[Federal Register Volume 76, Number 4 (Thursday, January 6, 2011)]
[Proposed Rules]
[Pages 744-751]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-33344]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 230

RIN 0596-AC84


Community Forest and Open Space Conservation Program

AGENCY: Forest Service, USDA.

ACTION: Proposed rule, request for comments.

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SUMMARY: Public comments are solicited for this proposed rule which 
implements the Community Forest and Open Space Conservation Program 
(CFP) authorized by Section 8003 of the Food, Conservation, and Energy 
Act of 2008. The CFP legislation is an amendment to the Cooperative 
Forestry Assistance Act of 1978. The CFP is a competitive grant program 
whereby local governments, Tribal Governments, and qualified non-profit 
organizations are eligible to apply for grants to establish community 
forests. The program's two purposes are to assist communities in 
acquiring forestland that would provide public recreation, 
environmental and economic benefits, and forest-based educational 
programs, and to protect forestland that has been identified as a 
national, regional, or local priority for protection. Existing 
provisions in Forest Service regulations pertaining to the Stewardship 
Incentive Program will be removed as deauthorized by the Farm Security 
and Rural Investment Act of 2002, and this proposed rule will be 
substituted in lieu thereof.

DATES: Comments must be received in writing by March 7, 2011 Pursuant 
to the Paperwork Reduction Act, comments on the information collection 
burden that would result from this proposal must be received by March 
7, 2011.

ADDRESSES: Written comments concerning this notice should be addressed 
to Community Forest Program, U.S. Forest Service, State and Private 
Forestry, Cooperative Forestry, 1400 Independence Avenue, SW., Code 
1123, Washington, DC 20250. Comments may also be sent via email to 
<a href="/cdn-cgi/l/email-protection#fc9f93919189929588859a938e998f88bc9a8fd29a9998d2898f"><span class="__cf_email__" data-cfemail="74171b1919011a1d000d121b061107003412075a1211105a0107">[email protected]</span></a>, or via facsimile to (202) 205-1271. All 
comments, including names and addresses when provided, are placed in 
the record and are available for public inspection and copying. The 
public may inspect comments received at U.S. Forest Service, 1400 
Independence Avenue, SW., Code 1123, Washington, DC 20250. Those 
wishing to inspect comments are encouraged to call ahead to (202) 205-
1389 to facilitate entry to the building.
    Comments concerning the information collection requirements 
contained in this action should reference OMB No. 0596-New, the docket 
number, date, and page number of this issue of the Federal Register. 
Comments should be sent to the address listed in the above paragraph.

FOR FURTHER INFORMATION CONTACT: Maya Solomon, U.S. Forest Service, 
State and Private Forestry, Cooperative Forestry, (202) 205-1376. 
Individuals who use telecommunication devices for the deaf (TDD) may 
call the Federal Information Relay Service (FIRS) at 1-800-877-8339 
between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through 
Friday.

SUPPLEMENTARY INFORMATION:

Background and Need for Proposed Rule

    Congress authorized the Community Forest and Open Space 
Conservation Program (hereafter ``CFP'') to address the needs of 
communities to protect and maintain their forest resources. In the CFP 
authorization, Congress found that people derive health benefits from 
having access to forests for recreation and exercise. Congress also 
found that forests protect public water supplies and may provide 
financial benefits from forest products. The CFP is a competitive grant 
program whereby local governments, Tribal Governments, and qualified 
non-profit organizations are eligible to apply for grants to establish 
community forests through fee-simple land acquisitions. ``Fee-simple'' 
means full ownership and acquisition of real property, versus a partial 
interest such as conservation easement. By creating community forests 
through land acquisition, communities and Tribes can sustainably manage 
forests for these and many other benefits, including wildlife habitat, 
stewardship demonstration sites for forest landowners, and 
environmental education.
    While the CFP title includes the term ``open space,'' the 
authorizing language does not discuss the term. The only land cover 
Congress references is ``forests.'' As a result, in this proposed rule, 
the term ``open space'' is also not used, and is assumed that the only 
type of ``open space'' on which Congress wanted CFP to focus is 
``forests.''
    The Forest Service believes that these proposed regulations for CFP 
will facilitate administration of the program and provide uniform 
criteria for program participation. The program will

[[Page 745]]

focus its funding to forests that provide community benefits as defined 
in this proposed rule that are identified as a national, regional, or 
local priority for protection. See Ranking Criteria and Proposal 
selection in Sec.  230.5 of this proposed rule. The Agency welcomes 
comments on national, regional, and local conservation priorities for 
selection of proposals.
    Tribal consultation was initiated on October 20, 2010, and is 
currently ongoing. No tribal input has been received during the initial 
60-day period. Consultation will continue during the 60-day public 
comment period.

Complementary to Other Cooperative Forestry Assistance Act Programs

    The Cooperative Forestry Assistance Act of 1978 (CFAA) enables the 
Forest Service to work with States, private landowners, and communities 
to address the full range of forest resources from urban street trees 
to large rural timber lands. The design and delivery of most 
Cooperative Forestry programs is influenced by the priorities of State 
resource agencies regarding urban, suburban or rural forests.
    The CFP recognizes that successful protection of community forests 
depends on engaged citizens. Their participation is equal in importance 
to the type of forests being protected. The CFP complements and builds 
upon other CFAA programs that focus on stewardship and education by 
providing the opportunity for some communities to go a step further and 
directly acquire and manage forests. Because the CFP provides grant 
assistance directly to Tribal Governments, local governments or 
qualified nonprofit organizations, it is able to assist those entities 
that have demonstrated a sustained commitment to community forestry. 
Through public engagement, these communities are able to articulate 
specific community needs that this program can meet, and demonstrate 
that they have the capacity to manage a public asset such as a 
community forest.
    Benefits provided by forests acquired under the CFP will need to be 
quantified, and may address a variety of outcomes such as protecting a 
municipal water supply, providing public access for outdoor recreation, 
or providing economic benefits from sustainable forest management, 
including harvesting forest products and using woody biomass for 
renewable energy production. Beyond local measures of success, the 
contribution of community forests to larger protected areas of forest 
and open space helps support resource-based economies, and adds needed 
resiliency to natural systems as they respond to climate change. 
Therefore, in addition to public engagement to articulate local needs 
and capacity, successful community forests in the CFP will be part of a 
larger landscape level context that will protect many kinds of open 
spaces and working lands that provide a variety of ecosystem services. 
In this way, the program delivers local benefits that can also have a 
larger impact, since these community forests will likely be part of a 
larger conservation initiative.
    Grant recipients will be required to provide the Forest Service 
with a Geographic Information System (GIS) shapefile of CFP project 
tracts and cost share tracts. The geospatial information will reside at 
the National Information Center for State and Private Forestry. The 
areas protected through this program will be able to be seen in map and 
other formats on the Forest Service website. These GIS shapefiles will 
allow the Forest Service to spatially track CFP program accomplishments 
and allow the agency to calculate program outcomes and public benefits 
provided by the lands protected through CFP. The Agency welcomes 
comments on outcome measures for benefits provided by forests acquired 
under the CFP.

Discussion of Specific Issues; Project Review and Selection Process

    Under CFP, applications will be submitted to the State Forester or 
equivalent Tribal Government official who will, in turn, conduct a 
general review of all applications for eligibility and compatibility 
with landscape conservation efforts. The proposed rule does not allow 
submission of an application for a project to both CFP and the Forest 
Legacy Program simultaneously. The State Forester or equivalent Tribal 
Government official may provide technical assistance to applicants in 
the preparation of applications and implementation of grants.
    The Forest Service proposes to conduct a nationally competitive 
review and ranking process to select projects for funding. The 
application process is outlined in Sec.  230.3 of this proposed rule. 
Individual applications will be ranked according to criteria outlined 
in Sec.  230.5 of this proposed rule. The Forest Service anticipates 
providing additional specificity on the review process, review 
criteria, and timelines in an annual request for proposals (RFP). The 
Forest Service requests public comment regarding the application 
process outlined in Sec.  230.3 and the ranking criteria outlined in 
Sec.  230.5 of this proposed rule
    The Forest Service wants to minimize the amount of time between 
issuing the RFP and funding the selected projects. To achieve this 
goal, the Forest Service anticipates issuing an RFP each year, and 
selecting projects during the first quarter of the following fiscal 
year (October-December) subject to the availability of funds. The 
proposed rule requires the State Forester or equivalent Tribal 
Government official to forward all applications with recommendations to 
the Forest Service. While the Forest Service anticipates this 
intermediate step will add approximately 30 days to the review process, 
the Agency believes that input from State Foresters and Tribal 
Governments will be valuable in helping the Forest Service make final 
funding decisions.

Project Compliance With the National Environmental Policy Act

    Project grants are subject to National Environmental Policy Act 
(NEPA) and must comply with agency NEPA implementing procedures as 
described in 40 CFR 1500-1508 as well as the Council on Environmental 
Quality's NEPA procedures at 40 CFR 1500-1508. CFP grants are to be 
used for transferring title and ownership of private lands to third 
parties and will not fund any ground-disturbing activities. The Forest 
Service has concluded that CFP grants fall under the categorical 
exclusion provided in the Forest Service's NEPA procedures for 
``acquisition of land or interest in land'' 36 CFR 220.6(d)(6); 73 FR 
43084 (July 24, 2008). As a result, CFP project grants are excluded 
from documentation in an environmental assessment or impact statement. 
The applicability of the categorical exclusion will be confirmed 
through scoping and a review for extraordinary circumstances.

Eligible Entities

    The statute establishing CFP states that only local governments, 
Tribal Governments, and qualified nonprofit organizations are eligible 
to receive a grant through CFP. The statute also provided definitions 
for those three eligible organizations. Local governments are defined 
as municipal, county, and other local governments with jurisdiction 
over local land use decisions. Tribal Governments are defined as those 
that are federally recognized Tribes as prescribed by section 4 of the 
Indian Self-Determination and Education Assistance Act (U.S.C. 450b). 
Finally, qualified nonprofit organizations are defined as charities 
under the Internal Revenue Code (26 U.S.C. 501(c)(3)) and which also 
have a conservation purpose

[[Page 746]]

(26 U.S.C. 170(h)(4)(A)). A conservation purpose is defined as the 
preservation of land for outdoor recreation or education, protection of 
natural habitat or ecosystems, preservation of open space, and 
preservation of historic lands or structures. Consistent with 
regulations of the Internal Revenue Service (26 CFR 1.170A-14(c)(1)) 
qualified non-profit organizations must also have a commitment to 
protect in perpetuity, the purposes for which the tract was acquired 
under the CFP and demonstrate that they have the resources to enforce 
the protection of the property as a community forest. In general, a 
land conservancy or land trust is the type of organization that would 
be considered a qualified nonprofit organization under the authorizing 
statute of the CFP.

Ensuring Permanence of Community Forest Projects

    In order to minimize the chances that the property is ever sold, or 
converted to non-forest uses, the following four actions will be 
required of the grant recipient:
    (1) Grant recipients will be required to record a Notice of Grant 
Requirements with the deed in the lands records of the local county or 
municipality.
    (2) Grant recipients will define objectives for the use and 
management of the community forest in the required Community Forest 
Plan. Because the size, condition, and possible uses of community 
forests under this program could be quite varied, the Community Forest 
Plan will identify forest uses for the property. In order to guide 
compliance with the requirements of the CFP, ``non-forest uses'' is 
defined in Sec.  230.2 of this proposed rule.
    (3) Every ten years, grant recipients will submit to the Forest 
Service a self-certifying statement that the property has not been sold 
or converted to non-forest uses.
    (4) Grant recipients will be subject to a spot check conducted by 
the Forest Service to verify that property acquired under the CFP has 
not been sold or converted to non-forest uses (Sec.  230.2).
    In the statute establishing the CFP, Congress required that the 
grant recipient cannot sell the land or convert it to non-forest uses 
(Sec. 8003.e). In the event that these conditions are violated, the law 
requires that the grant recipient pay the Federal Government an amount 
equal to the greater of the current sale price or current appraised 
value of the land. An additional penalty is that the grant recipient 
that sells or converts a parcel acquired under the CFP will not be 
allowed to receive additional grants under the program. Ramifications 
for conversion to non-forest use or sale is discussed in Sec.  230.9 
``Ownership Use and Requirements'' of this proposed rule.

Uniform Relocation Assistance and Real Property Acquisition for Federal 
and Federally-Assisted Programs

    The Uniform Relocation Assistance and Real Property Acquisition 
Policy Act of 1970 (``Uniform Act'') (42 U.S.C. 4601, et. seq.) 
provides guidance and procedures for the acquisition of real property 
by the Federal government, including relocation benefits to displaced 
persons. Department of Transportation regulations implementing the 
Uniform Act (49 CFR 24) have been adopted by the Department of 
Agriculture (7 CFR 21). However, CFP is deemed exempt from the Uniform 
Act because it meets the exemption criteria stated at 49 CFR 
24.101(b)(1).

Federal Appraisal Standards

    Section 7A(c)(4) of the Cooperative Forestry Assistance Act (16 
U.S.C. 2103d(c)(4)), requires that land acquired under CFP be appraised 
in accordance with the Uniform Appraisal Standards for Federal Land 
Acquisitions (Federal Appraisal Standards) in order to determine the 
non-Federal share of the cost of a parcel of privately-owned forest 
land. The Federal Appraisal Standards are contained in a readily 
available public document, which is well known to professional 
appraisers (see: http://www.usdoj.gov/enrd/Legal_Documents.html). A 
grant recipient will be responsible for assuring that the appraisal of 
the CFP tract is done in conformance with the Federal Appraisal 
Standards. The Federal Appraisal Standards will be used to determine 
reimbursement for the non-Federal cost share. However, separate tracts 
donated for the purpose of providing the non-Federal cost share may be 
appraised using the Uniform Standards of Professional Appraisal 
Practice (USPAP) or the IRS regulations for a donation in land. The 
Forest Service will be available to assist applicants with the 
appraisal and associated appraisal review, and will conduct spot checks 
to assure compliance with Federal Appraisal Standards.

Regulatory Certifications

Regulatory Planning and Review

    This proposed rule has been reviewed under USDA procedures and 
Executive Order 12866. The Office of Management and Budget (OMB) has 
determined that this proposed rule is significant for purposes of 
Executive Order 12866. A Cost Benefit Analysis has been completed and 
has determined that the benefits for each established forests will 
vary, depending on characteristics of the forest land, the community, 
and the management objectives developed with public input in the 
establishment of the required community forest plan. Where these 
forests are located will also be dependent on the communities that 
support them, therefore, they could occur in communities from the very 
rural to decidedly urban. Since there will be diversity among forests 
and their benefits, this analysis uses qualitative as well as 
quantitative methods to describe the potential benefits and costs of 
CFP.
    The primary cost of CFP is the acquisition of the land itself. The 
transfer of lands from private property may reduce the tax base, or 
result in forgone economic benefits fostered by development. This 
analysis assumes that development and associated activity is 
established elsewhere without resulting in forestland conservation and 
the opportunity cost of lower economic activity is off-set by the 
benefits provided by the community forest, such that the main costs 
become the cost of the acquisition and the tax revenue foregone by the 
local government unit. These costs are compared with the benefits of 
protecting forest land, which are largely intangibles, such as 
environmental goods and services from the land and non-market valued 
amenities, such as open spaces and scenic views, but also includes the 
economic value of retaining and active working forest in the local 
economy. Qualitative and quantitative evidence supports the assertion 
that community forests provide many benefits to communities, especially 
in areas threatened by conversion of private forest land.
    This proposed rule will not have an annual effect of $100 million 
or more on the economy nor adversely affect productivity, competition, 
jobs, the environment, public health or safety, nor adversely affect 
State or local governments. This proposed rule will not interfere with 
an action taken or planned by another agency nor raise new legal or 
policy issues. Finally, this proposed rule will not alter the budgetary 
impact of entitlements, grants, user fees, or loan programs or the 
rights and obligations of recipients of such programs.
    This proposed rule does not regulate the private use of land or the 
conduct of business. It is a grant program to local governments, Tribal 
Government and qualified nonprofit organizations for purposes of 
acquiring land for resource

[[Page 747]]

conservation and open space preservation. By providing funding to 
eligible entities for land acquisition, the Federal Government will 
promote the non-monetary benefits of sustainable forest management. 
These benefits include: improved water quality, wildlife and fish 
habitat, forest based educational programs including vocational 
education programs in forestry, replicable models of effective forest 
stewardship for private landowners, open space preservation, carbon 
sequestration, and enhanced recreational opportunities including 
hunting and fishing.
    The acquisition of land by eligible entities may affect the local 
real property tax base, depending on applicable state law and the tax 
status of the acquiring entity. The possible impact on the real 
property tax base is not possible to ascertain, but is assumed that any 
land going from taxable to non-taxable status would cause a 
commensurate shifting of the tax burden to other taxable properties or, 
alternatively, a reduction in local tax revenues.
    As a new program, CFP would not materially alter the budgetary 
impact of entitlements, user fees, loan programs, or the rights and 
obligations of program participants. The program is voluntary for each 
participating eligible entity.

Proper Consideration of Small Entities

    This proposed rule has been considered in light of Executive order 
13272 regarding property considerations of small entities and the Small 
Business Regulatory Enforcement Fairness Act of 1996. The proposed rule 
for voluntary participation in the CFP does not impose significant 
direct costs on small entities. This proposed rule imposes no 
additional requirements on the affected public. Entities most likely 
affected by this proposed rule are the local governments, qualified 
nonprofit organizations, and Tribal governments eligible to receive a 
grant through CFP. The minimum requirements on small entities imposed 
by this proposed rule are necessary to protect the public interest, not 
administratively burdensome or costly to meet, and are within the 
capabilities of small entities to perform. The proposed rule would not 
materially alter the budgetary impact of entitlements, user fees, loan 
programs, or the rights and obligations of program participants. It 
does not compel the expenditure of $100 million or more by any State, 
local or Indian Tribal government, or anyone in the private sector. 
Under these circumstances, the Forest Service has determined that this 
action would not have a significant economic impact on a substantial 
number of small entities.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), which the President signed into law on March 22, 
1995, the Agency has assessed the effects of this proposed rule on 
State, local, and tribal governments and the private sector. This 
proposed rule does not compel the expenditure of $100 million or more 
by any State, local or Indian Tribal governments, or anyone in the 
private sector. Therefore, a statement under section 202 of that Act is 
not required.

Federalism

    The Forest Service has considered this rule under the requirements 
of Executive Order 13132, Federalism, and Executive Order 12875, 
Government Partnerships. The Forest Service has determined that the 
rule conforms with the federalism principles set out in these Executive 
Orders. The rule would not impose any compliance costs on the States 
other than those imposed by statute, and would not have substantial 
direct effects on the States, on the relationship between the Federal 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Based on 
comments received on this proposed rule, the Agency will consider if 
any additional consultations will be needed with the State and local 
governments prior to adopting a final rule.

Controlling Paperwork Burdens on the Public

    In accordance with the Paperwork Reduction Act of 1995 [44 U.S.C. 
Chapter 35], the Forest Service is requesting an approval of a new 
information collection.
    Title: Proposed substitution of 36 CFR part 230, Subpart A with 
Community Forest and Open Space Conservation Program.
    OMB Number: 0596-New.
    Expiration Date of Approval: 3 years from approval date.
    Type of Request: New information collection.
    Abstract: The purpose of CFP is to achieve community benefits 
through grants to local governments, Tribal Governments, and qualified 
nonprofit organizations to establish community forests by acquiring and 
protecting private forestlands. This proposed rule includes information 
requirements necessary to implement CFP and comply with grants 
regulations and OMB Circulars. The information requirements will be 
used to help the Forest Service in the following areas:
    (1) To determine that the applicant is eligible to receive funds 
under the program,
    (2) To determine if the proposal meets the qualifications in the 
law and regulations,
    (3) To evaluate and rank the proposals based on a standard, 
consistent information, and
    (4) To determine if the projects costs are allowable, and 
sufficient cost share is provided.
    Local governmental entities, Tribal Governments, and qualified 
nonprofit organizations are the only entities eligible for the program, 
and therefore are the only organizations from which information will be 
collected.
    The information collection required for a request for proposals and 
grant application, is approved and assigned Office of Management and 
Budget Control (OMB) No. 0596-New. The information collection required 
for a proposed bonded notice in this proposed rule has been submitted 
to OMB as a new collection.
    Estimated Number of Respondents: 180.
    Estimated Number of Responses per Respondent: 1.
    Estimated Number of Total Annual Responses: 180.
    Estimated Total Annual Burden on Respondents: 5,800 hours.
    Comments: Comments are invited on:
    (1) Whether the proposed collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether the information will have practical utility;
    (2) The accuracy of the agency's estimate of the burden of the 
proposed collection of information, including the validity of the 
methodology and assumptions used;
    (3) Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
    (4) Ways to minimize the burden of the collection of information on 
those who are to respond, including the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology.

Consultations and Coordination With Indian Tribal Governments

    This proposed rule has tribal implications as defined in Executive 
Order 13175. Section 7A(a)(1) of the Cooperative Forestry Assistance 
Act establishes that Federally recognized Indian tribes are eligible 
entities to participate in the CFP. In accordance with the President's 
memorandum of

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April 29, 1994, ``Government-to-Government Relations with Native 
American Tribal Governments'' (59 FR 22951); the Executive Order of 
November 6, 2000, ``Consultation and Coordination With Indian Tribal 
Governments'' (EO 13175); and with the directives of the Department of 
Agriculture (DR1350-001); we have determined that specific effects on 
Indian tribes are likely to occur through implementation of the CFP 
and, therefore, the opportunity for government-to-government 
consultation will be provided. Tribal consultation will be accomplished 
through local and regional consultation processes in coordination with 
the Washington Office of the Forest Service.
    Tribal consultation was initiated on October 20, 2010, and is 
currently ongoing. No Tribal input has been received during the initial 
60-day period. Consultation will continue during the 60-day public 
comment period.

No Takings Implementations

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 12630, and it has 
been determined that the proposed rule does not pose the risk of a 
taking of constitutionally protected private property. This proposed 
rule implements a program to assist eligible entities to acquire land 
from willing landowners. Any land use restrictions are voluntarily 
undertaken by program participants.

Environmental Impact

    The Forest Service has determined that this proposed rule falls 
under the categorical exclusion provided in Forest Service regulations 
on National Environmental Policy Act procedures. Such procedures 
exclude from documentation in an environmental assessment or impact 
statement ``rules, regulations, or policies to establish service wide 
administrative procedures, program processes, or instructions.'' 36 CFR 
220.6(d)(2); 73 FR 43084 (July 24, 2008). This proposed rule outlines 
the programmatic implementation of CFP, and as such, has no direct 
effect on Forest Service decisions for land management activities.

Energy Effects

    This proposed rule has been reviewed under Executive Order 13211 of 
May 18, 2001, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use. It has been determined that this 
proposed rule does not constitute a significant energy action as 
defined in the Executive Order.

Civil Justice Reform

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. The Forest Service has not identified any State 
or local laws or regulations that are in conflict with this proposed 
rule or that would impede full implementation of this proposed rule. 
Nevertheless, in the event that such a conflict was to be identified, 
the proposed rule would preempt the State or local laws or regulations 
found to be in conflict. However, in that case, no retroactive effect 
would be given to this rule, and the Forest Service would not require 
the use of administrative proceedings before parties could file suit in 
court challenging its provisions.

List of Subjects in 36 CFR Part 230

    Grant programs, Grants administration, State and local governments, 
Tribal governments, Nonprofit organizations, Conservation, Forests and 
forest products, Land sales.

    Therefore, for the reasons set forth in the preamble, the Forest 
Service proposes to amend part 230 of Title 36 of the Code of Federal 
Regulations by revising subpart A to read as follows:

PART 230--STATE AND PRIVATE FORESTRY ASSISTANCE

    1. The authority citation for part 230 is revised to read as 
follows:

    Authority:  16 U.S.C. 2103(d) & 2109(e).

    2. Revise Subpart A to read as follows.
Subpart A--Community Forest and Open Space Conservation Program
Sec.
230.1 Purpose and scope.
230.2 Definitions.
230.3 Application process.
230.4 Application requirements.
230.5 Ranking criteria and proposal selection.
230.6 Project costs and cost share requirements.
230.7 Grant requirements.
230.8 Acquisition requirements.
230.9 Ownership and use requirements.
230.10 Technical assistance funds.

Subpart A--Community Forest and Open Space Conservation Program


Sec.  230.1  Purpose and scope.

    (a) The regulations of this subpart govern the rules and procedures 
for the Community Forest and Open Space Conservation Program (CFP), 
established under Section 7A of the Cooperative Forestry Assistance Act 
of 1978 (16 U.S.C. 2103d). Under CFP, the Secretary of Agriculture, 
acting through the Chief of the Forest Service, awards grants to local 
governments, Tribal Governments, and qualified nonprofit organizations 
to establish community forests for community benefits by acquiring and 
protecting private forestlands.
    (b) The CFP applies to eligible entities within any of the 50 
States, the District of Columbia, the Commonwealth of Puerto Rico, the 
Virgin Islands of the United States, the Commonwealth of the Northern 
Mariana Islands, the Federated States of Micronesia, the Republic of 
the Marshall Islands, the Republic of Palau, and the territories and 
possessions of the United States.


Sec.  230.2  Definitions.

    The terms used in this subpart are defined as follows:
    Community benefits. One or more of the following:
    (1) Economic benefits such as timber and non-timber products 
resulting from sustainable forest management and tourism;
    (2) Environmental benefits, including clean water, stormwater 
management, and wildlife habitat;
    (3) Benefits from forest-based educational programs, including 
vocational education programs in forestry;
    (4) Benefits from serving as replicable models of effective forest 
stewardship for private landowners;
    (5) Recreational benefits, such as hiking, hunting and fishing; and
    (6) Public access.
    Community forest. Forest land owned in fee simple by an eligible 
entity that provides public access and is managed to provide community 
benefits pursuant to a community forest plan.
    Community forest plan. A tract-specific plan that guides the 
management and use of this community forest, developed with community 
involvement, and includes the following components:
    (1) A description of the property, including acreage and county 
location, land use, forest type and vegetation cover;
    (2) Objectives for the community forest;
    (3) Community benefits to be achieved from the establishment of the 
community forest;
    (4) Mechanisms promoting community involvement in the development 
and implementation of the community forest plan;
    (5) Implementation strategies for achieving community forest plan 
objectives;
    (6) Plans for the utilization or demolition of existing structures 
and proposed needs for further improvements; and,
    (7) Long-term use and management of the property.

[[Page 749]]

    Eligible entity. A local governmental entity, Tribal Government, or 
a qualified nonprofit organization that is qualified to acquire and 
manage land.
    Eligible lands. Private forest lands that:
    (1) Are threatened by conversion to nonforest uses;
    (2) Are not lands held in trust by the United States on behalf of 
any Tribal Government or allotment lands; and,
    (3) If acquired by an eligible entity, can provide defined 
community benefits under CFP and allow public access.
    Equivalent tribal government official. An individual designated and 
authorized by the Tribal Government.
    Federal appraisal standards. The Uniform Appraisal Standards for 
Federal Land Acquisitions developed by the Interagency Land Acquisition 
Conference.
    Forest lands. Lands that are at least five acres in size, suitable 
to sustain natural vegetation, and at least 75 percent forested.
    Grant recipient: An eligible entity that receives a grant from the 
U.S. Forest Service through the CFP.
    Landscape conservation initiative. A landscape-level conservation 
or management plan or activity that identifies conservation needs and 
goals of a locality, state, or region. Conservation goals identified 
need to correspond with the community and environmental benefits 
outlined for the CFP.
    Local governmental entity. Any municipal government, county 
government, or other local government body with jurisdiction over local 
land use decisions as defined by Federal or State law.
    Non-forest uses. Activities that threaten forest cover and are 
inconsistent with the Community Forest Plan, and include the following:
    (1) Subdivision;
    (2) Residential development, except for a caretaker building;
    (3) Mining and nonrenewable resource extraction, except for 
activities that would not require surface disturbance of the community 
forest such as directional drilling for oil and gas development;
    (4) Industrial use, including the manufacturing of products;
    (5) Commercial use, except for sustainable timber or other 
renewable resources, and limited compatible commercial activities to 
support cultural, recreational and educational use of the community 
forest by the public; and
    (6) Structures and facilities, except for compatible recreational 
facilities, concession and educational kiosks, energy development for 
onsite use and parking areas. Said structures, facilities and parking 
areas must have minimal impacts to forest and water resources.
    Qualified nonprofit organization. Defined by the CFP authorizing 
statute (Public Law 110-234; 122 Stat. at 1281), an organization that 
is described in section 170(h)(3) of the Internal Revenue Code of 1986 
(26 U.S.C. 170(h)(3)) and operates in accordance with one or more of 
the conservation purposes specified in section 170(h)(4)(A) of that 
Code (26 U.S.C. 170(h)(4)(A)). For the purposes of CFP, a qualified 
nonprofit organization must meet the following requirements:
    (1) Consistent with regulations of the Internal Revenue Service at 
26 CFR 1.170A-14(c)(1):
    (i) Have a commitment to protect in perpetuity the purposes for 
which the tract was acquired under the CFP; and
    (ii) Demonstrate that it has the resources to enforce the 
protection of the property as a community forest as a condition of 
acquiring a tract under the CFP.
    (2) Operate primarily or substantially in accordance with one or 
more of the conservation purposes specified in section 170(h)(4)(A) of 
I.R.S. code (26 U.S.C. 170(h)(4)(A)). Conservation purposes include:
    (i) The preservation of land areas for outdoor recreation by, or 
the education of, the general public,
    (ii) The protection of a relatively natural habitat of fish, 
wildlife, or plants, or similar ecosystem,
    (iii) The preservation of open space (including farmland and forest 
land) where such preservation is for the scenic enjoyment of the 
general public, or pursuant to a clearly delineated Federal, State, or 
local governmental conservation policy, and will yield a significant 
public benefit, or
    (iv) The preservation of a historically important land area or a 
certified historic structure.
    Public access. Access that is provided on a non-discriminatory 
basis at reasonable times and places, but may be limited by actions 
protecting resources or public health and safety.
    State forester. The State employee who is responsible for 
administration and delivery of forestry assistance within a State.
    Tribal government. Defined by section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450b).


Sec.  230.3  Application process.

    (a) The Forest Service will issue a national request for proposals 
(RFP) for grants under the CFP. The RFP will include the following 
information outlined in this proposed rule:
    (1) The process for submitting an application;
    (2) Application requirements (Sec.  230.4);
    (3) Review process and criteria that will be used by the Forest 
Service, the State Forester, and equivalent Tribal Government official 
(Sec.  230.5); and
    (4) Other conditions determined appropriate by the Forest Service.
    (b) Pursuant to the RFP, interested eligible entities will submit 
an application for program participation to:
    (1) The State Forester, for applications by local governments and 
qualified nonprofit organizations, or
    (2) The equivalent Tribal Government official, for applications 
submitted by a Tribal Government.
    (c) The State Forester or equivalent Tribal Government official 
will review all applications and assess:
    (1) That the applicant is an eligible entity;
    (2) That the land is eligible; and
    (3) Whether the project contributes to a landscape conservation 
initiative.
    (d) In accordance with the RFP, the State Forester or equivalent 
Tribal Government official will forward all applications to the Forest 
Service, and
    (1) Provide an assessment of each application, and
    (2) Describe what technical assistance they may render in support 
of applications and an estimate of needed financial assistance (Sec.  
230.10).
    (e) A proposed application cannot be submitted for funding 
consideration simultaneously for both CFP and the Forest Service's 
Forest Legacy Program (16 U.S.C. 2103c).


Sec.  230.4  Application requirements.

    The following section outlines minimum application requirements, 
but the RFP may include additional requirements.
    (a) Documentation verifying that the applicant is an eligible 
entity and that the proposed acquisition is of eligible land that 
contains forest land.
    (b) Applications must include the following regarding the property 
proposed for acquisition:
    (1) A description of the property, including acreage and county 
location;
    (2) A description of current land uses, including improvements;
    (3) A description of forest type and vegetative cover;
    (4) A map of sufficient scale to show the location of the property 
in relation to roads and other improvements as well as parks, refuges, 
or other protected lands in the vicinity;

[[Page 750]]

    (5) A description of applicable zoning and other land use 
regulations affecting the property;
    (6) Relationship of the property within and its contributions to a 
landscape conservation initiative; and
    (7) A description of any threats of conversion to nonforest uses.
    (c) Information regarding the proposed establishment of a community 
forest, including:
    (1) A description of the benefiting community, including 
demographics, and the associated benefits provided by the proposed land 
acquisition;
    (2) A description of the community involvement in the planning and 
long-term management of the community forest;
    (3) An identification of persons and organizations that support the 
project and their specific role in acquiring the land and establishing 
and managing the community forest; and
    (4) A draft Community Forest Plan. The eligible entity is 
encouraged to work with the State Forester or equivalent Tribal 
Government official for technical assistance when developing or 
updating the Community Forest Plan.
    (d) Information regarding the proposed land acquisition, including:
    (1) A proposed project budget (Sec.  230.6);
    (2) The status of due diligence, including signed option or 
purchase and sale agreement, title search, minerals determination, and 
appraisal;
    (3) Description and status of cost share (secure, pending, 
commitment letter, etc.) (Sec.  230.6);
    (4) The status of negotiations with participating landowner(s) 
including purchase options, contracts, and other terms and conditions 
of sale;
    (5) The proposed timeline for completing the acquisition and 
establishing the community forest; and
    (6) Long term management costs and funding source(s).
    (e) Applications must comply with the Uniform Federal Assistance 
Regulations (7 CFR 3015).
    (f) Applications must also include the forms required to process a 
Federal grant. Section 230.7 references the grant forms that must be 
included in the application and the specific administrative 
requirements that apply to the type of Federal grant used for this 
program.


Sec.  230.5  Ranking criteria and proposal selection.

    (a) Using the criteria described below, to the extent practicable, 
the Forest Service will give priority to:
    (1) An application that maximizes the delivery of community 
benefits, as defined in this proposed rule, through a high degree of 
public participation; and
    (2) An application with a subject property that makes a substantial 
contribution to a landscape conservation initiative. A landscape 
conservation initiative, as defined in this proposed rule, is a 
landscape-level conservation or management plan or activity that 
identifies conservation needs and goals of a locality, state, or 
region.
    (b) The Forest Service will evaluate applications received by the 
State Foresters and equivalent Tribal Government officials and award 
grants based on the following criteria:
    (1) Type and extent of community benefits provided. Community 
benefits are defined in this proposed rule as:
    (i) Economic benefits such as timber and non-timber products 
resulting from sustainable forest management and tourism;
    (ii) Environmental benefits, including clean water, stormwater 
management, and wildlife habitat;
    (iii) Benefits from forest-based educational programs, including 
vocational education programs in forestry;
    (iv) Benefits from serving as replicable models of effective forest 
stewardship for private landowners;
    (v) Recreational benefits, such as hiking, hunting and fishing; and
    (vi) Public access.
    (2) Extent and nature of community engagement in the establishment 
and long-term management of the community forest;
    (3) Amount of cost share leveraged;
    (4) Extent to which the community forest contributes to a landscape 
conservation initiative;
    (5) Extent of due diligence completed on the project, including 
cost share committed and status of appraisal;
    (6) Likelihood that, unprotected, the property would be converted 
to non-forest uses;
    (7) Costs to the Federal government; and
    (8) Additional considerations as may be outlined in the RFP.


Sec.  230.6  Project costs and cost share requirements.

    (a) The CFP Federal contribution cannot exceed 50 percent of the 
total project costs.
    (b) Allowable project and cost share costs will include the 
purchase price and the following transactional costs associated with 
the acquisition: Appraisals and appraisal reviews, land surveys, legal 
and closing costs, development of the community forest plan, and title 
examination. The following principles and procedures will determine 
allowable costs for grants:
    (1) For local and Tribal governments, refer to OMB Circular A-87 
(Cost Principles for State, Local and Indian Tribal Governments).
    (2) For nonprofit organizations, refer to OMB Circular A-122 (Cost 
Principles for Nonprofit Organizations).
    (c) Project costs do not include the following:
    (1) Long-term operations, maintenance, and management of the land;
    (2) Construction of buildings or recreational facilities;
    (3) Research;
    (4) Existing liens or taxes owed; and
    (5) Costs associated with preparation of the application, except 
for appraisals and the community forest plan.
    (d) Cost share contributions can include cash, in-kind services, or 
donations and must meet the following requirements:
    (1) Be supported by grant regulations described above;
    (2) Not include other federal funds unless specifically authorized 
by Federal statute;
    (3) Not include non-federal funds used as cost share for other 
federal programs;
    (4) Not include funds used to satisfy mandatory or compensatory 
mitigation requirements under a Federal regulation, such as Clean Water 
Act, River and Harbor Act, or Endangered Species Act;
    (5) Not include borrowed funds; and
    (6) Must be accomplished within the grant period.
    (e) Cost share contributions may include the purchase or donation 
of lands located within the community forest as long as it is provided 
by an eligible entity and legally dedicated to perpetual land 
conservation consistent with CFP program objectives.
    (f) For the purposes of calculating the cost share contribution, 
the grant recipient may request the inclusion of project due diligence 
costs such as title review and appraisals that incurred prior to 
issuance of the grant. These pre-award costs may occur up to one year 
prior to the issuance of the grant, but cannot include the purchase of 
CFP land, including cost share tracts.


Sec.  230.7  Grant requirements.

    (a) The following grant forms and supporting materials must be 
included in the application:
    (1) An Application for Federal Assistance (Standard Form 424);
    (2) Budget information (Standard Form SF 424c--Construction 
Programs);

[[Page 751]]

    (3) Assurances of compliance with all applicable Federal laws, 
regulations, and policies (Standard Form 424d--Construction Programs); 
and
    (4) Additional forms as may be required.
    (b) Once an application is selected, funding will be obligated to 
the grant recipient through a grant.
    (c) The initial grant period will be two years, and acquisition of 
lands should occur within that timeframe. The grant may be reasonably 
extended by the Forest Service for an additional 12 months when 
necessary to accommodate unforeseen circumstances in the land 
acquisition process.
    (d) The grant paperwork must adhere to grant requirements listed 
below.
    (1) Local and Tribal governments should refer to OMB Circular A-102 
(Grants and Cooperative Agreements with State and Local Governments) 
and 7 CFR 3016 (Uniform Administrative Requirements for Grants and 
Cooperative Agreements to State and Local Governments) for directions.
    (2) Nonprofit organizations should refer to OMB Circular A-110 
(Uniform Administrative Requirements for Grants and Other Agreements 
with Institutions of Higher Education, Hospitals and Other Nonprofit 
Organizations) and 7 CFR 3019 (Uniform Administrative Requirements for 
Grants and Cooperative Agreements with Institutions of Higher 
Education, Hospitals, and other Nonprofit Organizations) for 
directions.
    (e) Forest Service must approve any amendment to a proposal or 
request to reallocate funding within a grant proposal. If negotiations 
on a selected project fail, the applicant cannot substitute an 
alternative site.
    (f) The grant recipient must comply with the requirements in Sec.  
230.8 before funds will be released.
    (g) After the project has closed, as a requirement of the grant, 
grant recipients will be required to provide the Forest Service with a 
Geographic Information System (GIS) shapefile of CFP project tracts and 
cost share tracts.
    (h) Any funds not expended within the grant period must be de-
obligated and revert to the Forest Service for redistribution through 
CFP process.
    (i) All media, press, signage, and other documents discussing the 
creation of the community forest must reference the partnership and 
financial assistance by the Forest Service through CFP.


Sec.  230.8  Acquisition requirements.

    (a) Grant recipients participating in CFP must complete the 
following, which applies to all tracts, including cost share tracts:
    (1) Complete an appraisal.
    (i) For lands purchased with CFP funds, the appraisal must comply 
with Federal Appraisal Standards prior to the release of the grant 
funds. The grant recipient must provide documentation that the 
appraisal and associated appraisal review were conducted in a manner 
consistent with the Federal appraisal standards.
    (ii) For donated cost share tracts, the market value must be 
determined by an independent appraiser. The value needs to be 
documented by a responsible official of the party to which the property 
is donated.
    (2) Prior to closing, notify the landowner in writing of the 
appraised value of the property and that the sale is voluntary. If the 
grant recipient has a voluntary option for less than appraised value, 
they do not have to renegotiate the agreement.
    (3) Purchase all surface and subsurface mineral rights, whenever 
possible. However, if severed mineral rights cannot be obtained, then 
the grant recipient must follow the retention of qualified mineral 
interest requirements outlined in the Internal Revenue Service 
regulations (26 CFR 1.170A-14 (g)(4)), which address both surface and 
subsurface minerals.
    (4) Ensure that title to lands acquired conforms with title 
standards applicable to state land acquisitions where the land is 
located.
    (i) Title to lands acquired using CFP funds must not be subject to 
outstanding or reserved property rights or future interests the 
reasonable exercise of which would be contrary to the purposes for 
which the land was acquired.
    (ii) Whenever possible, title insurance must be secured for the 
full value of the land, with the United States named as an additional 
insured on the policy.
    (iii) Title insurance must not be a substitute for acceptable 
title.
    (5) Record with the deed in the lands record of the local county or 
municipality, a Notice of Grant Requirement, which includes the 
following:
    (i) States that the property (including cost share tracts) was 
purchased with CFP funds;
    (ii) Provides a legal description;
    (iii) Identifies the name and address of the grant recipient who is 
the authorized title holder;
    (iv) States the purpose of the CFP;
    (v) References the Grant Agreement with the Forest Service (title 
and agreement number) and the address where it is kept on file;
    (vi) States that the grant recipient confirms its obligation to 
manage the interest in real property pursuant to the grant, the 
Community Forest Plan, and the purpose of the CFP;
    (vii) States that the grant recipient will not convey or encumber 
the interest in real property, in whole or in part, to another party; 
and
    (viii) States that the grant recipient will manage the interest in 
real property consistent with the purpose of the CFP.


Sec.  230.09  Ownership and use requirements.

    (a) Complete the final Community Forest Plan within 120 days of the 
land acquisition, and must be updated periodically, but at least every 
ten years.
    (b) Provide appropriate public access.
    (c) In the event that a grant recipient sells or converts to 
nonforest use, a parcel of land acquired under CFP, the grant recipient 
must:
    (1) Pay the United States an amount equal to the current sale price 
or the current appraised value of the parcel, whichever is greater; and
    (2) Not be eligible for additional grants under CFP.
    (d) For Tribal Governments, land acquired using a grant provided 
under CFP must not be sold, converted to non-forest uses, or converted 
to land held in trust by the United States on behalf of any Tribal 
Government.
    (e) Every ten years, the grant recipients will submit to the Forest 
Service an updated Community Forest Plan and a self-certifying 
statement that the property has not been sold or converted to non-
forest uses.
    (f) Grant recipients will be subject to a spot check conducted by 
the Forest Service to verify that property acquired under the CFP has 
not been sold or converted to non-forest uses.


Sec.  230.10  Technical assistance funds.

    CFP technical assistance funds will be provided to State Foresters 
and equivalent Tribal Government officials through an administrative 
grant to help implement community forest projects funded through CFP, 
and as a result, funds will only be provided to States or Tribal 
Government with a CFP project funded within their jurisdiction. Section 
7A (f) of the authorizing statute limits the funds made available for 
program administration and technical assistance to not more than 10% of 
all funds made available to carry out the program for each fiscal year.

    Dated: December 30, 2010.
Jay Jensen,
Deputy Under Secretary, NRE.
[FR Doc. 2010-33344 Filed 1-5-11; 8:45 am]
BILLING CODE 3410-11-P


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