§ 8463. Pay-for-performance projects

• (a) In this section:
  • (1) 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) The term “National Forest System land” means land in the National Forest System (as defined in section 1609(a) of this title ).
  • (3) 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) 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) 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) 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) 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) 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) 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)
  • (1) 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) 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)
    • (A) The United States shall have title to any improvements installed on National Forest System land as part of a pay-for-performance project.
    • (B) 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) 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) 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)
  • (1) 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) 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)
    • (A) 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) 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) 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) 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) 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) 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)
  • (1) 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) 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)
  • (1) 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) 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) 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)
  • (1) 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) 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.