43 U.S.C. § 422e — Contract requirements

Page 143 TITLE 43—PUBLIC LANDS § 422e 1 So in original. The period probably should be a semicolon. Subsecs. (e), (f). Pub. L. 94–181, § 1(d), (e), redesignated former subsec. (d) as (e), substituted ‘‘(e)’’ for ‘‘(d)’’, and redesignated former subsec. (e) as (f). 1971—Subsec. (e). Pub. L. 92–167 substituted in first sentence ‘‘project’’ for ‘‘project, whether the proposal involves furnishing supplemental irrigation water for an existing irrigation project, whether the proposal in- volves rehabilitation of existing irrigation project works, and whether the proposed project is primarily for irrigation’’. 1966—Subsec. (a). Pub. L. 89–553, § 1(2), extended project costs to include the cost of means and measures to prevent loss of and damage to fish and wildlife re- sources and authorized allocation of such costs as may be appropriate among project functions. Subsec. (b). Pub. L. 89–553, § 1(3), substituted ‘‘cost of the project’’ for ‘‘cost of construction’’ in provision re- quiring that the organization be ready, able, and will- ing to finance by other than loan or grant whatever costs the Secretary advises, inserted reference to sec- tion 422e(b)(2) of this title as an exception to the costs which the organization must be able to finance other than by loan or grant, and struck out proviso that the contribution by the applicant organization shall not be required in excess of 25 per centum of the costs of the project which, if it were being constructed as a Federal reclamation project, would be properly allocable to re- imbursable functions under general provisions of law applicable to such projects. 1957—Subsec. (c). Pub. L. 85–47, § 1(a), changed lan- guage generally, and struck out provisions which au- thorized Secretary to negotiate a contract as provided in section 422e of this title, with the provision that no such contract be executed by him prior to sixty days from date project proposal was submitted to both branches of Congress for committee consideration, and then only if neither committee disapproved proposal within the period, but that if both committees ap- proved he could execute contract, and that if either committee disapproved, he could not proceed unless Congress approved. Subsecs. (d), (e). Pub. L. 85–47, § 1(b), added subsec. (d) and redesignated former subsec. (d) as (e). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1986 AMENDMENT Amendment by sections 304(a) and 305 of Pub. L. 99–546 applicable to all proposals for which final appli- cations are received by Secretary after Jan. 1, 1986, and amendment by section 304(b) of Pub. L. 99–546 applica- ble to all proposals for which draft applications are re- ceived by Secretary after Aug. 15, 1986, see section 310 of Pub. L. 99–546, set out as a note under section 422a of this title. RETROACTIVE EFFECT OF 1966 AMENDMENT Amendment by Pub. L. 89–553 not to be applicable to or affect in any way the terms on which any loan or grant was made prior to the effective date of Pub. L. 89–553, Sept. 2, 1966, see section 2 of Pub. L. 89–553, set out as a note under section 422b of this title. § 422e. Contract requirements Upon approval of any project proposal by the Secretary under the provisions of section 422d of this title, he may negotiate a contract which shall set out, among other things— (a) the maximum amount of any loan to be made to the organization and the time and method of making the same available to the organization. Said loan shall not exceed the lesser of (1) two-thirds of the maximum allow- able estimated total project cost as deter- mined by section 422b(f) of this title, or (2) the estimated total cost of the project minus the contribution of the local organization as pro- vided in section 422d(b) of this title and the amount of the grant approved; (b) the maximum amount of any grant to be accorded the organization. Said grant shall not exceed the sum of the following: (1) the costs of investigations, surveys, and engineer- ing and other services necessary to the prepa- ration of proposals and plans for the project allocable to fish and wildlife enhancement or public recreation; (2) one-half the costs of ac- quiring lands or interests therein to serve ex- clusively the purposes of fish and wildlife en- hancement or public recreation, plus the costs of acquiring joint use lands and interests therein properly allocable to fish and wildlife enhancement and public recreation; (3) one- half the costs of basic public outdoor recre- ation facilities or facilities serving fish and wildlife enhancement purposes exclusively; (4) one-half the costs of construction of joint use facilities properly allocable to fish and wild- life enhancement or public recreation; (5) that portion of the estimated cost of constructing the project which, if it were constructed as a Federal reclamation project, would be prop- erly allocable to functions, other than recre- ation and fish and wildlife enhancement and flood control, which are nonreimbursable under general provisions of law applicable to such projects; and (6) that portion of the esti- mated cost of constructing the project which is allocable to flood control and which would be nonreimbursable under general provisions of law applicable to projects constructed by the Secretary of the Army.1 (c) a plan of repayment by the organization of (1) the sums lent to it in not more than forty years from the date when the principal benefits of the project first become available; (2) interest, as determined by the Secretary of the Treasury, as of the beginning of the fiscal year in which the contract is executed, on the basis of the average market yields on out- standing marketable obligations of the United States with remaining periods of maturity comparable to the applicable reimbursement period of the project, adjusted to the nearest one-eighth of 1 percent on the unamortized balance of any portion of the loan— (A) which is attributable to furnishing ir- rigation benefits in each particular year to land held in private ownership by a qualified recipient or by a limited recipient, as such terms are defined in section 390bb of this title, in excess of three hundred and twenty irrigable acres; or, (B) which is allocated to domestic, indus- trial, or municipal water supply, commercial power, fish and wildlife enhancement, or public recreation except that portion of such allocation attributable to furnishing bene- fits to a facility operated by an agency of the United States, which portion shall bear no interest.1 (d) provision for operation of the project, if a grant predicated upon its performance of nonreimbursable functions is made, in accord- ance with regulations with respect thereto Page 144 TITLE 43—PUBLIC LANDS § 422e prescribed by the head of the Federal depart- ment or agency primarily concerned with those functions and, in the event of non- compliance with such regulations, for oper- ation by the United States or for repayment to the United States of the amount of any such grant; (e) such provisions as the Secretary shall deem necessary or proper to provide assurance of and security for prompt repayment of the loan and interest as aforesaid. The liability of the United States under any contract entered into pursuant to this subchapter shall be con- tingent upon the availability of appropriations to carry out the same, and every such contract shall so recite; and (f) provisions conforming to the preference requirements contained in the proviso to sec- tion 485h(c) of this title, if the project pro- duces electric power for sale. (Aug. 6, 1956, ch. 972, § 5, 70 Stat. 1046; Pub. L. 85–47, § 1(c), June 5, 1957, 71 Stat. 49; Pub. L. 89–553, § 1(4), Sept. 2, 1966, 80 Stat. 376; Pub. L. 92–167, § 1(3)–(6), Nov. 24, 1971, 85 Stat. 488; Pub. L. 94–181, § 1(f), Dec. 27, 1975, 89 Stat. 1050; Pub. L. 96–336, § 8(b), Sept. 4, 1980, 94 Stat. 1065; Pub. L. 97–293, title II, § 223, Oct. 12, 1982, 96 Stat. 1272; Pub. L. 99–546, title III, §§ 306, 307, Oct. 27, 1986, 100 Stat. 3054.) Editorial Notes AMENDMENTS 1986—Subsec. (b). Pub. L. 99–546, § 306, struck out ‘‘and’’ before ‘‘(5)’’ and substituted ‘‘and flood control, which are nonreimbursable under general provisions of law applicable to such projects; and (6) that portion of the estimated cost of constructing the project which is allocable to flood control and which would be non- reimbursable under general provisions of law applicable to projects constructed by the Secretary of the Army.’’ for ‘‘, which are nonreimbursable under general provi- sions of law applicable to such projects: Provided, That the cost of constructing the project as used in this sub- section shall be exclusive of the cost of lands and inter- ests in land;’’. Subsec. (c)(1). Pub. L. 99–546, § 307(a), substituted ‘‘forty’’ for ‘‘fifty’’. Subsec. (c)(2). Pub. L. 99–546, § 307(b), amended cl. (2) generally. Prior to amendment, cl. (2) read as follows: ‘‘interest, as determined by the Secretary of the Treas- ury, as of the beginning of the fiscal year in which the contract is executed, on the basis of the computed aver- age interest rate payable by the Treasury upon its out- standing marketable public obligations, which are nei- ther due nor callable for redemption for fifteen years from date of issue, and by adjusting such average rate to the nearest one-eighth of 1 per centum, on that por- tion of the loan which is attributable to furnishing irri- gation benefits in each particular year to land held in private ownership by a qualified recipient, as such term is defined in section 390bb of this title, in excess of nine hundred and sixty irrigable acres, or by a limited re- cipient, as such term is defined in section 390bb of this title, in excess of three hundred and twenty irrigable acres; and’’. Subsec. (c)(3). Pub. L. 99–546, § 307(c), struck out cl. (3) which read as follows: ‘‘in the case of any project in- volving an allocation to domestic, industrial, or munic- ipal water supply, commercial power, fish and wildlife enhancement, or public recreation, interest on the unamortized balance of an appropriate portion of the loan at a rate as determined in (2) above; Except that portion of said allocation attributable to furnishing benefits to a facility operated by an agency of the United States, which portion shall bear no interest;’’. 1982—Subsec. (c)(2). Pub. L. 97–293 substituted ‘‘by a qualified recipient, as such term is defined in section 390bb of this title, in excess of nine hundred and sixty irrigable acres, or by a limited recipient, as such term is defined in section 390bb of this title, in excess of three hundred and twenty irrigable acres’’ for ‘‘by any one owner in excess of one hundred and sixty irrigable acres’’. 1980—Subsec. (c). Pub. L. 96–336 inserted ‘‘Except that portion of said allocation attributable to furnishing benefits to a facility operated by an agency of the United States, which portion shall bear no interest;’’ at end of subsec. (c). 1975—Subsec. (a)(1). Pub. L. 94–181 substituted ‘‘two- thirds of the maximum allowable estimated total project cost as determined by section 422b(f) of this title,’’ for ‘‘$10,000,000’’. 1971—Subsec. (a)(1). Pub. L. 92–167, § 1(3), substituted ‘‘$10,000,000’’ for ‘‘$6,500,000’’. Subsec. (b)(2). Pub. L. 92–167, § 1(4), substituted provi- sion for inclusion of one-half of land acquisition costs to serve exclusively the purposes of fish and wildlife en- hancement and public recreation, for prior inclusion of such costs for a reservoir or other area to be operated for fish and wildlife enhancement and public recreation purposes and provided for inclusion of costs of acquir- ing joint use lands and interests therein properly allo- cable to fish and wildlife enhancement and public recreation. Subsec. (b)(5). Pub. L. 92–167, § 1(5), inserted proviso excluding from cost of constructing projects, as used in this subsection, cost of lands and interests in land. Subsec. (c)(3). Pub. L. 92–167, § 1(6), required reimburs- able fish and wildlife and recreation costs to be repaid with interest at rate determined by formula set forth in subsec. (c)(2) of this section. 1966—Pub. L. 89–553 substituted the lesser of $6,500,000 or the estimated total cost of the project minus the contribution of the local organization as provided in section 422d(b) of this title and the amount of the grant for the portion of the estimated cost of constructing the project which, if it were being constructed as a Fed- eral reclamation project, would be properly allocable to reimbursable functions under general provisions of law applicable to such projects as the maximum amount of the loan, struck out the time and method of paying a grant to an organization from the list of contract terms, added factors involving fish and wildlife en- hancement and public recreation to the factors adding up to the figure comprising the maximum allowable grant, and altered the requirements of the interest term by substituting the computed average interest rate payable by the Treasury upon its outstanding mar- ketable public obligations which are neither due nor callable for redemption for fifteen years from date of issue for the estimate of the average annual yield to maturity, on the basis of daily closing market bid quotations or prices during the month of May pre- ceding the fiscal year in which the loan is made, on all outstanding marketable obligations of the United States having a maturity date of fifteen or more years from May 1 of the year. 1957—Pub. L. 85–47 substituted ‘‘Upon approval of any project proposal by the Secretary under the provisions of section 422d of this title, he may negotiate a con- tract which’’ for ‘‘Any contract authorized to be nego- tiated under the provisions of subsection (c) of section 422d of this title’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99–546 applicable to all pro- posals for which draft applications are received by Sec- retary after Aug. 15, 1986, see section 310 of Pub. L. 99–546, set out as a note under section 422a of this title. RETROACTIVE EFFECT OF 1966 AMENDMENT Amendment by Pub. L. 89–553 not to be applicable to or affect in any way the terms on which any loan or Page 145 TITLE 43—PUBLIC LANDS § 422j grant was made prior to the effective date of Pub. L. 89–553, Sept. 2, 1966, see section 2 of Pub. L. 89–553, set out as a note under section 422b of this title. § 422f. Proposals for projects previously author- ized; waiver of requirements; approval; nego- tiation of contract Any proposal with respect to the construction of a project which has theretofore been author- ized for construction under the Federal reclama- tion laws shall be made in like manner as a pro- posal under section 422d of this title, but the Secretary may waive such requirements of sub- sections (a) and (b) of section 422d of this title as he finds to be duplicative of, or rendered unnec- essary or impossible by, action already taken by the United States. Upon approval of any such proposal by the Secretary he may negotiate and execute a contract which conforms, as nearly as may be, to the provisions of section 422e of this title. (Aug. 6, 1956, ch. 972, § 6, 70 Stat. 1046.) Editorial Notes REFERENCES IN TEXT The Federal reclamation laws, referred to in text, are defined in section 422b of this title. § 422g. Information from Federal agencies; costs Upon request of an organization which has made or intends to make a proposal under this subchapter, the head of any Federal department or agency may make available to the organiza- tion any existing engineering, economic, or hy- drologic information and printed material that it may have and that will be useful in connec- tion with the planning, design, construction, or operation and maintenance of the project con- cerned. The reasonable cost of any plans, speci- fications, and other unpublished material fur- nished by the Secretary pursuant to this section and the cost of making and administering any loan under this subchapter shall, to the extent that they would not be nonreimbursable in the case of a project constructed under the Federal reclamation laws, be treated as a loan and cov- ered in the provisions of the contract entered into under section 422e of this title unless they are otherwise paid for by the organization. (Aug. 6, 1956, ch. 972, § 7, 70 Stat. 1047.) Editorial Notes REFERENCES IN TEXT The Federal reclamation laws, referred to in text, are defined in section 422b of this title. § 422h. Planning and construction; transfer of funds The planning and construction of projects un- dertaken pursuant to this subchapter shall be subject to all procedural requirements and other provisions of the Fish and Wildlife Coordination Act (48 Stat. 401), as amended (16 U.S.C. 661 et seq.). The Secretary shall transfer to the Fish and Wildlife Service or to the National Marine Fisheries Service, out of appropriations or other funds made available under this subchapter, such funds as may be necessary to conduct the investigations required to carry out the pur- poses of this section. (Aug. 6, 1956, ch. 972, § 8, 70 Stat. 1047; Pub. L. 89–553, § 1(5), Sept. 2, 1966, 80 Stat. 377; Pub. L. 99–546, title III, § 308, Oct. 27, 1986, 100 Stat. 3055.) Editorial Notes REFERENCES IN TEXT The Fish and Wildlife Coordination Act (48 U.S.C. 401), as amended, referred to in text, is act Mar. 10, 1934, ch. 55, 48 Stat. 401, which is classified generally to sec- tions 661 to 666c–1 of Title 16, Conservation. For com- plete classification of this Act to the Code, see section 661(a) of Title 16, Short Title note set out under section 661 of Title 16, and Tables. AMENDMENTS 1986—Pub. L. 99–546 inserted provisions which related to transfer of funds for conduct of investigations to Fish and Wildlife Service or to National Marine Fish- eries Service. 1966—Pub. L. 89–553 substituted ‘‘the Fish and Wild- life Coordination Act, as amended’’ for ‘‘the Act of Aug. 14, 1946 (60 Stat. 1080)’’. § 422i. Rules and regulations The Secretary is authorized to perform any and all acts and to make such rules and regula- tions as may be necessary or proper in carrying out the provisions of this subchapter. (Aug. 6, 1956, ch. 972, § 9, 70 Stat. 1047.) § 422j. Appropriations; notice to Congress of re- ceipt of proposal; funds to initiate proposal; availability of appropriations; reimburse- ment; limitations on expenditures in any sin- gle State; waiver There are authorized to be appropriated, such sums as may be necessary, but not to exceed $600,000,000, to carry out the provisions of this subchapter and, effective October 1, 1986, not to exceed an additional $600,000,000: Provided, That the Secretary shall advise the Congress prompt- ly on the receipt of each proposal referred to in section 422c of this title, and no contract shall become effective until appropriated funds are available to initiate the specific proposal cov- ered by each contract. All such appropriations shall remain available until expended and shall, insofar as they are used to finance loans made under this subchapter, be reimbursable in the manner hereinabove provided. Not more than 20 percent of the total amount of additional funds authorized to be appropriated effective October 1, 1986, for loans and grants pursuant to this sub- chapter shall be for projects in any single State: Provided, That beginning five years after Octo- ber 27, 1986, the Secretary is authorized to waive the 20 percent limitation for loans and grants which meet the purposes set forth in section 422a of this title: Provided further, That the deci- sion of the Secretary to waive the limitation shall be submitted to the Congress together with the project proposal pursuant to section 422d(c) of this title and shall become effective only if the Congress has not, within 60 legislative days, passed a joint resolution of disapproval for such a waiver. (Aug. 6, 1956, ch. 972, § 10, 70 Stat. 1047; Pub. L. 89–553, § 1(6), Sept. 2, 1966, 80 Stat. 377; Pub. L.