FS-2700-26b Category 5 Major Cost Recovery Agreement

FS-2700-26b (09/2020)

OMB 0596-0082

CATEGORY 5 MASTER COST RECOVERY AGREEMENT

Between

USDA, FOREST SERVICE, [name] National Forest,

and [name of applicant]

<Delete all instructions prior to printing.>

This agreement is entered into between the UNITED STATES DEPARTMENT OF AGRICULTURE, Forest Service, [name] National Forest (the Forest Service), and the [name of entity or individual] (the applicant) under 36 CFR 251.58.

A. RECITALS

1. On [date], the Forest Service accepted the applicant’s applications for use and occupancy of National Forest System lands (hereinafter “the applications”), which are enumerated in Appendix A. The Forest Service shall assess the applicant a cost recovery fee for the agency’s costs to process the applications.

2. The proposed use involves multiple phases of development or the applicant has submitted a group of applications or similar applications for a specified geographic area. Therefore, the fee for processing the applications falls within category 5 under the applicable Forest Service processing fee schedule and/or the fee for monitoring the applicant’s special use authorizations falls within category 5 under the applicable Forest Service monitoring fee schedule.

<If this agreement covers monitoring fees, include clause A.3. Otherwise, delete it, and renumber the remaining clauses in the recitals section accordingly. If this agreement is solely for monitoring, delete clauses A.1 and A.2, renumber clause A.3 as A.1, and renumber the remaining clauses in the recitals section accordingly.>

3. A group of special use authorizations for a specified geographic area (hereinafter “the authorizations”) may be issued to the applicant. The authorizations are enumerated in Appendix A and subject to assessment of monitoring fees by the Forest Service.

4. The geographic area to be covered by this agreement is [describe geographic area]. See Appendix B.

5. In signing a master agreement for a major category application submitted or authorization issued under authorities other than the Mineral Leasing Act, the applicant waives the right to request a reduction of the processing or monitoring fee based upon the reasonableness factors in 36 CFR 251.58(c)(1)(ii)(A) or (d)(1)(ii)(A). Therefore, the Forest Service is entitled to recover its full actual costs for all major category applications or authorizations covered by this master agreement.

<Delete clauses A.6 and A.7 and renumber the remaining clause if this agreement is solely for monitoring.>

6. Payment of a processing fee by the applicant does not obligate the Forest Service to authorize the applicant’s proposed use and occupancy. If a major category application is denied or withdrawn in writing, the applicant is responsible for costs incurred by the Forest Service in processing the application up to and including the date the agency denies the application or receives written notice of the applicant’s withdrawal. If the applicant withdraws a major category application, the applicant also is responsible for any costs subsequently incurred by the Forest Service in terminating consideration of the application.

<List the applications in Appendix A and corresponding environmental analysis in Appendix D.>

7. The Forest Service shall determine the appropriate level of environmental analysis for each application which is enumerated in Appendix D and inform the applicant prior to initiating the environmental analysis.

8. Information associated with this agreement may be released to the public in accordance with the provisions of the Freedom of Information Act and Privacy Act.

<Use Part I if the agreement covers processing fees. Otherwise, delete it.>

PART I – PROCESSING FEES

B. BASIS FOR PROCESSING FEES. Processing fees for the applications are based upon the direct and indirect costs that the Forest Service incurs in reviewing the applications, conducting environmental analyses of the effects of the proposed use, reviewing any applicant-generated environmental documents and studies, conducting site visits, evaluating the applicant’s technical and financial qualifications, making a decision on whether to issue the authorizations, and preparing documentation of analyses, decisions, and authorizations for the applications. The processing fee for the applications shall be based only on costs that are necessary for processing the applications. “Necessary for” means that but for the applications, the costs would not have been incurred. The processing fee shall not include costs for studies for programmatic planning or analysis or other agency management objectives, unless they are necessary for processing the applications. Proportional costs for analyses, such as capacity studies, that are necessary for the applications may be included in the processing fee.

C. AGREEMENT. In consideration of the foregoing, the parties agree as follows:

1. Scope of Work. The Forest Service shall develop a scope of work for processing the applications and an estimate of the agency’s costs to process the applications, which will be incorporated into this agreement as Appendix C. This scope of work shall report direct costs in categories that correspond to those in the agency’s accounting system, e.g., job code, personnel compensation based upon the cost to the government (salary and benefits), travel, and other direct services, materials, and supplies. In addition, the estimate of the agency’s processing costs shall include the agency’s indirect costs based upon the approved annual indirect cost rate. Classification of costs as direct or indirect shall be in accordance with the published Forest Service budget for the applicable fiscal year.

2. Environmental Analysis. The Forest Service shall supervise the preparation of the environmental analysis associated with the applications in compliance with applicable legal requirements, including public review of the analysis, analysis of public comments, and decision documentation. In exercising this responsibility, the Forest Service shall endeavor to foster cooperation among other agencies involved in the process, and to integrate National Environmental Policy Act requirements and other environmental review and consultation requirements to avoid, to the fullest extent possible, duplication of efforts by those agencies. However, the Forest Service shall not delegate to any other agency its authority over the scope and content of the environmental analysis, or approval or denial of the applications.

<Carefully estimate the processing fee to minimize underpayment or overpayment. Ensure that there is sufficient documentation of the costs.>

<A separate bill may be sent for applications that are added to Appendix A after this agreement is executed.>

<Select the appropriate set of C.3 and C.4 clauses and delete the other set.>

<If the estimated processing fee is less than $10,000, use the following C.3 and C.4 clauses.>

3. Billing. The Forest Service shall bill the applicant prior to commencement of work. The applicant agrees to pay the estimated processing fee of $_____. The bill for the estimated processing fee will be sent by Forest Service the Albuquerque Service Center (ASC).

4. Payment. The applicant shall pay the estimated processing fee within 30 days of the date the bill for the fee was issued. The Forest Service shall not initiate processing the application until the estimated processing fee is paid. If the applicant fails to pay the estimated processing fee or the fee is late, the Forest Service shall cease processing the application until the fee is paid.

<If the estimated processing fee is $10,000 or more, use the following C.3 and C.4 clauses. Use the scope of work (Appendix C) to determine amounts billed monthly or quarterly.>

3. Billing. The Forest Service shall bill the applicant prior to commencement of work. The applicant agrees to pay the initial estimated processing fee of $_____ and a subsequent [monthly or quarterly] estimated processing fee of $_____, for a total of $_____. The initial bill for the estimated processing fee will be sent by Forest Service the Albuquerque Service Center (ASC).

4. Payment. The applicant shall pay the initial estimated processing fee and any subsequent estimated processing fee within 30 days of the date the bill for the fee was issued. The Forest Service shall not initiate processing the application until the initial estimated processing fee is paid. If the applicant fails to pay the initial or any subsequent estimated processing fee or the fee is late, the Forest Service shall cease processing the application until the fee is paid.

<In clause C.5, select “annually” if the project will be completed in more than one years. Select “upon completion of the project” if the project will be completed in one year or less.>

5. Statement of Costs. The Forest Service shall [annually or upon completion of the project] report costs incurred for processing the applications by providing a financial statement from the agency’s accounting system to the applicant.

<Ensure that there is sufficient documentation for reconciliation under clauses

C.6 and C.7.>

6. Underpayment. When the estimated processing costs are lower than the final processing costs for the applications, the applicant shall pay the difference between the estimated and final processing costs within 30 days of billing.

7. Overpayment. If payment of the processing fee exceeds the Forest Service’s final processing costs for the applications, the Forest Service shall either (a) refund the excess payment to the applicant or, (b), at the applicant’s request, shall credit it towards monitoring fees due.

8. Disputes

a. If the applicant disagrees with the processing fee category assigned for a minor category or, in the case of a major processing category, with the estimated dollar amount of the processing costs, the applicant may submit a written request before the disputed fee is due for substitution of an alternative fee category or alternative estimated costs to the immediate supervisor of the authorized officer who determined the fee category or estimated costs. The written request must include supporting documentation.

b. If the applicant pays the full disputed processing fee, the Forest Service shall continue to process the applications during the supervisory officer’s review of the disputed fee, unless the applicant requests that the application processing cease.

c. If the applicant fails to pay the full disputed processing fee, the Forest Service shall suspend further processing of the application pending the supervisory officer’s determination of an appropriate processing fee and the applicant’s payment of that fee.

d. The authorized officer’s immediate supervisor shall render a decision on a disputed processing fee within 30 calendar days of receipt of the written request from the applicant. The supervisory officer’s decision is the final level of administrative review. The dispute shall be decided in favor of the applicant if the supervisory officer does not respond to the written request within 30 days of receipt.

9. Lack of Administrative Appeal. A decision by an authorized officer to assess a processing fee or to determine the fee category or estimated costs is not subject to administrative appeal. A decision by an authorized officer’s immediate supervisor in response to a request for substitution of an alternative fee category or alternative estimated costs likewise is not subject to administrative appeal.

10. Amendment. Modifications to this agreement shall be made in writing and shall be signed and dated by both parties.

11. Expiration and Termination. This agreement expires on [date]. Either party, in writing, may terminate this agreement in whole or in part at any time before it expires. The applicant is responsible for all Forest Service costs covered by this agreement that are incurred up to the date of expiration or termination.

12. Principal Point of Contact. The Forest Service and the applicant shall each establish a principal point of contact for purposes of this agreement.

The Forest Service’s contact is [name, title and telephone number].

The applicant’s contact is [name, title and telephone number].

<If the agreement covers both processing and monitoring fees, delete the signature block below.>

This agreement is accepted subject to all its terms and conditions.

___________________________________ _____________________________

[Name of applicant] Date

[Title of applicant]

____________________________________ _____________________________

[Name of authorized officer] Date

[Title of authorized officer]

USDA, Forest Service

According to the Paperwork Reduction Act of 1995, an agency may not conduct or sponsor, and a person is not required to respond, to a collection of information unless it displays a valid OMB control number.  The valid OMB control number for this information collection is 0596-0082.  Response to this collection of information is mandatory. The authority to collect the information is the Organic Administration Act, 16 U.S.C. 551.  The time required to complete this information collection is estimated to average 8 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

   

In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs).  Remedies and complaint filing deadlines vary by program or incident.

Persons with disabilities who require alternative means of communication for program information (e.g., Braille, large print, audiotape, American Sign Language, etc.) should contact the responsible agency or USDA’s TARGET Center at (202) 720-2600 (voice and TYY) or contact USDA through the Federal Relay Service at (800) 877-8339.  Additionally, program information may be made available in languages other than English.

To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at How to File a Program Discrimination Complaint and at any USDA office or write a letter addressed to USDA and provide in the letter all of the information requested in the form.  To request a copy of the complaint form, call (866) 632-9992.  Submit your completed form or letter to USDA by: (1) mail: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue, SW, Washington, D.C. 20250-9410; (2) fax: (202) 690-7442; or (3) email: program.intake@usda.gov. 

USDA is an equal opportunity provider, employer, and lender.

The Privacy Act of 1974, 5 U.S.C. 552a and the Freedom of Information Act ,5 U.S.C. 552 govern the confidentiality to be provided for information received by the Forest Service.

<Include Part II if the agreement covers monitoring fees. Otherwise, delete it. Part II may be added later if monitoring fees are assessed after the agreement is signed.>

PART II – MONITORING FEES

B. BASIS FOR MONITORING FEES

1. Minor Category Authorizations. For minor category authorizations, the Forest Service shall assess the applicant a monitoring fee based upon the estimated time needed for Forest Service monitoring to ensure compliance with the authorization during construction or reconstruction of temporary or permanent facilities and rehabilitation of the construction or reconstruction site. The assessed monitoring fee for minor categories will be taken from the applicable fee schedule.

2. Major Category Authorizations. For major category authorizations, the Forest Service shall assess the applicant a monitoring fee based upon the agency’s estimated full actual costs to ensure compliance with the terms and conditions of the authorization during all phases of its term, including but not limited to monitoring to ensure compliance with the authorization during the construction or reconstruction of temporary or permanent facilities and rehabilitation of the construction or reconstruction site.

C. AGREEMENT. In consideration of the foregoing, the parties agree as follows:

1. Scope of Work. The Forest Service shall develop a scope of work for monitoring the authorizations and an estimate of the agency’s costs to monitor the authorizations, which will be incorporated into this agreement as Appendix D. This scope of work shall report direct costs in categories that correspond to those in the agency’s accounting system, e.g., job code, personnel compensation based upon the cost to the government (salary and benefits), travel, and other direct services, materials, and supplies. In addition, the scope of work shall include the agency’s indirect costs based upon the approved annual indirect cost rate. Classification of costs as direct or indirect shall be in accordance with the published Forest Service budget for the applicable fiscal year.

<Carefully estimate the monitoring fee to minimize underpayment or overpayment. Ensure that there is sufficient documentation of the costs.>

<Select the appropriate set of C.3 and C.4 clauses and delete the other set.>

<If the estimated monitoring fee is less than $10,000, use the following C.2 and C.3 clauses.>

2. Billing. The Forest Service shall bill the applicant prior to commencement of construction, reconstruction, rehabilitation, or any other activity subject to a monitoring fee. The applicant shall pay the estimated monitoring fee of $_____ before or at the same time the authorization is issued. $_____. The bill for the estimated monitoring fee is attached.

3. Payment. The applicant shall pay the estimated monitoring fee within 30 days of the date the bill for the fee was issued. The Forest Service shall not initiate monitoring the authorization until the estimated monitoring fee is paid. If the applicant fails to pay the estimated monitoring fee or the fee is late, the Forest Service shall not issue the authorization or shall suspend or revoke the authorization in whole or in part.

<If the estimated monitoring fee is $10,000 or more, use the following C.2 and C.3 clauses. Use the scope of work (Appendix C) to determine amounts billed monthly or quarterly.>

2. Billing. The Forest Service shall bill the applicant prior to commencement of construction, reconstruction, rehabilitation, or any other activity subject to a monitoring fee. The applicant shall pay the initial estimated monitoring fee of $_____ before or at the same time the authorization is issued and a subsequent [monthly or quarterly] estimated monitoring fee of $_____, for a total of $_____. $_____. The bill for initial estimated monitoring fee is attached.

3. Payment. The applicant shall pay the initial estimated monitoring fee and any subsequent estimated monitoring fees within 30 days of the date the bill for the fee was issued. The Forest Service shall not initiate monitoring the authorization until the estimated monitoring fee is paid. If the applicant fails to pay the initial or any subsequent estimated monitoring fee or the fee is late or fees due become delinquent, the Forest Service shall not issue the authorization or shall suspend or revoke the authorization in whole or in part.

<In clause C.4, select “annually” if the project will be completed in more than one years. Select “upon completion of the project” if the project will be completed in one year or less.>

4. Statement of Costs. The Forest Service shall [annually or upon completion of the project] report costs incurred for monitoring the authorizations by providing a financial statement from the agency’s accounting system to the applicant.

<Ensure that there is sufficient documentation for reconciliation under clauses

C.5 and C.6.>

5. Underpayment. When the estimated monitoring costs are lower than the final monitoring costs for the authorizations, the applicant shall pay the difference between the estimated and final monitoring costs within 30 days of billing.

6. Overpayment. If payment of the monitoring fee exceeds the Forest Service’s final monitoring costs for the authorizations, the Forest Service shall either (a) adjust the next periodic payment to reflect the overpayment or (b) refund the excess payment to the applicant.

7. Disputes

a. If the applicant disagrees with the monitoring fee category assigned for a minor category or, in the case of a major monitoring category, with the estimated dollar amount of the monitoring costs, the applicant may submit a written request before the disputed fee is due for substitution of an alternative fee category or alternative estimated costs to the immediate supervisor of the authorized officer who determined the fee category or estimated costs. The written request must include supporting documentation.

b. If the applicant pays the full disputed monitoring fee, the Forest Service shall issue the authorizations and/or allow the use and occupancy to continue during the supervisory officer’s review of the disputed fee, unless the applicant elects not to exercise the authorized use and occupancy of National Forest System lands during the review period.

c. If the applicant fails to pay the full disputed monitoring fee, the Forest Service shall not issue the applicant an authorization for any new uses or shall suspend or revoke the applicant’s existing authorization in whole or part pending the supervisory officer’s determination of an appropriate monitoring fee and the applicant’s payment of that fee.

d. The authorized officer’s immediate supervisor shall render a decision on a disputed monitoring fee within 30 calendar days of receipt of the written request from the applicant. The supervisory officer’s decision is the final level of administrative review. The dispute shall be decided in favor of the applicant if the supervisory officer does not respond to the written request within 30 days of receipt.

8. Lack of Administrative Appeal. A decision by an authorized officer to assess a monitoring fee or to determine the fee category or estimated costs is not subject to administrative appeal. A decision by an authorized officer’s immediate supervisor in response to a request for substitution of an alternative fee category or alternative estimated costs likewise is not subject to administrative appeal.

9. Amendment. Modifications to this agreement shall be made in writing and shall be signed and dated by both parties.

10. Expiration and Termination. This agreement expires on [date]. Either party, in writing, may terminate this agreement in whole or in part at any time before it expires. The applicant is responsible for all Forest Service costs covered by this agreement that are incurred up to the date of expiration or termination.

11. Principal Point of Contact. The Forest Service and the applicant shall each establish a principal point of contact for purposes of this agreement.

The Forest Service’s contact is [name, title and telephone number].

The applicant’s contact is [name, title and telephone number].

This agreement is accepted subject to all its terms and conditions.

___________________________________ _____________________________

[Name of applicant] Date

[Title of applicant]

____________________________________ _____________________________

[Name of authorized officer] Date

[Title of authorized officer]

USDA, Forest Service

According to the Paperwork Reduction Act of 1995, an agency may not conduct or sponsor, and a person is not required to respond, to a collection of information unless it displays a valid OMB control number.  The valid OMB control number for this information collection is 0596-0082.  Response to this collection of information is mandatory. The authority to collect the information is the Organic Administration Act, 16 U.S.C. 551.  The time required to complete this information collection is estimated to average 8 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

   

In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs).  Remedies and complaint filing deadlines vary by program or incident.

Persons with disabilities who require alternative means of communication for program information (e.g., Braille, large print, audiotape, American Sign Language, etc.) should contact the responsible agency or USDA’s TARGET Center at (202) 720-2600 (voice and TYY) or contact USDA through the Federal Relay Service at (800) 877-8339.  Additionally, program information may be made available in languages other than English.

To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at How to File a Program Discrimination Complaint and at any USDA office or write a letter addressed to USDA and provide in the letter all of the information requested in the form.  To request a copy of the complaint form, call (866) 632-9992.  Submit your completed form or letter to USDA by: (1) mail: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue, SW, Washington, D.C. 20250-9410; (2) fax: (202) 690-7442; or (3) email: program.intake@usda.gov. 

USDA is an equal opportunity provider, employer, and lender.

The Privacy Act of 1974, 5 U.S.C. 552a and the Freedom of Information Act ,5 U.S.C. 552 govern the confidentiality to be provided for information received by the Forest Service.

<Attach the following and any other appendices to this agreement.>

APPENDIX A

Applications and Authorizations Subject to this Agreement

Applications

Authorizations

APPENDIX B

Description and Map of the Geographic Area

APPENDIX C

Scope of Work

APPENDIX D

Environmental Analysis

<Delete example prior to printing.>

Example – Single Applicant With Multiple Applications

Application 1: XYZ Resort is building a shelter over an archaeological site.

Environmental analysis required: Environmental Assessment

Application 2: XYZ Resort is replacing a septic tank behind cottage #1 located in a riparian zone known to be the habitat for the six-toed red frog, which is an endangered species.

Environmental analysis required: Environmental Impact Statement

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