744 Federal Register / Vol. 76, No. 4 / Thursday, January 6, 2011 / Proposed Rules 

(1) The manufacturer’s address and 

contact information; 

(2) A detailed explanation of the 

purpose for the modification; 

(3) A detailed description of the 

modification, including a statement as 

to whether the modification involves 

adding or deleting a tobacco additive, or 

increasing or decreasing the quantity of 

an existing tobacco additive; 

(4) A detailed explanation of why the 

modification is a minor modification of 

a tobacco product that can be sold under 

the Federal Food, Drug, and Cosmetic 

Act; 

(5) A detailed explanation of why a 

report under section 905(j)(1) of the 

Federal Food, Drug, and Cosmetic Act 

intended to demonstrate substantial 

equivalence is not necessary to ensure 

that permitting the tobacco product to 

be marketed would be appropriate for 

protection of the public health; 

(6) A certification (i.e., a signed 

statement by a responsible official of the 

company) summarizing the supporting 

evidence and providing the rationale for 

the official’s determination that the 

modification does not increase the 

tobacco product’s appeal to/use by 

minors, toxicity, or addictiveness/abuse 

liability; and 

(7) Other information justifying an 

exemption. 

(c) Exemption determination. FDA 

will review the information submitted 

and determine whether to grant or deny 

an exemption request based on whether 

the criteria in section 905(j)(3) of the 

Federal Food, Drug, and Cosmetic Act 

are met. FDA may request additional 

information if necessary to make a 

determination. FDA will consider the 

exemption request withdrawn if the 

information is not provided within the 

requested timeframe. 

(d) Rescission of an exemption. FDA 

may rescind an exemption if it finds 

that the exemption is not appropriate for 

the protection of public health. In 

general, FDA will rescind an exemption 

only after notice and opportunity for a 

hearing under 21 CFR part 16 of this 

chapter is provided. However, FDA may 

rescind an exemption prior to notice 

and opportunity for a hearing under 21 

CFR part 16 of this chapter if the 

continuance of the exemption presents 

a serious risk to public health. In that 

case, FDA will provide the 

manufacturer an opportunity for a 

hearing as soon as possible after the 

rescission. 

Dated: January 3, 2011. 

Leslie Kux, 

Acting Assistant Commissioner for Policy. 

[FR Doc. 2011–34 Filed 1–5–11; 8:45 am] 

BILLING CODE 4160–01–P 

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. 

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 

communityforest@fs.fed.us, 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. ‘‘Feesimple’’ 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 


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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 § 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 § 230.3 of this proposed 

rule. Individual applications will be 

ranked according to criteria outlined in 

§ 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 § 230.3 and the ranking 

criteria outlined in § 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 SelfDetermination 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 


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746 Federal Register / Vol. 76, No. 4 / Thursday, January 6, 2011 / Proposed Rules 

(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 

§ 230.2 of this proposed rule. 

(3) Every ten years, grant recipients 

will submit to the Forest Service a selfcertifying statement that the property 

has not been sold or converted to nonforest 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 (§ 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 § 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 


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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 nontaxable 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-toGovernment 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 

§ 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. 

§ 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 tractspecific 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. 


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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). 

§ 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 

(§ 230.4); 

(3) Review process and criteria that 

will be used by the Forest Service, the 

State Forester, and equivalent Tribal 

Government official (§ 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 (§ 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). 

§ 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; 


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(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 longterm 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 

(§ 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.) (§ 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. 

§ 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 nonforest uses; 

(7) Costs to the Federal government; 

and 

(8) Additional considerations as may 

be outlined in the RFP. 

§ 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 preaward 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. 

§ 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); 


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(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 § 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. 

§ 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. 

§ 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 nonforest 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. 

§ 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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