Implementation Guidelines

Contents:

1. Guidelines for Title III Project Selection for Forest Counties

2. Sideboards for Title III Projects; the "Red-Face" Test Under PL 106-393

3. Sample Title III Project Notice

Guidelines for Title III Project Selection for Forest Counties

Title III Projects are allowable in six (6) categories under PL 106-393. There are no federal guidelines on what constitutes an "appropriate project" under the law. Further, we do not expect the U.S. Forest Service or the Congress to develop definitive guidelines for counties to follow.

In the absence of such guidelines the NFCSC advises our member counties to adhere to the following:

1. Assume that Title III expenditures under PL 106-393 will be audited by the federal government during the first two years of the bill.

2. Be very conservative in your interpretation of what constitutes an "appropriate project" under each of the six Title III categories. This is the best way to avoid federally disallowed project costs.

3. Maintain a clear audit trail for all Title III funds received and expended by your county. Do not co-mingle these funds with general fund dollars.

4. Comply with all of the public notice and public comment regulations in the law. Provide members of the public and your Resource Advisory Committee (if one exists) 45 days notice and an opportunity to comment on all Title III Projects. Please remember that Title III Projects do not need to be approved by a RAC.

The Best Resource Available
The Oregon Counties have developed a Red-Face Test for Title III Projects under PL 106-393. This is the best resource available to date, for counties to use in thinking about the "appropriateness" of Title III Projects. We recommend that you use this test in your decision making process for Title III Projects.

 

 AOC
Association of Oregon Counties
P.O. Box 12729
Salem, Oregon 97309

 O & C
Association of O & C Counties
P.O. Box 2327
Harbor, Oregon 97415



DATE: January 30, 2001

 

TO: All County Commissioners and Judges for Counties Eligible to Receive Payments Under PL 106-393

CC: Designated County Contacts

FROM: Bob Cantine, Executive Director, AOC
Rocky McVay, Executive Director, Association of O&C Counties
Kevin Davis, Legal Counsel

RE: Sideboards for Title III Projects; the "Red-Face" Test Under PL 106-393

A. Background

Titles II and III of PL 106-393 offer counties an opportunity to expend 15% to 20% of their total "safety-net" payments on various kinds of projects or, alternatively, to return that portion of their safety net payments to the U.S. Treasury. It will obviously be in the best interest of every county in Oregon eligible for safety-net payments to not return any available funding to the Treasury. The more difficult decision will be deciding how to divide the 15% to 20% between Title II and Title III projects.
As was discussed at length at workshops conducted in Burns, Medford and Salem, counties will ultimately be asked to express their allocation of funding between Titles II and III in a resolution, a draft of which will be distributed to the counties in March. Counties must, however begin their pre-budgeting process in February, which requires that they make estimates of how much of the project funding they will be able to spend on projects that fit within the restrictions of Title III. By looking first at Title III, counties will be able to identify projects that would otherwise have to be funded from their general funds. Once all suitable projects are identified under Title III, the balance of PL 106-393 project funding can then be allocated to Title II projects. Title II projects are on Federal lands or for the benefit federal resources and are not projects for which a county would ordinarily provide funding.
The purpose of this memorandum is to help the counties identify appropriate projects under Title III of PL 106-393. Doing so should facilitate the counties' pre-budgeting activities and help prepare the counties for the elections they must make in formally allocating project funding between Titles II and III.

B. Title III Procedures

Once a county makes its formal allocation between Titles II and III the resolution in which the allocation is expressed will be transmitted to the Secretary of the land management agency concerned and, ultimately, to the U.S. Treasury. Soon after the close of each federal fiscal year (September 30) the Treasury will disburse funds according to Title I of PL 106-393 and the allocations made by the counties. Funds allocated to Title II will remain in special county accounts at the Treasury. Title III funds will be sent to the counties, which will be required to hold them in special accounts of their own and used only in accordance with Title III.
While the range of authorized uses under Title III is narrow, the governing body of a county has complete discretion in choosing projects within that range, and the procedures a county must follow are few and simple. In addition to whatever procedures a county ordinarily follows under state law, PL 106-393 requires that a county give the public a 45-day period for comment on proposed Title III projects. The comment period must be announced with a description of the proposed projects published in the local publications of record. The only other required procedure is to notify the Resource Advisory Committee(s) ("RAC(s)") established for the area under Title II of PL 106-393. RACs only receive notice of a proposed project. They have no role in the selection or approval of Title III projects.

C. Title III Accounting

It is anticipated that counties in Oregon will undergo federal audits for compliance with Title III restrictions, perhaps as early as the end of federal fiscal year 2002. For that reason we recommend that Title III project selection be made very conservatively and that Title III financial accounting be detailed and thorough. A county should have written justification to document every withdrawal from a county's Title III account.
A county should establish a special fund account for Title III project funds into which the money disbursed to the county from the U. S. Treasury for Title III projects is deposited. Within the county's Title III special fund account a county should establish 6 line items that correspond to the 6 categories of authorized expenditures under Title III. Even if a county does not expect to expend funds in all 6 categories in the first year the account should be set up to accommodate unanticipated or future expenditures in all six categories. The 6 categories are described later in this memorandum.
Once projects are selected and funds deposited in the account, Title III project expenditures should be made only after reimbursement invoices are submitted by a county department to the county governing body. This step is recommended to assure that the expenditures from the special fund account are made solely on projects that meet the requirements of Title III. Careful records should be kept attributing every expenditure to a specific project and to a specific line item within the Title III project special fund account. A county department relying on outside vendors and outside contractors to complete Title III projects should either pay third-party billings from a department operating account and then seek authorization for reimbursement from the Title III project special fund account, or submit the third party billings for authorization of direct payment from the account. In all cases the invoices for which payments are made from the special fund account should clearly identify the previously approved Title III project for which the expenditure is authorized.
Interest on funds held in the Title III project special fund account will accrue and must remain in that account for expenditure in accordance with Title III. If funds remain in a Title III project special fund account at the end of a given year, it must remain in the account and be carried over to the next year for use by the county on subsequent Title III projects.
It is recommended that a county's Budget Committee review the Title III project special fund account allocation during the budget process.

D. Project Limitations and Authorized Uses

The following are suggestions to aid a county in budgeting for projects that fit within the six categories authorized under Title III. The authorized uses are limited and challenging, so it is our strong recommendation for the first year of Title III funding that counties be conservative in their project selection. The second round of project selection in 2002 will be easier because of the experience gained this year.
The language quoted below in the 6 categories is taken directly from the provisions of Title III of PL 106-393. Emphasis has been added to certain words or phrases to highlight particularly restrictive aspects of the law.

Category (1). Search, Rescue and Emergency Services:

Reimbursement for all documented costs incurred and paid for by a county or county sheriff's department for "search and rescue and other emergency services, including firefighting, performed on federal lands." "Federal lands" is defined in the statute for this and all other purposes to mean only lands within the National Forest system (excluding National Grasslands) and O&C or Coos Bay Wagon Road lands.

One approach for projecting future costs in this category would be to review a county's last three or five year's direct expenditures for search and rescue missions on federal lands to arrive at a historic annual average. Certain general, overhead and capital costs can also be justifiably charged to the Title III special fund account in this category, though we recommend an especially conservative approach in this area. One appropriate method would be to calculate the percentage of direct costs associated with search, rescue and other emergency services performed on federal lands out of the total of all direct costs for all such services performed on all lands. That same percentage could then be used to calculate the portion of total indirect costs (overhead, etc.) that can fairly be attributed to the services actually performed on federal lands. This method would allow a county to be reimbursed for a portion of its training and planning costs.

Examples

 

Note that any cost reimbursed by other third parties to a county for the above activities must be deducted from the reimbursement attributed to the Title III project special fund account in this category. Only those costs for which a county is actually out-of-pocket and that can be attributed to actual services performed on federal lands are reimbursable.

Category (2). Community Service Work Camps:

Reimbursement for all or part of the costs "incurred by the county to pay the salaries and benefits of county employees who supervise adults or juveniles performing mandatory community services on federal lands."

Note that reimbursement is limited to the cost of salaries and benefits for employees. For those counties that do not already have programs that would fit within this category (or any of the other authorized categories under Title III), new programs could be created to take advantage of the funding authorized.

Category (3). Easement Purchases:

Funding to acquire easements from private or other non-county landowners, on a willing seller basis, to provide "nonmotorized access to public lands" (city, county, state or federal) for hunting, fishing, and other recreational purposes. Authorization is also provided to acquire "conservation easements." Costs within this category may include, but are not limited to:

Note that development of or improvements to an access easement (such as trail construction) after acquisition are not included as authorized expenditures, nor are developments or improvements to the land after acquisition of a conservation easement to enhance the conservation purpose for which the easement was acquired (such as tree planting or fencing a streamside buffer). There is no reason under Title III why such improvements could not be made by the landowner prior to county acquisition, however, and the costs of such improvements could then be included as part of the overall payment to the landowner to acquire the easement.

"Conservation easement" is not a defined term in PL 106-393. This term is subject to broad interpretation and may include a wide variety of development or other land-use rights a county may choose to acquire and then not exercise for conservation reasons. For example, a county may choose to acquire the right of a rancher to graze cattle on a particular parcel of land if the county determines that preservation of the vegetation on that parcel serves an important conservation purpose. Or, a county may choose to acquire timber harvesting rights on a particular parcel if the county determines that preserving the trees on that parcel of land serves a worthwhile conservation purpose. Conservation easements can serve a broad array of conservation purposes, including, but not limited to, the protection of open space or viewsheds, wildlife habitat, clean water sources and virtually any other environmental amenity deemed worthy of preservation by a county.

Category (4). Forest Related Educational Opportunities:

A county may use Title III funds for part or all of the cost incurred and paid for by a county "to establish and conduct forest-related after school programs." Suggestions for possible programs within this category include:

Note that these programs can be for children or adults and can be conducted on or off school campuses. The primary restrictions are that the educational programs be forestry related and not be included as part of the curriculum during the school day.

Category (5). Fire Prevention and County Planning:

Funding to cover county costs for (1) " efforts to educate homeowners in fire-sensitive ecosystems about techniques in home siting, home construction, and home landscaping that can increase the protection of people and property from wildfires;" and (2) planning efforts to reduce or mitigate the impact of development [that occurs on nonfederal lands if such development might have an impact] on adjacent Federal lands and [planning] to increase the protection of people and property from wildfires."

The component of this category that authorizes the expenditure of Title III funds for planning to reduce the effects of development on adjacent federal lands is focused on the boundary areas where federal and non-federal lands meet. Note, however, that the component that addresses the education of homeowners about wildfire and the component that authorizes the expenditure of Title III funds for planning to reduce the risks of people and property from wildfire is not restricted to the interface of federal and nonfederal lands. Rather, it appears that costs for education of homeowners and planning costs are authorized for reimbursement under Title III if the education and planning are intended to reduce the risks of wildfire anywhere in a county, even if distant from federal lands.
Programs that might qualify for reimbursement under this category would include, but are not limited to:

Category (6). Community Forestry:

A county may use Title III funds "towards non-federal cost-share requirements of section 9 of the Cooperative Forestry Assistance Act of 1978 (16 U.S.C. 2105)."

The scope of programs authorized under this category is unknown at this time because of an ambiguity in the above quoted language. The original "section 9 of the Cooperative Forestry assistance Act of 1978" addresses the consolidation of funds from all sources to be used to support the full range of programs authorized under the 1978 Act. The citation above in parentheses, however, is not to the original section 9 of the 1978 Act. Rather, 16 U.S.C. 2105 is a reference to a particular subset of programs available only within urban areas. It is unclear whether the programs in this category may include the full range of programs under the 1978 Act or are, instead, restricted to just those few programs that address urban forestry.
Every effort is being made to obtain clarification of the above quoted language as soon as possible. It would obviously be more beneficial to counties to have a broad interpretation rather than a narrow one. If an authoritative interpretation is obtained, it will be provided to all counties as soon as it is received. Until a clarification is available, however, it is recommended that counties not attempt to plan programs under this category for expenditures under Title III. If there is substantial delay in obtaining a clarification, it may be necessary to avoid this category for the first year under Title III and revisit it during the second year of project selections.

SAMPLE ­ Title III Project Notice

 

PUBLIC NOTICE:
NOTICE OF PUBLIC COMMENT PERIOD

NOTICE IS HEREBY GIVEN that __________ County, will receive "safety-net" revenues under the "Secure Rural Schools and Community Self-Determination Act of 2000", PL 106-393. PL 106-393 requires each county to expend 15 to 20 percent of its "safety-net" payment on various kinds of projects pursuant to Titles II and III of the legislation or, alternatively, to return that portion of its safety-net payment to the U.S. Treasury. _________ County Board of Commissioners elected to designate______ percent of its safety-net payment for projects under Titles II and III. Of the funds allocated to projects, _____ percent (approximately $______) has been allocated to projects under Title III for the Federal Fiscal Year 2002, which runs from October 1, 2001 through September 30, 2002. Title III projects may include: Category (1): Search, rescue and emergency services performed on federal lands; Category (2): Certain costs associated with community service work camps on federal lands; Category (3): Easement purchases, to provide non-motorized access to public lands or for conservation easements; Category (4): Forest related after school educational opportunities; Category (5): Fire prevention education and county fire prevention planning; and Category (6): Community forestry under section 9 of the Cooperative Forestry Assistance Act of 1978 (16 U.S.C. 2105). The ________ County Board of Commissioners is opening a forty-five (45) day public comment period to invite all persons wishing to review and make written comments on ________ County's proposed projects. The _________ County Title III proposed projects may be reviewed at the following location(s): ________. All comments must be submitted in writing and received on or before the close of work _____________ 2001. Written comments can be mailed to______________________ or dropped off at the _________ County Court House, to the attention of ______________. For additional information regarding PL 106-393 Title III qualified county projects, please contact _____________ at the above address or by telephoning (___) ___ ____.