Community Forest Program, 17302-17311 [2021-06757]

Agencies

• DEPARTMENT OF AGRICULTURE
• Forest Service

[Federal Register Volume 86, Number 62 (Friday, April 2, 2021)]
[Rules and Regulations]
[Pages 17302-17311]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06757]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 230

RIN 0596-AD23


Community Forest Program

AGENCY: Forest Service, U.S. Department of Agriculture (USDA).

[[Page 17303]]


ACTION: Final rule.

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SUMMARY: The United States Department of Agriculture has revised the 
final rule for the Community Forest and Open Space Program (Community 
Forest Program). The revisions included in this final rule will allow 
grant recipients to convey conservation easements to funding entities 
and, in some circumstances when consistent with the program's purposes, 
convey community forest land to other eligible entities. The final rule 
also clarifies the definitions of program-specific terms, streamlines 
the application process, and implements the Office of Management and 
Budgets (OMB)'s Uniform Administrative Requirements, Cost Principles, 
and Audit Requirements for Federal Awards.

DATES: This final rule is effective May 3, 2021.

ADDRESSES: For more information, including a copy of the final rule, 
refer to the World Wide Web/internet at: https://www.fs.usda.gov/managing-land/private-land/community-forest. More information may be 
obtained by written request to the Director, Cooperative Forestry 
Staff, Forest Service, USDA, Mail Stop 1123, 1400 Independence Avenue 
SW, Washington, DC 20250-1123.

FOR FURTHER INFORMATION CONTACT: Scott Stewart, Program Manager, State 
and Private Forestry, Cooperative Forestry Staff, (202) 205-1618. 
Individuals who use telecommunication devices for the deaf (TDD) may 
call the Federal Information Relay Service (FIRS) at (800) 877-8339 
between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through 
Friday.

SUPPLEMENTARY INFORMATION:

I. Background

    The Community Forest Program is authorized by Section 8003 of the 
Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246; 122 Stat. 
2043). On October 20, 2011, the Forest Service issued regulations (36 
CFR part 230, subpart A) implementing the program. After selecting and 
awarding the first round of grants under the current 36 CFR part 230, 
subpart A, the Agency identified some inconsistencies and 
inefficiencies in the regulation that hinders the Agency's ability to 
efficiently and effectively implement the program.
    One of the critical inconsistencies can be found in Sec.  230.8, 
which specifies the acquisition requirements for this program. Section 
230.8(a)(5) lists the documents and statements that must be recorded 
with the deed as part of the Notice of Grant Requirement. It states 
that, ``. . . the grant recipient will not convey or encumber the 
interest in real property, in whole or in part, to another party . . 
.''. This language is more restrictive than necessary and inconsistent 
with the grant assurances (OPM Form 424D), which allows a grant 
recipient to convey or encumber the interest in real property with 
prior approval from the granting Agency. Furthermore, the restrictive 
language prevents eligible entities from using funding mechanisms that 
require establishment of a conservation easement, even though this 
arrangement could be compatible with Community Forest Program 
requirements. This provision also prevents the transfer of ownership 
interest in a Community Forest to another eligible entity if the 
original owner becomes unable to hold or maintain the parcel.
    Additionally, the Agency seeks to reduce the burden of paperwork 
and information collections on applicants. Currently, the Agency 
requests an eight-page application, a map of the parcel in question, 
all forms required for issuance of a Federal grant, and a draft 
community forest plan. The current application process is overly 
burdensome, and all elements of the current process are not necessary 
to ensure the selection of high-quality community forest projects that 
meet the intent of the program.
    The Agency also seeks to clarify definitions and refine provisions 
regarding the use of technical assistance funds. The language clarifies 
how technical assistance should be determined and requested. Some of 
the definitions in the current regulation are unclear and confuse the 
intent of the program. The Agency seeks to provide clarification and 
reduce the amount of confusion caused by the unclear definitions.
    Lastly, the Agency is eliminating the separate cost share and grant 
requirements for non-profit organizations, Tribal governments, and 
local governments in (Sec. Sec.  230.6(c) and 230.7(a)(2)). The Agency 
will follow the guidance outlined in the OMB Uniform Administrative 
Requirements, Cost Principles, and Audit Requirements for Federal 
Assistances (2 CFR part 400).

Need for the Final Rule

    The Forest Service is revising this regulation to correct 
inconsistencies and inefficiencies, to clarify confusing language, 
reduce the paperwork collection burden for applicants, and to update 
grant requirements to comply with grant regulations and OMB circulars. 
These changes will help ensure that the regulations align with the 
intent and purposes of the authorizing legislation.

Project Compliance With the National Environmental Policy Act

    Project grants are subject to the National Environmental Policy Act 
(NEPA) and must comply with the Agency's NEPA implementing procedures 
as described in 36 CFR part 220, as well as the Council on 
Environmental Quality's NEPA procedures at 40 CFR parts 1500-1508. 
Community Forest Program grants are used to transfer title and 
ownership of private lands to third parties and will not fund any 
ground-disturbing activities. The Forest Service has concluded that 
Community Forest Program 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, Community Forest Program project grants are 
excluded from documentation in an environmental assessment or impact 
statement.

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). However, the Community Forest Program 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 Community Forest 
Program be appraised in accordance with the Uniform Appraisal Standards 
for Federal Land Acquisitions (Federal Appraisal Standards) in order to 
determine the non-Federal cost share of a parcel of privately-owned 
forest land. The Federal Appraisal Standards are contained in a readily 
available public document, which is well known to professional 
appraisers (see: https://www.justice.gov/file/408306/download). A grant 
recipient is responsible for assuring that the appraisal of the

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Community Forest Program tract is done in conformance with the Federal 
Appraisal Standards. The Federal Appraisal Standards shall be used to 
determine reimbursement for 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 may be available to assist applicants with the appraisal 
and associated appraisal review and will conduct spot checks to assure 
compliance with Federal Appraisal Standards.

2. Formal Government-to-Government Consultation With Federally 
Recognized Tribes

    Indian Tribes were invited to government-to-government consultation 
(consultation) on the CFP proposed rule prior to review and comment by 
the general public. The consultation process was initiated September 
29, 2015. The Deputy Chief for State and Private Forestry sent a letter 
to the Forest Service regional leadership requesting that they initiate 
consultation with federally recognized Tribes. 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 
September 30, 2016. 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

36 CFR 230.2--Definitions
    Comment: A definition of cultural resources should be included in 
the regulation. A simple reference to ``cultural resources'' will have 
varying meanings to the different eligible entities involved with a 
Community Forest Plan. If a definition is not included, a reference to 
consideration of Traditional Cultural Places/Properties (TCPs) should 
be provided. TCPs play an important role in Tribal community 
traditions, beliefs and activities and thus need to be protected.
    Response: The final rule includes additional language to clarify 
the meaning of cultural resources to include tangible and intangible 
resources.
Eligible Lands
    Comment: Section 230.2 Definition: Expand the definition of item 2 
to expressly refer to ``Indian Trust Assets'' (ITAs) and ``non-trust 
Indian lands''. ITAs are defined in the implementation regulations for 
Public Law 93-638 as an interest in land, water, minerals, funds or 
other assets or property which is held by the United States in trust 
for an Indian Tribe or an individual Indian or which is held by an 
Indian Tribe or Indian subject to a restriction on alienation impacted 
by the United States (25 CFR 900.6). A simple reference to ``lands held 
in trust by the United States'' will have varying meanings to the 
different eligible entities involved in the development of a proposed 
Community Forest Plan.
    Response: The final rule expressly refers to Indian reservations 
and allotment land when defining eligible and non-eligible lands. Since 
ITAs are defined as ``. . . an interest in land, water, minerals, funds 
or other assets or property . . .'' this would not be applicable in 
determining if the land was eligible or non-eligible for the Community 
Forest Program; no change made to final rule.
    Comment: Provide clarity that it is the governing body of the 
Indian Tribe that designates or authorizes an individual to represent 
the Tribe.
    Response: Clarifying language was added to the definition for 
Equivalent officials of Indian Tribes in the final rule.

3. Summary of Comments and Agency Responses to Public Comments

    On December 8, 2015, the Forest Service published in the Federal 
Register (80 FR 76251) a proposed rule revision to allow Community 
Forest and Open Space Program grant recipients to issue conservation 
easements to funding entities, convey or encumber an interest in 
community forest land to other eligible entities, clarify program-
specific terms, streamline the application process, and implement the 
Office of Management and Budget's Uniform Administrative Requirements, 
Cost Principles, and Audit Requirements for Federal Awards (2 CFR parts 
200 and 400).
    The Forest Service solicited comments on the proposed rule for 90 
days ending March 7, 2016. The Forest Service received comments from 
ten individuals contributing 32 total comments, overwhelmingly in favor 
of the rule revision, with a few suggestions for clarification and one 
party opposed with comments not germane to the rule. One response was 
from an individual member of the public, two respondents represented 
local municipalities, two responses were from regional coalitions, four 
respondents were regional representatives of national non-profit 
organizations, and one response was received from a Forest Service 
regional program manager. 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 Regulatory Certification).

Comments on the Proposed Rule Revision 36 CFR Part 230, Subpart A

General Comments

    Comments in favor: Two commenters commended the Agency on its 
flexibility in allowing conveyances of land holdings should the need 
arise.

230.2 Definitions

    Comments in favor: Three commenters commended the Forest Service 
for including the addition of ``cultural resources'' to the definition 
of ``environmental benefits.'' It helps promote the range of resource 
values that CFP is helping to protect.
    Comments suggesting modifications: Two commenters requested that 
the Forest Service clarify the range of permissible commercial 
activities on a community forest. As currently read, the exception for 
``compatible commercial uses'' is not specific beyond its description 
as ``limited.''
    Agency Response: The rule is not intended to be unnecessarily 
prescriptive. Future commercial uses could arise that may be 
reasonable, and the language as written allows for a future dialogue 
between a grant recipient and the Forest Service rather than excluding 
them prescriptively without deliberation. The Agency determined that 
the language as written provides reasonable guidelines for a discussion 
of compatible uses, so long as those uses do not conflict with the 
community values provided by the community forest.

Sec.  230.4 Application Requirements

    Comments in favor: Nine commenters expressed favor that the revised 
rule would allow for the draft plan to be submitted only after a 
project has been selected and a grant awarded. This is a common-sense 
change that will reduce the administrative burden for CFP applicants, 
and will not reduce the number of high-quality project applications.

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Sec.  230.6 Project Costs and Cost Share Requirements

    Comments suggesting modifications: Requesting that the Agency 
provide clarity with respect to the prohibition on the use of ``other 
Federal funds unless specifically authorized by Federal statute.'' To 
the extent practicable, the Agency should clarify that the Gulf Coast 
Restoration Trust Fund and the Department of Defense Readiness and 
Environmental Protection Program are eligible as non-Federal cost share 
for the purposes of the Community Forest Program.
    Agency Response: If law, or regulations promulgated to implement a 
law, indicate that Federal funds may be treated as non-Federal, the 
Community Forest Program will adhere to that direction. The Agency is 
not in a position to make explicit determinations on the nature of all 
possible funding mechanisms contributed for cost-share. Therefore, 
leaving the language in its current form allows program managers to 
follow existing law and policy while retaining the opportunity to 
evaluate emerging situations and opportunities.

Sec.  230.8 Acquisition Requirements

    Comments in favor: Seven commenters in favor of the proposed 
revision would amend existing regulations to allow encumbrances on the 
land, as long as they are not contrary to the purposes of the program. 
This is a change from the current language, which states that grant 
recipients may not ``encumber the interest in real property, in whole 
or in part, to another party.'' This revision is a common-sense change 
that will make it easier to develop partnerships in acquiring and 
managing community forests and ultimately broaden participation in the 
program.
    Comments suggesting modifications: The Forest Service should 
require a new Notice of Grant Requirement be recorded if an eligible 
transfer to another entity occurs.
    Agency Response: The Forest Service agrees with this suggestion and 
has expanded upon the language to ensure that any new entity receiving 
the community forest land holdings will subsume all responsibilities 
required of the original grant recipient. The language has also been 
modified to reflect the need to document land conveyances through a new 
Notice of Grant Requirement.

Sec.  230.9 Ownership and Use Requirements

    Comments suggesting modifications: Four commenters suggested the 
revised rule states that a community forest plan be submitted within 
120 days of the acquisition and periodically updated to guide the 
management and use of the forest. We request that the deadline for 
submitting a plan be extended past the 120-day limit. We expect that in 
many cases, the 120 day deadline will be more than enough to gather 
feedback to draft a community forest plan. However, in such instances 
where more input is needed, an extension to the deadline would be 
useful in order to ensure meaningful public input.
    Agency Response: The Agency maintains that the 120-day deadline 
should remain in order to encourage timely deliberation and efficient 
communication between stakeholders. In order to provide appropriate 
flexibility to address unforeseen circumstances, the Forest Service has 
modified the rule to ensure that regional managers have the discretion 
to extend the planning process for an additional 60 days if there is 
sufficient justification for why the deadline cannot be met.
    Comment: The Forest Service should provide greater clarification 
regarding the ``periodic updating'' of the plan. It should be clearer 
how often the plan should be updated, and what elements of the plan 
need updating.
    Agency Response: The Agency concurs with this suggestion, and has 
modified the language to require periodic updating of the community 
forest plan in the event of new threats of encroachment, significant 
changes to forest health threats requiring alterations in proposed 
treatments, or when a significant lapse in time has occurred since the 
initial plan was created.
    Comment: ``Grant recipients'' should be replaced with ``Community 
Forest Holders/Owners''. If an allowed transfer to another eligible 
entity occurs, the owner of the community forest is no longer the Grant 
Recipient. This could make the initial grantee ineligible for future 
funding opportunities through the program.
    Agency Response: The Agency has modified the language to clarify 
that if lands are conveyed voluntarily by a recipient who had adhered 
to the stipulations of both the grant agreement and the Agency 
instructions for conveyance as outlined in the rule and grant 
agreement, then that original grant recipient would be eligible for 
future program funding.

Sec.  230.10 Technical Assistance Funds

    Comments suggesting modifications: As written, the rule requires 
State Foresters or equivalent officials of Indian Tribes to indicate 
the financial need and purpose of technical assistance in their 
Community Forest application. Because the application comes from the 
eligible entity and not the state, the commenter suggests amending the 
language to assert that financial need and purpose should be indicated 
``in the project budget and formally requested by the State when 
forwarding the applications received by the applicants to the Forest 
Service.''
    Agency Response: The Agency emphasizes coordination between the 
grant applicant and the State or Tribal representative to ensure that 
technical assistance needs are already adequately characterized in the 
budget. Section 230.3 clearly requires that the State Forester or 
equivalent official must clarify technical assistance funding needs for 
any services rendered upon submission of the application to the Forest 
Service.

Regulatory Certifications

Regulatory Planning and Review

    This final rule has been reviewed under USDA procedures and 
Executive Order 12866. The Office of Management and Budget (OMB) has 
determined that this rule is non-significant for purposes of Executive 
Order 12866.
    This final rule does not regulate the private use of land or the 
conduct of business. It is a grant program for local governments, 
Tribal governments, and qualified nonprofit organizations for purposes 
of acquiring land for resource conservation and open space 
preservation. By providing funding to eligible entities for land 
acquisition, the Federal Government will promote the non-monetary 
benefits of sustainable forest management. These benefits include: 
Improved air and water quality, wildlife and fish habitat, forest-based 
educational programs including vocational education programs in 
forestry, replicable models of effective forest stewardship for private 
landowners, open space preservation, carbon sequestration, and enhanced 
recreational opportunities including hunting and fishing.

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. Voluntary 
participation in the Community Forest Program does not impose 
significant direct costs on 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,

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qualified nonprofit organizations, and Tribal governments eligible to 
receive a grant through the Community Forest Program. The minimum 
requirements imposed on small entities by this final rule are necessary 
to protect the public interest and should be within the capabilities of 
small entities to perform, and should not be administratively 
burdensome or costly to meet. The final rule would not materially alter 
the budgetary impact of entitlements, user fees, loan programs, or the 
rights and obligations of program participants. It does not compel the 
expenditure of $100 million or more by any State, local or Indian 
Tribal government, or anyone in the private sector. Under these 
circumstances, the Forest Service has determined that this action would 
not have a significant economic impact on a substantial number of small 
entities.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), which the President signed into law on March 22, 
1995, the Agency has assessed the effects of this 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.

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 
an extension without change of a currently approved information 
collection.
    Title: Community Forest and Open Space Conservation Program.
    OMB Number: 0596-0227.
    Expiration Date of Approval: 12/31/2021.
    Type of Request: Revision of a Currently Approved Information 
Collection.
    Abstract: The purpose of Community Forest Program is to achieve 
community benefits through grants to local governments, Tribal 
Governments, and qualified nonprofit organizations to establish 
community forests by acquiring and protecting private forestlands. This 
rule includes information requirements necessary to implement the 
Community Forest Program and comply with grants regulations and OMB 
Circulars. The information requirements will be used to help the Forest 
Service:
    (1) Determine that the applicant is eligible to receive funds under 
the program,
    (2) Determine if the proposal meets the qualifications in the law 
and regulations,
    (3) Evaluate and rank the proposals based on a standard, consistent 
information, and
    (4) Determine if the projects costs are allowable and sufficient 
cost share is provided.
    Local governmental entities, Tribal Governments, and qualified 
nonprofit organizations are the only entities eligible for the program 
and therefore are the only organizations from which information will be 
collected.
    The information collection currently required for a request for 
proposals and grant application is approved and has been assigned the 
OMB Control No. 0596-0227.
    Comments were sought on the information collection aspect of this 
rule; none were received.

Consultations and Coordination With Indian Tribal Governments

    This final rule has Tribal implications as defined in Executive 
Order 13175. Section 7A(a)(1) of the Cooperative Forestry Assistance 
Act establishes that federally recognized Indian Tribes are eligible to 
participate in the Community Forest Program. In accordance with the 
President's memorandum of April 29, 1994, ``Government-to-Government 
Relations With Native American Tribal Governments'' (59 FR 22951); the 
Executive Order of November 6, 2000, ``Consultation and Coordination 
With Indian Tribal Governments'' (E.O. 13175); and with the directives 
of the Department of Agriculture (DR 1350-001); we have determined that 
this change will not have an adverse effect on Indian Tribes. Tribal 
consultation was conducted through local and regional processes in 
coordination with requirements set out by the USDA, Forest Service.

No Takings Implications

    This 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 final rule implements 
a program to assist eligible entities in acquiring land from willing 
sellers. Any land use restrictions on Community Forest Program parcels 
are agreed to voluntarily 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 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 
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 has not identified any State 
or local laws or regulations that are in conflict with this final rule 
or that would impede full implementation of this 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. 
However, in that case, no retroactive effect would be given to this 
rule and the Forest Service would not require the use of administrative 
proceedings before parties could file suit in court challenging its 
provisions.

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List of Subjects in 36 CFR Part 230

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

    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)(1) The regulations of this subpart govern the rules and 
procedures for the Community Forest and Open Space Conservation Program 
(Community Forest Program), established under Section 7A of the 
Cooperative Forestry Assistance Act of 1978 (16 U.S.C. 2103d). Under 
the Community Forest Program, 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. This subpart is designed to allow 
Community Forest and Open Space Program (Community Forest Program) 
grant recipients to grant conservation easements to funding entities, 
and, in some circumstances, to convey land to another eligible entity 
when consistent with the program's purposes.
    (2) This subpart applies to grants awarded prior to and after May 
3, 2021.
    (b) The Community Forest Program 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, wildlife habitat, and cultural resources;
    (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 developed with 
community involvement that guides the management and use of a community 
forest and includes the following components:
    (1) A description of all purchased tracts and cost share tracts, 
including acreage and county location, land use, forest type, and 
vegetation cover;
    (2) Objectives for the community forest and strategies to implement 
those objectives;
    (3) A description of the long-term use and management of the 
property;
    (4) Community benefits to be achieved from the establishment of the 
community forest;
    (5) A description of ongoing activities that promote community 
involvement in the development and implementation of the Community 
Forest Plan;
    (6) Plans for the utilization or demolition of existing structures 
and proposed needs for further improvements;
    (7) A description of public access and the rationale for any 
limitations on public access, such as protection of cultural (including 
tangible and intangible resources) or natural resources or public 
health and safety concerns; and
    (8) Maps of sufficient scale to show the location of the property 
in relation to roads, communities, and other improvements as well as 
nearby parks, refuges, or other protected lands and any additional maps 
required to display planned management activities.
    Eligible entity. An organization that is qualified to acquire and 
manage land, limited to the following:
    (1) 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.
    (2) Indian Tribe. Defined by Section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450b); includes 
federally recognized Indian Tribes and Alaska Native Corporations.
    (3) Qualified nonprofit organization. As defined by the Community 
Forest Program authorizing statute (16 U.S.C. 2103d(a)(4)), any 
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)). 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 for fish, 
wildlife, or plants, or similar ecosystem;
    (iii) The preservation of open space (including farmland and forest 
land) for the scenic enjoyment of the general public or pursuant to a 
clearly delineated Federal, State, or local governmental conservation 
policy, where such preservation will yield a significant public 
benefit; or
    (iv) The preservation of a historically important land area or a 
certified historic structure.
    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, including 
Indian reservations and allotment land; and

[[Page 17308]]

    (3) Can provide defined community benefits under the Community 
Forest Program and allow public access if acquired by an eligible 
entity.
    Equivalent officials of Indian Tribes. Individual(s) designated and 
authorized by the governing body of the Indian Tribe to manage the 
forest proposed for acquisition.
    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 
incompatible nonforest uses.
    Grant recipient. An eligible entity that receives a grant from the 
Forest Service through the Community Forest Program.
    Landscape conservation initiative. A 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 
Tribes' area of interest/homelands plans, a Statewide Forest Action 
Plan, etc. The conservation goals identified in the plan must 
correspond with the community and environmental benefits outlined for 
the Community Forest Program project.
    Nonforest uses. Uses other than forest management that may be 
compatible or incompatible with maintaining community forest purposes.
    (1) Nonforest uses that may be compatible with a community forest 
may include:
    (i) Cultivated farmland, pasture, grassland, shrubland, open water, 
and wetlands; and
    (ii) Low-impact structures or facilities that supports the purposes 
of the community forest and the Community Forest Program, such as 
recreational facilities, trails, concession and educational kiosks, 
energy development for onsite use, facilities associated with 
appropriate forest management, and parking areas.
    (2) Incompatible nonforest uses are activities that threaten forest 
cover and are inconsistent with the Community Forest Plan. These uses 
may include, but are not limited to:
    (i) Subdivision;
    (ii) Residential development, except for a caretaker building;
    (iii) Mining and nonrenewable resource extraction, except for 
activities that would not require surface disturbance of the community 
forest such as directional drilling for oil and gas development or 
onsite use of gravel from existing gravel pits;
    (iv) Industrial use, including the manufacturing of products;
    (v) 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
    (vi) Structures, facilities, or organized, continuous, or recurring 
activities that disturb or compact the surface and/or impact forest and 
water resources in a manner that threatens the benefits and objectives 
of the community forest.
    Public access. Access that is provided on a non-discriminatory 
basis at reasonable times and places, but may be limited to protect 
cultural (including tangible and intangible resources) 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 Community Forest Program. The 
RFA will be posted to https://www.grants.gov as well as other venues. 
The RFA will include the following information:
    (1) The process and timeline 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) Additional information as the Forest Service determines 
appropriate.
    (b) Pursuant to the RFA, interested eligible entities will submit 
an application for program participation to:
    (1) The State Forester or equivalent official, for 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, provide a review of each application to help the 
Forest Service determine:
    (1) That the applicant is an eligible entity;
    (2) That the land is eligible;
    (3) That the proposed project has not been submitted for funding 
consideration under the Forest Legacy Program; and
    (4) Whether the project contributes to a landscape conservation 
initiative.
    (e) If an applicant seeks technical assistance from the State 
Forester, nontribal applicants should contact the State Forester to 
discuss what technical assistance is needed and confirm that the State 
Forester is willing to provide that assistance. Tribal applicants 
should work with their equivalent officials (Sec.  230.2) to discuss 
and arrange similar technical assistance needs. Applicants must include 
a separate budget that outlines the financial needs associated with 
technical assistance activities (Sec.  230.10).
    (f) A proposed application cannot be submitted for funding 
consideration simultaneously for both the Community Forest Program and 
the Forest Service's Forest Legacy Program (16 U.S.C. 2103c).


Sec.  230.4   Application requirements.

    (a) Documentation verifying that the applicant is an eligible 
entity and that the proposed acquisition is of eligible lands.
    (b) Applications must include details of 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 and 
plans for utilization or demolition of existing structures;
    (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) Objectives of the community forest;
    (2) A description of the benefiting community, including 
demographics, and the associated benefits provided by the proposed land 
acquisition;

[[Page 17309]]

    (3) 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;
    (4) Description of the planned public access and the rationale for 
any proposed limitations such as protection of cultural (including 
tangible and intangible resources) or natural resources, or public 
health and safety concerns;
    (5) 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;
    (6) If the project is within the designated boundary of a Federal 
management unit, a letter of support for the project from the Federal 
land manager; and
    (7) A description of the resources that will be used to maintain 
and manage the property as a community forest in perpetuity.
    (d) Information regarding the proposed land acquisition, including:
    (1) A proposed project budget including a table and/or narrative 
detailing the source/type of non-Federal cost share and all allowable 
expenses associated with the project (Sec.  230.6);
    (2) Requests for State Forester, or equivalent official of Indian 
Tribes, technical assistance in Community Forest Plan preparation 
should be listed separately in the budget, along with their estimated 
costs of providing assistance (Sec.  230.10);
    (3) The status of due diligence, as documented by a signed option 
or purchase and sale agreement, title search, minerals determination, 
and appraisal;
    (4) Description and status of cost share (secure, pending, 
commitment letter, etc.) (Sec.  230.6);
    (5) The status of negotiations with participating landowner(s) 
including purchase options, contracts, and other terms and conditions 
of sale;
    (6) The proposed timeline for completing the acquisition and 
establishing the community forest; and
    (7) Long term management costs and funding source(s).
    (e) Applications must comply with the Uniform Federal Assistance 
Regulations (7 CFR part 3015).


Sec.  230.5   Ranking criteria and proposal selection.

    The Forest Service will evaluate all applications received by the 
State Foresters or equivalent officials of the Indian Tribes and award 
grants based on the following criteria:
    (a) Type and extent of community benefits provided (Sec.  230.2);
    (b) Extent and nature of community engagement in the establishment 
and long-term management of the community forest;
    (c) Extent to which the community forest contributes to a landscape 
conservation initiative;
    (d) Likelihood that, unprotected, the property would be converted 
to nonforest uses;
    (e) Amount of cost share leveraged;
    (f) Extent of due diligence completed on the project, including 
cost share committed and status of appraisal;
    (g) Costs to the Federal Government; and
    (h) Additional considerations as may be outlined in the RFA.


Sec.  230.6   Project costs and cost share requirements.

    (a) The Community Forest Program 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:
    (1) Appraisals and appraisal reviews;
    (2) Land surveys;
    (3) Legal and closing costs;
    (4) Development of the Community Forest Plan; and
    (5) Title examination.
    (c) The principles and procedures for determining allowable costs 
for grants are outlined in 2 CFR part 400, Uniform Administrative 
Requirements, Cost Principles, and Audit Requirements.
    (d) 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 paragraph (b) of this section 
completed as part of the application.
    (e) Cost share contributions can include cash, in-kind services, or 
donations and must:
    (1) Be supported by grant regulations described in paragraphs (a) 
through (d) of this section;
    (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, as defined in Sec.  230.2; and
    (6) Be accomplished within the grant period.
    (f) Cost share contributions may include the purchase or donation 
of other 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 Community Forest Program and community 
forest objectives; such donations need to meet the acquisition 
requirements specified under Sec.  230.8(a)(1)(ii).
    (g) For purposes of calculating the cost share contribution, the 
grant recipient may request inclusion of project due diligence costs, 
such as title review and appraisals, incurred prior to issuance of the 
grant. These pre-award costs may have been incurred up to one year 
prior to the issuance of the grant, but cannot include the purchase of 
Community Forest Program land, including cost share tracts.


Sec.  230.7   Grant requirements.

    (a) Once an application is selected, funding will be obligated to 
the grant recipient through a grant.
    (1) The following grant forms and supporting materials must be 
completed after project selection in order to receive the grant:
    (i) An Application for Federal Assistance (Standard Form 424);
    (ii) Budget information (Standard Form 424c--Construction 
Programs);
    (iii) Assurances of compliance with all applicable Federal laws, 
regulations, and policies (Standard Form 424d--Construction Programs); 
and
    (iv) Additional forms, as may be required to award the grant.
    (2) The grant paperwork must adhere to the requirements outlined in 
2 CFR part 400, Uniform Administrative Requirements, Cost Principles, 
and Audit Requirements for Federal Awards.
    (b) 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.
    (c) Forest Service must approve any amendment to a proposal or 
request to reallocate funding within a grant proposal.
    (d) The grant recipient must comply with the requirements in Sec.  
230.8(a) before funds will be released.
    (e) After the grant has closed, grant recipients must provide the 
Forest

[[Page 17310]]

Service with a Geographic Information System (GIS) shapefile: A 
digital, vector-based storage format for storing geometric location and 
associated attribute information, of Community Forest Program project 
tracts and cost share tracts, if applicable.
    (f) Any funds not expended within the grant period must be de-
obligated and revert to the Forest Service for redistribution.
    (g) 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 Community Forest 
Program.


Sec.  230.8   Acquisition requirements.

    (a) Prior to closing on an acquisition, grant recipients 
participating in the Community Forest Program must complete the 
following, which applies to all tracts, including cost share tracts:
    (1) Complete an appraisal:
    (i) For lands purchased with Community Forest Program 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) 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, 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 Community Forest Program funds 
must not be subject to encumbrances or agreements of any kind that 
would be contrary to the purpose of the Community Forest Program.
    (ii) Title insurance must not be a substitute for acceptable title.
    (5) The grant recipient must provide all necessary due diligence 
documentation to regional Forest Service program managers and allow at 
least 60 days for review and acceptance.
    (b) At closing, record a Notice of Grant Requirement with the deed 
in the lands record of the local county or municipality. This document 
must:
    (1) State that the property (including cost share tracts) was 
purchased with Community Forest Program funds;
    (2) Provide a legal description;
    (3) Identify the name and address of the grant recipient who is the 
authorized title holder;
    (4) State the purpose of the Community Forest Program;
    (5) Reference the Grant Agreement with the Forest Service (title 
and agreement number) and the address where it is kept on file;
    (6) State 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 Community Forest Program;
    (7) State that the community forest may not be sold and will not be 
conveyed or transferred to another eligible entity or encumbered in 
whole or in part, to another party without permission and instructions 
from the Forest Service; and
    (8) State that the grant recipient will manage the interest in real 
property consistent with the purpose of the Community Forest Program.


Sec.  230.9   Ownership and use requirements.

    (a) Grant recipients shall submit a final Community Forest Plan for 
Forest Service review within 120 days of the land acquisition and 
update the plan periodically to guide the management and use of the 
community forest.
    (b) Grantees are encouraged to work with their State Forester or 
equivalent official of their Indian Tribe for technical assistance when 
developing or updating the Community Forest Plan. In addition, eligible 
entities are encouraged to work with technical specialists such as 
professional foresters, recreation specialists, wildlife biologists, 
and outdoor education specialists when developing Community Forest 
Plans.
    (c) Grant recipients shall provide public access in accordance with 
the Community Forest Plan.
    (d) Recipients must manage the property in a manner consistent with 
the purposes of the Community Forest Program. In the event that a grant 
recipient sells or converts a parcel of land acquired under the 
Community Forest Program to nonforest uses or any use inconsistent with 
the purposes of the Community Forest Program, 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. For 
the purposes of the calculation in this paragraph (d)(1), the parcel's 
appraised value will be the parcel's full fair market value. The impact 
of subsequent encumbrances, such as the imposition of conservation 
easements consistent with the purposes of the Community Forest Program, 
will not be considered in appraising the parcel's fair market value; 
and
    (2) Not be eligible for additional grants under the Community 
Forest Program.
    (e) For Indian Tribes, land acquired using a grant provided under 
the Community Forest Program must not be sold, converted to nonforest 
uses or a use inconsistent with the purpose of the Community Forest 
Program, or converted to land held in trust by the United States on 
behalf of any Indian Tribe.
    (f) Every five years, grant recipients shall submit a self-
certifying statement to the regional Forest Service Program Manager 
confirming that the property has not been sold or converted to 
nonforest uses or a use inconsistent with the purpose of the Community 
Forest Program.
    (g) Grant recipients are subject to periodic spot checks conducted 
by the Forest Service to verify that property acquired under the 
Community Forest Program has not been sold or converted to nonforest 
uses or any use inconsistent with the purpose of the Community Forest 
Program and that the current Community Forest Plan complies with 
defined minimum requirements in Sec.  230.2.


Sec.  230.10  Technical assistance funds.

    Community Forest Program technical assistance funds may be provided 
to State Foresters or equivalent officials of Indian Tribes through an 
administrative grant to help implement projects funded through the 
Community Forest Program. These funds do not have a cost share 
requirement. Section 7A(f) of the authorizing statute limits the funds 
allocated to State Foresters or equivalent officials of Indian Tribes 
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. Funds will only be provided to States or Indian Tribes that:
    (a) Have a Community Forest Program project funded within their 
jurisdiction; and

[[Page 17311]]

    (b) Indicate the financial need and purpose of technical assistance 
in their Community Forest Program application.

    Dated: March 29, 2021.
Chris French,
Acting Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 2021-06757 Filed 4-1-21; 8:45 am]
BILLING CODE 3411-15-P