---
kind: "section"
citation: "16 U.S.C. § 8463"
title: "16"
title_heading: "Conservation"
number: "8463"
heading: "Pay-for-performance projects"
release: "119-102"
url: "https://uscodex.org/usc/16/8463"
units:
  - "Chapter 103 — Expanding Public Lands Outdoor Recreation Experiences"
  - "Subchapter I — Outdoor Recreation and Infrastructure"
  - "Part E — Public–Private Parks Partnerships"
---

# §8463. Pay-for-performance projects

- (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](#a-4) and [pay-for-performance investor](#a-5), as applicable, or by the [pay-for-performance project developer](#a-7), in consultation with the [Secretary](/usc/16/8401.md?p=7) of Agriculture, to make the determinations and prepare the reports required under [subsection (e)](#e).
  - (2) **National Forest System land—** The term “[National Forest System land](/usc/16/6592c.md?p=a-5)” means land in the [National Forest](/usc/16/5207.md?p=3) [System](/usc/16/668ee.md?p=14) (as defined in [section 1609(a) of this title](/usc/16/1609.md?p=a)).
  - (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](/usc/31/chstV-ch63.md) of title 31) for a [pay-for-performance project](#a-6)—
    - (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](/usc/16/8401.md?p=7) of Agriculture; and
      - (ii) a [pay-for-performance beneficiary](#a-4) or [pay-for-performance project developer](#a-7).
  - (4) **Pay-for-performance beneficiary—** The term “pay-for-performance beneficiary” means a [State](/usc/16/8401.md?p=9) or local government, an [Indian Tribe](/usc/16/8401.md?p=4), or a nonprofit or for-profit organization that—
    - (A) repays capital loaned upfront by a [pay-for-performance investor](#a-5), based on a [project outcome](#a-8) specified in a [pay-for-performance agreement](#a-3); or
    - (B) provides capital directly for costs associated with a [pay-for-performance project](#a-6).
  - (5) **Pay-for-performance investor—** The term “pay-for-performance investor” means a [State](/usc/16/8401.md?p=9) or local government, an [Indian Tribe](/usc/16/8401.md?p=4), or a nonprofit or for-profit organization that provides upfront loaned capital for a [pay-for-performance project](#a-6) with the expectation of a financial return dependent on a [project outcome](#a-8).
  - (6) **Pay-for-performance project—** The term “pay-for-performance project” means a [project](/usc/16/410r–5.md?p=c-4) that—
    - (A) would provide or enhance a recreational opportunity;
    - (B) is conducted on—
      - (i) [National Forest System land](/usc/16/6592c.md?p=a-5); or
      - (ii) other land, if the activities would benefit [National Forest System land](/usc/16/6592c.md?p=a-5) (including a recreational use of [National Forest System land](/usc/16/6592c.md?p=a-5)); and
    - (C) would use an innovative funding or financing model that leverages—
      - (i) loaned capital from a [pay-for-performance investor](#a-5) to cover upfront costs associated with a [pay-for-performance project](#a-6), with the loaned capital repaid by a [pay-for-performance beneficiary](#a-4) at a rate of return dependent on a [project outcome](#a-8), as measured by an [independent evaluator](#a-1); or
      - (ii) capital directly from a [pay-for-performance beneficiary](#a-4) to support costs associated with a [pay-for-performance project](#a-6) in an amount based on an anticipated [project outcome](#a-8).
  - (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](#a-3) or a [pay-for-performance project](#a-6).
  - (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](#a-6) and described in a [pay-for-performance agreement](#a-3).
- (b) **Establishment of pilot program—** The [Secretary](/usc/16/8401.md?p=7) of Agriculture shall establish a pilot [program](/usc/16/460ss–6.md?p=1) in accordance with this section to carry out 1 or more [pay-for-performance projects](#a-6).
- (c) **Pay-for-performance projects—**
  - (1) **In general—** Using [funds](/usc/16/1421h.md?p=2) made available through a [pay-for-performance agreement](#a-3) or appropriations, all or any portion of a [pay-for-performance project](#a-6) may be implemented by—
    - (A) the [Secretary](/usc/16/8401.md?p=7) of Agriculture; or
    - (B) a [pay-for-performance project developer](#a-7) or a third party, subject to the conditions that—
      - (i) the [Secretary](/usc/16/8401.md?p=7) of Agriculture shall approve the implementation by the [pay-for-performance project developer](#a-7) or third party; and
      - (ii) the implementation is in accordance with applicable law.
  - (2) **Relation to land management plans—** A [pay-for-performance project](#a-6) carried out under this section shall be consistent with any applicable land [management plan](/usc/16/460mmm–1.md?p=3) developed under [section 1604 of this title](/usc/16/1604.md).
  - (3) **Ownership—**
    - (A) **New improvements—** The United States shall have title to any improvements installed on [National Forest System land](/usc/16/6592c.md?p=a-5) as part of a [pay-for-performance project](#a-6).
    - (B) **Existing improvements—** Investing in, conducting, or completing a [pay-for-performance project](#a-6) on [National Forest System land](/usc/16/6592c.md?p=a-5) shall not affect the title of the United States to—
      - (i) any federally owned improvements involved in the [pay-for-performance project](#a-6); or
      - (ii) the underlying land.
  - (4) **Savings clause—** The carrying out of any action for a [pay-for-performance project](#a-6) does not provide any right to any party to a [pay-for-performance agreement](#a-3).
  - (5) **Potential conflicts—** Before approving a [pay-for-performance project](#a-6) under this section, the [Secretary](/usc/16/8401.md?p=7) 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](/usc/16/498.md)), or subtitle C of title XX of the Social Security Act ([42 U.S.C. 1397n](/usc/42/1397n.md) et seq.), in carrying out the pilot [program](/usc/16/460ss–6.md?p=1) under this section, the [Secretary](/usc/16/8401.md?p=7) of Agriculture may enter into a [pay-for-performance agreement](#a-3) under which a [pay-for-performance beneficiary](#a-4), [pay-for-performance investor](#a-5), or [pay-for-performance project developer](#a-7) agrees to pay for or finance all or part of a [pay-for-performance project](#a-6).
  - (2) **Size limitation—** The [Secretary](/usc/16/8401.md?p=7) of Agriculture may not enter into a [pay-for-performance agreement](#a-3) under the pilot [program](/usc/16/460ss–6.md?p=1) under this section for a [pay-for-performance project](#a-6) valued at more than $15,000,000.
  - (3) **Financing—**
    - (A) **In general—** A [pay-for-performance agreement](#a-3) shall specify the amounts that a [pay-for-performance beneficiary](#a-4) or a [pay-for-performance project developer](#a-7) agrees to pay to a [pay-for-performance investor](#a-5) or a [pay-for-performance project developer](#a-7), as appropriate, in the event of an [independent evaluator](#a-1) determining pursuant to [subsection (e)](#e) the degree to which a [project outcome](#a-8) has been achieved.
    - (B) **Eligible payments—** An amount described in [subparagraph (A)](#d-3-A) shall be—
      - (i) based on—
        - (I) the respective contributions of the parties under the [pay-for-performance agreement](#a-3); and
        - (II) the economic, environmental, or social benefits derived from the [project outcomes](#a-8); and
      - (ii)
        - (I) a percentage of the estimated value of a [project outcome](#a-8);
        - (II) a percentage of the estimated cost savings to the [pay-for-performance beneficiary](#a-4) or the [Secretary](/usc/16/8401.md?p=7) of Agriculture derived from a [project outcome](#a-8);
        - (III) a percentage of the enhanced revenue to the [pay-for-performance beneficiary](#a-4) or the [Secretary](/usc/16/8401.md?p=7) of Agriculture derived from a [project outcome](#a-8); or
        - (IV) a percentage of the cost of the [pay-for-performance project](#a-6).
    - (C) **Forest service financial assistance—** Subject to the availability of appropriations, the [Secretary](/usc/16/8401.md?p=7) of Agriculture may contribute funding for a [pay-for-performance project](#a-6) only if—
      - (i) the [Secretary](/usc/16/8401.md?p=7) of Agriculture demonstrates that—
        - (I) the [pay-for-performance project](#a-6) 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](/usc/16/8401.md?p=7) of Agriculture; or
        - (III) the funding would accelerate the scale of implementation of an activity previously planned to be completed by the [Secretary](/usc/16/8401.md?p=7) of Agriculture; and
      - (ii) the contribution of the [Secretary](/usc/16/8401.md?p=7) of Agriculture has a value that is not more than 50 percent of the total cost of the [pay-for-performance project](#a-6).
    - (D) **Special account—** Any [funds](/usc/16/1421h.md?p=2) received by the [Secretary](/usc/16/8401.md?p=7) of Agriculture under [subsection (c)(1)](#c-1)—
      - (i) shall be retained in a separate [fund](/usc/16/1421h.md?p=2) in the Treasury to be used solely for [pay-for-performance projects](#a-6); 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](#a-3) shall—
    - (A) include a plan for maintaining any capital improvement constructed as part of a [pay-for-performance project](#a-6) after the date on which the [pay-for-performance project](#a-6) is completed; and
    - (B) specify the party that will be responsible for decommissioning the improvements associated with the [pay-for-performance project](#a-6)—
      - (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](#a-6) fails.
  - (5) **Termination of pay-for-performance project agreements—** The [Secretary](/usc/16/8401.md?p=7) of Agriculture may unilaterally terminate a [pay-for-performance agreement](#a-3), in whole or in part, for any [program](/usc/16/460ss–6.md?p=1) year beginning after the [program](/usc/16/460ss–6.md?p=1) year during which the [Secretary](/usc/16/8401.md?p=7) of Agriculture provides to each party to the [pay-for-performance agreement](#a-3) a notice of the termination.
- (e) **Independent evaluations—**
  - (1) **Progress reports—** An [independent evaluator](#a-1) shall submit to the [Secretary](/usc/16/8401.md?p=7) of Agriculture and each party to the applicable [pay-for-performance agreement](#a-3)—
    - (A) by not later than 2 years after the date on which the [pay-for-performance agreement](#a-3) 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](#a-8); and
    - (B) before the first scheduled date for a payment described in [subsection (d)(3)(A)](#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](#a-1) to determine whether a payment should be made pursuant to the [pay-for-performance agreement](#a-3); and
      - (ii) analyzes the reasons why a [project outcome](#a-8) was achieved or was not achieved.
  - (2) **Final reports—** Not later than 180 days after the date on which a [pay-for-performance project](#a-6) is completed, the [independent evaluator](#a-1) shall submit to the [Secretary](/usc/16/8401.md?p=7) of Agriculture and each party to the [pay-for-performance agreement](#a-3) 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](#a-6) with respect to each [project outcome](#a-8);
    - (B) a determination of whether the [pay-for-performance project](#a-6) has met each [project outcome](#a-8); and
    - (C) the amount of the payments made for the [pay-for-performance project](#a-6) pursuant to [subsection (d)(3)(A)](#d-3-A).
- (f) **Additional Forest Service-provided assistance—**
  - (1) **Technical assistance—** The [Secretary](/usc/16/8401.md?p=7) of Agriculture may provide technical assistance to facilitate [pay-for-performance project](#a-6) development, such as planning, permitting, site preparation, and design work.
  - (2) **Consultants—** Subject to the availability of appropriations, the [Secretary](/usc/16/8401.md?p=7) of Agriculture may hire a contractor—
    - (A) to conduct a feasibility analysis of a proposed [pay-for-performance project](#a-6);
    - (B) to assist in the development, implementation, or evaluation of a proposed [pay-for-performance project](#a-6) or a [pay-for-performance agreement](#a-3); or
    - (C) to assist with an environmental analysis of a proposed [pay-for-performance project](#a-6).
- (g) **Savings clause—** The [Secretary](/usc/16/8401.md?p=7) 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](/usc/16/6592c.md?p=a-5) as part of a [pay-for-performance project](#a-6) before the [Secretary](/usc/16/8401.md?p=7) of Agriculture may enter into a [pay-for-performance agreement](#a-3) involving the applicable [pay-for-performance project](#a-6).
- (h) **Duration of pilot program—**
  - (1) **Sunset—** The authority to enter into a [pay-for-performance agreement](#a-3) under this section terminates on the date that is 7 years after January 4, 2025.
  - (2) **Savings clause—** Nothing in [paragraph (1)](#h-1) affects any [pay-for-performance project](#a-6) agreement entered into by the [Secretary](/usc/16/8401.md?p=7) of Agriculture under this section before the date described in that paragraph.

## Source credit

(Pub. L. 118–234, title I, § 155, Jan. 4, 2025, 138 Stat. 2871.)

## 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.