreement.
(b) Establishment of pilot program
The Secretary of Agriculture shall establish a pilot program in accordance with this section to carry out 1 or more pay-for-performance projects.
(c) Pay-for-performance projects
(1) In general
Using funds made available through a pay-for-performance agreement or appropriations, all or any portion of a pay-for-performance project may be implemented by—
(A) the Secretary of Agriculture; or
(B) a pay-for-performance project developer or a third party, subject to the conditions that—
(i) the Secretary of Agriculture shall approve the implementation by the pay-for-performance project developer or third party; and
(ii) the implementation is in accordance with applicable law.
(2) Relation to land management plans
A pay-for-performance project carried out under this section shall be consistent with any applicable land management plan developed under section 1604 of this title.
(3) Ownership
(A) New improvements
The United States shall have title to any improvements installed on National Forest System land as part of a pay-for-performance project.
(B) Existing improvements
Investing in, conducting, or completing a pay-for-performance project on National Forest System land shall not affect the title of the United States to—
(i) any federally owned improvements involved in the pay-for-performance project; or
(ii) the underlying land.
(4) Savings clause
The carrying out of any action for a pay-for-performance project does not provide any right to any party to a pay-for-performance agreement.
(5) Potential conflicts
Before approving a pay-for-performance project under this section, the Secretary of Agriculture shall consider and seek to avoid potential conflicts (including economic competition) with any existing written authorized use.
(d) Project agreements
(1) In general
Notwithstanding the Act of June 30, 1914 (38 Stat. 430, chapter 131; 16 U.S.C. 498), or subtitle C of title XX of the Social Security Act (42 U.S.C. 1397n et seq.), in carrying out the pilot program under this section, the Secretary of Agriculture may enter into a pay-for-performance agreement under which a pay-for-performance beneficiary, pay-for-performance investor, or pay-for-performance project developer agrees to pay for or finance all or part of a pay-for-performance project.
(2) Size limitation
The Secretary of Agriculture may not enter into a pay-for-performance agreement under the pilot program under this section for a pay-for-performance project valued at more than $15,000,000.
(3) Financing
(A) In general
A pay-for-performance agreement shall specify the amounts that a pay-for-performance beneficiary or a pay-for-performance project developer agrees to pay to a pay-for-performance investor or a pay-for-performance project developer, as appropriate, in the event of an independent evaluator determining pursuant to subsection (e) the degree to which a project outcome has been achieved.
(B) Eligible payments
An amount described in subparagraph (A) shall be—
(i) based on—
(I) the respective contributions of the parties under the pay-for-performance agreement; and
(II) the economic, environmental, or social benefits derived from the project outcomes; and
(ii)(I) a percentage of the estimated value of a project outcome;
(II) a percentage of the estimated cost savings to the pay-for-performance beneficiary or the Secretary of Agriculture derived from a project outcome;
(III) a percentage of the enhanced revenue to the pay-for-performance beneficiary or the Secretary of Agriculture derived from a project outcome; or
(IV) a percentage of the cost of the pay-for-performance project.
(C) Forest service financial assistance
Subject to the availability of appropriations, the Secretary of Agriculture may contribute funding for a pay-for-performance project only if—
(i) the Secretary of Agriculture demonstrates that—
(I) the pay-for-performance project would provide a cost savings to the United States;
(II) the funding would accelerate the pace of implementation of an activity previously planned to be completed by the Secretary of Agriculture; or
(III) the funding would accelerate the scale of implementation of an activity previously planned to be completed by the Secretary of Agriculture; and
(ii) the contribution of the Secretary of Agriculture has a value that is not more than 50 percent of the total cost of the pay-for-performance project.
(D) Special account
Any funds received by the Secretary of Agriculture under subsection (c)(1)—
(i) shall be retained in a separate fund in the Treasury to be used solely for pay-for-performance projects; and
(ii) shall remain available until expended and without further appropriation.
(4) Maintenance and decommissioning of pay-for-performance project improvements
A pay-for-performance agreement shall—
(A) include a plan for maintaining any capital improvement constructed as part of a pay-for-performance project after the date on which the pay-for-performance project is completed; and
(B) specify the party that will be responsible for decommissioning the improvements associated with the pay-for-performance project—
(i) at the end of the useful life of the improvements;
(ii) if the improvements no longer serve the purpose for which the improvements were developed; or
(iii) if the pay-for-performance project fails.
(5) Termination of pay-for-performance project agreements
The Secretary of Agriculture may unilaterally terminate a pay-for-performance agreement, in whole or in part, for any program year beginning after the program year during which the Secretary of Agriculture provides to each party to the pay-for-performance agreement a notice of the termination.
(e) Independent evaluations
(1) Progress reports
An independent evaluator shall submit to the Secretary of Agriculture and each party to the applicable pay-for-performance agreement—
(A) by not later than 2 years after the date on which the pay-for-performance agreement is executed, and at least once every 2 years thereafter, a written report that summarizes the progress that has been made in achieving each project outcome; and
(B) before the first scheduled date for a payment described in subsection (d)(3)(A), and each subsequent date for payment, a written report that—
(i) summarizes the results of the evaluation conducted by the independent evaluator to determine whether a payment should be made pursuant to the pay-for-performance agreement; and
(ii) analyzes the reasons why a project outcome was achieved or was not achieved.
(2) Final reports
Not later than 180 days after the date on which a pay-for-performance project is completed, the independent evaluator shall submit to the Secretary of Agriculture and each party to the pay-for-performance agreement a written report that includes, with respect to the period covered by the report—
(A) an evaluation of the effects of the pay-for-performance project with respect to each project outcome;
(B) a determination of whether the pay-for-performance project has met each project outcome; and
(C) the amount of the payments made for the pay-for-performance project pursuant to subsection (d)(3)(A).
(f) Additional Forest Service-provided assistance
(1) Technical assistance
The Secretary of Agriculture may provide technical assistance to facilitate pay-for-performance project development, such as planning, permitting, site preparation, and design work.
(2) Consultants
Subject to the availability of appropriations, the Secretary of Agriculture may hire a contractor—
(A) to conduct a feasibility analysis of a proposed pay-for-performance project;
(B) to assist in the development, implementation, or evaluation of a proposed pay-for-performance project or a pay-for-performance agreement; or
(C) to assist with an environmental analysis of a proposed pay-for-performance project.
(g) Savings clause
The Secretary of Agriculture shall approve a record of decision, decision notice, or decision memo for any activities to be carried out on National Forest System land as part of a pay-for-performance project before the Secretary of Agriculture may enter into a pay-for-performance agreement involving the applicable pay-for-performance project.
(h) Duration of pilot program
(1) Sunset
The authority to enter into a pay-for-performance agreement under this section terminates on the date that is 7 years after January 4, 2025.
(2) Savings clause
Nothing in paragraph (1) affects any pay-for-performance project agreement entered into by the Secretary of Agriculture under this section before the date described in that paragraph.
In this section:
(1) Independent evaluator
The term "independent evaluator" means an individual or entity, including an institution of higher education, that is selected by the pay-for-performance beneficiary and pay-for-performance investor, as applicable, or by the pay-for-performance project developer, in consultation with the Secretary of Agriculture, to make the determinations and prepare the reports required under subsection (e).
(2) National Forest System land
The term "National Forest System land" means land in the National Forest System (as defined in section 1609(a) of this title).
(3) Pay-for-performance agreement
The term "pay-for-performance agreement" means a mutual benefit agreement (excluding a procurement contract, grant agreement, or cooperative agreement described in chapter 63 of title 31) for a pay-for-performance project—
(A) with a term of—
(i) not less than 1 year; and
(ii) not more than 20 years; and
(B) that is executed, in accordance with applicable law, by—
(i) the Secretary of Agriculture; and
(ii) a pay-for-performance beneficiary or pay-for-performance project developer.
(4) Pay-for-performance beneficiary
The term "pay-for-performance beneficiary" means a State or local government, an Indian Tribe, or a nonprofit or for-profit organization that—
(A) repays capital loaned upfront by a pay-for-performance investor, based on a project outcome specified in a pay-for-performance agreement; or
(B) provides capital directly for costs associated with a pay-for-performance project.
(5) Pay-for-performance investor
The term "pay-for-performance investor" means a State or local government, an Indian Tribe, or a nonprofit or for-profit organization that provides upfront loaned capital for a pay-for-performance project with the expectation of a financial return dependent on a project outcome.
(6) Pay-for-performance project
The term "pay-for-performance project" means a project that—
(A) would provide or enhance a recreational opportunity;
(B) is conducted on—
(i) National Forest System land; or
(ii) other land, if the activities would benefit National Forest System land (including a recreational use of National Forest System land); and
(C) would use an innovative funding or financing model that leverages—
(i) loaned capital from a pay-for-performance investor to cover upfront costs associated with a pay-for-performance project, with the loaned capital repaid by a pay-for-performance beneficiary at a rate of return dependent on a project outcome, as measured by an independent evaluator; or
(ii) capital directly from a pay-for-performance beneficiary to support costs associated with a pay-for-performance project in an amount based on an anticipated project outcome.
(7) Pay-for-performance project developer
The term "pay-for-performance project developer" means a nonprofit or for-profit organization that serves as an intermediary to assist in developing or implementing a pay-for-performance agreement or a pay-for-performance project.
(8) Project outcome
The term "project outcome" means a measurable, beneficial result (whether economic, environmental, or social) that is attributable to a pay-for-performance project and described in a pay-for-performance agreement.
(b) Establishment of pilot program
The Secretary of Agriculture shall establish a pilot program in accordance with this section to carry out 1 or more pay-for-performance projects.
(c) Pay-for-performance projects
(1) In general
Using funds made available through a pay-for-performance agreement or appropriations, all or any portion of a pay-for-performance project may be implemented by—
(A) the Secretary of Agriculture; or
(B) a pay-for-performance project developer or a third party, subject to the conditions that—
(i) the Secretary of Agriculture shall approve the implementation by the pay-for-performance project developer or third party; and
(ii) the implementation is in accordance with applicable law.
(2) Relation to land management plans
A pay-for-performance project carried out under this section shall be consistent with any applicable land management plan developed under section 1604 of this title.
(3) Ownership
(A) New improvements
The United States shall have title to any improvements installed on National Forest System land as part of a pay-for-performance project.
(B) Existing improvements
Investing in, conducting, or completing a pay-for-performance project on National Forest System land shall not affect the title of the United States to—
(i) any federally owned improvements involved in the pay-for-performance project; or
(ii) the underlying land.
(4) Savings clause
The carrying out of any action for a pay-for-performance project does not provide any right to any party to a pay-for-performance agreement.
(5) Potential conflicts
Before approving a pay-for-performance project under this section, the Secretary of Agriculture shall consider and seek to avoid potential conflicts (including economic competition) with any existing written authorized use.
(d) Project agreements
(1) In general
Notwithstanding the Act of June 30, 1914 (38 Stat. 430, chapter 131; 16 U.S.C. 498), or subtitle C of title XX of the Social Security Act (42 U.S.C. 1397n et seq.), in carrying out the pilot program under this section, the Secretary of Agriculture may enter into a pay-for-performance agreement under which a pay-for-performance beneficiary, pay-for-performance investor, or pay-for-performance project developer agrees to pay for or finance all or part of a pay-for-performance project.
(2) Size limitation
The Secretary of Agriculture may not enter into a pay-for-performance agreement under the pilot program under this section for a pay-for-performance project valued at more than $15,000,000.
(3) Financing
(A) In general
A pay-for-performance agreement shall specify the amounts that a pay-for-performance beneficiary or a pay-for-performance project developer agrees to pay to a pay-for-performance investor or a pay-for-performance project developer, as appropriate, in the event of an independent evaluator determining pursuant to subsection (e) the degree to which a project outcome has been achieved.
(B) Eligible payments
An amount described in subparagraph (A) shall be—
(i) based on—
(I) the respective contributions of the parties under the pay-for-performance agreement; and
(II) the economic, environmental, or social benefits derived from the project outcomes; and
(ii)(I) a percentage of the estimated value of a project outcome;
(II) a percentage of the estimated cost savings to the pay-for-performance beneficiary or the Secretary of Agriculture derived from a project outcome;
(III) a percentage of the enhanced revenue to the pay-for-performance beneficiary or the Secretary of Agriculture derived from a project outcome; or
(IV) a percentage of the cost of the pay-for-performance project.
(C) Forest service financial assistance
Subject to the availability of appropriations, the Secretary of Agriculture may contribute funding for a pay-for-performance project only if—
(i) the Secretary of Agriculture demonstrates that—
(I) the pay-for-performance project would provide a cost savings to the United States;
(II) the funding would accelerate the pace of implementation of an activity previously planned to be completed by the Secretary of Agriculture; or
(III) the funding would accelerate the scale of implementation of an activity previously planned to be completed by the Secretary of Agriculture; and
(ii) the contribution of the Secretary of Agriculture has a value that is not more than 50 percent of the total cost of the pay-for-performance project.
(D) Special account
Any funds received by the Secretary of Agriculture under subsection (c)(1)—
(i) shall be retained in a separate fund in the Treasury to be used solely for pay-for-performance projects; and
(ii) shall remain available until expended and without further appropriation.
(4) Maintenance and decommissioning of pay-for-performance project improvements
A pay-for-performance agreement shall—
(A) include a plan for maintaining any capital improvement constructed as part of a pay-for-performance project after the date on which the pay-for-performance project is completed; and
(B) specify the party that will be responsible for decommissioning the improvements associated with the pay-for-performance project—
(i) at the end of the useful life of the improvements;
(ii) if the improvements no longer serve the purpose for which the improvements were developed; or
(iii) if the pay-for-performance project fails.
(5) Termination of pay-for-performance project agreements
The Secretary of Agriculture may unilaterally terminate a pay-for-performance agreement, in whole or in part, for any program year beginning after the program year during which the Secretary of Agriculture provides to each party to the pay-for-performance agreement a notice of the termination.
(e) Independent evaluations
(1) Progress reports
An independent evaluator shall submit to the Secretary of Agriculture and each party to the applicable pay-for-performance agreement—
(A) by not later than 2 years after the date on which the pay-for-performance agreement is executed, and at least once every 2 years thereafter, a written report that summarizes the progress that has been made in achieving each project outcome; and
(B) before the first scheduled date for a payment described in subsection (d)(3)(A), and each subsequent date for payment, a written report that—
(i) summarizes the results of the evaluation conducted by the independent evaluator to determine whether a payment should be made pursuant to the pay-for-performance agreement; and
(ii) analyzes the reasons why a project outcome was achieved or was not achieved.
(2) Final reports
Not later than 180 days after the date on which a pay-for-performance project is completed, the independent evaluator shall submit to the Secretary of Agriculture and each party to the pay-for-performance agreement a written report that includes, with respect to the period covered by the report—
(A) an evaluation of the effects of the pay-for-performance project with respect to each project outcome;
(B) a determination of whether the pay-for-performance project has met each project outcome; and
(C) the amount of the payments made for the pay-for-performance project pursuant to subsection (d)(3)(A).
(f) Additional Forest Service-provided assistance
(1) Technical assistance
The Secretary of Agriculture may provide technical assistance to facilitate pay-for-performance project development, such as planning, permitting, site preparation, and design work.
(2) Consultants
Subject to the availability of appropriations, the Secretary of Agriculture may hire a contractor—
(A) to conduct a feasibility analysis of a proposed pay-for-performance project;
(B) to assist in the development, implementation, or evaluation of a proposed pay-for-performance project or a pay-for-performance agreement; or
(C) to assist with an environmental analysis of a proposed pay-for-performance project.
(g) Savings clause
The Secretary of Agriculture shall approve a record of decision, decision notice, or decision memo for any activities to be carried out on National Forest System land as part of a pay-for-performance project before the Secretary of Agriculture may enter into a pay-for-performance agreement involving the applicable pay-for-performance project.
(h) Duration of pilot program
(1) Sunset
The authority to enter into a pay-for-performance agreement under this section terminates on the date that is 7 years after January 4, 2025.
(2) Savings clause
Nothing in paragraph (1) affects any pay-for-performance project agreement entered into by the Secretary of Agriculture under this section before the date described in that paragraph.
16 U.S.C. § 8463 (Pay-for-performance projects) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.
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Source Credit
History
(Pub. L. 118–234, title I, §155, Jan. 4, 2025, 138 Stat. 2871.)
Editorial Notes
Editorial Notes
References in Text
The Social Security Act, referred to in subsec. (d)(1), is act Aug. 14, 1935, ch. 531, 49 Stat. 620. Subtitle C of title XX of the Act is classified generally to division C (§1397n et seq.) of subchapter XX of chapter 7 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see section 1305 of Title 42 and Tables.
References in Text
The Social Security Act, referred to in subsec. (d)(1), is act Aug. 14, 1935, ch. 531, 49 Stat. 620. Subtitle C of title XX of the Act is classified generally to division C (§1397n et seq.) of subchapter XX of chapter 7 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see section 1305 of Title 42 and Tables.