500.26 - Domestic Memorandum of Understanding

                                       Acting Associate Director for Administration

 

1.    Purpose.  This SM chapter establishes policy and procedure for the preparation and approval of a domestic Memorandum of Understanding (MOU).

2.    Scope.  

A.  This SM 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 organization (or entity).

B.  This SM chapter does not apply to agreements that exchange funds or tangible resources. Such agreements are covered in other policies.  This SM chapter also does not apply to International MOUs.  The USGS Office of International Programs reviews and approves international MOUs.

3.    Definition.  An MOU is a non-legally binding or non-legally enforceable written agreement between the USGS and federal, tribal, state, or local government agencies; academic institutions; or other entities, such as non-profit organizations.  MOUs describe procedures such as: (a) cooperation relating to exchanges of information; (b) cooperation between a private entity and an agency in a particular endeavor; and (or) (c) cooperation between agencies that have similar goals and statutory mandates or that are implementing the same law.  An MOU is not a detailed working document.  It is an aspirational, non-legally binding agreement which describes how the parties intend to collaborate on matters of mutual concern or interest. 

4.    Authority.  The Organic Act of March 3, 1879, as amended and codified at 43 U.S. Code (U.S.C.) 31, et seq., established the USGS and its missions.  The USGS authority to establish MOUs is entered under 43 U.S.C. 36c.

5.    References.

A.  Department of the Interior, Office of Financial Management, Inter-Intra Agency Agreement Handbook, September 21, 2015.

B.  SM 205.13, Delegations of Authority to Enter into Agreements and to Accept Contributions.

C.  SM 500.6, American Indian and Alaska Native Tribal Relations.

D.  SM 500.25, Scientific Integrity.

E.  USGS Office of Policy and Analysis (OPA) internal guidance. 

F.  Digital signature standards as provided in the internal Associate Chief Information Officer (ACIO) Directive 2021-001, Digital Signature Policy.

6.    Policy.

A.  The domestic MOU must meet the following requirements:

(1)  It must be compatible with the USGS mission, support scientific research, and not adversely affect the scientific integrity of the USGS, as specified in SM 500.25;

(2)  It must serve the public;

(3)  It must not be detrimental to any public group;

(4)  It must not provide an unfair competitive advantage for future contracts and (or) financial assistance;

(5)  It must conform to all federal ethics rules, policy, and guidance;

(6)  It must not violate any statutes or regulations, including those that govern conflict of interest;

(7)  It must not violate established USGS policies, procedures, or protocols;

(8)  It must not be used as the basis for justifying a contractual or other legally binding obligation.  For example, an MOU cannot be used to justify USGS award of a contract or assistance agreement to the parties to an MOU;

(9)  It must not provide authority to enter into legally binding agreements such as contracts or inter-agency agreements; 

(10)  It must not be used to obligate or transfer funds, personnel, supplies, equipment, or services, or to effect any type of commitment or obligation; and

(11) It must not be used to waive requirements for competition in contracting.

B.  The USGS may enter into an MOU when there is a need to coordinate programs or to exchange information to optimize the benefits from each party’s efforts.

C.  The USGS may enter into an agreement that uses a different title, such as “Memorandum of Agreement” when coordinating programs or the exchange of information provided that such agreements adhere to the policies established in this SM chapter.  For purposes of this SM chapter, the term ‘MOU’ includes all such agreements.  Regardless of the title, the MOU or similar type of agreement is non-legally binding for any party and must be written in very broad and general terms.  MOUs enhance the USGS mission by arranging for more effective use of collective resources and memorializing efforts of further cooperation with other entities.

D.  Although non-legally binding, MOUs are formal agreements.  They should cite a clear legal authority that authorizes the USGS to enter into the agreement and to engage with the other party. Citing the legal authority shows that the agency is acting within the scope of its legislative purpose as Congress intended. USGS domestic MOUs may cite USGS authorities such as The Organic Act of March 3, 1879, as amended, 43 U.S.C. 31, et seq., and 43 U.S.C. 36c.  In addition, the MOU should also cite any specific programmatic authority.  Examples of programmatic authority include the National Geologic Mapping Act and the Water Resources Development Act.  The Authorizations Section of the annual USGS Budget Justification includes additional information on authorities.  The other entity may include their respective legal authorities that are specific to them generally as well as authorities that govern activities that are specific to the entity’s operations.

E.  The MOU may be prepared as an “umbrella” agreement that is sufficiently broad in scope to allow the participation of various mission areas, science centers, and (or) programs. This can provide a basis for non-legally binding sub-MOUs or an annex that focuses on a specified program.  The MOU can delegate signature authority for signing a sub-MOU or annex to managers that are authorized to sign agreements, as described in SM 205.13.

F.  Data or information that is collected as part of USGS’ mission or scientific research independent of the MOU may be exchanged without a follow-on agreement.

7. Responsibilities.  The following responsibilities apply:

A.  Prior to developing a new MOU, the originating office should review Bureau-level MOUs to ascertain if an existing Bureau-level MOU can be used.  If an existing.  Bureau-level MOU can be used, the originating office should contact that MOU’s point of contact to coordinate an amendment (or annex) to the MOU, if needed. Bureau-level MOUs are available at https://www.usgs.gov/memorandums-of-understanding.  

B.  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.

C.  The originating office will coordinate with appropriate USGS offices/programs to ensure compliance with applicable statutes and regulations.  If there are implications under the Federal Advisory Committee Act (FACA), (Federal Advisory Committee Act (FACA) Management Overview | GSA) the originating office must coordinate with the Information Management Branch in the Office of the Chief Information Officer.  The originating office will submit the MOU to OPA’s Agreement Review System for policy review.  The originating office will ensure the agreement has been reviewed for legal sufficiency by the Office of the Solicitor.

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

E.  For Bureau-level domestic MOUs signed by the Director: After review by all other appropriate USGS offices and (or) external entities, and OPA, the originating office will submit the draft agreement to the Office of the Director.  The Office of the Director will submit the draft to the Office of the Solicitor to be evaluated for legal sufficiency.

F.  For non-Bureau-level MOUs: After review by all other appropriate USGS offices and (or) external entities, and OPA, the originating office must submit the draft to the Office of the Solicitor to be evaluated for legal sufficiency.

G.  An original copy of each MOU signed by the Director will be retained in the official files of the Office of the Director.  Fully executed domestic MOUs signed by the Director will be posted by the Office of the Director.  Digital signatures are allowed as provided in ACIO Directive 2021-001.

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. Digital signatures are allowed as provided in ACIO Directive 2021-001.  A copy of the fully executed MOU must be submitted into the OPA’s Agreement Review System.  OPA will make these MOUs available on the internal OPA site.

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

J.  For MOUs with federally recognized Tribes, the originating office must ensure its activities are in compliance with SM 500.6.  The originating office must consult with the Office of Tribal Relations, as appropriate.

8.    Signature Authority.

A.  Signature by the USGS Director, or at a higher level, is required for domestic MOUs that address activities that cross both mission area and regional lines of authority; or that address an intent to work on a broad scale with a federally recognized Tribe.  The Director may delegate signature authority to the Deputy Directors, as appropriate.

B.  Signature by the Regional Director, or at a higher level, is required for domestic MOUs that address activities that cover the Region; or that address an intent to work at a regional level with a federally recognized Tribe.  Note that the Tribe may prefer to have the USGS Director be the signatory.  Such cases must be discussed with the Office of Tribal Relations and the affected Executive Leadership Team members.

C.  Signature by the Associate Director, or at a higher level, is required for domestic MOUs that address activities under the authority of their area of responsibility that cross regional boundaries, such as mission area or program; or that address an intent to work on a mission area-specific activity with a federally recognized Tribe.  Note that the Tribe may prefer to have the USGS Director be the signatory.  Such cases must be discussed with the Office of Tribal Relations and the affected Executive Leadership Team members.

D.  Signature by a Science Center Director or Cost Center Chief, or at a higher level, is allowed for domestic MOUs that address activities specific to that Center, in accordance with office delegations and procedures.  

9.    Basic Elements for all Domestic MOUs.  Templates for MOUs that incorporate these elements are available to USGS employees from the internal OPA site.  Further details on the required and optional basic elements for all Domestic MOUs are located in Appendix A.

10.    General Procedures.  The originating office completes the following steps.  Detailed procedures are available from the internal OPA site.

A.  Consult the list of signed MOUs to see if an agreement already exists that covers your work.  If the scope of work can be amended to include your work, contact the principal POC for that MOU.  Effective upon the issuance of this SM chapter, the list of lower-level MOUs is maintained by OPA and is available from the internal OPA site.

B.  Develop a clear and complete statement of work (SOW).  If appropriate, write the SOW broadly enough so that another center or mission area could be included.  Include a concise and complete background statement.

C.  Coordinate with other centers and offices to gage interest in participating in the MOU, as appropriate.

D.  Choose an appropriate template agreement.  Consult with OPA if needed.  Complete all fields of the MOU template.

E.  Determine if the MOU is at the center, region, mission area, or Bureau-wide level.

F.  Ensure that the MOU lists the proper signatory for the level and scope of the agreement. Determine who will sign on behalf of the partner (other entity).  Complete draft agreement with input from the partner. Evaluate the level of the counter-signatory and consider using a USGS signatory that is at a similar level.

G.  Submit the MOU to OPA via the internal Agreement Review System.  OPA will conduct a policy review of the MOU and will advise on provisions to include or exclude, as appropriate.  When the MOU is deemed to be in policy compliance, OPA will notify the submitter.

H.  For Bureau-level MOUs, coordinate the MOU with the partner to ensure their review and input on the final draft agreement.  Significant revisions to the provisions made by the partner should be reviewed by OPA.

I.  For MOUs to be signed by the USGS Director, submit it to the Office of the Director by creating a record in the appropriate correspondence tracking system.  MOUs signed by the Director must be reviewed by the Office of the Solicitor.  The Office of the Director will coordinate the staffing of the MOU and a legal review by the Office of the Solicitor.  

J.  For MOUs at levels lower than the Bureau-level, coordinate with the partner to ensure they concur with the final draft agreement.  Significant revisions to the provisions made by the partner should be submitted to OPA for review.  The originating office will submit the MOU for legal review by the Office of the Solicitor. Once the MOU is mutually acceptable, coordinate the signatures of the agreement and then submit a copy of the fully executed MOU to OPA.

K.  When amending an MOU, the parties should include the provisions that need to be modified or expanded. Typically, amendments (or annexes) are signed by the same signatories as for the MOU, unless the MOU specifically delegates another official to sign amendments.  Delegations of authority to sign amendments or annexes must be consistent with Part 220 of the Departmental Manual.  The center may use an amendment template available from OPA.  Submit the fully executed copy of an amendment to OPA.

 

APPENDIX A – Elements for All USGS Domestic Memoranda of Understanding

 

Templates for MOUs that incorporate these elements are available to USGS employees from the internal OPA site.  Unless indicated as optional, domestic MOUs must include each of the following elements:

1.    Mandatory Elements for Domestic MOUs.

 

A.  Heading.  Such as:

MEMORANDUM OF UNDERSTANDING

BETWEEN THE

U.S. GEOLOGICAL SURVEY

AND THE

NATIONAL PARK SERVICE

B.  Background.  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 agreements or Federal documents, it should identify them and explain the relationship, especially if it supplements or supersedes another.

C.  Statement of Purpose.  This section concisely summarizes the mutual interest of the parties and the nature of their cooperation, preferably confined to one or two paragraphs.  In preparing this section, the purposes must not reach beyond the proper scope of the 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 should 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:

(1)  The USGS will:

(2)  The (fill in the other party’s(ies’) name(s)) will:

(3)  Both (or all) parties agree to: 

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:

(1)  A statement that the MOU is a non-fund obligating and non-legally binding document. 

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 such as grants or cooperative agreements. 

Sample language: Any reimbursement or contribution of funds shall be made in writing in a separate document and shall be independently authorized by appropriate statutory authority.  This MOU does not provide that authority.  Furthermore, this MOU does not establish authority for noncompetitive award of a contract or assistance agreements such as grants or cooperative agreements.  Any agreement for training or other services must comply with all applicable requirements for competition. 

(3)  This MOU does not commit the USGS or [add name of other entity] to current or future expenditure of resources or to enter into any specific agreements for the purpose(s) of this MOU.  Projects involving use of resources including transfer of funds, personnel, supplies, equipment, services or cost sharing or reimbursable funding between the parties must be included in follow-on agreements.

(4)  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 on FACA, contact the Information Management Branch in the Office of the Associate Chief Information Officer.

(5)  Effective Date of the MOU.  

Sample language: This MOU is effective upon the date of the last signature.

(6)  Duration and Termination Provision.

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. 

(7)  Renewal/Amendment/Extension Provision.

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.

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: The Interagency Agreement may be developed based on mutual agreement 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.

2.    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.

3.    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.  Data, Information, and 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 and must comply with USGS Fundamental Science Practices requirements.  This includes publication of results where appropriate, except in cases prohibited by proprietary and security considerations. 

B.  Press (News) Releases.  If applicable, include language such as: Any press releases resulting from this MOU must be coordinated in advance with the USGS Office of Communications and Publishing.  The MOU should describe duties relating to communication of activities or results that stem from the agreement, specifically that the two parties will work together on any publicity relating to activities covered by the MOU.  This includes publicity relating to the signing of the MOU itself.

C.  Dispute Resolution.  The MOU may specify how disputes among the parties are to be resolved.  This provision is useful in more complex agreements involving multiple parties.  Generally, the signatory for USGS is the final arbiter of disputes.  Since the MOU is, by definition, a non-legally binding agreement, the next option for resolving disputes is termination of the MOU.  For MOUs that are relatively simple, these dispute 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.”

E.  Umbrella Structure.  This MOU will serve as an umbrella that sets forth the general terms and conditions under which the Parties may seek to pursue cooperative programs and activities and acts as an instrument to assist the Parties in more effectively carrying out their statutory responsibilities.  This MOU is not intended to preempt or foreclose any ongoing or established arrangements or agreements between the Parties.  It is intended to establish a mechanism for the Parties to continue to pursue cooperation and to increase centralized tracking and knowledge of this cooperation.  Current and future agreements between the parties may be incorporated as annexes to this MOU, as appropriate.  In case of inconsistency between this umbrella MOU and an annex, this MOU prevails.