500.26 - Domestic Memorandum of Understanding

U.S. Geological Survey Manual

500.26 – Domestic Memorandum of Understanding

10/02/07

OPR: Office of the Director

Instruction: New Survey Manual (SM) Chapter.

1. Purpose and Use of a Domestic Memorandum of Understanding (MOU). This chapter establishes policy and procedures for the preparation and approval of domestic MOUs, to ensure that applicable statutory and regulatory requirements are observed.

International MOUs are not subject to the requirements of this SM chapter. The review and approval of international MOUs must be coordinated by the U.S. Geological Survey (USGS) International Programs Office.

This chapter applies to domestic MOUs that outline basic policies and procedures governing collaboration on matters of mutual concern or interest between a Federal agency (or agencies) and another entity (or entities). The USGS preferred instrument for effecting such an agreement is a MOU. A MOU may be used whenever there is agreement to exchange information or coordinate programs to optimize the benefits from each party’s efforts and neither party exchanges funds, personnel, property, services, or makes any kind of financial commitment or obligation.

If a party uses a different agreement title when they are exchanging information or coordinating programs (e.g., a Memorandum of Agreement or a Statement of Understanding), the USGS may enter into such agreements provided that such agreements adhere to the policies established in this SM chapter. For purposes of this SM chapter, the term MOU is used to include all such agreements.

Regardless of their title, a MOU or similar type of agreement is not legally binding for any party and must be written in very broad and general terms. A MOU describes procedures for cooperation, such as: (1) cooperation relating to exchanges of information; (2) cooperation between a private entity and an agency in a particular endeavor; and/or (3) cooperation between agencies that have similar goals and statutory mandates or that are implementing the same law.

The main distinguishing characteristic of a MOU, as opposed to legally binding agreements, is that a MOU only describes general cooperation procedures. A MOU:

A. Is not a detailed working document; it is a non-legally binding agreement which describes how the parties intend to collaborate on matters of mutual concern or interest. A MOU may be prepared as an “umbrella” agreement (e.g., a MOU which includes all of the USGS disciplines and programs) which provides a basis for more detailed non-binding sub-agreements (e.g., non-binding sub-MOUs which are discipline, program or region specific).

B. Does not provide authority to enter into legally binding agreements (e.g., contracts or inter-agency agreements). A MOU may not be used to obligate or transfer funds (e.g., private or Federal funds), personnel, supplies, equipment, or services; to effect any type of commitment or obligation; or to waive requirements for competition in contracting (see SM 404.10, Requisition for Contracts or Assistance Awards).

C. Shall not be used as the basis for justifying a contractual or other binding obligation (e.g., the MOU cannot be used to justify USGS award of a contract or assistance to the parties to the MOU).

2. Authority(ies). Agreements can be made only when clear legal authority for doing so exists. Federal agencies may only take action in accordance with the authorities expressly provided by Congress. USGS domestic MOUs will cite USGS authorities to enter into MOUs: The Organic Act of March 3, 1879, as amended, 43 U.S.C. 31 et seq., and 43 U.S.C. 36c. In addition, specific programmatic authority related to the MOU will also be cited. Programmatic authorities (e.g., the National Geologic Mapping Act, the Water Resources Development Act, etc.) are listed in the Authorizations Section of the annual USGS Budget Justification (“the Green Book”).

A. Are compatible with the USGS's mission, support scientific research, and in no
way adversely affect the scientific integrity of the USGS;

D. Are written to allow a wide variety of work by multiple USGS disciplines and
regions, as appropriate;

F. Do not personally benefit individual members of the USGS, the Department of the Interior, other Government agencies, or Congress;

G. Do not compromise any statutes or regulations, including those that govern conflict-of-interest; and

A. The originating office will ensure all other USGS offices or program areas with responsibilities under or otherwise affected by the MOU have the opportunity to review and comment on a draft before it is executed.

B. Prior to developing a new MOU, the originating office should review Bureau-level MOUs to ascertain if an existing Bureau-level MOU precludes the need for development of a new MOU. Bureau-level MOUs are available at http://www.usgs.gov/mou.

C. The originating office will coordinate with appropriate USGS offices/programs to ensure compliance with applicable statutes and regulations. For example, if there are implications under the Federal Advisory Committee Act (FACA), (http://www.gsa.gov/committeemanagement) coordination with the Bureau’s GroupFederal Officer in the Geospatial Information Officeis required.

D. The originating office will coordinate review of MOUs with domestic governments, organizations, and entities involved or affected, as appropriate.

E. For Bureau-level domestic MOUs (i.e., agreements signed by the Director): After review by all other appropriate USGS offices and/or external entities, the originating office will submit a draft to the Director’s Office. The Director’s Office will submit the draft to the Department of the Interior, Office of the Solicitor, Solicitors General Law Office to be evaluated for legal sufficiency.

F. For non-Bureau-level MOUs (e.g., MOUs signed by a USGS official other than the Director): Review by the servicing Department of the Interior’s Solicitor’s Office is not mandatory. However, USGS officials delegated authority to approve MOUs may request Solicitor’s Office review and are encouraged to do so if they have any concerns about the MOU.

G. An original copy of each MOU signed by the Director will be retained in the official files of the Director's Office. Fully executed domestic MOUs signed by the Director will be posted by the Director's Office at http://www.usgs.gov/mou .

H. Fully executed MOUs signed at a level below that of Director should be retained on file in the office responsible for issuance and signature of the document.

I. The originating office must coordinate press releases resulting from MOUs with the Headquarters or Regional Office of Communications and Outreach, as appropriate.

A. Signature by the Director, U.S. Geological Survey, or at a higher level, without power of redelegation, is required for domestic MOUs that:

(1). Address activities that cross both discipline and regional lines of authority; or

B. All other domestic MOUs may be signed at a lower level, as appropriate for the specific agreement and in accordance with discipline/regional/office delegations and procedures (e.g., Associate Director for discipline-specific agreements of national significance which cross regional boundaries); Regional Director for interdisciplinary agreements specific to a Region; Regional Executive for interdisciplinary agreements specific to assigned areas of responsibility; or Science Center Director or Cost Center Manager for interdisciplinary agreements specific to a cost center).

6. Basic Elements for all Domestic MOUs. Unless indicated as optional, domestic MOUs must include each of the following elements:

MEMORANDUM OF UNDERSTANDING
BETWEEN THE
U.S. GEOLOGICAL SURVEY
AND THE
NATIONAL PARK SERVICE

B. Background (optional). If applicable, this section cites background information that led to development of the MOU and/or how it supports the mission/activities of the respective parties. If this MOU is related to any other, it should identify them and explain the relationship, especially if it supplements or supersedes another.

C. Statement of Purpose. This section should concisely summarize the mutual interest of the parties and the nature of their cooperation, preferably confined to one or two paragraphs. In preparing this section, take care that the purposes set out do not go beyond the proper scope of a MOU.

D. Identification of Statutory Authority (ies). This section provides the statutory authority(ies) of the USGS to enter into the MOU. If the MOU includes other Federal agencies, the statutory authority(ies) of the other Federal agencies must also be included. Inclusion of statutory authority(ies) for non-Federal parties is optional.

E. Procedures to be followed and Responsibilities of the Parties. This section identifies the respective roles and responsibilities of all parties. The primary focus of this section should be on the actions the parties agree to take. In a simple MOU, this section may be a single statement of responsibilities and procedures to be mutually assumed by the parties. However, for the sake of clarity, it may be broken down by party and divided into subsections with the following headings:

This section can also describe how the responsibilities will be implemented. For example, requirements to create a steering committee or to designate an agency representative to serve as the principal point of contact for the MOU would be referenced.

F. Terms and Conditions or other Administrative Provisions. The following terms and conditions must be included in all domestic MOUs to which USGS is a party:

Sample language: Nothing in this MOU may be construed to obligate the USGS (also list any other Federal agencies participating in the MOU) or the United States Government to any current or future expenditure of resources either in advance of the availability of appropriations from Congress or when funds are available.

(2) A statement that the MOU does not provide any authority for the USGS to enter into contracts or assistance agreements (e.g., grants or cooperative agreements).

Sample language: This MOU does not create an actual or implied intention, or requirement for the USGS to enter into a contract or an assistance agreement (e.g., grant or cooperative agreement).

(3) Federal Advisory Committee Act (FACA) Implications. If any activities described in the MOU raise or appear to raise concerns under FACA, the MOU must state that the signatories will comply with the FACA and explain how they will do so. If it is not yet clear, an appropriate provision would state: “The parties will comply with the Federal Advisory Committee Act to the extent it applies.” For questions/information, contact the USGS Group Federal Officer in the Geospatial Information Office.

Sample language: This MOU shall remain in effect for 5 years. Any party to the MOU may terminate their participation in the MOU by providing XX days advance written notice to all parties to the MOU.

Sample language: This MOU may be renewed, amended or extended by written mutual agreement

G. Approval/Signatures. This section includes the printed names and titles of signatories, signatures, and dates of signature. Generally, signatories should have relatively equal levels of responsibility within their agencies.

7. Mandatory Elements for Domestic MOUs with Non-Governmental Parties. The following terms and conditions must be included in all domestic MOUs with non-governmental parties.

A. Non-Exclusivity. MOUs with non-Federal parties should state that they do not create any sort of exclusive arrangement between an agency or agencies and the non-Federal party.

Sample language: This agreement in no way restricts [the Federal agencies that are party to the agreement] from participating in similar activities or arrangements with other public or private agencies, organizations, or individuals.

B. Endorsements. The following provision should be included in all MOUs with private parties:

Sample language: Nothing in this agreement may be interpreted to imply that the United States, the Department of the Interior, or the U.S. Geological Survey endorses any [include all or edit as appropriate:] product, service or policy of [name of private party]. [Name of private party] will not take any action or make any statement that suggests or implies such an endorsement.

8. Optional Elements for Domestic MOUs Regardless of the Type of Partner. The following terms and conditions may be included if applicable to the MOU regardless of the type of partner:

A. Products. If applicable, include language such as: All data and information produced as a result of this MOU shall be available for use by the USGS in connection with its ongoing programs. This includes publication of results where appropriate, except in cases prohibited by proprietary and security considerations.

B. Press Releases. If applicable, include language such as: Any press releases resulting from this MOU must be coordinated with the USGS Office of Communications.

C. Dispute Resolution. The MOU may specify how disputes among the parties are to be adjudicated. This provision is useful in more complex agreements involving multiple parties. For those that are relatively simple, these provisions are often unnecessary.

D. Amendment or Modification. The agreement should provide that it can be amended or modified with the concurrence of all parties. For example, either of the following two sentences would be appropriate: “This agreement can be amended or modified if all of the parties agree” or “A party can amend or modify this agreement if the other parties all concur.”

9. Optional Elements for Domestic MOUs with Federal Agencies. As stipulated in Section 1.B. above, an MOU does not provide authority to enter into interagency agreements and an MOU cannot be used to obligate or transfer funds, personnel, supplies, equipment, or services between Federal agencies or to effect any type of commitment or obligation. However, the MOU can state that Interagency Agreements may be developed:

A. Interagency Agreements:

Sample language: Based on mutual agreement, Interagency Agreements (IAs) may be developed for activities that will be conducted by the USGS and _________________ (add names of other Federal agency(ies)) to carry out the purpose(s) of this MOU.

Sample language: This MOU does not commit the USGS or (add name of other Federal agency (ies)) to enter into any specific interagency agreements for the purpose(s) of this MOU. Projects involving cost sharing or reimbursable funding between the agencies must be included in follow-on interagency agreements.

10. Additional Source of Information. Additional information regarding the preparation of domestic MOUs is available at: http://www.doi.gov/pfm/handbooks/iaa.pdf.

(signed) Karen D. Baker                                                      10/2/07
_____________________________________       _____________________
Karen D. Baker                                                                            Date
Associate Director, Administrative Policy and Services