[Federal Register Volume 76, Number 203 (Thursday, October 20, 2011)]
[Rules and Regulations]
[Pages 65121-65133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-27117]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 230

RIN 0596-AC84


Community Forest and Open Space Conservation Program

AGENCY: Forest Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule 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, Indian 
tribes, and qualified nonprofit organizations are eligible to apply for 
grants to establish community forests through fee-simple acquisition of 
private forest land. The program's two purposes are to provide public 
benefits to communities including economic benefits through sustainable 
forest management, environmental benefits including clean air, water, 
and wildlife habitat; benefits from forest-based educational programs; 
benefits from serving as models of effective forest stewardship; and 
recreational benefits secured with public access; and to acquire 
private forest lands that are threatened by conversion to nonforest 
uses. 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 final rule 
will be substituted in lieu thereof.

DATES: This final rule is effective November 21, 2011.

FOR FURTHER INFORMATION CONTACT: Kathryn Conant, U.S. Forest Service, 
State and Private Forestry, Cooperative Forestry, (202) 401-4072. 
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 Final Rule

    Congress authorized the Community Forest and Open Space 
Conservation Program (CFP) to address the needs of communities to 
protect and maintain their forest resources. In the CFP authorization, 
Congress found that tens of thousands of acres of private forest land 
are under pressure from development; public access to privately owned 
forest land for recreational opportunities has declined; people derive 
health benefits from having access to forests for recreation and 
exercise; forests protect public water supplies and may provide 
financial benefits from forest products; forest parcels owned by local 
governments and nonprofit organizations provide important educational 
opportunities for private forest landowners; and there is an urgent 
need to leverage financial resources to purchase important parcels of 
privately owned forest land as the parcels are offered for sale.
    The CFP is a competitive grant program whereby local governments, 
Indian tribes, and qualified nonprofit organizations are eligible to 
apply for grants to establish community forests through fee-simple land 
acquisitions. ``Fee-simple'' means absolute interest in real property, 
versus a partial interest such as a conservation easement. By creating 
community forests through land acquisition, communities and Indian 
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 statutory title for the CFP 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 
final rule, the term ``open space'' is not used, and it is assumed that 
the only type of ``open space'' on which Congress wanted the CFP to 
focus is ``forests.''
    The Forest Service believes that these regulations for the CFP will 
facilitate administration of the program and provide uniform criteria 
for program participation. The program will focus its funding towards 
forests that provide community benefits as defined in this rule and are 
identified as a national, regional, or local priority for protection. 
See Ranking Criteria and Proposal selection in Sec.  230.5 of this 
final rule.
    Benefits provided by forests acquired under the CFP 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 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 should be part of a larger conservation effort that 
protects a variety of land types and working lands, which provide 
ecosystem services. In this way, the program delivers local benefits 
that can also have a larger impact.

Relationship 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 CFP recognizes that successful 
protection of community forests depends on engaged citizens. Their 
participation is equal in importance to the forests being protected. 
The CFP complements and builds upon other CFAA programs that focus on 
stewardship and education by providing the opportunity for communities 
to go a step further and directly acquire and manage forests. The CFP 
provides grant assistance directly to Indian tribes, 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 entities are able to

[[Page 65122]]

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.

Relationship to the Forest Legacy Program

    There are now two land protection programs under the Cooperative 
Forestry Assistance Act, the Forest Legacy Program (FLP) codified at 16 
U.S.C. 2103c and the CFP codified at 16 U.S.C. 2103d. Both the CFP and 
FLP provide financial assistance to partners to protect forest land 
that is threatened by conversion to nonforest uses and provide 
significant environmental, economic, and social benefits. The two 
programs are complementary; each engages unique partners and utilizes 
different tools for land protection. While a few projects may align 
with the intent of both programs, most projects will qualify for only 
one. An applicant is not allowed to submit a project application to 
both the CFP and FLP simultaneously.
    The FLP provides grants to State agencies, though other units of 
government have partnered with the State agency on a few projects. The 
CFP provides grants directly to local governments, Indian tribes and 
qualified nonprofit organizations. The FLP allows for the acquisition 
of conservation easements or fee-simple titles, while the CFP permits 
only fee-simple acquisition of land as a community forest. While 
proponents of FLP are encouraged to coordinate with and obtain input 
from the public, such coordination is not a critical project selection 
criterion. In contrast, successful CFP projects will be evaluated on 
the extent of community involvement in the development and the long-
term management of the community forest. While FLP encourages public 
access or other recreational opportunities, it is not a program 
requirement. In contrast, the CFP requires public access.

Relationship to the Urban and Community Forest Program

    The Urban and Community Forestry (UCF) Program, authorized in the 
Cooperative Forestry Assistance Act (16 U.S.C. 2105), is a cooperative 
program of the Forest Service that encourages and promotes the creation 
of healthier, more livable communities; it is not a land protection or 
acquisition program like the CFP or FLP. UCF provides technical, 
financial, educational, and research assistance to communities, through 
its primary partner the State forestry agencies, to plan urban forestry 
programs and to plant, protect, maintain, and use wood from community 
trees and forests to maximize social, environmental, and economic 
benefits. The CFP provides grants directly to local governments, Indian 
tribes, and qualified nonprofits for fee-simple acquisition of land to 
establish community forests.

Community Forest Plan

    The CFP requires communities to draft a community forest plan 
(Sec.  230.2 and Sec.  230.4) as part of the application process. The 
draft community forest plan submitted with the application should be as 
specific as possible, but the Forest Service recognizes that the plan 
may not be finalized until after the project is closed. The community 
forest plan may build upon existing land management plans to meet the 
requirements of the CFP.

Landscape-Level Conservation Plans and the Community Forest Plan

    The community forest plan can tier to an existing broader 
landscape-level plan. Applicants should start by using the landscape 
level plan most germane to the CFP project; examples of plans include 
community green infrastructure plans, community land use plans, Indian 
tribe's area of interest/homelands plans, and others as long as there 
are overlapping or shared goals. A Statewide Forest Resource Assessment 
and Strategy is an example of a land use plan that may also be useful. 
The Forest Service recommends that applicants contact their State 
Forester or equivalent official of the Indian tribe or Bureau of Indian 
Affairs to see if they may provide technical assistance during the 
development of a CFP application. Professional specialists, including 
foresters may also provide valuable assistance at the project 
development stage; however, the services of a professional specialist 
is not mandated by the program.
    Grant recipients must submit a final community forest plan within 
120 days of the title transferring to the grant recipient (Sec.  
230.9). The community forest plan must be developed with community 
involvement and incorporate as much as possible the desires of the 
community. The draft community forest plan should describe the 
community that benefits from the community forest and what benefits the 
community forest will provide. The expectation is that there will be 
ongoing and meaningful community participation in plan development and 
revision; this could be through a standing advisory board or similar 
mechanism. The community is encouraged to periodically review and 
revise the community forest plan (Sec.  230.9).

Proximity to Community Requirements

    The final rule does not impose a requirement on the proximity of 
the community forest to the benefitting community or on the size of the 
benefitting community (Sec.  230.4). The final rule will fund quality 
projects with active community participation.

Project Review and Selection Process

    The Forest Service will conduct a review and ranking process to 
select projects for funding. The application process is outlined in 
Sec.  230.3 of this final rule. Individual applications will be ranked 
according to criteria outlined in Sec.  230.5 of this final rule. The 
Forest Service anticipates providing additional specificity on the 
review process, review criteria, and timelines in an annual Request for 
Applications (RFA).

Role of the State Forester or Equivalent Official of the Indian Tribe

    Under the CFP, applications will be submitted to the State Forester 
(for local government and non profit organizations) or the equivalent 
official of the Indian tribe (for Indian tribes). As time and resources 
allow, these entities may conduct a general review of all applications 
submitted to them for eligibility and compatibility with landscape 
conservation efforts. The State Forester or equivalent official of the 
Indian tribe may provide technical assistance to applicants in the 
preparation of applications.
    The final rule requires the State Forester or equivalent official 
of the Indian tribe to forward all CFP applications they receive to the 
Forest Service, but provides them with an opportunity to comment. 
Application review by State Foresters or equivalent officials of the 
Indian tribe is voluntary, but will be considered by the Forest 
Service. Such participation will not result in a transfer of 
responsibility for any aspect of the CFP project selection process to 
the State Forester or Indian tribes from the Forest Service.
    While the Forest Service anticipates this intermediate step will 
add approximately 30 days to the review process, input from State 
Foresters or equivalent officials of the Indian tribes will be valuable 
in helping the Forest Service make final funding decisions.

Eligible Entities

    The statute establishing the CFP states that only local 
governments, Indian tribes, and qualified nonprofit organizations are 
eligible to receive a grant through the CFP. The statute also

[[Page 65123]]

provides definitions for those three eligible organizations. Local 
governments are defined as municipal, county, and other local 
governments with jurisdiction over local land use decisions. Indian 
tribes are defined as prescribed by Section 4 of the Indian Self-
Determination and Education Assistance Act (U.S.C. 450b), which 
includes federally recognized Indian tribes and Alaska Native 
Corporations. Finally, qualified nonprofit organizations are defined as 
charities described in the Internal Revenue Code of 1986 26 USCS Sec.  
170(h)(3) which operates in accordance with one or more of the 
conservation purposes specified in Section 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 nonprofit 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 would be a typical 
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 community forest is ever 
sold, or converted to nonforest uses or a use inconsistent with the 
CFP, the following three 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, ``nonforest uses'' is 
defined in Sec.  230.2 of this final rule.
    (3) Every five years, grant recipients will submit to the Forest 
Service a self certifying statement that the property has not been sold 
or converted to nonforest uses. In addition, the 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 
nonforest uses or a use inconsistent with the purpose of the CFP (Sec.  
230.9).
    In the statute establishing the CFP, Congress required that the 
grant recipient cannot sell the land or convert it to nonforest 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 nonforest use or sale are discussed in Sec.  230.9 
``Ownership Use and Requirements'' of this final 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 part 24) have been adopted by the Department of Agriculture (7 
CFR part 21). The 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 the CFP be 
appraised in accordance with the current Uniform Appraisal Standards 
for Federal Land Acquisitions developed by the Interagency Land 
Acquisition Conference (also known as the Yellow Book), hereafter 
referred to as the 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 (http://www.justice.gov/enrd/3044.htm). 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 
the market value for the purpose of determining CFP contribution and 
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 advise applicants with the 
appraisal and associated appraisal review and will conduct spot checks 
to assure compliance with Federal Appraisal Standards.

Government-to-Government Consultation With Indian Tribes

    Indian tribes were invited to consult on the CFP proposed rule 
prior to review and comment by the general public. The consultation 
process was initiated September 30, 2010. The Deputy Chief for State 
and Private Forestry sent a letter to the Forest Service regional 
leadership requesting that they initiate consultation. Each unit then 
initiated consultation with Indian tribes, providing them with 
information about the CFP, the proposed rule, how to request 
government-to-government consultation, and where to send comments. 
Consultation concluded March 7, 2011.
    Three Indian tribes consulted with the Forest Service about the 
CFP, many Indian tribes discussed the CFP with Forest Service 
personnel, and three Indian tribes sent comments through the public 
comment process. Two regions of the United States Department of the 
Interior, Bureau of Indian Affairs (BIA) also sent comments through the 
public comment process. Indian tribe and BIA comments were analyzed 
separately from general public comments. The Forest Service 
incorporated the input received through consultation and the public 
comment process into the development of this final rule.

Indian Tribal Input and Agency Responses

The Authorizing Statute
    The following comments suggested changes to the rule, but these 
points are governed by the authorizing statute Section 8003 of the 
Food, Conservation, and Energy Act of 2008 (Pub. L. 110-234; Stat. 
2043) and are not within the discretion of the Forest Service. As a 
result, no changes will be made to the final rule.
Eligible Entities
    Comment: Eligible entities should include Tribal Organizations--
such as the Native American Land Conservancy, whose mission is ``to 
acquire and preserve our sacred lands''. We believe

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inclusion of these types of tribal organizations is implied, as they 
are authorized by Tribal Governments through approval of Tribal 
Resolution to fulfill this mission. We strongly recommend the 
regulations clearly state that Tribal Organizations or Tribal 
Government Organizations can also apply under this program.
    Response: ``Eligible entity'' is defined in the authorizing statute 
and, after consultation with the Office of General Counsel, the Forest 
Service interprets ``eligible entity'' to mean federally recognized 
Indian tribes and Alaska Native Corporations, local government 
entities, and qualified nonprofit organizations that are qualified to 
acquire and manage land. If a Tribal Organization meets these 
definitions, it would be an eligible entity. Tribal organizations that 
meet the definition of a ``qualified nonprofit organization'' would be 
an ``eligible entity.'' No change made to the final rule.
Eligible Lands
    Comment: Sec.  230.2 Definition: Expand the definition of community 
forest to include vacant, undeveloped, or underutilized developed lands 
because many lands that are sacred or important to Indian tribes that 
they would like to acquire may or may not be forested.
    Response: Eligible land is described as ``private forest land'' by 
the authorizing statute; no change made to the final rule.
Conversion of Forest to Nonforest Land
    Comment: Allow forest land to be converted to nonforest land.
    Response: Conversion to nonforest land is a prohibited use in the 
authorizing statute; no change made to the final rule.
Trust Lands
    Comment: Allow for the conversion of fee lands to Indian Trust.
    Response: Conversion of fee lands into Indian Trust is a prohibited 
use in the authorizing statute; no change made to the final rule.
    Comment: Because the program disallows placing CFP purchased land 
in Tribal trust, this requirement probably precludes Indian tribes from 
finding this program useful. In addition, the requirements of matching 
funds and inability to place in tribal trust lands essentially make the 
proposed program of very little use.
    Response: The CFP authorizing statute prohibits CFP acquired lands 
to be transferred into Tribal trust lands. Financial gain from the 
community forest is possible through timber harvest and other land 
management practices.
    No change to the final rule.
General Comments
    Comment: Following discussions on the possible uses of the CFP 
within our traditional territory, there is interest in potential 
utilization of the program once it is in place and final guidelines 
established.
    Response: The Forest Service agrees that the CFP will be a valuable 
tool for all eligible entities; no change to the final rule.
    Comment: Community benefits have a lot of application to tribal 
interests on their homelands.
    Response: The Forest Service agrees that the benefits provided by 
community forests will be appreciated by communities; no change made to 
the final rule.
    Comment: Our Indian tribe has no objection to the proposed CFP.
    Response: None required; no change to the final rule.
Priority for Indian Tribes
    Comment: Are Indian tribes on an even playing field with all other 
applicants? Provide priority to Indian tribes which have lost land base 
due to Federal land acquisitions in the past.
    Response: The Forest Service will ensure that all applicants are 
ranked using the criteria in Sec.  230.5 and are given an equal 
opportunity for funding. Indian tribes' specific concerns, such as loss 
of land base, may be described in the application, and the acquisition 
of the community forest should be discussed in the community benefits; 
no change to the final rule.
Department of the Interior (DOI) or Bureau of Indian Affairs (BIA) 
Appraisers
    Comment: Could a DOI or BIA Federal Land Appraiser be used?
    Response: If the appraiser is allowed by his or her agency and is 
qualified to conduct the appraisal as required in Sec.  230.8 of the 
final rule, then a BIA or DOI appraiser could be used; no change made 
to final rule.
    Comment: Include the BIA on ranking committee.
    Response: The Forest Service will continue to engage BIA throughout 
implementation of the CFP. Composition of the ranking committee has yet 
to be decided. No change made to the final rule.
Tribal Area of Interest/Homeland
    Comment: Tribal government documents/plans identify conservation 
needs and goals that apply to their area of interests/homelands. Would 
their area of interest/homelands equate to locality, state or region as 
defined in the proposed rule?
    Response: Areas of interest/homelands would equate to locality, 
state or region as defined in the final rule; no change made to the 
final rule.
BIA's Indian Reservation Roads Program
    Comment: The rule should require a public route be identified to 
Community Forest Program parcels through the BIA's Indian Reservation 
Roads (IRR) Program to ensure the public continues to have access to 
lands purchased with CFP funds by an Indian tribe. IRR routes must, by 
law, be accessible to the public.
    Response: The issue is more appropriately addressed on a case by 
case basis in specific project grants; no change made to the final 
rule.
Public Access Restrictions for Tribal Ceremonies
    Comment: Indian tribes or Tribal Organizations should have the 
authority to control access on lands acquired by a Indian tribe or 
Tribal Organization; could a management plan for a community forest 
owned by the Indian tribe provide opportunities for closing all or 
portions of a community forest for short durations (a few days to a few 
weeks) to allow culturally sensitive tribal ceremonies to take place at 
various times during a year undisturbed by non-tribal members?
    Response: As long as reasonable public access is allowed, limited 
closures, which are outlined and explained in the community forest 
plan, to accommodate tribal ceremonies would be consistent with the 
definition of public access (Sec.  230.2).

Public Comments and Agency Responses

    On January 6, 2011, the Forest Service published a notice of 
proposed rule and request for comment on 36 CFR part 230 in the Federal 
Register (76 FR 33344). During the comment period, which ended March 7, 
2011, the Forest Service received 28 responses containing over 150 
comments. Responses from Indian tribes, the agencies that work with 
them and government-to-government consultations were also received and 
analyzed separately (see ``Government-to-Government Consultation with 
Indian Tribes'' above and ``Consultation and Coordination with Indian 
Tribes'' in the ``Regulatory Certifications'' to follow).
    Twenty respondents explicitly expressed support, sixteen 
respondents suggested minor revisions, one respondent objected to 
Federal spending for any new program, and one

[[Page 65125]]

respondent felt program funds should be spent on other Forest Service 
priorities.

The Authorizing Statute

    Comment: Sec.  230.2 Definition: Expand the definition of 
``eligible entity'' to include a wider range of nonprofit 
organizations.
    Response: ``Eligible entity'' is defined in the authorizing 
statute; no change made to the final rule.
    Comment: Sec.  230.2 Definition: Expand the definition of 
``community forest'' to include vacant, undeveloped, or underutilized 
developed lands.
    Response: The authorizing statute requires the Secretary to award 
grants to acquire private forest land, and no other land cover is 
eligible; no change made to the final rule.
    Comment: Sec.  230.3 Application process: The States should be able 
to limit the number of applications being submitted for funding from 
each State to prevent applications that do not meet program 
requirements.
    Response: The authorizing statute requires the State Forester or 
equivalent official of the Indian tribe to submit a list that includes 
a description of each project submitted by an eligible entity. The 
Forest Service encourages States and equivalent official of the Indian 
tribe to review and comment on the applications, but will not require 
it; no change made to the final rule.
    Comment: Sec.  230.4 Application requirements: Delete the 
requirement for a draft community forest plan.
    Response: A community forest plan is a requirement of the 
authorizing statute; no change made to the final rule.

Technical Assistance

    Comment: Sec.  230.10 Technical assistance funds: Provide for 
ongoing technical assistance as a component of the grants. Technical 
assistance will be called for in all stages of establishing and 
maintaining a community forest, and the funding structure should 
reflect this; the CFP should allow awarding of technical assistance 
funds to State Foresters/Tribal governments before CFP projects have 
been funded to help get the program started and develop competitive 
applications with partner communities; this program puts an increased 
workload and unfunded responsibility on the State Forester or 
equivalent Tribal Government official since technical assistance 
funding is only available for implementation after a grant is awarded 
in their jurisdiction; is it possible for States with projects 
submitted within their jurisdiction to be reimbursed for any technical 
assistance provided in helping applicants prepare proposals and draft 
community forest plans; could States be reimbursed for time spent 
providing technical assistance and/or processing on a ``per 
application'' basis?
    Response: The authorizing statute limits funding for technical 
assistance to ``not more than 10 percent of all funds made available to 
carry out the Program for each fiscal year to State Foresters or 
equivalent officials (including equivalent officials of Indian tribes) 
for Program administration and technical assistance.'' The amount of 
funds available for technical assistance may not enable the Forest 
Service to reimburse State and Indian tribes for all technical 
assistance rendered both before and after the applications are 
submitted. Grant recipients should be prepared to incur the cost of 
ongoing maintenance and some cost associated with the application; no 
change made to the final rule.
    Comment: Project costs should include dedicated, restricted funds 
for the long-term maintenance and management of community forests. Such 
funds should be allowable project and cost share costs.
    Response: The authorizing statute only allows funds to be expended 
on acquiring land to establish community forests. Long term maintenance 
funds are the responsibility of the grant recipient; no change made to 
the final rule.
    Comment: Provide adequate funding to communities for technical 
assistance. The program should be structured to make sure that grant 
recipients are made fully aware of the range of resources available to 
them through State forestry agencies--especially as they create and 
implement a community forest management plan.
    Response: The Forest Service will help identify resources grant 
recipients can utilize when establishing their community forest. 
However, the authorizing statute does not provide funding for technical 
assistance directly to the community but rather funds go to States 
Foresters and equivalent officials of Indian tribes; no change made to 
the final rule.

Use of CFP Funds

    Comment: The CFP should provide capacity building grants to 
establish new community forests.
    Response: Capacity building grants are outside scope of this 
program by statute; no change made to the final rule.
    Comment: The CFP should provide funding for the following two 
efforts as part of the upcoming program: 1. Tree and forest resource 
inventories; 2. Operations and maintenance funding.
    Response: These activities are outside the scope of this program; 
no change made to the final rule.

Penalties

    Comment: Allow forest land to be converted to nonforest land.
    Response: The authorizing statute specifies a penalty for 
converting the forests to nonforest uses; no change made to the final 
rule.
    Comment: Strengthen the penalties for selling or converting CFP 
acquired lands to nonforest uses to help discourage sale or conversion 
to nonforest uses.
    Response: The penalties for selling or converting CFP acquired 
lands are defined in the authorizing statute; no change made to the 
final rule.

Support for the Proposed Rule

    Comment: Twenty respondents expressed support for the Community 
Forest Program
    Response: None required; no change made to the final rule.

General Comments

    Comment: Ten comments from six respondents identified program 
benefits:
     Creates many more community forests nationwide
     Increases green space and enhances the health of any 
community
     Develops a broader appreciation for the importance of our 
Country's forests among youth and citizens of all ages
     Keeps people connected to our forest heritage by 
sustaining timber management, protecting forest-based natural resources 
like water and wildlife, providing model forests to educate private 
landowners, and providing a natural setting for youth recreation and 
education
     Encourages the incorporation of environmental education 
into community institutions
     Provides much needed resources for forest conservation on 
the local level through local government and land trust partners
     Conserves threatened forestlands that can meet locally-
identified community needs for natural resource protection, economic 
development, and public connections to the land. Community forests, 
whether owned by a local government, Indian tribe, or nonprofit 
organization, have a strong track record of engaging a broad range of 
citizens in forest conservation, stewardship, and governance. Where 
situated near Federal and State lands, establishment of community 
forests can foster new collaboration across

[[Page 65126]]

boundaries to achieve landscape-level management objectives
     The option to develop community forests under nonprofit 
ownership can be particularly valuable when a local government desires 
community-based conservation of a tract but does not have the capacity 
to effectively oversee management and governance issues for a community 
forest
     Creates potentially tens of thousands of jobs nationwide, 
provides significant environmental benefits and spurs economic growth 
in regions that are suffering greatly from job losses, environmental 
degradation and rising health costs due to obesity and other 
environmental related illnesses such as asthma. Furthermore, the 
program would provide communities an opportunity to study urban forest 
ecology from its genesis and to develop models to be used in urban 
forests in the 21st century
    Response: None required; no change made to the final rule.
    Comment: Once created, community forests could sell environmental 
credits to help defray longer term operation and maintenance costs.
    Response: The buying and selling of environmental credits is an 
evolving practice and may be subject to regulation by other Federal or 
State agencies. All community forest projects would need to be 
compliant with those regulations and the CFP regulation; therefore, no 
change made to the final rule.
    Comment: Augment the funding for Forest Legacy Program 
administration funds and allow those funds to be used for both programs 
(Forest Legacy and CFP).
    Response: Funds authorized for one program cannot be used for 
another. Use of Forest Legacy Program dollars for the CFP would 
constitute misappropriation of funds; no change made to final rule.
    Comment: Make monitoring requirements for new community forests 
more stringent by increasing the number of spot checks and develop a 
schedule in order to improve accountability.
    Response: Each community forest will have unique monitoring needs, 
and the Forest Service believes that the notice of grant agreement, 
self certification every five years, and spot checks identified in the 
final rule are sufficient project oversight; no change made to final 
rule.
    Comment: The CFP should identify a specific person or ``face'' for 
the program so that communities and supporting institutions will know 
who to contact when they need assistance and information about the 
program.
    Response: The CFP Web site (http://www.fs.fed.us/spf/coop/programs/loa/cfp.shtml) will have current CFP contact information, and the 
Forest Service will make available information about the program; no 
change made to final rule.
    Comment: A requirement for native species regeneration would be 
appropriate.
    Response: Such a requirement may or may not be appropriate 
depending on goals and objectives of the community forest and, while 
encouraged, will be left to the discretion of the community; no change 
made to final rule.
    Comment: Divert funds or resources from existing Forest Service 
programs for the CFP.
    Response: The CFP is subject to annual appropriations by Congress, 
which will specify the amount of funds for the program. Funds 
authorized for one program cannot be used for another; no change made 
to final rule.
    Comment: Final community forest plans should have an approval 
requirement by either the Forest Service or the State.
    Response: The purpose of the community forest plan is to document 
and maximize the community benefits identified by the community. 
Therefore, the community developing the community forest plan should 
approve it. The community forest plan will be consulted during spot 
checks to ensure consistency with the program; no change made to final 
rule.
    Comment: Use the Forest Resources Coordinating Committee (FRCC), 
established in the 2008 Farm Bill, to establish ranking criteria for 
the CFP.
    Response: The FRCC focuses on private forest conservation issues 
which are not necessarily the only issues of concern for community 
forests; no change made to final rule.
    Comment: The term ``landscape conservation initiative'' is not 
widely interpreted as inclusive of a town plan or similar conservation 
plan at the local level; clarify how to tie CFP projects to a landscape 
level conservation initiative.
    Response: Applicants should use the landscape level plan most 
germane to their CFP project. The definition of landscape conservation 
initiative was revised in the final rule and changed the order of the 
ranking criteria in Sec.  230.5 Ranking criteria and proposal 
selection.
    Comment: Clarify the differences between the CFP and the Forest 
Legacy Program.
    Response: The Forest Service felt this was an important 
clarification; added comparison of the CFP and Forest Legacy Program to 
the preamble of the final rule.
    Comment: Add a ranking criterion for local governments which 
recognizes a community's sustained commitment to their urban and 
community forests (e.g., as demonstrated through Tree City USA or other 
public recognition programs, hiring of city foresters, establishment of 
tree boards) and the community's ability to manage the community forest 
after it is acquired through the program.
    Response: While this criterion would work well for local 
governments' applications, it would not fit for applications submitted 
by qualified nonprofit organizations and some Indian tribes; no change 
made to final rule.
    Comment: Training may be required to build capacity within the 
State Foresters' offices, and flexibility should be built into the 
implementation of this component to see whether this system works or 
not, and how to implement it effectively across the States.
    Response: The Forest Service is willing to provide CFP information 
to State Foresters, Indian tribes, and eligible entities in a variety 
of formats.

Suggested Edits and Agency Responses

    Numerous changes were made to the preamble and or final rule to 
clarify aspects of the program and address questions raised by 
respondents (italicized text was added;):
    Comment: A number of comments proposed expanding eligible lands to 
include nonforested and developed land to achieve open space 
conservation.
    Response: The Forest Service refers to this program as the 
``Community Forest Program'' or ``CFP'' throughout this rule, as 
opposed to the ``Community Forest and Open Space Conservation 
Program.'' The authorizing statute limits eligible lands to currently 
forested lands, precluding nonforested lands from consideration. To 
avoid future confusion regarding nonforested open space, the Forest 
Service will begin to colloquially refer to the program as the 
Community Forest Program or CFP.

Section 230.2 Definitions

    Comment: Depending on how the term borrowed funds is defined, cost 
share contributions from bonded sources may or may not be eligible.
    Response: The Forest Service agrees that there was a need to 
clarify the definition of borrowed funds as a cost share; reworded the 
definition to read ``Funds used for the purpose of cost share which 
would encumber the subject property, in whole or in part, to another 
party.'' The prohibition against borrowed funds is intended to protect 
the Federal investment and the community forest property from 
foreclosure. Bonds issued by units of government would be allowed 
because

[[Page 65127]]

failure to honor those debts would not likely put the community forest 
at risk and these funding mechanisms are commonly used to finance land 
purchases.
    Comment: Concerns were raised that there are a variety of formal 
and informal educational benefits that can be linked to community 
forests not specifically mentioned in the proposed rule; community 
forests also help provide clean air as well as clean water.
    Response: The Forest Service felt this was a valuable addition and 
amended definition of ``Community benefits'' (2) to read 
``Environmental benefits, including clean air and water, storm water 
management, and wildlife habitat;'' and (3) to read ``Benefits from 
forest-based experiential education programs, including K-12 
conservation education programs; vocational education programs; and 
environmental education through individual study or voluntary 
participation in programs offered by organizations such as 4-H, Boy or 
Girl Scouts, Master Gardeners, etc. in final rule.
    Comment: Respondents proposed alternative definitions of ``forest 
lands;'' and questioned if the definitions included prospective 
reforested or afforested acreage (prohibited by statute), or included 
the mangrove forest type.
    Response: The number of comments related to the definition of 
forest lands made it clear that some additional clarification was 
necessary. A number of alternative definitions were considered, and the 
Forest Service decided to amend the definition of ``Forest lands'' to 
read ``Lands that are at least five acres in size, suitable to sustain 
natural vegetation, and at least 75% forested. Forests are determined 
both by the presence of trees and the absence of other prevailing land 
uses.''
    Comment: Clarify the term ``Landscape conservation initiative'' by 
stating that conservation or management plans or activities identify 
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.
    Response: The Forest Service felt that this was a valuable 
clarification, adopted proposed language in both the preamble 
explanatory text and the final rule. Examples of initiatives include 
green infrastructure plans, a community or county land use plan, Indian 
tribe's area of interest/homelands plans, a Statewide Forest Resource 
Assessment and Strategy, etc.
    Comment: Definition of ``nonforest uses'': The exclusion of mining 
is in conflict with the common use of rock quarries on forestland 
necessary to maintain roads essential to working forest operations. 
Many private forest lands have mineral rights retained by previous 
owners, and this aspect of the rule would eliminate many good projects 
from consideration; definition of nonforest uses should distinguish 
between smaller, community-based industrial uses that support 
sustainable forest management, and large-scale, industrial uses that 
would dramatically alter the character of the land.
    Response: The Forest Service felt that this was a valuable 
clarification consistent with the purpose of the CFP; amended 
``nonforest uses'' to read ``Activities that threaten forest cover and 
are inconsistent with the community forest plan, and include the 
following: (3) Mining and nonrenewable resource extraction, except for 
activities that would not require surface disturbance of the community 
forest such as offsite directional drilling for oil and gas development 
or onsite use of gravel from existing gravel pits * * * (6) Structures 
and facilities, except for compatible recreational facilities, 
concession and educational kiosks, energy development for onsite use, 
facilities associated with appropriate forest management, and parking 
areas. Said structures, facilities and parking areas must have minimal 
impacts to forest and water resources.''

Section 230.3 Application Process

Role of Professional Forester, State Forester or Equivalent Official of 
the Indian Tribe
    Comment: A number of comments requested clarification or suggested 
either increasing or decreasing the role of State Foresters, Indian 
tribe officials, or professional foresters.
    Response: All applicants are encouraged to consult with their State 
Forester or equivalent official of the Indian tribe, but the final rule 
does not require professional consultation. To address the comments, 
the final rule was changed to state that the State Forester's review 
would be based on available time and resources. In addition, the State 
Forester's review was clarified to include determining eligibility of 
the applicant and the land, confirming that the project is not also 
being proposed for funding through the Forest Legacy Program, and 
identifying if the project is part of a larger conservation initiative.

Section 230.5 Ranking Criteria and Proposal Selection

    Comment: Remove (a)(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 
rule, is a landscape-level conservation or management plan or activity 
that identifies conservation needs and goals of a locality, state, or 
region,''
    Response: The Forest Service felt that this was an appropriate edit 
as this criteria was already listed and the revised order of the 
criteria was consistent with the purpose of the CFP; deleted (a)(2) 
language in ``Sec.  230.5 Ranking Criteria and Proposal Selection'' of 
the final rule.

Section 230.6 Project Costs and Cost Share Requirements

    Comment: A typical source of cost share contribution is likely to 
be in the form of bonded monies. Depending on how the term borrowed 
funds is defined, cost share contributions from bonded sources may or 
may not be eligible; we urge you to find a mechanism (such as 
subordination agreements) to allow local governments and qualified 
conservation organizations to engage local individual investors in 
purchasing property that would contribute to the match requirements for 
USFS Community Forest projects. Provision in the legislation for a 
subordination agreement, or other arrangement perhaps unacceptable to a 
commercial lending institution, would still enable interested 
individuals to work with local entities and the USFS to preserve 
working forest; nonprofit organizations sometime pursue bank loans to 
allow them to protect properties in a timely manner (e.g., during 
``stop gap'' acquisitions) until they can raise the necessary funds 
through capital campaigns or other fundraising activities. Monies from 
such loans contribute directly to the land acquisitions, they are 
accountable, and they should therefore be allowed as cost share.
    Response: The Forest Service determined that borrowed funds for the 
purpose of this rule are funds used for the purpose of cost share, 
which would encumber the subject property, in whole or in part, to 
another party. The prohibition against borrowed funds is intended to 
protect the Federal investment and the community forest property from 
foreclosure. Bonds issued by units of government would be allowed since 
failure to honor those

[[Page 65128]]

debts would not likely put the community forest at risk and these 
funding mechanisms are commonly used to finance land purchases; 
reworded the definition of borrowed funds.
    Comment: Amend (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 objectives'' to include 
``such donations need to meet the requirements specified under Sec.  
230.8 Acquisition requirements (a)(1)(ii).''
    Response: The Forest Service felt that this was a valuable 
clarification; adopted proposed language in final rule.

Section 230.7 Grant Requirements

    Comment: A grantee may need more than two years to complete the 
project and proposed the following language change to (c) as follows 
``The grant may be reasonably extended by the Forest Service when 
necessary to accommodate unforeseen circumstances in the land 
acquisition process.''
    Response: The Forest Service felt that the proposed change was 
consistent with the purpose of the CFP and provided the program with 
additional flexibility; adopted proposed language in final rule.

Regulatory Certifications

Regulatory Planning and Review

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has been designated a ``significant regulatory 
action'' although not economically significant, under Section 3(f) of 
Executive Order 12866. Accordingly, the rule has been reviewed by the 
Office of Management and Budget.
    A Cost Benefit Analysis has been completed and emphasizes that the 
benefits for each established forest will vary, depending on 
characteristics of the forest land, the community, and the management 
objectives. Where these forests are located will also be dependent on 
the communities that support them; therefore, they could occur in 
communities from rural to urban. Because there will be diversity among 
forests and among their benefits, this analysis used qualitative, as 
well as quantitative, methods to describe the potential benefits and 
costs of the CFP.
    The primary cost of the CFP is the acquisition of the land itself. 
Additionally, the transfer of lands out of private ownership may reduce 
the tax base, or result in forgone economic benefits offered by 
development. The analysis assumed that development and associated 
activity will be established elsewhere without resulting in forestland 
conservation and the opportunity cost of lower economic activity will 
be off-set by the benefits provided by the community forest, such that 
the main analyzed costs are the cost of the acquisition and the tax 
revenue foregone by the local government unit. These costs were 
compared with the largely intangible benefits of protecting forest 
land, such as environmental goods and services from the land and 
nonmarket valued amenities, such as scenic views, but also included the 
economic value of retaining an active working forest in the local 
economy. Qualitative and quantitative evidence supported the assertion 
that community forests provide many benefits to communities, especially 
in areas threatened by conversion of private forest land.
    This final 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 final rule will not interfere with an 
action taken or planned by another agency nor raise new legal or policy 
issues.
    Finally, this final 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 final rule does not 
regulate the private use of land or the conduct of business. It is a 
grant program to local governments, Indian tribes, and qualified 
nonprofit organizations for purposes of acquiring land in fee-simple 
for resource conservation and open space preservation. By providing 
funding to eligible entities for land acquisition, the Federal 
Government will promote a variety of benefits from sustainable forest 
management including, but not limited to: Economic benefits such as 
timber and non-timber products; environmental benefits, including clean 
air and water, stormwater management, and wildlife habitat; benefits 
from forest-based experiential learning, including K-12 conservation 
education programs, vocational education programs in disciplines such 
as forestry and environmental biology, and environmental education 
through individual study or voluntary participation in programs offered 
by organizations such as 4-H, Boy or Girl Scouts, Master Gardeners, 
etc.; benefits from serving as replicable models of effective forest 
stewardship for private landowners; recreational benefits such as 
hiking, hunting and fishing secured through public access.
    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 cannot be ascertained, but it 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.
    The 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.

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 parts 1500-1508 as well as the Council on 
Environmental Quality's NEPA procedures at 40 CFR parts 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 environmental impact statement.

Proper Consideration of Small Entities

    This final 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 Forest 
Service consulted with the Small Business Administration which 
concurred that the final rule for voluntary participation in the CFP 
does not impose significant direct costs on

[[Page 65129]]

small entities. This final rule imposes no additional requirements on 
the affected public. Entities most likely affected by this final rule 
are the local governments, qualified nonprofit organizations, and 
Indian tribes eligible to receive a grant through the CFP. The minimum 
requirements on small entities imposed by this final rule are necessary 
to protect the public interest, are not administratively burdensome or 
costly to meet, and are within the capabilities of small entities to 
perform. 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.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), signed into law on March 22, 1995, the Agency has 
assessed the effects of this final rule on State, local, and Indian 
Tribal governments and the private sector. This final 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 final rule under the 
requirements of Executive Order 13132, Federalism, and Executive Order 
12875, Government Partnerships. The Forest Service has determined that 
the rule conforms to 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 the proposed rule, additional consultation with 
State and local governments was determined to not be necessary.

Controlling Paperwork Burdens on the Public

    In accordance with the Paperwork Reduction Act of 1995 [44 U.S.C. 
Chapter 35], the Forest Service requested and received an approval of a 
new information collection.

OMB Number: 0596--New

    Comments were sought on the information collection aspect of this 
rule at the proposed rule stage; none were received.

Consultations and Coordination With Indian Tribes

    This final rule has tribal implications as defined in Executive 
Order 13175. Section 7A(a)(1) of the Cooperative Forestry Assistance 
Act establishes that Indian tribes as defined by Section 4 of the 
Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b) 
are eligible entities to participate in the CFP.
    Indian tribes were invited to consult on the CFP proposed rule 
prior to review and comment by the general public. The consultation 
process was initiated September 30, 2010. The Deputy Chief for State 
and Private Forestry sent a letter to Forest Service regional 
leadership requesting that they initiate consultation. Each unit then 
initiated consultation with Indian tribes, providing them with 
information about the CFP, the proposed rule, how to request 
government-to-government consultation, and where to send comments. 
Consultation concluded March 7, 2011.
    Three Indian tribes consulted with the Forest Service about the 
CFP, many Indian tribes discussed the CFP with Forest Service 
personnel, and three Indian tribes sent comments through the public 
comment process. Two regions of the United States Department of the 
Interior, Bureau of Indian Affairs (BIA) also sent comments through the 
public comment process. Indian tribal and BIA comments were analyzed 
separately from general public comments. The Forest Service 
incorporated the input received through consultation and the public 
comment process into the development of this final rule.
    Through consultation and comments a number of Indian tribes 
questioned if they are on an even playing field with all other 
applicants, and asked if the CFP would provide priority to Indian 
tribes which have lost land base due to Federal land acquisitions in 
the past. The Forest Service will ensure that all applicants are given 
an equal opportunity. Specific tribal concerns, such as loss of land 
base, may be described in the application.
    The Agency has determined that the CFP does not impose substantial 
direct compliance costs on Indian tribes. This rule does not mandate 
Indian tribe participation in the CFP, but does ensure they have an 
opportunity to apply. A more complete summary of tribal consultation 
may be found in the preamble of this rule, under ``Government to 
Government Consultation with Indian Tribes''.

No Takings Implementations

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 12630, and the Forest Service 
has been determined that the final rule does not pose the risk of a 
taking of constitutionally protected private property. This final 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 final 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 environmental 
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 final rule 
outlines the programmatic implementation of the CFP and has no direct 
effect on Forest Service decisions for its land management activities 
or on ground disturbing activities conducted by third-party entities.

Energy Effects

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

Civil Justice Reform

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. The Forest Service did not identify any State or 
local laws or regulations that are in conflict with this final rule or 
that would impede full implementation of this final rule. Nevertheless, 
in the event that such a conflict is identified, the final rule would 
not preempt the State or local laws or regulations found to be in 
conflict. Further, in that case, no retroactive effect would be given 
to this rule. 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, Community forest, State and 
local governments, Indian tribes,

[[Page 65130]]

Nonprofit organizations, Conservation, Forests and forest products, 
Land sales.
    For the reasons set forth in the preamble, the Forest Service 
hereby amends 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

0
1. The authority citation for part 230 is revised to read as follows:

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



0
2. Revise Subpart A to read as follows.

Subpart A--Community Forest and Open Space Conservation Program

Sec.
230.1 Purpose and scope.
230.2 Definitions.
230.3 Application process.
230.4 Application requirements.
230.5 Ranking criteria and proposal selection.
230.6 Project costs and cost share requirements.
230.7 Grant requirements.
230.8 Acquisition requirements.
230.9 Ownership and use requirements.
230.10 Technical assistance funds.

Subpart A--Community Forest and Open Space Conservation Program


Sec.  230.1  Purpose and scope.

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


Sec.  230.2  Definitions.

    The terms used in this subpart are defined as follows:
    Borrowed funds. Funds used for the purpose of cost share which 
would encumber the subject property, in whole or in part, to another 
party.
    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 air and water, 
stormwater management, and wildlife habitat;
    (3) Benefits from forest-based experiential learning, including K-
12 conservation education programs; vocational education programs in 
disciplines such as forestry and environmental biology; and 
environmental education through individual study or voluntary 
participation in programs offered by organizations such as 4-H, Boy or 
Girl Scouts, Master Gardeners, etc.;
    (4) Benefits from serving as replicable models of effective forest 
stewardship for private landowners; and,
    (5) Recreational benefits such as hiking, hunting and fishing 
secured with public access.
    Community forest. Forest land owned in fee-simple by an eligible 
entity that provides public access and is managed to provide community 
benefits pursuant to a community forest plan.
    Community forest plan. A tract-specific plan that guides the 
management and use of a community forest, was 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;
    (7) Planned public access, including proposed limitations to 
protect cultural or natural resources, or public health and safety. In 
addition, local governments and qualified nonprofits need to provide a 
rationale for any proposed limitations; and
    (8) A description for the long-term use and management of the 
property.
    Eligible entity. A local governmental entity, Indian tribe, 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; and
    (3) If acquired by an eligible entity, can provide defined 
community benefits under the CFP and allow public access.
    Equivalent officials of Indian tribes. An individual designated and 
authorized by the Indian tribe.
    Federal appraisal standards. The current Uniform Appraisal 
Standards for Federal Land Acquisitions developed by the Interagency 
Land Acquisition Conference (also known as the yellow book).
    Fee-simple. Absolute interest in real property, versus a partial 
interest such as a conservation easement.
    Forest lands. Lands that are at least five acres in size, suitable 
to sustain natural vegetation, and at least 75 percent forested. 
Forests are determined both by the presence of trees and the absence of 
nonforest uses.
    Grant recipient: An eligible entity that receives a grant from the 
U.S. Forest Service through the CFP.
    Indian tribe. Defined by Section 4 of the Indian Self-Determination 
and Education Assistance Act (25 U.S.C. 450b); for purposes of this 
rule, Indian tribe includes federally recognized Indian tribes and 
Alaska Native Corporations.
    Landscape conservation initiative. A landscape conservation 
initiative, as defined in this final rule, is a landscape-level 
conservation or management plan or activity that identifies 
conservation needs and goals of a locality, state, or region. Examples 
of initiatives include community green infrastructure plans, a 
community or county land use plan, Indian tribe's area of interest/
homelands plans, a Statewide Forest Resource Assessment and Strategy, 
etc. The conservation goals identified in the plan must 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.
    Nonforest 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

[[Page 65131]]

disturbance of the community forest such as directional drilling for 
oil and gas development or onsite use of gravel from existing gravel 
pits;
    (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, facilities associated with appropriate forest management 
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 (Pub. L. 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 the 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 
for 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 to protect 
cultural and natural resources or public health and safety.
    State Forester. The State employee who is responsible for 
administration and delivery of forestry assistance within a State, or 
equivalent official.


Sec.  230.3  Application process.

    (a) The Forest Service will issue a national request for 
applications (RFA) for grants under the CFP. The RFA will be posted to 
http://www.grants.gov as well as other venues. The RFA will include the 
following information outlined in this final rule:
    (1) The process for submitting an application;
    (2) Application requirements (Sec.  230.4);
    (3) Review process and criteria that will be used by the Forest 
Service (Sec.  230.5); and
    (4) Other conditions determined appropriate by the Forest Service.
    (b) Pursuant to the RFA, interested eligible entities will submit 
an application for program participation to:
    (1) The State Forester or equivalent official, for applications by 
local governments and qualified nonprofit organizations, or
    (2) The equivalent officials of the Indian tribe, for applications 
submitted by an Indian tribe.
    (c) Interested eligible entities will also notify the Forest 
Service, pursuant to the RFA, when submitting an application to the 
State Forester or equivalent officials of the Indian tribe.
    (d) The State Forester or equivalent official of the Indian tribe 
will forward all applications to the Forest Service, and, as time and 
resources allow:
    (1) Provide a review of each application to help the Forest Service 
determine:
    (i) That the applicant is an eligible entity;
    (ii) That the land is eligible;
    (iii) That the proposed project has not been submitted for funding 
consideration under the Forest Legacy Program; and
    (iv) Whether the project contributes to a landscape conservation 
initiative.
    (2) Describe what technical assistance provided through CFP they 
may render in support of implementing the proposed community forest 
project and an estimate of needed financial assistance (Sec.  230.10).
    (e) A proposed application cannot be submitted for funding 
consideration simultaneously for both the CFP and the Forest Service's 
Forest Legacy Program (16 U.S.C. 2103c).


Sec.  230.4  Application requirements.

    The following section outlines minimum application requirements, 
but the RFA may include additional requirements.
    (a) Documentation verifying that the applicant is an eligible 
entity and that the proposed acquisition is of eligible lands.
    (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;
    (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 to date in the 
planning of the community forest and of the community involvement 
anticipated in its long-term management;
    (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 official of 
the Indian tribe for technical assistance when developing or updating 
the Community Forest Plan. In addition, the eligible entity is 
encouraged to work with technical specialists, such as professional 
foresters, recreation specialists, wildlife biologists, or outdoor 
education specialists, when developing the Community Forest Plan.
    (d) Information regarding the proposed land acquisition, including:
    (1) A proposed project budget (Sec.  230.6);
    (2) The status of due diligence, including signed option or 
purchase and sale agreement, title search, minerals determination, and 
appraisal;

[[Page 65132]]

    (3) Description and status of cost share (secure, pending, 
commitment letter, etc.) (Sec.  230.6);
    (4) The status of negotiations with participating landowner(s) 
including purchase options, contracts, and other terms and conditions 
of sale;
    (5) The proposed timeline for completing the acquisition and 
establishing the community forest; and
    (6) Long term management costs and funding source(s).
    (e) Applications must comply with the Uniform Federal Assistance 
Regulations (7 CFR part 3015).
    (f) Applications must also include the forms required to process a 
Federal grant. Section 230.7 references the grant forms that must be 
included in the application and the specific administrative 
requirements that apply to the type of Federal grant used for this 
program.


Sec.  230.5  Ranking criteria and proposal selection.

    (a) Using the criteria described below, to the extent practicable, 
the Forest Service will give priority to an application that maximizes 
the delivery of community benefits, as defined in this final rule, 
through a high degree of public participation; and
    (b) The Forest Service will evaluate all applications received by 
the State Foresters or equivalent officials of the Indian tribe and 
award grants based on the following criteria:
    (1) Type and extent of community benefits provided. Community 
benefits are defined in this final rule as:
    (i) Economic benefits such as timber and non-timber products;
    (ii) Environmental benefits, including clean air and water, 
stormwater management, and wildlife habitat;
    (iii) Benefits from forest-based experiential learning, including 
K-12 conservation education programs; vocational education programs in 
disciplines such as forestry and environmental biology; and 
environmental education through individual study or voluntary 
participation in programs offered by organizations such as 4-H, Boy or 
Girl Scouts, Master Gardeners, etc;
    (iv) Benefits from serving as replicable models of effective forest 
stewardship for private landowners; and
    (v) Recreational benefits such as hiking, hunting and fishing 
secured through 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 RFA.


Sec.  230.6  Project costs and cost share requirements.

    (a) The CFP Federal contribution cannot exceed 50 percent of the 
total project costs.
    (b) Allowable project and cost share costs will include the 
purchase price and the following transactional costs associated with 
the acquisition: appraisals and appraisal reviews, land surveys, legal 
and closing costs, development of the community forest plan, and title 
examination. The following principles and procedures will determine 
allowable costs for grants:
    (1) For local and Indian tribal governments, refer to 2 CFR Part 
225, Cost Principles for State, Local, and Indian Tribal Governments 
(OMB Circular A-87) .
    (2) For qualified nonprofit organizations, refer to 2 CFR Part 230, 
Cost Principles for Non-Profit Organizations (OMB Circular A-122).
    (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 
any allowable project costs specified in section 230.6(b) completed as 
part of the application.
    (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 the Clean 
Water Act, the River and Harbor Act, or the Endangered Species Act;
    (5) Not include borrowed funds; and
    (6) 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; such donations 
need to meet the requirements specified under Sec.  230.8 Acquisition 
requirements (a)(1)(ii).
    (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 were incurred prior to 
issuance of the grant. These pre-award costs may occur up to one year 
prior to the issuance of the grant, but cannot include the purchase of 
CFP land, including cost share tracts.


Sec.  230.7  Grant requirements.

    (a) The following grant forms and supporting materials must be 
included in the application:
    (1) An Application for Federal Assistance (Standard Form 424);
    (2) Budget information (Standard Form SF 424c--Construction 
Programs);
    (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 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 Indian tribal governments should refer to 2 CFR Part 
225 Cost Principles for State, Local, and Indian Tribal Governments 
(OMB Circular A-87) and 7 CFR Part 3016 (Uniform Administrative 
Requirements for Grants and Cooperative Agreements to State and Local 
Governments) for directions.
    (2) Nonprofit organizations should refer to 2 CFR Part 215 Uniform 
Administrative Requirements for Grants and Other Agreements with 
Institutions of Higher Education, Hospitals and Other Nonprofit 
Organizations (OMB Circular A-110) and 7 CFR Part 3019 Uniform 
Administrative Requirements

[[Page 65133]]

for Grants and Cooperative Agreements with Institutions of Higher 
Education, Hospitals, and other Nonprofit Organizations for directions.
    (e) Forest Service must approve any amendment to a proposal or 
request to reallocate funding within a grant proposal. If negotiations 
on a selected project fail, the applicant cannot substitute an 
alternative site.
    (f) The grant recipient must comply with the requirements in Sec.  
230.8 before funds will be released.
    (g) After the project has closed, as a requirement of the grant, 
grant recipients will be required to provide the Forest Service with a 
Geographic Information System (GIS) shapefile: a digital, vector-based 
storage format for storing geometric location and associated attribute 
information, of CFP project tracts and cost share tracts, if 
applicable.
    (h) Any funds not expended within the grant period must be de-
obligated and revert to the Forest Service for redistribution.
    (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 the CFP.


Sec.  230.8  Acquisition requirements.

    (a) Grant recipients participating in the 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 to 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 
encumbrances or agreements of any kind that would be contrary to the 
purpose of the CFP.
    (ii) Title insurance must not be a substitute for acceptable title.
    (5) Record with the deed in the lands record of the local county or 
municipality, a Notice of Grant Requirement, which includes the 
following:
    (i) States that the property (including cost share tracts) was 
purchased with CFP funds;
    (ii) Provides a legal description;
    (iii) Identifies the name and address of the grant recipient who is 
the authorized title holder;
    (iv) States the purpose of the CFP;
    (v) References the Grant Agreement with the Forest Service (title 
and agreement number) and the address where it is kept on file;
    (vi) States that the grant recipient confirms its obligation to 
manage the interest in real property pursuant to the grant, the 
Community Forest Plan, and the purpose of the CFP;
    (vii) States that the grant recipient will not convey or encumber 
the interest in real property, in whole or in part, to another party; 
and
    (viii) States that the grant recipient will manage the interest in 
real property consistent with the purpose of the CFP.


Sec.  230.9  Ownership and use requirements.

    (a) Grant recipient shall complete the final community forest plan 
within 120 days of the land acquisition, and must update the plan 
periodically to guide the management and the community benefits of the 
community forest.
    (b) Grant recipient shall provide appropriate public access.
    (c) In the event that a grant recipient sells or converts to 
nonforest uses or a use inconsistent with the purpose of the CFP, a 
parcel of land acquired under the CFP, the grant recipient shall:
    (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 the CFP.
    (d) For Indian tribes, land acquired using a grant provided under 
the CFP must not be sold, converted to nonforest uses or a use 
inconsistent with the purpose of the CFP, or converted to land held in 
trust by the United States on behalf of any Indian tribe.
    (e) Every five years, the grant recipients will submit to the 
Forest Service a self-certifying statement that the property has not 
been sold or converted to nonforest uses or a use inconsistent with the 
purpose of the CFP.
    (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 nonforest uses or a use inconsistent with 
the purpose of the CFP.


Sec.  230.10  Technical assistance funds.

    CFP technical assistance funds may be provided to State Foresters 
or equivalent officials of Indian tribes through an administrative 
grant to help implement community forest projects funded through the 
CFP, and as a result, funds will only be provided to States or Indian 
tribes 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 no more than 10% of 
all funds made available to carry out the program for each fiscal year.

    Dated: October 14, 2011.
Arthur L. Blazer,
Deputy Under Secretary, NRE.
[FR Doc. 2011-27117 Filed 10-17-11; 4:15 pm]
BILLING CODE 3410-11-P