[Federal Register Volume 68, Number 110 (Monday, June 9, 2003)]
[Rules and Regulations]
[Pages 34309-34319]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-14259]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Office of the Secretary

36 CFR Part 230, Subpart C

RIN 0596-AB95


Forest Land Enhancement Program

AGENCY: Forest Service, USDA.

ACTION: Interim final rule; request for comment.

-----------------------------------------------------------------------

SUMMARY: The Department is adopting an interim final rule to establish 
a new subpart C in part 230 of Title 36 Code of the Federal Regulations 
that sets forth procedures for administration of the new Forest Land 
Enhancement Program (FLEP), which was authorized in the Farm Security 
and Rural Investment Act of 2002 (the 2002 Farm Bill). The intended 
effect of this interim final rule is to encourage the long-term 
sustainability of nonindustrial private forest (NIPF) lands in the 
United States by assisting landowners, through State foresters, in more 
actively managing their forest lands and related resources through the 
use of State, Federal, and private sector resource management 
expertise, financial assistance, and educational programs. Public 
comment is invited and will be considered in the development of the 
final rule. The Forest Service specifically invites public comment on 
the process for distributing FLEP funds, including the national 
allocation factors.

DATES: This interim final rule is effective June 9, 2003. Comments must 
be received by August 8, 2003.

ADDRESSES: Send written comments to Hal E. Brockman, USDA Forest 
Service, Cooperative Forestry, Mail Stop Code 1123, 1400 Independence 
Avenue, SW., Washington, DC 20250-1123; via electronic mail to 
[email protected]; or via facsimile to FLEP Rule Comments at (202) 
205-1271. The agency cannot confirm receipt of comments. A toll free 
number is available, 1-866-585-8540, for callers to record voice mail 
messages (up to 3 minutes long) with their comments on the interim 
final rule. This toll free number will be active 24 hours a day during 
the comment period. Public comments submitted by voice mail will be 
transcribed for the public record.
    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 on this interim final 
rule during regular business hours at the office of the Cooperative 
Forestry Staff, 4th Floor SE., Yates Building, 201 14th Street, SW., 
Washington, DC. Visitors are encouraged to call ahead to (202) 205-1389 
to facilitate entry into the building.
    A copy of the Farm Security and Rural Investment Act of 2002, secs. 
8001 and 8002, which established the Forest Land Enhancement Program, 
and other information on this program can be found at http://www.fs.fed.us/spf/coop/flep.htm.

FOR FURTHER INFORMATION CONTACT: Hal Brockman, Forest Service, 
Cooperative Forestry, (202) 205-1694.

SUPPLEMENTARY INFORMATION:

Background

    Through the Farm Security and Rural Investment Act of 2002 (the 
2002 Farm Bill), which amended the Cooperative Forestry Assistance Act 
(16 U.S.C. 2101, et seq.), Congress established the Forest Land 
Enhancement Program (hereafter, FLEP). In establishing this program, 
Congress recognized the public benefits of sustainable forest 
management to enhance the productivity of timber, fish and wildlife 
habitat, soil and water quality, wetlands, recreational resources, and 
aesthetic values; and the need to establish a coordinated and 
cooperative Federal, State, and local sustainable forestry program for 
the establishment, management, maintenance, enhancement, and 
restoration of forests on nonindustrial private forest land. To 
accomplish this purpose, Congress has authorized the use of $100 
million dollars of Commodity Credit Corporation funds to implement FLEP 
through September 30, 2007. These FLEP funds are available for use by 
all 50 United States, Puerto Rico, Guam, the United States Virgin 
Islands, the Commonwealth of the Northern Mariana Islands (CNMI), and 
American Samoa.
    The Stewardship Incentive Program (SIP), managed by the USDA Forest 
Service (Forest Service), and the Forestry Incentives Program (FIP), 
managed by the Natural Resource Conservation Service, were repealed in 
the 2002 Farm Bill. SIP was initiated in the 1990 Farm Bill and allowed 
for cost-sharing a wide range of multiple resource management 
practices. FIP was initiated in 1975 and allowed for cost-sharing 
timber stand improvement, site preparation for natural regeneration and 
tree planting practices. The regulation for SIP at 36 CFR part 230, 
subpart A, will be removed at a later date but is currently needed for 
administration of SIP until the remaining funds have been expended.
    FLEP will continue with the work that has been completed by SIP and 
FIP and include the options of providing technical and educational 
assistance. FLEP encompasses all of the cost-share practices authorized 
under both SIP and FIP. Since 1975, through FIP there has been almost 4 
million acres of trees planted, about 1.5 million acres of improving a 
stand of forest trees, and about 51,000 acres of site preparation for 
natural regeneration. Since 1990, through SIP there has been almost 4.5 
million acres of a variety of practices completed by more than 45,000 
participants. These practices include cost-share for the development of 
forest stewardship plans on more than 2 million acres for almost 11,000 
participants. The primary practices undertaken with SIP funds other 
than plan development, in order of acres completed are: Forest 
improvement; reforestation and afforestation; wildlife habitat 
enhancement; soil and water protection and improvement; agroforestry 
establishment, maintenance or renovation; riparian and wetland

[[Page 34310]]

protection and improvement; forest recreation enhancement; and 
fisheries habitat enhancement.
    FLEP is intended to promote sustainable forest management on 
nonindustrial private forest land and to complement other sustainable 
forestry programs in the States. FLEP establishes or supplements 
existing nonindustrial private forest land programs to provide 
technical, educational, and financial assistance to landowners. The 
implementation of this new program demonstrates the commitment of the 
Secretary of Agriculture to sustainable forest management.
    FLEP will be administered by the Chief of the Forest Service 
through the Responsible Officials, in partnership with State forestry 
agencies. The State Foresters will develop and carry out FLEP in 
collaboration with their State Forest Stewardship Coordinating 
Committees, based on the authorizing legislation, this interim final 
rule, and the State's priority plan.
    For reasons of simplicity and efficiency, the distribution of funds 
from the Chief is based on factors and criteria applied to three 
geographic areas of the United States: Northeast, South, and West. The 
Northeast distribution area includes the Forest Service State and 
Private Forestry Northeastern Area, which comprises the 20 States in 
Region 9. The Southern distribution area includes the 13 States in 
Forest Service Region 8, and the International Institute for Tropical 
Forestry in Puerto Rico, and the U.S. Virgin Islands. The Western 
distribution area includes the 17 States in Forest Service Regions 1, 
2, 3, 4, 5, 6, and 10; and the Territories of Guam, CNMI, and American 
Samoa. In accordance with section 230.32 of this interim final rule, 
the Responsible Officials in the three geographic fund distribution 
areas will use the criteria set out in the Forest Service Directives 
Manual Chapter 3310 to make the final allocation to each State. The 
State will be responsible for reimbursing individuals and third 
parties. A general description of the criteria is provided in the 
section-by-section explanation for section 230.32.
    The Forest Service has received input from several Federal and 
State agencies, numerous conservation organizations, institutions of 
higher learning, and individuals relative to the development of program 
policy, activities, elements, and procedures for FLEP. These include 
Forest Service field units, the Cooperative State Research Education 
and Extension Service, the Farm Service Agency, and the Natural 
Resources Conservation Service within the U.S. Department of 
Agriculture; State forestry agencies; the International Association of 
Fish and Wildlife agencies; Indian Tribes; and others.

Section-by-Section Explanation of the Interim Final Rule at 36 CFR Part 
230, Subpart C (New)

    Section 230.30--Purpose and scope. Paragraphs (a) and (b) of this 
section discuss the purpose and scope of FLEP which is to provide a 
coordinated and cooperative Federal, State, and local sustainable 
forestry program for the establishment, management, maintenance, 
enhancement, and restoration of forests on nonindustrial private forest 
land. Paragraph (b) explains that the components of FLEP complement 
existing Federal or State programs, along with programs offered by 
institutions of higher learning.
    Paragraph (c) explains that participation in FLEP is voluntary. 
However, in order to participate, each State must have nonindustrial 
private forest lands, a State Forester or equivalent, and a State 
Forest Stewardship Coordinating Committee.
    Section 230.31--Definitions. This section sets out definitions for 
the following terms as they are used in FLEP: Capital investment or 
improvement, Catastrophic natural event, Chief, Committee, Concurrence, 
Cost-Share, Financial assistance, Fiscal year, Landowner, Management 
plan, Nonindustrial private forest land, Practice, Practice plan, 
Responsible Official, Service representative, State, State Forester, 
and State priority plan. The following definitions have not been used 
in previous programs: Capital investment or improvement, Catastrophic 
natural event, Concurrence, Cost-share, Financial assistance, 
Management plan, Practice plan, Responsible Official, Service 
representative and State priority plan. These definitions are a result 
of some of the differences between FLEP and previous program.
    Section 230.32--National program administration. This section 
outlines how FLEP is administered at the National level and how FLEP 
funds will be distributed from the National level to the State level. 
The Chief will implement FLEP in partnership with State forestry 
agencies and in consultation with a wide range of Federal, State, and 
local natural resource agencies, and institutions of higher learning 
and with a broad range of private sector interests. The Chief, working 
with the State Foresters, will develop and oversee FLEP policy and 
monitor implementation over the life of the program.
    The Chief will distribute the funds to each of the three geographic 
funding areas. This shall be based on the national allocation factors, 
which are set out in the Forest Service Manual Chapter 3310. A notice 
of issuance of an interim directive has been published elsewhere in 
this part of today's Federal Register. Forest Service Directives are 
available electronically at http://www.fs.fed.us/im/directives. The 
Responsible Official determines the allocation amount for each State.
    Allocation factors to the three geographic areas are determined in 
consultation with the State Foresters who serve on the Forest Resource 
Management Committee. The Forest Resource Management Committee is a 
standing committee of the National Association of State Foresters, 
comprised of nine State Foresters, three from each of the three 
geographic funding areas. Current criteria used at the National level 
for determining funds distribution to the three geographic areas for FY 
2003 are:
    (1) Acres of NIPF lands,
    (2) Number of NIPF landowners that own 1 acre or more,
    (3) 10% of the acres of highly erodable lands,
    (4) Number of owners of those highly erodable lands, and
    (5) Acres of land with a growing capacity greater than 20 cubic 
feet per year.
    The data for these factors are currently available for all States. 
The Forest Service is gathering data on factors that relate to the 
priorities for NIPF lands to use in the allocation of funds to the 
three geographic regions in FY 2004. The additional factors planned for 
FY 2004 are: areas at risk from forest health concerns for insect and 
disease; areas at risk from wildfire; loss and fragmentation of the 
forest land base; and miles of impaired streams, rivers and coastal 
shoreline along with acres of impaired lake, estuary and wetland areas.
    The Responsible Officials in each of the three geographic funding 
areas shall coordinate with their respective State Foresters to 
determine the final allocation to each State based on the: National 
priorities, National allocation factors, regional and State-wide 
priorities, ability of the State to deliver FLEP as shown in past 
progress reporting for other Cooperative Forestry programs, and agency 
direction in the Forest Service Manual Chapter 3310. The national 
priorities will change with changes in public demand for the uses of 
forestlands and with the increase in scientific knowledge. As these 
national priorities change, the Forest Service

[[Page 34311]]

Manual Chapter 3310 will be changed. For substantive changes, a notice 
may be published in the Federal Register. Changes in the national 
priorities will also be available on the Forest Service Web site 
provided in the ADDRESSES section of this preamble.
    Section 230.33--Responsible Official program administration. This 
section outlines how FLEP is administered at the Forest Service 
Responsible Official level.
    Section 230.34--State program administration. This section outlines 
how FLEP is administered at the State level.
    Section 230.35--FLEP elements. There are three major elements of 
FLEP: education, technical assistance, and financial assistance. States 
may use a portion of the funds received through FLEP for administrative 
costs. There are no limits on what portion of FLEP funds may be used 
for administration. States are not required to participate in all 
elements of FLEP.
    Section 230.36--State priority plan--purpose and scope. State 
priority plans are a new requirement for FLEP. States should use all 
existing data and plans, such as the State Forest Stewardship plan, to 
help create this plan. There are no transitional issues expected from 
the development of the State priority plan.
    Section 230.37--State priority plan--educational assistance. This 
section addresses the educational assistance component of FLEP in a 
State priority plan.
    Section 230.38--State priority plan--technical assistance. This 
section addresses the technical assistance component of FLEP in a State 
priority plan. If a State determines that all or some of its funds will 
be used for technical assistance, the State priority plan must describe 
who will provide the assistance, outreach efforts directed at specific 
groups or categories of landowners, expected long- and short-term 
outcomes, and method(s) for documenting accomplishments.
    Section 230.39--State priority plan--financial assistance. This 
section addresses the administration of FLEP cost-share financial 
assistance in the State priority plan.
    Section 230.40--Eligible practices for cost-share assistance. 
Paragraphs (a)(1) through (11) of this section authorize 11 activities 
and practices for which cost-share funds may be made available to 
landowners, including: management plan development; afforestation and 
reforestation; forest stand improvement; agroforestry implementation; 
water quality improvement and watershed protection; fish and wildlife 
habitat improvement; forest health and protection; invasive species 
control; wildfire and catastrophic risk reduction; wildfire and 
catastrophic event rehabilitation; and special practices 
(establishment, maintenance, and restoration practices addressing other 
conservation concerns as proposed by the State Forester and the 
committee and must have concurrence by the Responsible Official). 
States may develop policy handbooks to provide further direction 
regarding these practices and to provide specifications for practice 
implementation. A practice may consist of one or more components.
    Section 230.41--Eligibility requirements for cost-share assistance. 
All owners of nonindustrial private forest land as defined in section 
230.31 of this subpart are eligible to apply directly to the State for 
cost-share assistance. FLEP funds may be used for the treatment of up 
to 1,000 acres annually per landowner, and up to 5,000 acres with a 
waiver by the State Forester and concurrence by the Responsible 
Official. Although the average size of forest holdings differs 
considerably among the geographic regions for the country, the majority 
of nonindustrial private forest landowners own less that 100 acres. The 
maximum acreage limitation of 1,000 acres therefore adequately allows 
for broad program participation. The State Forester and Responsible 
Official will base the approval of treatment of between 1,000 and 5,000 
acres on the assessment of significant public benefit. States can use 
their FLEP funds for treatment of more than 1,000 acres, up to 5,000 
acres. The agreement for all FLEP activities is between the State and 
the landowner.
    To be eligible for FLEP, landowners must meet the minimum acreage 
requirement determined by the State and set out in the State priority 
plan, which may not exceed 25 acres. The 25-acre maximum limitation 
ensures that landowners of small properties will be eligible for 
participation in FLEP. Management plan requirements must be explained 
in the State priority plan, including minimum requirements. These 
minimum requirements should include elements such as a map of the 
property, soils information, and analysis of the current situation of 
the land and its resources and recommendations for future activities. 
States will have to determine if existing landowner management plans 
such as Tree Farm management plans, Forest Stewardship plans, or 
similar plans meet their current minimum criteria for a management 
plan.
    Section 230.42--Cost-share assistance application and payment 
procedures. This section describes the cost-share assistance and 
payment procedures for FLEP. Some of the key points about this process 
are as follows. Cost-share funds must be available before landowners 
may make an application for payment. The approval of an application 
constitutes an agreement between the landowner and the State. The 
landowner is obligated to complete the practice(s) on a reimbursable 
basis. When the service representative verifies that the practice has 
been completed, the landowner shall be reimbursed for the agreed to 
cost-share amount. Every cost-share practice must have a practice plan 
approved by the service representative. The requirements of the 
practice plan may be contained in the management plan and serve as the 
basis for determining acceptable performance.
    Landowners shall be notified in writing upon approval of a FLEP 
application. The landowner is responsible for obtaining all 
authorities, rights, easements, or other approvals necessary to the 
performance and maintenance of the practices in keeping with applicable 
laws and regulations.
    Practices must be completed within 24 months of approval. If a 
longer period of time is needed, the State Forester may grant an 
extension, not to exceed 12 months, if this is specified in the State 
priority plan. The cost-share payment shall be calculated and disbursed 
to the landowner upon certification of the practice. Landowners must 
provide access for practice inspection to the service representative.
    The maximum aggregate amount of cost-share payment under FLEP shall 
not exceed $100,000 through 2007, with the exception of Alaska Indian 
Tribes. The Alaska State Forester, in consultation with the State 
Forest Stewardship Coordinating Committee and the Responsible Official, 
determines their limit.
    Cost-share payments may not exceed 75 percent of the total cost 
incurred by the participating landowner. Landowners may utilize non-
federal programs or any donated assistance to supplement FLEP funds but 
the total of all funds shall not exceed 100 percent of the cost of 
implementing the practice. If the practice results in the immediate 
sale of forest products, the Federal share of the total cost shall be 
reduced by the gross revenue.
    States may use the cost-share rates as a means to define priorities 
practices or priority areas. State priorities for cost share shall 
reflect the national priorities as listed in the Forest Service Manual 
Chapter 3310. The State Forester may develop other priorities in 
consultation

[[Page 34312]]

with the State Forest Stewardship Coordinating Committee.
    When a practice fails to meet the minimum specifications due to 
factors beyond the landowner's control, the State Forester may approve 
cost-share payments under the following conditions. (1) The landowner 
repeats the application or establishes additional eligible practices. 
(2) The landowner establishes a reasonable effort to meet the minimum 
requirements and the practice as performed adequately meets the 
objectives of the practice plan. In the case of death or incompetence 
of any landowner, the State Forester shall approve cost-share payment 
to the successor in title or other persons or entities in control of 
the property, if they agree to maintain the practice for the duration 
of the required maintenance period.
    Nothing in this section shall be construed to authorize suit 
against the United States, the Department of Agriculture, the Forest 
Service, any State or any disbursing agent acting on behalf of the 
State. Claims of agencies of the United States Government are the only 
ones allowed against any payments to any landowner.
    A landowner must have a management plan prior to receiving approval 
to implement any FLEP practice, except for management plan development. 
A service representative must approve the plan.
    Section 230.43--Cost-share assistance--prohibited practices. This 
section identifies the cost-share activities that are prohibited in 
FLEP. These activities include items such as costs incurred before an 
application is approved and repeated practices. The State Forester has 
the authority to pre-approve costs incurred prior to an approved 
application. The State priority plan can describe materials and items 
that may be purchased before an application is approved. Repeating 
practices implemented with other Federal, State, or local government 
programs are prohibited, except where such practices are repeated due 
to failure of a prior practice without fault of the landowner. 
Recurring practices as noted in this subpart may be repeated.
    Practices that are prohibited include capital investments or 
capital improvements that are not related to a FLEP practice, such as 
purchase of land or any interest in land, or any interest in an 
endowment as provided in 230.32. Also prohibited is the development of 
or improvement to landowner nursery operations, development of or 
improvement to nut and fruit orchards or Christmas tree plantings or 
maintenance, or any practice that is not related to the long-term 
sustainability of nonindustrial private forest lands or agroforestry 
practices.
    Section 230.44--Cost-share assistance--reporting requirement. There 
are 11 categories for reporting FLEP cost-share practices. They will be 
reported annually through the Forest Service automated data system. 
Most categories will be reported in acres treated. FLEP1 will include 
number of plans developed as well as acres planned. States will only 
report those categories for which they provide cost-share. Each State 
shall report these practices to the Responsible Official who will 
collect a report for their States and provide this information to the 
Forest Service Washington Office Cooperative Forestry Staff.
    Section 230.45--Recapture of cost-share assistance. This section 
authorizes the recapture of payments to landowners under a range of 
circumstances including: the use of this program to procure unjust 
benefits; the action or failure to take action by the landowner or 
successor that results in the deliberate destruction or impairment of a 
practice; or the landowners sale, conveyance, or other loss of control 
of land before the required practice maintenance period has ended and 
the new landowner does not agree to maintain the practice for the 
duration of the practice maintenance period.
    Section 230.46--Information collection requirements. This section 
provides the Office of Management and Budget control number assigned to 
the information collection requirements governing the preparation of a 
State priority plan, a management plan, practice plan, reporting 
requirements, and the application requirements of this subpart, as 
required by the Paperwork Reduction Act of 1995. Notice of this new 
information collection was published in the Federal Register with a 
request for comment on September 20, 2002 (67 FR 59246). No comments 
were received. This has been assigned Office of Management and Budget 
(OMB) control number 0596-0168.

Good Cause Statement

    By adoption of this interim final rule, FLEP will be implemented in 
accordance with the Farm Security and Rural Investment Act of 2002 (the 
2002 Farm Bill). This interim final rule ensures consistent and proper 
use of funds by the agency as well as the State forestry agencies and 
associated third parties. This rule is being published as an interim 
final rule to allow for prompt implementation of FLEP. Agency 
directives providing further guidance on administration of FLEP are 
issued in Forest Service Directive Manual Chapter 3310. The 2002 Farm 
Bill repealed the two existing programs, Stewardship Incentive Program 
(SIP) and Forestry Incentive Program (FIP), which provided assistance 
to nonindustrial forest land owners. Administration of SIP and FIP will 
continue on a limited basis only until remaining funds from these 
programs have been expended. Prompt implementation of FLEP is important 
to ensure there is no gap in financial assistance to qualified 
landowners due to the repeal of SIP and FIP. The comments received on 
this interim final rule during the 60-day comment period following 
publication in the Federal Register, along with experience from the 
first year of FLEP implementation, will be used to develop a final 
rule. This interim final rule has also received review by a wide 
variety of partners and interested parties.

Regulatory Certifications

Regulatory Impact

    This interim final rule has been reviewed under USDA procedures and 
Executive Order 12866 on Regulatory Planning and Review. An analysis 
has been conducted addressing the costs and benefits associated with 
promulgating this interim final rule to implement the FLEP authorized 
by 16 U. S. C. 2101 et seq., as amended (Pub. L. 107-171).
    The Forestry Incentives Program (FIP) and the Stewardship 
Incentives Program (SIP) were both repealed in the 2002 Farm Bill. 
These programs assisted private forest landowners in managing 
forestland for multiple benefits. In FY 2002, these two programs were 
allocated $10 million. Between 1996 and 2002, FIP funding averaged $6.3 
million. SIP was allocated $4.5 million in 1997 and 1998, and no 
Federal funds in 1999, 2000, and 2001. FLEP is authorized to receive up 
to $100 million through FY 2007.
    The primary economic effects of the interim final regulations are 
an increase in forest health and sustainability due to better 
management practices on NIPF land, as well as non-monetized benefits 
such as improved water quality, wildlife habitat, fishing 
opportunities, carbon sequestration, and enhanced recreation. The costs 
of the interim final regulation to the Federal treasury will be $100 
million over 5 years, as specified in the legislation, or, more than 
$87 million when discounted at 7% discount rate. The discounted 
increase in Federal expenditures is estimated at $43 million. The 
States will administer the program using a portion of these funds. 
Costs to individual landowners are

[[Page 34313]]

voluntary, and consist of at least 25% of the portion of the funds 
spent on cost sharing. In this analysis, we estimate these costs will 
increase $6.4 million above the baseline.
    Benefits of the interim final regulation above the baseline include 
cost sharing to improve forest management on more than 382,000 acres. 
Technical assistance on sustainable forest practices will be provided 
to more than 2.9 million acres of forestland to improve landowner 
awareness and understanding of sustainable forestry principles and 
practices. Qualitative benefits include additional carbon 
sequestration, improved wildlife habitat, improved soil and water 
quality, and sustainable forest conditions.
    It has been determined that FLEP will not have an annual effect on 
the economy of $100 million or more or adversely affect in a material 
way the economy, a sector of the economy, productivity, jobs, the 
environment, public health or safety, or State or local communities. A 
maximum total of $100 million will be provided to State Forestry 
agencies between 2003 and 2007, as directed in the Farm Security and 
Rural Investment Act of 2002, (Pub. L. 107-171; 16 U.S.C. 2101 et 
seq.). These funds will be used to pay for the technical, education, 
and financial assistance to nonindustrial private forest landowners to 
improve the sustainability of these lands and the forest resources. 
FLEP will complement other Federal, State, and local programs that 
provide assistance to landowners by making greater resources available 
to participants.
    Finally, as a new program, FLEP would not materially alter the 
budgetary impact of entitlements, user fees, loan programs, or the 
rights and obligations of their recipients. The program is completely 
voluntary for each State and is voluntary for any landowner. Those 
States that choose to implement FLEP must follow requirements in this 
interim final rule, as would landowners participating in the program.
    The Office of Management and Budget (OMB) has designated this 
interim final rule as significant due to the potential that it may 
raise novel legal or policy issues. Therefore, this interim final rule 
is subject to OMB review under Executive Order 12866.

Controlling Paperwork Burdens to the Public

    The Office of Management and Budget has reviewed the final 
information collection package for this rulemaking according to the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.) and implementing regulations at 5 CFR part 1320. The information 
requirements in this rule have been assigned OMB control number 0596-
0168 for use through May 31, 2006. The requirements governing the 
preparation of a State priority plan, management plan, practice plan, 
the reporting requirements, and the application requirements of this 
subpart constitute the minimum information requirements needed to 
administer FLEP.

Government Paper Work Elimination Act Compliance

    The Forest Service is committed to compliance with the Government 
Paper Work Elimination Act, which requires Government agencies to 
provide the public the option of submitting information or transacting 
business electronically to the maximum extent possible.

Civil Rights Impact Analysis

    A Civil Rights Impact Analysis has been completed and reviewed by 
USDA. The analysis is available for viewing on the Forest Service FLEP 
Web site: http://www.fs.fed.us/spf/coop/flep.htm.

Civil Justice Reform

    This interim final rule has been reviewed under Executive Order 
12988, Civil Justice Reform. The Department has not identified any 
State or local laws or regulations that are in conflict with this 
regulation or that would impede full implementation of this interim 
final rule. Nevertheless, in the event that such a conflict was to be 
identified, the interim final rule would preempt the State or local 
laws or regulations found to be in conflict. However, in that case, (1) 
no retroactive effect would be given to this interim final rule; and 
(2) the Department would not require the use of administrative 
proceedings before parties could file suit in court challenging its 
provisions.

Energy Effects

    This interim final 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 interim final rule does not constitute a 
significant energy action as defined in the Executive order. Procedural 
in nature, this interim final rule guides the development of practices 
to be applied on nonindustrial private forest lands including practices 
for energy conservation.

Environmental Impact

    This interim final rule deals with the implementation of the FLEP, 
and as such, has no direct effect on Forest Service decisions for land 
management activities. Section 31.1b of Forest Service Handbook 1909.15 
(57 FR 43168; September 18, 1992) excludes from documentation in an 
environmental assessment or impact statement rules, regulations, or 
policies to establish Service-wide administrative procedures, program 
processes, or instruction. The Department's assessment is that this 
rule falls within this category of actions and that no extraordinary 
circumstances exist which would require preparation of an environmental 
assessment or an environmental impact statement.

Takings Implications

    This interim final rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 12630, and it has 
been determined that the rule does not pose the risk of a taking of 
Constitutionally protected private property. This interim final rule is 
limited to establishment of an administrative program within the Forest 
Service to assist nonindustrial private landowners in the management 
and conservation of timber and non-timber resources. This interim final 
rule and the Farm Security and Rural Investment Act of 2002 (Pub. L. 
107-171), which authorizes FLEP, do not permit any takings of private 
property or provide any funds for such purpose.

Consultation and Coordination With Indian Tribal Governments

    This interim final rule does not have tribal implications as 
defined in Executive Order 13175, Consultation and Coordination with 
Indian Tribal Governments, and, therefore, advance consultation with 
tribes is not required. However, a draft of the interim final rule was 
shared with tribes to collect their input for the development of this 
interim final rule.

Federalism

    The Department has considered this interim final rule under the 
requirements of Executive Order 13132, Federalism, and Executive Order 
12875, Government Partnerships. The Department has made a preliminary 
assessment that the interim final rule conforms with the federalism 
principles set out in these Executive Orders; would not impose any 
compliance costs on the States; and would not have substantial direct 
effects on the States, on the relationship between the National 
government and the States, or on the

[[Page 34314]]

distribution of power and responsibilities among the various levels of 
government. Moreover, there is no requirement on States to match funds 
in order to participate in FLEP. Based on comments received on this 
interim final rule, the Department will consider if any additional 
consultation will be needed with State and local governments prior to 
adopting a final rule.

Unfunded Mandates

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

Proper Consideration of Small Entities

    This interim final rule has been considered in light of Executive 
Order 13272 regarding proper consideration of small entities and the 
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 
which amended the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). An 
initial assessment on small entities' flexibility has been prepared as 
part of the cost-benefit analysis and it has been determined that this 
action will not have a significant economic impact on a substantial 
number of small entities as defined by SBREFA. This interim final rule 
imposes no additional requirements on the affected public. The 
principal small businesses expected to be impacted are consultant 
foresters who may assist State forestry agencies in different phases of 
FLEP delivery, including technical, educational, and cost-share 
elements for which they will be fully compensated. The minimum 
requirements on small entities imposed by this interim final rule are 
necessary to protect the public interest, are not administratively 
burdensome or costly to meet, and are well within the capability of 
small entities to perform.

List of Subjects in 36 CFR Part 230

    Forest and forest products, Grant programs-natural resources, 
Intergovernmental relations, Reporting and recordkeeping requirements.

0
Therefore, for the reasons set forth in the preamble, part 230 of Title 
36 of the Code of Federal Regulations is amended by adding a new 
subpart C as follows:

PART 230--STATE AND PRIVATE FORESTRY ASSISTANCE

0
1. The authority citation is revised to read as follows:

    Authority: 16 U.S.C. 2101 et seq.

0
2. Amend Part 230 by adding a new subpart C to read as follows:

Subpart C--Forest Land Enhancement Program

Sec.
230.30 Purpose and scope.
230.31 Definitions.
230.32 National program administration.
230.33 Responsible official program administration.
230.34 State program administration.
230.35 FLEP elements.
230.36 State priority plan--purpose and scope.
230.37 State priority plan--educational assistance component.
230.38 State priority plan--technical assistance.
230.39 State priority plan--financial assistance component.
230.40 Eligible practices for cost-share assistance.
230.41 Eligibility requirements for cost-share assistance.
230.42 Cost-share assistance--application and payment procedures.
230.43 Cost-share assistance--prohibited practices.
230.44 Cost-share assistance--reporting requirement.
230.45 Recapture of cost-share assistance.
230.46 Information collection requirements.


Sec.  230.30  Purpose and scope.

    (a) The regulations in this subpart govern the operation of the 
Forest Land Enhancement Program (hereafter, FLEP) as provided in 
Section 4 of the Cooperative Forestry Assistance Act (16 U.S.C. 2101 et 
seq.), as amended by title VIII of the Farm Security and Rural 
Investment Act of 2002 (Pub. L. 107-171). The purpose of FLEP is to 
provide a coordinated and cooperative Federal, State, and local 
sustainable forestry program for the establishment, management, 
maintenance, enhancement, and restoration of forests on nonindustrial 
private forest land.
    (b) The educational assistance, resource management expertise, and 
financial assistance provided under FLEP shall complement any existing 
Federal or State programs or programs offered through institutions of 
higher learning providing assistance to nonindustrial private forest 
landowners. FLEP promotes improved coordination and cooperation among 
Federal, State, and local programs regarding the establishment, 
maintenance, enhancement, and restoration of nonindustrial private 
forestlands.
    (c) Participation in FLEP is voluntary on the part of both the 
State and the nonindustrial forest landowner. To participate, each 
State must have nonindustrial private forest lands, a State Forester or 
equivalent, and a State Forest Stewardship Coordinating Committee.


Sec.  230.31  Definitions.

    The terms used in this subpart are defined as follows:
    Capital investment or improvement. Durable equipment or assets 
capable of being amortized or depreciated over a period of 3 or more 
years, not including activities or practices carried out as part of the 
Forest Land Enhancement Program (FLEP) cost-share element.
    Catastrophic natural event. Destructive natural event, which 
includes, but is not limited to, wildfires, insect infestations, 
disease outbreaks, droughts, floods, windstorms, freezing, ice storms, 
hail, sleet, mudslides, landslides, earthquakes, avalanches, tornadoes, 
volcanoes, hurricanes, or tsunamis.
    Chief. The Chief of the Forest Service, United States Department of 
Agriculture.
    Committee. The State Forest Stewardship Coordinating Committee.
    Concurrence. Review, verification, and confirmation by the 
Responsible Official that the State priority plan contains all of the 
key elements required by law and the rules of this subpart.
    Cost-share. A program payment, on a reimbursable basis, at a 
maximum of 75 percent of the cost incurred by a landowner for 
implementation of a State-approved activity or practice authorized 
under FLEP.
    Financial assistance. Funds disbursed as an award by the Federal 
Government to an eligible party from the FLEP annual apportionment, in 
the form of money, including grants, agreements, contracts, and other 
arrangements.
    Fiscal year. The accounting period, used by the United States 
Government, from October 1 through September 30.
    Landowner. An individual, group, association, corporation, Indian 
Tribe, or other legal private entity owning nonindustrial private 
forest land or a person who receives concurrence from the landowner for 
practice implementation and who holds a lease on the land for a minimum 
of 10 years. Corporations whose stocks are publicly traded or owners 
principally engaged in the primary processing of raw wood products are 
excluded.
    Management plan. A written plan prepared by a service 
representative and approved by a State Forester.

[[Page 34315]]

    Nonindustrial private forest land. Rural lands with existing tree 
cover, or which are suitable for growing trees, that are owned by any 
landowner as defined in this section.
    Practice. A prescribed, natural resource management activity that 
is consistent with a practice plan and implemented through FLEP to 
enhance the multiple resource values and benefits and that results in 
improved conditions on nonindustrial private forest land. A practice 
may consist of multiple components.
    Practice plan. A plan prepared by a service representative and 
approved by the State Forester that documents the specific practices 
that are to occur as a result of a landowner application for cost-
share. A practice plan may be a stand-alone document or it may be a 
part of a management plan.
    Responsible official. USDA Forest Service Regional Forester, Area 
Director, or Institute Director charged with the administration of 
FLEP.
    Service representative. Any person who is recognized by a State 
Forester as having the knowledge and skills to develop management 
plans, understanding of the economic and environmental 
interrelationships of forestry and/or agroforestry resources, and the 
ability to identify appropriate activities to manage, protect, or 
enhance such resources. The State Forester designates service 
representatives as the line officers to perform specified FLEP 
elements.
    State. Includes each of the States in the United States, and the 
Commonwealth of Puerto Rico, the Virgin Islands of the United States, 
Guam, American Samoa, and the Commonwealth of the Northern Mariana 
Islands.
    State Forester. The director or other head of a State forestry 
agency or equivalent State official.
    State priority plan. The document required from a State to 
participate in FLEP. A State Forester jointly prepares this plan with 
the State Forest Stewardship Coordinating Committee to facilitate long-
term sustainability of nonindustrial private forest lands within the 
State.


Sec.  230.32  National program administration.

    (a) The Chief shall develop and implement FLEP in partnership with 
State forestry agencies and in consultation with other Federal, State, 
and local natural resource management agencies, institutions of higher 
learning, and a broad range of private sector interests.
    (b) In collaboration with State Foresters, the Chief of the Forest 
Service and Responsible Officials shall oversee developing and 
implementing FLEP policy and procedure, including the monitoring of 
program results over the life of FLEP to ensure that environmental, 
economic, and social values and public benefits are derived from the 
program.
    (c) The Chief shall annually distribute such funds as may be 
available for FLEP to the Responsible Official(s) for each of the three 
geographic funding areas based on the criteria set out in the Forest 
Service Manual Chapter 3310.
    (d) In developing allocation factors for making FLEP distributions 
under this subpart,
    (1) The Chief shall consult with the State Foresters through their 
Forest Resource Management Committee, a standing committee of the 
National Association of State Foresters, or its successor.
    (2) Allocation factors shall be based on National data sources that 
address the current status of forest lands of each State or Territory 
participating in FLEP. Data must be measurable, inclusive of all 
States, objective, and reliable. The data will address those factors 
described in the Cooperative Forestry Assistance Act (16 U.S.C. 
2103(i), Distribution of Cost-Share Funds).
    (e) National priorities for FLEP shall reflect the Department and 
Forest Service priorities for nonindustrial private forest land as 
provided in the Forest Service Manual Chapter 3310.
    (f) The Responsible Official(s) in each of the three geographic 
funding areas shall coordinate with their respective State Foresters to 
determine the final allocation to each State based on the following:
    (1) National priorities;
    (2) National allocation factors;
    (3) Regional and State-wide priorities;
    (4) Ability of the State to deliver FLEP; and
    (5) Direction in the Forest Service Manual Chapter 3310.
    (g) FLEP financial assistance may be disbursed to a third party 
that will assist in program delivery. The Forest Service may disburse 
funds directly to a third party, which may include, but is not limited 
to, Federal, State, or local agencies, and landowner, nonprofit, or 
private organizations, with written approval by the State Forester.
    (h) Except as provided at Sec.  230.34(d), no financial assistance 
shall be provided by the Forest Service to a State Forester or any 
third party, until the Responsible Official has concurred with the 
State's priority plan.
    (i) The Chief has final authority to resolve all issues that may 
arise in the administration of FLEP.
    (j) The Forest Service shall provide National and regional 
administrative and financial support and oversight through distribution 
of available FLEP funds to State Foresters and through monitoring, 
review, and evaluation of FLEP activities and accomplishments.
    (k) FLEP funds may not be used by States for capital investments or 
capital improvements unless specifically authorized in a funding 
document and must be limited to $5,000. The limitation on capital 
improvements excludes practices and activities cost-shared with 
landowners through FLEP.
    (l) Funds may not be authorized in the financial assistance 
document or used for the purchase of land, any interest in land, or any 
interest in an endowment.
    (m) By September 30, 2006, the Chief must submit a cumulative 
report to the Secretary of Agriculture summarizing all the activities 
and practices funded under FLEP as of that date.


Sec.  230.33  Responsible Official program administration.

    (a) The Responsible Official shall review and provide concurrence 
with State priority plans, including any revisions of such plans.
    (b) The Responsible Official shall provide oversight for all 
aspects of FLEP, including program reviews and shall ensure that the 
Forest Service is represented on each State Forest Stewardship 
Coordinating Committee.
    (c) The Responsible Official shall disburse funds to the State 
Forester or their designated third parties in a timely manner.
    (d) The Responsible Official shall determine the final funds 
distribution to States.
    (e) The funds will be distributed to individual States based on 
criteria in Sec.  230.32 (f).
    (f) Policy in the Forest Service Manual Chapter 3310 will provide 
additional direction for funding distribution.
    (g) The Responsible Official must submit an annual report to the 
Chief summarizing all activities and practices funded through FLEP for 
the previous fiscal year.
    (h) By September 1, 2006, the Responsible Official must submit a 
cumulative report to the Chief summarizing all activities and practices 
funded through FLEP as of June 1, 2006, along with copies of the 
reports submitted from the participating States.


Sec.  230.34  State program administration.

    (a) In States electing to participate in FLEP, the State Forester 
and the State Forest Stewardship Coordinating Committee, established 
pursuant to section 19(b) of the Cooperative Forestry

[[Page 34316]]

Assistance Act, as amended (16 U.S.C. 2101, et seq.), shall jointly 
develop a State priority plan. The plan must be submitted to the 
appropriate Responsible Official for review and concurrence.
    (b) The State Forester shall develop, implement and administer FLEP 
consistent with the State priority plan. The State Forester must ensure 
that all activities are carried out properly and that all cost-shared 
practices meet the appropriate standards and specifications.
    (c) No match of funds is required from the State for participation 
in FLEP.
    (d) In order to facilitate development of FLEP any State may 
request up to $50,000 of the first-year allocation in advance of Forest 
Service concurrence with a State priority plan.
    (e) Each State participating in FLEP shall submit an annual report 
to the respective Responsible Official, reporting all activities and 
practices funded through FLEP for the previous fiscal year. The report 
shall contain data on accomplishments by educational assistance, 
technical assistance, and cost-share assistance based on State 
objectives and measurable outcomes included in State priority plans.
    (f) By July 15, 2006, the State Forester of each State 
participating in FLEP must submit to the respective Responsible 
Official a summary report of all State activities and practices funded 
through FLEP as of June 1, 2006.


Sec.  230.35  FLEP elements.

    (a) States may use FLEP funds to assist landowners in managing 
their nonindustrial private forest lands and related resources through 
the following elements:
    (1) Development and implementation of educational programs;
    (2) Resource management expertise and technical assistance; and
    (3) Financial assistance through cost-share programs.
    (b) All participating States may use a portion of allocated funds 
for FLEP administration costs.
    (c) States do not have to participate in all FLEP elements.


Sec.  230.36  State priority plan--purpose and scope.

    (a) The State priority plan shall be used to guide FLEP 
implementation in each participating State through fiscal year 2007 and 
can be revised as needed.
    (b) The State priority plan must describe the various roles and 
responsibilities of the State Forester, State Forest Stewardship 
Coordinating Committee, and other agencies and organizations in FLEP 
planning, delivery, and accountability to the program objectives.
    (c) The State priority plan must contain the following:
    (1) Data from standard forest inventory and analysis reports on the 
forest resources found within the State;
    (2) A description of concerns, issues, problems and threats related 
to resource management for all nonindustrial private forest and 
agroforestry resources;
    (3) Identification of the desired objectives and environmental, 
economic, and social values and public benefits to be derived from 
FLEP;
    (4) An explanation of how FLEP funds are to be used to complement 
efforts of sustainable forestry management already in place within the 
State;
    (5) A rationale for, and a proposed distribution of, funds for the 
FLEP elements listed at section 230.35 that the State plans to 
implement; and
    (6) A description of the public participation process used in the 
development of the plan, including outreach efforts to landowners with 
limited resources.
    (d) If an existing State Forest Stewardship plan, as described at 
section 19(b)(3) of the Cooperative Forestry Assistance Act (16 U.S.C. 
2101, et seq.), adequately addresses some or all of the required 
information, it may be incorporated into the State priority plan by 
reference.
    (e) The State priority plan must also outline the State FLEP 
priorities, policies, and procedures that will be implemented to 
encourage landowners to practice sustainable management and to actively 
conserve and enhance their forest resources.
    (f) Each FLEP element described in the State priority plan must 
clearly state objectives and measurable outcomes to be achieved.
    (g) All activities performed using FLEP funds must be consistent 
with the purpose of the program.


Sec.  230.37  State priority plan--educational assistance.

    (a) Educational assistance includes development and delivery of:
    (1) Activities;
    (2) Events;
    (3) Programs;
    (4) Curriculum;
    (5) Written materials;
    (6) Workshops;
    (7) Training sessions;
    (8) Web site construction and maintenance; or
    (9) Similar activities designed to bring landowners to an informed 
decision point and accelerate adoption of sustainable forest practices 
in a State.
    (b) If a State determines that all or some of its funds will be 
used for education, the State priority plan must describe the types of 
activities that will be covered, participating entities, expected 
outcomes, and method(s) that will be used for documenting and 
evaluating accomplishments.


Sec.  230.38  State priority plan--technical assistance.

    (a) Technical assistance includes, but is not limited to:
    (1) Agreements with other agencies, institutions of higher 
education, natural resource consultants, or private organizations to 
augment or complement existing services of a State Forestry agency;
    (2) Grants, agreements, contracts or other arrangements to provide 
services to landowners not offered by a State;
    (3) Support of existing technical assistance delivery by State 
forestry agencies or development of such technical assistance;
    (4) The development or application of new tools or technology for 
servicing landowners; or
    (5) Similar undertakings.
    (b) If a State determines that all or some of its funds will be 
used for technical assistance, the State priority plan shall describe:
    (1) Who will provide the assistance;
    (2) Outreach efforts directed at specific groups or categories of 
landowners;
    (3) Expected long- and short-term outcomes; and
    (4) Method(s) for documenting accomplishments.


Sec.  230.39  State priority plan--financial assistance.

    (a) Cost-share financial assistance includes a wide range of 
activities and practices developed by a State Forester, in cooperation 
with the State Forest Stewardship Coordinating Committee.
    (b) A State does not have to adopt a separate FLEP cost-share 
program if a State cost-share program already exists that meets the 
objectives of FLEP. However, FLEP funds must be accounted for in 
accordance with Federal financial accounting standards. If an existing 
cost-share program is used, a copy of the guidelines for that program 
must be referenced and attached to the State priority plan.
    (c) If a State determines that all or some of its funds will be 
placed into a cost-share program, the State priority plan must identify 
and describe how the cost-share funds will be made available to 
landowners participating in FLEP and expected outcomes and method(s) 
for documenting and evaluating accomplishments.

[[Page 34317]]

    (d) The cost-share section of the State priority plan must include 
all of the following information:
    (1) Describe any land ownership or annual acreage eligibility 
limitation under FLEP that is more restrictive than that established by 
the authorizing statute;
    (2) Describe any limitations for cost-share of management plans;
    (3) Define what constitutes a management plan if a State chooses to 
adopt more restrictive requirements than those established in this 
subpart; and
    (4) Identify aggregate payment limitations to any one landowner 
receiving cost-share funds through FLEP.
    (e) The State priority plan must also describe how funds identified 
for cost-share with landowners will be distributed and how cost-share 
rates are determined and established for each practice.
    (f) The State priority plan must describe the application and 
payment process for landowners interested in participating in and 
receiving cost-share through FLEP (Sec.  230.42).
    (g) The State priority plan must also address the following steps 
related to financial assistance:
    (1) Application procedure;
    (2) Approval process;
    (3) Performance period;
    (4) Cancellation of approvals;
    (5) Certification of performance;
    (6) Payment;
    (7) Maintenance and compliance;
    (8) Procedure for recapture of funds for non-compliance; and
    (9) Appeals procedures.


Sec.  230.40  Eligible practices for cost-share assistance.

    (a) The State priority plan must document and describe which of the 
following eleven categories will be made available to landowners for 
cost-share funding:
    (1) Management Plan Development--Development or revision of a 
management plan that must meet the minimum standards of a Forest 
Stewardship Plan (16 U.S.C. 2103a(f)(i)). The plan applies to those 
portions of the landowner's property on which any practice or activity 
funded under FLEP shall be carried out, as well as any property of the 
owner that may be affected by the activity or practice. Management 
plans are not subject to any acreage limits, and therefore cost-sharing 
such a plan under FLEP is exempt from the 1,000-acre (or 5,000-acre) 
limit unless restricted as described in the State priority plan.
    (2) Afforestation and Reforestation--Site preparation, planting, 
seeding, or other practices to encourage natural regeneration or to 
ensure forest establishment and carbon sequestration.
    (3) Forest Stand Improvement--Practices to enhance growth and 
quality of wood fiber, special forest products, and carbon 
sequestration.
    (4) Agroforestry Implementation--Establishment, maintenance, and 
renovation of windbreaks, riparian forest buffers, silvopasture, alley 
cropping, or other agroforestry practices, including purposes for 
energy conservation and carbon sequestration in conjunction with 
agriculture, forest, and other land uses.
    (5) Water Quality Improvement and Watershed Protection--
Establishment, maintenance, renovation, and restoration practices, 
including any necessary design and engineering to improve and protect 
water quality, riparian areas, and forest wetlands and watersheds.
    (6) Fish and Wildlife Habitat Improvement--Establishment, 
maintenance, and restoration practices to create, protect, or improve 
fish and wildlife habitat, including any necessary design and 
engineering.
    (7) Forest Health and Protection--Establishment of practices 
primarily to detect, monitor, assess, protect, improve, or restore 
forest health, including detection and control of insects, diseases, 
and animal damage to established stands.
    (8) Invasive Species Control--Establishment, maintenance and 
restoration practices primarily to detect, monitor, eradicate, or 
control the spread of invasive species.
    (9) Wildfire and Catastrophic Risk Reduction--Establishment of 
practices primarily to reduce the risk from wildfire and other 
catastrophic natural events.
    (10) Wildfire and Catastrophic Event Rehabilitation--Establishment 
of practices primarily to restore and rehabilitate forests following 
wildfire and other catastrophic natural events.
    (11) Special Practices--Establishment, maintenance, and restoration 
practices addressing other conservation concerns on nonindustrial 
private forest lands as proposed by the State Forester and the 
Committee, which must have concurrence by the responsible official.
    (b) A practice may consist of one or more components.


Sec.  230.41  Eligibility requirements for cost-share assistance.

    (a) All landowners of nonindustrial private forest land as defined 
in Sec. 230.31 of this subpart, including those who engage in primary 
processing of raw wood products on a part-time or intermittent basis 
and who otherwise meet the requirements of this section, are eligible 
to apply for and receive assistance under FLEP without regard to race, 
color, religion, national origin, age, sex, disability, political 
affiliation, sexual orientation, or marital or family status.
    (b) A landowner is eligible to receive funds under the cost-share 
element of FLEP for treatment of not more than a total of 1,000 acres 
of land annually, except where a State Forester, with the concurrence 
of a responsible official, determines that significant public benefits 
would accrue from approval of a landowner's treating up to 5,000 acres 
annually. In making a determination of significant public benefits, the 
State Forester and the responsible official shall consider, at a 
minimum, whether landowners who treat more than 1,000 acres annually 
can achieve cost-effective resource management objectives without 
unduly excluding FLEP participation of other eligible landowners.
    (c) In order to meet the following minimum requirements to be 
eligible to receive cost-share through FLEP for all practices except 
development of a management plan, a landowner must:
    (1) Own the minimum acreage as established in the State priority 
plan; however, in no case shall the minimum acreage requirement be 
higher than 25 acres;
    (2) Agree to conduct land treatment(s) according to the landowner's 
practice plan and to maintain FLEP practices for a minimum of 10 years, 
unless the State Forester specifies a shorter duration. The 10-year 
lifespan does not apply to recurring practices such as prescribed 
burning, light disking in openings, herbicide application, and other 
practices that are identified as needed in the management plan and 
practice plan; and
    (3) Have a management plan submitted to the State Forester in which 
the lands are located that meets any requirements established by the 
State in its priority plan. Existing landowner management plans such as 
Tree Farm management plans, Forest Stewardship management plans, or 
similar plans may either meet, or can be amended to meet this 
requirement.
    (d) A leaseholder who has a long-term lease on the land to be 
treated through FLEP must provide a copy of the lease to the State 
Forester in order to be eligible to receive cost-share assistance.


Sec.  230.42  Cost-share assistance application and payment procedures.

    (a) Landowner applications for cost-share payments shall not be 
approved

[[Page 34318]]

unless cost-share funds are available. The obligation of funds upon 
approval of an application constitutes an agreement by the State and 
the landowner to cost-share a completed practice on a reimbursable 
basis when the service representative verifies that the practice has 
been implemented.
    (b) Upon receiving an application for an eligible FLEP practice and 
making a determination that funds are available, a service 
representative shall prepare a practice plan that identifies the needed 
practices, specifications, and performance period for the 
implementation of the practice(s) to achieve the objectives of the 
landowner. The requirements of a practice plan may be contained in a 
management plan. The practice plan is the basis for determining 
acceptable performance upon completion of the practice.
    (c) Upon approval of a FLEP application, the State Forester shall 
notify the landowner in writing. Such notice shall state that the 
landowner can begin implementing the approved practice(s) and that 
funds have been obligated for reimbursement of a specified amount of 
the total cost. Practice costs incurred before approval are not 
eligible unless authorized by the State Forester. The notice shall also 
state that payment shall be made upon the service representative's 
verification that the practice has been implemented in accordance with 
the specifications of the practice plan and activities described in the 
management plan.
    (d) Any landowner who carries out practices under FLEP shall be 
responsible for obtaining the authorities, rights, easements, or other 
approvals necessary to the performance and maintenance of the practices 
in keeping with applicable laws and regulations.
    (e) To be eligible for cost-share reimbursement payment, a 
landowner must complete each practice within the performance period 
specified in the State priority plan, not to exceed 24 months. However, 
if practice(s) are not completed within the performance period 
specified, due to conditions beyond the landowner's control, the State 
Forester may grant an extension for a time period specified in the 
State priority plan, not to exceed 12 months.
    (f) Upon certification by the service representative that a 
practice has been completed in accordance with the practice plan, the 
cost-share payment shall be calculated and disbursed to the landowner. 
Landowners must provide to service representatives the right of access 
to the landowner's property to inspect practices for the duration of 
the maintenance period for the practices.
    (g) The maximum aggregate amount of cost-share payment under FLEP 
to any one landowner shall not exceed $100,000 through 2007, with the 
following exception for Alaska Indian Tribes. The Alaska State 
Forester, in consultation with the State Forest Stewardship 
Coordinating Committee and the Responsible Official, shall establish 
the maximum aggregate payment to any one Alaska Indian Tribe, however, 
the 1,000- and 5,000-acre limits shall apply.
    (h) The State priority plan shall set the levels of cost-share 
assistance to be paid to landowners, not to exceed 75 percent of the 
total costs incurred by a participating landowner. Non-Federal program 
funds and other donated assistance may be used to supplement cost-share 
through FLEP; however, the total of all funds and assistance shall not 
exceed 100 percent of the total cost of practice implementation, and 
the Federal share of the total cost shall be reduced by any gross 
revenue from any material sold as a result of the cost-share practice.
    (i) States may use the cost-share rate to define priority practices 
and priority areas by reserving the maximum rate of 75 percent of the 
total costs for the practices and areas having the highest priority.
    (j) State priorities for cost-share shall reflect the national 
priorities as listed in the Forest Service Manual Chapter 3310.
    (k) Other priorities may be developed by the State Forester in 
consultation with the State Forest Stewardship Coordinating Committee.
    (l) A landowner may receive partial payment, if allowed in the 
State priority plan, for completed components on the condition that the 
landowner agrees to complete the remaining components of the practice 
within the performance period specified in the practice plan.
    (m) Where performance actually rendered does not meet the minimum 
specifications of a practice due to factors beyond the landowner's 
control, the State Forester may approve cost-share payments under one 
of the following conditions:
    (1) The landowner repeats application of practices previously 
implemented or establishes additional eligible practices under such 
terms and conditions as the service representative may require, in 
which case the State Forester may approve cost-share payments for 
additional or repeated practices to the extent such measures are needed 
to meet the objectives of the management plan; or
    (2) The landowner establishes, to the satisfaction of the service 
representative that:
    (i) A reasonable effort was made to meet the minimum requirements; 
and
    (ii) The practice, as performed, adequately meets the objectives of 
the practice plan.
    (n) In case of death or incompetence of any landowner, the State 
Forester shall approve cost-share payments to the successor in title or 
other persons or entities in control of the landowner property if they 
agree to maintain the practices for the duration of the required 
maintenance period.
    (o) Any landowner who may be entitled to a cost-share payment under 
this subpart may assign the right thereto, in whole or in part, under 
the following terms:
    (1) Payments may be assigned only for performance of a FLEP 
practice;
    (2) A payment that is made to a landowner may not be assigned to 
pay or secure any preexisting debt; and
    (3) Nothing in this section shall be construed to authorize suit 
against the United States, the Department of Agriculture, the Forest 
Service, any State or any disbursing agent acting on their behalf, if 
payment is made to an assignor rather than to an assignee or if payment 
is made to only one of several assignees.
    (p) No financial assistance or portion thereof due and owing to any 
landowner shall be subject to any claim arising under State or other 
law by any creditor, except for claims of agencies of the United States 
Government.
    (q) Prior to receiving approval to implement any FLEP practice 
identified in the State priority plan, except for management plan 
development, eligible landowners shall have an approved practice plan 
providing appropriate technical standards concerning the performance of 
the requested practice(s). A service representative shall approve the 
plan. In reviewing and approving plans, to the extent deemed applicable 
by the service representative, existing landowner management plans such 
as Tree Farm management plans, Forest Stewardship management plans, or 
similar plans may either meet, or can be amended to meet, the practice 
plan requirements under FLEP.


Sec.  230.43  Cost-share assistance--prohibited practices.

    (a) Cost-share payments for the following are prohibited:
    (1) Costs incurred before an application for cost-share is approved 
in writing, except:
    (i) As pre-approved by the State Forester, or
    (ii) The materials and items that may be purchased before approval 
of the practice as described in the State priority plan;

[[Page 34319]]

    (2) Repeated practices on the same site within the required 
maintenance period which have been implemented under any other Federal, 
State, or local government programs, or private sector programs, except 
where such practices are repeated due to a failure of a prior practice 
without fault of the landowner or recurring practices as noted in this 
subpart;
    (3) Capital investments or capital improvements not related to FLEP 
practices, purchase of land or any interest in land, or any interest in 
an endowment as provided in section 230.32(k) and (l);
    (4) Practices associated with the development of or improvement to 
landowner nursery operations;
    (5) Practices associated with the development of or improvement to 
nut and fruit orchards or Christmas tree plantings or maintenance; or
    (6) Any practice that is not related to the long-term 
sustainability of nonindustrial private forest lands or agroforestry 
activities.


Sec.  230.44  Cost-share assistance--reporting requirement.

    (a) FLEP cost-share accomplishments should be reported using the 
following standard categories of practices:
    (1) FLEP1--Management Plan Development;
    (2) FLEP2--Afforestation and Reforestation;
    (3) FLEP3--Forest Stand Improvement;
    (4) FLEP4--Agroforestry Implementation;
    (5) FLEP5--Water Quality Improvement and Watershed Protection;
    (6) FLEP6--Fish and Wildlife Habitat Improvement;
    (7) FLEP7--Forest Health and Protection;
    (8) FLEP8--Invasive Species Control;
    (9) FLEP9--Fire and Catastrophic Risk Reduction;
    (10) FLEP10--Fire and Catastrophic Event Rehabilitation; and
    (11) FLEP11--Special Practices.
    (b) All reporting must include activities and accomplishments for 
each category of FLEP practices.


Sec.  230.45  Recapture of cost-share assistance.

    (a) Payments made to landowners may be recaptured under one or more 
of the following circumstances:
    (1) If any landowner, successor, or assignee uses any scheme or 
device to unjustly benefit from FLEP. A scheme or device includes, but 
is not limited to, coercion, fraud or misrepresentation, false claims, 
or any business dissolution, reorganization, revival, or other legal 
mechanism designed for or having the effect of evading the requirements 
of FLEP. Financial assistance payments shall be withheld or a refund of 
all or part of any FLEP payments otherwise due or paid to that person 
shall be secured.
    (2) If any landowner or successor takes any action or fails to take 
action, which results in the destruction or impairment of a prescribed 
practice for the duration of the practice. Cost-share payments shall be 
withheld or a recapture of all or part of any FLEP payments otherwise 
due or paid shall be secured, based on the extent and effect of 
destruction and impairment.
    (3) If a landowner sells, conveys, or otherwise loses control of 
the land, except when determined by a State Forester to have been 
beyond the landowner's control, upon which there is a continuing 
obligation to maintain a practice, and the new landowner does not agree 
to assume the responsibility for maintaining the practice. In such 
cases the landowner who was originally obligated to maintain the 
practice shall be liable to reimburse the State(s) for all cost-share 
on such practices.
    (b) Nothing in this section requiring the withholding or refunding 
of financial assistance payments shall preclude any penalty or 
liability otherwise imposed by law.
    (c) Any landowner, successor, or assignee who is dissatisfied with 
any determination made under FLEP may request reconsideration by the 
State Forester and, if the matter is not resolved, by the Responsible 
Official. All requests for reconsideration shall be in writing and 
shall contain factual information explaining the basis for the request. 
All decisions on reconsideration must be issued in writing.


Sec.  230.46  Information collection requirements.

    The requirements governing the preparation of a State priority 
plan, management plan, and practice plan, the reporting requirements, 
and the application requirements of this subpart constitute information 
requirements as defined by the Paperwork Reduction Act of 1995 and have 
been assigned Office of Management and Budget (OMB) control number 
0596-0168.

    Dated: May 30, 2003.
Mark Rey,
Under Secretary, Natural Resources and Environment.
[FR Doc. 03-14259 Filed 6-6-03; 8:45 am]
BILLING CODE 3410-11-P