[Federal Register Volume 75, Number 228 (Monday, November 29, 2010)]
[Rules and Regulations]
[Pages 73912-73934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29513]
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Part IV
Department of Agriculture
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Commodity Credit Corporation
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7 CFR Part 1415
Grassland Reserve Program; Final Rule
Federal Register / Vol. 75 , No. 228 / Monday, November 29, 2010 /
Rules and Regulations
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DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
7 CFR Part 1415
RIN 0578-AA53
Grassland Reserve Program
AGENCY: Commodity Credit Corporation, Natural Resources Conservation
Service, United States Department of Agriculture.
ACTION: Final rule.
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SUMMARY: The Department of Agriculture (USDA), through the Commodity
Credit Corporation (CCC) published in the Federal Register on January
21, 2009, an interim final rule for the Grassland Reserve Program (GRP)
with a 60-day public comment period. On August 21, 2009, the CCC
published an amendment to the interim final rule and reopened the
public comment period for an additional 60 days. The CCC is publishing
a final rule that incorporates the changes associated with passage of
the Food, Conservation, and Energy Act of 2008 (2008 Act) and addresses
the comments received during the public comment periods.
DATES: Effective Date: The rule is effective November 29, 2010.
FOR FURTHER INFORMATION CONTACT: Leslie Deavers, Team Leader, Easement
Support Team, Easement Programs Division, Department of Agriculture,
Natural Resources Conservation Service, 1400 Independence Avenue, SW.,
Room 6819 South Building, Washington, DC 20250; Telephone: (202) 720-
0907; Fax: (202) 720-9689.
Persons with disabilities who require alternative means for
communicating (Braille, large print, audiotape, etc.) should contact
the USDA Target Center at (202) 720-2600 (voice and TDD).
SUPPLEMENTARY INFORMATION:
Regulatory Certifications
Executive Order 12866
The Office of Management and Budget (OMB) reviewed the January 21,
2009, interim final rule and determined that it was a significant
regulatory action. Pursuant to Executive Order 12866, USDA conducted an
economic analysis of the potential impacts associated with this
program. OMB also determined that this final rule is a significant
regulatory action. USDA evaluated the economic analysis and expanded it
to include net present value analyses using OMB's recommended 3 percent
and 7 percent discount rates. In addition, policy scenario three was
dropped from the analysis because it was very similar to one of the
other policy options.
The administrative record is available for public inspection at the
Department of Agriculture, Natural Resources Conservation Service, 1400
Independence Avenue, SW., Room 6819 South Building, Washington, DC
20250. A summary of the economic analysis can be found at the end of
the regulatory certifications of the preamble, and a copy of the
analysis is available upon request from Leslie Deavers, Team Leader,
Easement Support Team, Easement Programs Division, Department of
Agriculture, Natural Resources Conservation Service, 1400 Independence
Avenue, SW., Room 6819 South Building, Washington, DC 20250.
Regulatory Flexibility Act
The Regulatory Flexibility Act is not applicable to this final rule
because USDA is not required by 5 U.S.C. 553, or by any other provision
of law, to publish a notice of proposed rulemaking with respect to the
subject matter of this rule.
Environmental Analysis
In compliance with the National Environmental Policy Act (NEPA), a
Programmatic Environmental Assessment (EA) was prepared in association
with the interim final rule. The analysis determined there will not be
a significant impact to the human environment and as a result, an
Environmental Impact Statement was not required to be prepared (40 CFR
1508.13). For this final rule, the agency has determined that there are
no new circumstances or significant new information that has a bearing
on environmental effects which warrant supplementing the previous EA
and Finding of No Significant Impact (FONSI). The proposed changes
identified in this final rule are considered minor changes that should
be implemented for the program. The majority of these changes are
administrative or technical changes to the regulation.
Copies of the EA and FONSI may be obtained from Matt Harrington,
National Environmental Coordinator, Ecological Sciences Division,
Department of Agriculture, Natural Resources Conservation Service, 1400
Independence Avenue, SW., Room 6151 South Building, Washington, DC
20250. The EA and FONSI are also available at http://www.nrcs.usda.gov/programs/Env_Assess/.
Civil Rights Impact Analysis
USDA has determined through a Civil Rights Impact Analysis that
this final rule discloses no disproportionately adverse impacts for
minorities, women, or persons with disabilities. Outreach and
communication strategies are in place to ensure all producers will be
provided the same information to allow them to make informed compliance
decisions regarding the use of their lands that will affect their
participation in USDA programs. GRP applies to all persons equally
regardless of their race, color, national origin, gender, sex, or
disability status. Therefore, this final rule portends no adverse civil
rights implications for women, minorities, and persons with
disabilities.
Copies of the Civil Rights Impact Analysis are available from
Leslie Deavers, Team Leader, Easement Support Team, Easement Programs
Division, Department of Agriculture, Natural Resources Conservation
Service, 1400 Independence Avenue, SW., Room 6819 South Building,
Washington, DC 20250, or electronically at http://www.nrcs.usda.gov/programs/GRP.
Paperwork Reduction Act
Section 2904 of the 2008 Act (Pub. L. 110-245), requires that
implementation of programs authorized under Title II of the Act be made
without regard to the Paperwork Reduction Act of 1995 (Title 44, U.S.C.
3501 et seq.). Therefore, USDA is not reporting recordkeeping or
estimated paperwork burden associated with this final rule.
Government Paperwork Elimination Act
USDA is committed to compliance with the Government Paperwork
Elimination Act and the Freedom to E-File Act, which require government
agencies, in general, to provide the public the option of submitting
information or transacting business electronically to the maximum
extent possible. To better accommodate public access, USDA has
developed an online application and information system for public use.
Executive Order 12988
This final rule has been reviewed in accordance with Executive
Order 12988, Civil Justice Reform. The rule is not retroactive and
preempts State and local laws to the extent that such laws are
inconsistent with this rule. Before an action may be brought in a
Federal court of competent jurisdiction, the administrative appeal
rights afforded persons at 7 CFR parts 11, 614, and 780 must be
exhausted.
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Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994
Pursuant to section 304 of the Federal Crop Insurance Reform Act of
1994 (Pub. L. 103-354), USDA classified this rule as non-major.
Therefore, a risk analysis was not conducted.
Unfunded Mandates Reform Act of 1995
USDA assessed the effects of this final rule on State, local, and
Tribal governments, and the public. This action does not compel the
expenditure of $100 million or more in any one year (adjusted by
inflation) by any State, local, or Tribal governments, or anyone in the
private sector; therefore, a statement under section 202 of the
Unfunded Mandates Reform Act of 1995 is not required.
Executive Order 13132
This final rule has been reviewed in accordance with the
requirements of Executive Order 13132, Federalism. USDA has determined
that this final rule conforms with the Federalism principles set forth
in the Executive Order; would not impose any compliance costs on the
States; 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 on the various levels of
government. Therefore, USDA concludes that this final rule does not
have Federalism implications.
Executive Order 13175
This final rule has been reviewed in accordance with the
requirements of Executive Order 13175, Consultation and Coordination
with Indian Tribal Governments. USDA has assessed the impact of this
final rule on Indian Tribal governments and concluded that this final
rule will not negatively affect Indian Tribal governments or their
communities. The rule neither imposes substantial direct compliance
costs on Tribal governments nor preempts Tribal law. However, the
Natural Resources Conservation Service (NRCS) plans to undertake a
series of at least six regional Tribal consultation sessions before
December 30, 2010, on the impact of USDA conservation programs and
services on Tribal governments and their members to establish a
baseline of consultation for future actions. Reports from these
sessions will be made part of the USDA annual reporting on Tribal
Consultation and Collaboration. USDA will respond in a timely and
meaningful manner to all Tribal governments' requests for consultation.
Small Business Regulatory Enforcement Fairness Act of 1996
This final rule is not a major rule as defined by section 804 of
the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA). This rule will not result in an annual effect on the economy
of $100 million or more, a major increase in costs or prices, or
significant adverse effects on competition, employment, investment,
productivity, innovation, or the ability of United States based
companies to compete in domestic and export markets. However, section
2904(c) of the 2008 Act requires that the Secretary use the authority
in section 808(2) of Title 5, U.S.C., which allows an agency to forego
SBREFA's usual congressional 60-day review delay of the effective date
of a regulation if the agency finds that there is a good cause to do
so. USDA hereby determines that it has good cause to do so to meet the
congressional intent to have the conservation programs authorized or
amended by Title II of the 2008 Act in effect as soon as possible.
Accordingly, this rule is effective upon filing for public inspection
by the Office of the Federal Register.
Section 2708 of the 2008 Act
Section 2708, ``Compliance and Performance,'' of the 2008 Act added
a paragraph to section 1244(g) of the Food Security Act of 1985, as
amended entitled, ``Administrative Requirements for Conservation
Programs,'' which states the following:
(g) Compliance and performance.--For each conservation program
under Subtitle D, the Secretary shall develop procedures--
(1) To monitor compliance with program requirements;
(2) To measure program performance;
(3) To demonstrate whether long-term conservation benefits of
the program are being achieved;
(4) To track participation by crop and livestock type; and
(5) To coordinate activities described in this subsection with
the national conservation program authorized under section 5 of the
Soil and Water Resources Conservation Act of 1977 (16 U.S.C. 2004).
This new provision presents in one place the accountability
requirements placed on the agency as it implements conservation
programs and reports on program results. The requirements apply to all
programs under Subtitle D, including the Wetlands Reserve Program,
Conservation Security Program, Conservation Stewardship Program, Farm
and Ranch Lands Protection Program, Grassland Reserve Program,
Environmental Quality Incentives Program (including the Agricultural
Water Enhancement Program), Wildlife Habitat Incentive Program, and the
Chesapeake Bay Watershed initiative. These requirements are not
directly incorporated into these regulations, which set out
requirements for program participants. However, certain provisions
within these regulations relate to elements of section 1244(g) of the
Food Security Act of 1985, as amended and the agency's accountability
responsibilities regarding program performance. NRCS is taking this
opportunity to describe existing procedures that relate to meeting the
requirements of section 1244(g) of the Food Security Act of 1985, as
amended and agency expectations for improving its ability to report on
each program's performance and achievement of long-term conservation
benefits. Also included is reference to the sections of these
regulations that apply to program participants and that relate to the
agency accountability requirements as outlined in section 1244(g) of
the Food Security Act of 1985, as amended.
Monitor compliance with program requirements. NRCS has established
application procedures to ensure that participants and eligible
entities meet eligibility requirements and follow-up procedures to
ensure that participants and eligible entities are complying with the
terms and conditions of their contractual arrangement with the
government, and that the installed conservation measures are operating
as intended. These and related program compliance evaluation policies
will be set forth in agency guidance. The program requirements
applicable to participants and eligible entities that relate to
compliance are set forth in these regulations in Sec. 1415.4 ``Program
requirements,'' Sec. 1415.11 ``Restoration agreements,'' and Sec.
1415.17 ``Cooperative agreements.'' These sections make clear the
general program requirements, as well as participant and entity
obligations.
Measure program performance. Pursuant to the requirements of the
Government Performance and Results Act of 1993 (Pub. L. 103-62, Section
1116) and guidance provided by OMB Circular A-11, NRCS has established
performance measures for its conservation programs. Program-funded
conservation activity is captured through automated field-level
business tools, and the information is available at http://ias.sc.egov.usda.gov/PRSHOME/. Program performance also is reported
annually to Congress and the public through the annual performance
budget, annual accomplishments report, and the
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USDA Performance Accountability Report. Related performance measurement
and reporting policies are set forth in agency guidance (GM--340--401
and GM--340--403) (http://directives.sc.egov.usda.gov/).
The conservation actions undertaken by participants are the basis
for measuring program performance--specific actions are tracked and
reported annually, while the effects of those actions relate to whether
the long-term benefits of the program are being achieved. The program
requirements applicable to participants that relate to undertaking
conservation actions are set forth in these regulations in Sec. 1415.4
``Program requirements,'' Sec. 1415.11 ``Restoration agreements,'' and
Sec. 1415.17 ``Cooperative agreements.'' These sections make clear
participant and eligible entity obligations for implementing,
operating, and maintaining GRP-funded conservation improvements, which
in aggregate result in the program performance that is reflected in
agency performance reports.
Demonstrate whether long-term conservation benefits of the program
are being achieved. Demonstrating the long-term natural resource
benefits achieved through conservation programs is subject to the
availability of needed data, the capacity and capability of modeling
approaches, and the external influences that affect actual natural
resource condition. While NRCS captures many measures of ``output''
data, such as acres of conservation practices, it is still in the
process of developing methods to quantify the contribution of those
outputs to environmental outcomes. NRCS currently uses a mix of
approaches to evaluate whether long-term conservation benefits are
being achieved through its programs. Since 1982, NRCS has reported on
certain natural resource status and trends through the National
Resources Inventory (NRI), which provides statistically reliable,
nationally consistent land cover/use and related natural resource data.
However, a connection between these data and specific conservation
programs has been lacking. In the future, the interagency Conservation
Effects Assessment Project (CEAP), which has been underway since 2003,
will provide nationally consistent estimates of environmental effects
resulting from conservation practices and systems applied. CEAP results
will be used in conjunction with performance data gathered through
agency field-level business tools to help produce estimates of
environmental effects accomplished through agency programs, such as
GRP. In 2006, a Blue Ribbon panel evaluation of CEAP strongly endorsed
the project's purpose, but concluded ``CEAP must change direction'' to
achieve its purposes. In response, CEAP has focused on priorities
identified by the Panel and clarified that its purpose is to quantify
the effects of conservation practices applied on the landscape.
Information regarding CEAP, including reviews and current status, is
available at (http://www.nrcs.usda.gov/technical/NRI/ceap).
Since 2004 and the initial establishment of long-term performance
measures by program, NRCS has been estimating and reporting progress
toward long-term program goals. Natural resource inventory and
assessment and performance measurement and reporting policies are set
forth in agency guidance (GM-290-400; GM-340-401; and GM-340-403)
(http://directives.sc.egov.usda.gov/).
Demonstrating the long-term conservation benefits of conservation
programs is an agency responsibility. Through CEAP, NRCS is in the
process of evaluating how these long-term benefits can be achieved
through the conservation practices and systems applied by participants
under the program. The program requirements applicable to participants
that relate to producing long-term conservation benefits are described
previously under ``measuring program performance.''
Track participation by crop and livestock type. NRCS' automated
field-level business tools capture participant, land, and operation
information. This information is aggregated in the National
Conservation Planning database and is used in a variety of program
reports. Additional reports will be developed to provide more detailed
information on program participation to meet congressional needs. These
and related program management procedures supporting program
implementation will be set forth in agency guidance.
The program requirements applicable to participants that relate to
tracking participation by crop and livestock type are put forth in
these regulations in Sec. 1415.4 ``Program Requirements,'' which makes
clear program eligibility requirements, including the requirement to
provide NRCS the information necessary to implement GRP.
Coordinate these actions with the national conservation program
authorized under the Soil and Water Resources Conservation Act (RCA).
The 2008 Act reauthorized and expanded on a number of elements of the
RCA related to evaluating program performance and conservation
benefits. Specifically, the 2008 Act added a provision stating,
``Appraisal and inventory of resources, assessment and inventory of
conservation needs, evaluation of the effects of conservation
practices, and analyses of alternative approaches to existing
conservation programs are basic to effective soil, water, and related
natural resources conservation.''
The program, performance, and natural resource and effects data
described previously will serve as a foundation for the next RCA, which
will also identify and fill, to the extent possible, data and
information gaps. Policy and procedures related to the RCA are set
forth in agency guidance (GM-290-400; CPM-440-525; and GM-130-402)
(http://directives.sc.egov.usda.gov/).
The coordination of the previously described components with the
RCA is an agency responsibility and is not reflected in these
regulations. However, it is likely that results from the RCA process
will result in modifications to the program and performance data
collected, to the systems used to acquire data and information, and
potentially to the program itself. Thus, as the Secretary proceeds to
implement the RCA in accordance with the statute, the approaches and
processes developed will improve existing program performance
measurement and outcome reporting capability and provide the foundation
for improved implementation of the program performance requirements of
section 1244(g) of the Food Security Act of 1985, as amended.
Economic Analysis--Executive Summary
Pursuant to Executive Order 12866, Regulatory Planning and Review,
NRCS has conducted a benefit-cost analysis of GRP as formulated for the
final rule. This requirement provides decisionmakers with the
opportunity to develop and implement a program that is beneficial,
cost-effective, and that minimizes negative impacts to health, human
safety, and the environment.
GRP is a voluntary program for landowners and operators to protect,
restore, and enhance grassland, including rangeland, pastureland,
shrubland, and certain other lands. The program emphasizes support for
grazing operations, enhancement of plant and animal biodiversity, and
protection of grassland and land containing shrubs and forbs under
threat of conversion.
Methodology Employed in This Study
NRCS has been charged with implementing GRP as authorized and
funded by Congress in ``protecting and restoring eligible grasslands
through
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easement purchases and rental contracts with private landowners and
operators.'' Given the scope of GRP, the analysis is national in scope
and evaluates the potential costs and benefits under several scenarios.
When possible, environmental, economic, and social costs and benefits
were identified for the land user, the general public, and the
government.
Given the current backlog of GRP applicants, full producer
participation is expected up to the acreage constraint mandated in the
2008 Act. The main costs of agricultural land retention efforts include
the restrictions on the activities landowners can pursue on the grazing
land and Federal program costs that consist of initial costs for
easement contracts and annual payments for rental contracts. It is
assumed that easement costs and annual rental costs capture the future
land use. These costs must then be compared to the benefits of
preserving the land for grazing or forage production. Benefits include
the maintenance (and possible improvement) of the flow of ecological
goods and services emanating from its current use in agriculture,
forage production, recreation, scenic views, and other non-use benefits
such as knowing that grazing lands will be available for future
generations.
Two baselines were considered in this analysis. Baseline One
assumes that no changes were made to GRP, with both program features
and acreage levels continued at pre-2008 levels. Baseline Two assumes
that all program and acreage levels mandated in the 2008 Act are
implemented. Against these baseline scenarios, two policy scenarios
were examined. Policy scenario one assessed the benefits and costs of
the expanded acreage targets in the 2008 Act without the program
changes. Policy scenario two assessed the benefits and costs of the
program changes mandated in the 2008 Act without expanded acreage
targets (i.e., use fiscal year (FY) 2007 acreage levels). The baselines
and policy scenarios are shown in the table below.
Summary of GRP Policy Scenarios
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Description of Information for FY
Baseline/Scenario baseline/scenario 2009-FY 2012
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A. Baseline One............. GRP policy remains Baseline of pre-2008
unchanged and program.
acreage will
continue at FY 2007
acreage levels
through FY 2009-FY
2012. That is, no
action on the 2008
Act GRP changes.
B. Policy Scenario One...... GRP policy remains Outcomes given the
unchanged, but 2008 Act GRP
acreage increases acreage goals using
to reflect the 2008 ``Baseline one''
Act acreage goal program provisions
levels through FY (pre-2008 program).
2009-FY 2012.
C. Baseline Two............. Full implementation Outcomes given full
of the 2008 Act GRP implementation of
changes. the 2008 Act.
D. Policy Scenario Two...... Full implementation Outcomes given the
of the 2008 Act GRP 2008 Act GRP
changes, but statutory
funding/acreage provisions with
goals set at FY previous acreage
2007 acreage levels goals.
through FY 2009-FY
2012.
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Analysis
The benefits and costs of the baseline and policy scenarios are
shown in the following table. These results suggest that GRP creates
positive net benefits. Given the estimates of benefits and costs which
are described in the main text, the scenario that maximizes
undiscounted net benefits is Baseline Two, implement all GRP program
changes mandated in the 2008 Farm Act. The mandated allocation of 40
percent of contract funds to rental contracts and 60 percent to
easements plus the elimination of the 30-year easements and 30-year
contracts contributed to the estimated $424 million in undiscounted net
benefits for Baseline Two. Although these two factors raised initial
program costs, they generated a longer stream of undiscounted benefits
over a longer time period. When discounting is applied, Baseline Two
maximizes discounted net benefits at the 3 percent level. At higher
discount rates such as 7 percent, net benefits decrease significantly
for Baseline Two. The higher upfront costs of permanent easements
offset the heavily discounted (7 percent) stream of future benefits.
Comparison of Net Benefits for the Baseline and Policy Scenarios
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Net benefits (0% Net benefits (3% Net benefits (7%
Baseline/Scenario Total acres discount) discount) discount)
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Baseline One \1\........................ 541,900 $152,557,735 $65,396,686 $11,752,922
Policy Scenario One \2\................. 1,220,000 343,456,522 147,229,336 26,460,025
Baseline Two \3\........................ 1,220,000 423,798,000 152,220,692 4,895,332
Policy Scenario Two \4\................. 542,000 186,282,400 67,373,841 2,630,771
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\1\ Do not implement GRP program changes mandated in the 2008 Act. Obligate new contracts using the FY 2007
program acres for FY 2009-FY 2012.
\2\ Implement the new acreage goal of the 2008 Act, but do not implement any of the other required changes.
\3\ Implement program changes mandated by the 2008 Act. These include dropping the 30-year easements and 30-year
rental contracts and allocating 40 percent of the funding to rental contracts and 60 percent to permanent
easements.
\4\ Implement program changes (elimination of 30-year easements and rental contracts and 40-60 split between
rental contracts and easements) mandated by the 2008 Act except for acres, which remain 542,000.
Conclusions
Substantial social, economic, and environmental benefits are
associated with protecting grasslands in and around metropolitan and
rural communities. These benefits include improved water quality, soil
quality, soil conservation, plant and animal diversity, scenic vistas,
community heritage, economies, and recreational activities. Although
not all of these benefits were estimated in this analysis, both the
previous GRP and the modified GRP in the 2008 Act yielded sufficient
measureable benefits to offset
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measurable costs. GRP, as currently implemented, maximized undiscounted
net benefits as well as net benefits discounted at 3 percent. At the
higher 7 percent discount rate, the front loading of costs of permanent
easements at the beginning of the contracts overwhelmed the flow of
discounted benefits over time. A more complete accounting of ecosystem
goods and services would increase benefits over time, thus increasing
net benefits for all the baseline and policy scenarios. Given this
information, NRCS recommends Baseline Two, full implementation of GRP
as specified in the 2008 Act.
Discussion of the Program
Healthy grasslands protect soil quality; prevent soil erosion,
provide sustainable forage for livestock, forage, and cover for
wildlife; improve water quality; and sequester carbon. GRP is a
voluntary program to assist landowners and agricultural operators in
restoring and protecting eligible grassland, land that contains forbs,
or shrublands for which grazing is the predominant use through rental
contracts and easements. The Farm Security and Rural Investment Act of
2002 (2002 Act), Pub. L. 107-171, authorized GRP by adding sections
1238N through 1238Q to the Food Security Act of 1985, as amended, 16
U.S.C. 3801 et seq.; and providing $254 million through FY 2007 to
enroll no more than 2 million acres of restored or improved grassland,
rangeland, shrubland, and pastureland. The program regulations are set
forth at 7 CFR part 1415.
Section 2403 of the 2008 Act (Pub. L. 110-246) reauthorized GRP and
made several amendments to the implementation of the program. The 2008
Act authorized the enrollment of an additional 1.22 million acres of
eligible land from FY 2009 through FY 2012.
The Secretary of Agriculture delegated the authority to administer
GRP on behalf of the CCC to the Chief, NRCS, who is a CCC Vice
President and the Administrator, Farm Service Agency (FSA), who is the
CCC Executive Vice President. NRCS has the lead responsibility on
regulatory matters, technical issues, and easement administration, and
FSA has the lead responsibility for rental contract administration and
financial activities. The agencies consult on regulatory and policy
matters pertaining to both rental contracts and easements. At the State
level, the NRCS State Conservationist and the FSA State Executive
Director determine how best to utilize the human resources of both
agencies to deliver the program and implement national policies in an
efficient manner given the general responsibilities of each agency.
On January 21, 2009, the CCC published an interim final rule in the
Federal Register (74 FR 2317) to incorporate programmatic changes
authorized by the 2008 Act. The CCC also incorporated improvements to
program administration. The changes made by the interim final rule
included:
(a) Identifying that the program's focus changed from protecting,
conserving, and restoring grassland resources on private lands to
assisting owners and operators of private and Tribal land in protecting
grazing uses and related conservation values by restoring and
conserving eligible land;
(b) Changing the term rental agreements to rental contracts;
(c) Adding new definitions, revising existing definitions for
clarity and consistency with other USDA-administered programs, and
removing definitions that were no longer relevant to GRP;
(d) Removing the 30-year rental agreement and 30-year easement
enrollment options;
(e) Removing the minimum acreage enrollment requirement.
Previously, applicants needed to submit 40 contiguous acres for
enrollment to be eligible;
(f) Offering enrollment priority for land previously enrolled in
the Conservation Reserve Program (CRP) providing certain conditions
exist;
(g) Expanding land eligibility criteria to include land that has
been historically dominated by grassland, forbs, or shrubland when it
contains historical or archaeological resources, or when it would
address issues raised by State, regional, and national conservation
priorities;
(h) Allowing for the inclusion of permissible and prohibited
activities under a rental contract or easement;
(i) Including a separate payment limitation for restoration
agreements and rental contracts;
(j) Establishing the requirements for determining easement
compensation;
(k) Requiring implementation of a GRP management plan;
(l) Adding the authority to enter into cooperative agreements with
eligible entities to own, write, and enforce easements; and
(m) Establishing that the entity will provide a share of the
purchase price at least equivalent to the amount provided by the CCC,
when eligible entities are acquiring easements under cooperative
agreements.
On August 21, 2009, the CCC published an amendment to the January
21, 2009, interim final rule (74 FR 42170) to clarify the nature of the
contingent right of enforcement, expand its discussion regarding GRP
policy for wind and solar power facilities, and remove the blanket
prohibition upon wind power facilities for off-farm power generation.
Additionally, the CCC sought public comment to these changes and
additional public input on the January 21, 2009, interim final rule.
Registration and Reporting Requirements of the Federal Funding and
Transparency Act of 2006
OMB recently published two regulations, 2 CFR part 25 and 2 CFR
part 170, to assist agencies and recipients of Federal financial
assistance comply with the Federal Funding Accountability and
Transparency Act of 2006 (FFATA) (Pub. L. 109-282, as amended). Both
regulations have implementation requirements beginning October 1, 2010.
The regulations at 2 CFR part 25 require, with some exceptions,
recipients of Federal financial assistance to apply for and receive a
Dun and Bradstreet Universal Numbering System (DUNS) number and
register in the Central Contractor Registry (CCR). The regulations at 2
CFR part 170 establish new requirements for Federal financial
assistance applicants, recipients, and sub recipients. The regulation
provides standard wording that each agency must include in its awarding
of financial assistance that requires recipients to report information
about first-tier sub awards and executive compensation under those
awards.
NRCS has determined that 2 CFR part 25 and 2 CFR part 170 apply to
certain awards of financial assistance provided under GRP. Therefore,
NRCS has incorporated, by reference, these registration and reporting
requirements at Sec. 1415.6 and will include the requisite provisions
as part of the GRP contract.
Comments and CCC Responses
USDA received a total of 19 responses that included 148 comments in
response to the two GRP public comment periods. USDA received 16
responses that included 129 comments during the January 21, 2009,
interim final rule comment period and 3 responses that included 19
comments during the August 21, 2009, interim final rule amendment
comment period.
In this preamble discussion, the comments have been organized in
alphabetic order by topic. The topics include: Administration,
administrative costs, allocation, compatible use, compensation,
conservation and grazing plans, cooperative agreement,
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definitions, easements or agreements (duration), easements or
agreements (60/40 split), ecosystem credits, enrollment requirements,
general, land eligibility, misrepresentation and violations,
participant, program requirements, ranking, restoration agreements, and
windmills. Additionally, USDA received comments that did not fit any of
these topic areas.
Administration
Comment: One commenter supported the policy that allows State
officials to identify State priorities for project selection (with
input from the State Technical Committee) and the authority for States
to develop ranking criteria. The commenter would also like provisions
to allow local stakeholders to identify priorities for GRP funds.
Response: USDA appreciates the support for its policies and
maintains decisionmaking responsibilities at the lowest level
reasonable. Local stakeholders may provide GRP input on program
priorities by participating in local working groups authorized by 7 CFR
part 610. The local working groups provide input to the State Technical
Committee, authorized by 7 CFR part 610, on a myriad of topics
including potential program application ranking criteria. No changes
were made to the final rule.
Comments: Section 1415.2(a)(3) provides that the NRCS Chief and FSA
Administrator ensure that national, State, and local-level information
regarding program implementation is made available to the public. Two
commenters recommended USDA clarify in the final rule how the
information will be made available to the public and identify whether
there will be an opportunity for further public input. They recommended
that USDA utilize public input through State Technical Committees for
improving implementation of the program.
Response: Section 1415.2(a)(3) provides flexibility for the agency
leaders to determine the appropriate approach and methods for ensuring
the public is provided information regarding program implementation.
State Technical Committee meetings are open to the public, and USDA
provides opportunity for people to comment on program implementation at
any time. The public can view the State Technical Committee standard
operating procedures at http://directives.sc.egov.usda.gov/, or obtain
a copy from their local NRCS office. No changes were made to the final
rule.
Comments: One commenter recommended that USDA revise Sec.
1415.2(b)(4) to require input from the State Technical Committee when
developing program outreach materials, and that USDA revise Sec.
1415.2(b)(6) by requiring input from the State Technical Committee when
developing grazing management plans and restoration agreements. The
commenter indicated that grazing management plans should improve
biodiversity and requested that guidance be provided by the State
Technical Committee on criteria that is needed and must be included in
the grazing management plans to address the biodiversity component.
Response: The State Technical Committee is established to assist
USDA by making recommendations relating to the implementation and
technical aspects of natural resource conservation activities and
programs. The State Technical Committee provides recommendations on a
myriad of topics including, but not limited to, recommendations on:
(1) The criteria to be used in prioritizing program applications;
(2) The State-specific application criteria;
(3) Priority natural resource concerns in the State;
(4) Emerging natural resource concerns and program needs; and
(5) Conservation practice standards and specifications.
USDA agrees with the comment that reference to the State Technical
Committee should be added to Sec. 1415.2(b)(4). Therefore, paragraph
(b)(4) has been revised to read as follows: ``With advice from the
State Technical Committee, developing program outreach materials at the
State and local levels to help ensure landowners, operators, and
tenants of eligible land are aware and informed that they may be
eligible for the program.''
USDA believes that the State Technical Committee provides guidance
on GRP management plans by making recommendations on conservation
practice standards and specifications. Biodiversity is addressed in the
NRCS Field Office Technical Guide (FOTG) and through its conservation
practice standards.
Administrative Costs
USDA received five comments from two respondents related to the
administrative cost provisions in Sec. 1415.11 Restoration agreements,
and Sec. 1415.17 Cooperative agreements. Section 1415.11 describes the
applicability of restoration agreements and the terms of such
agreements; and Sec. 1415.17 describes the terms through which USDA
will enter into an agreement with an eligible entity for such entity to
write, hold, and enforce a GRP easement.
Comments: One commenter expressed that the policy in Sec.
1415.17(c)(10) places undue financial burden on the potential
cooperators, and the policy in Sec. 1415.17(c)(13) places undue
restrictions and unfair burdens that will make it difficult for
cooperators to participate.
Further, Sec. 1415.17(c)(13) expressly disallows GRP funds for
expenditures for administrative costs such as appraisals, surveys, and
title insurance that are authorized when the United States purchases a
GRP easement directly from the landowner. The commenter contends it is
appropriate for GRP funds to be used for these expenses on at least a
cost-share basis when a qualified eligible entity is conducting this
administrative function under a cooperative agreement.
Response: The GRP statute provides that eligible entities who enter
into an agreement with USDA to acquire easements will assume the costs
incurred in administering the easement. In the interim final rule, USDA
explained that it patterned GRP after the Farm and Ranch Lands
Protection Program (FRPP) where the partnering entity assumes
responsibility for the majority of the administrative costs related to
acquisition. This decision was intended to apply consistent policies to
the extent allowable under the terms of each program's statute.
Financial assistance funds are used in both GRP and FRPP to purchase a
share of the conservation easement. USDA will use program funds to
conduct an environmental database records search and appraisal reviews
as it does with FRPP. No changes were made to the final rule.
Comments: Section 1415.11(k) includes provisions for restoration
agreements when title for an easement acquired by USDA is transferred
to an eligible entity. One commenter recommended revising policy that
requires the entity be responsible for providing funding for the
completion of the restoration agreement. The commenter recommended the
entity only be responsible for the administration of the restoration
agreement. The commenter contends that the policy limits USDA's ability
to transfer easements to other entities capable of managing the
easement. The commenter had a similar comment about the policy in Sec.
1415.11(l) regarding easements held by eligible entities.
Response: USDA agrees that the provisions in paragraphs (k) and (l)
of Sec. 1415.11 may reduce the interest in
[[Page 73918]]
holding or acquiring GRP easements for some otherwise eligible
entities. However, these provisions are required by the GRP statute (16
U.S.C. 3838q(c)1(C)). When the Secretary transfers easement title of
ownership to an eligible entity to hold and enforce, in lieu of the
Secretary, and when the Secretary enters into a cooperative agreement
with an eligible entity for the entity to acquire easements, the
eligible entity agrees to assume the costs incurred in administering
and enforcing the easement, including the costs of restoration or
rehabilitation of the land as specified by the owner and the eligible
entity. No changes were made to the final rule.
Allocation
Comments: Seven commenters recommended USDA revise Sec.
1415.2(a)(2) to require USDA to use State wildlife action plans in
determining national allocation formulas or when establishing program
priorities. The commenters also recommend that USDA coordinate with
State fish and wildlife agencies as part of assessing natural resource
concerns. Another commenter expressed that considering issues raised by
State, regional, and national conservation priorities, as required in
Sec. 1415.5(b)(2)(iii), to inform local ranking priorities should also
be used to inform the national allocation process. By incorporating
fish and wildlife resource priorities for grasslands into the
allocation process, USDA can help maximize the fish and wildlife
benefits while emphasizing the support for grazing operations.
Response: USDA considered using State wildlife action plans in
national allocation formulas. However, USDA concluded that the plans do
not lend themselves to being used in a standardized formula process
because of inconsistencies in the format of the plans across the
country. USDA will consider using these plans in allocation formulas
when a more consistent format is developed. State wildlife action plans
can be used by State Technical Committees to assess natural resource
concerns and determine project ranking at the State level. No changes
were made to the final rule.
Comments: One commenter expressed that Sec. 1415.2(a)(2), as
written, did not provide sufficient assurance that the agency will use
the national allocation process in a way that maximizes the
conservation benefits that grazing operations can deliver.
Response: USDA developed an allocation process to consider the
three priorities of the program as provided for in the 2008 Act at 16
U.S.C. 3838p(a)(2). The national allocation process considers the
amount of range and pastureland and loss, number of livestock
operations, Federally listed threatened and endangered species, and
candidate species. Additional factors can be added at the State level
for individual application ranking by State Technical Committees whose
members include State fish and wildlife agencies. No changes were made
to the final rule.
Compatible Use
Comments: Two commenters expressed concern related to a
participating landowner's rights regarding hunting and fishing. They
wanted these activities identified as reserved rights of the landowner.
The commenters recommended USDA change this language as well as other
compatible use language in this final rule.
Another commenter recommended rewording the definition of
compatible use as follows: ``Compatible use includes those activities,
uses, or measures that do not interfere with the timely implementation
or full effectiveness of conservation practices as described in the
restoration plan.''
Response: The term compatible use is not used in the GRP rule. The
rule does provide the authority in Sec. 1415.4(h)(6) to allow USDA to
determine the manner, number, intensity, location, operation, and other
features associated with an activity that will not adversely affect the
grassland resources or related conservation values protected under an
easement or rental contract.
However, USDA did clarify the easement deed and rental contracts,
as well as Sec. 1415.4(h)(6) regarding hunting and other reserved
rights by including the following revised language: ``This also
includes undeveloped, passive, recreational uses such as hiking,
camping, bird watching, hunting, and fishing as long as such uses, as
determined by the grantee, do not impair the grazing uses and other
conservation values.''
Compensation
Comments: One commenter recommended NRCS eliminate the new
requirement for market analysis and reinstate the use of an individual
appraisal for determining value of a GRP easement. The commenter
expressed an opinion that a market analysis will not accurately reflect
the fair market value of a property. The main concern is that the broad
brush approach will discourage landowners from applying for the program
and ultimately protecting their land.
Response: The 2008 Act specifies that easement compensation will
not exceed the fair market value of the land less the grazing value of
the land encumbered by the easement. Further, either an appraisal or
area-wide market analysis will be used as one method for determining
easement compensation. USDA agrees with the commenter that an area-wide
market analysis would not accurately reflect the fair market value of a
property in areas where insufficient market data exists. In those
cases, USDA will be using an appraisal; therefore, no changes were made
to the final rule.
Comments: Another commenter expressed that it is not clear in the
interim final rule how FSA will determine grazing value for rental
contracts. The commenter would like the final rule to clarify that the
NRCS Chief and FSA Administrator may allow flexibility to adjust rental
rates to be competitive with other uses, such as pasture rental, to
attract program participants.
Response: USDA agrees that if rental rates become too low,
inadequate offers will be received to maximize the environmental
benefits. Currently however, demand for rental contracts is high with
more applicants than funding allows. Raising rental rates would reduce
the acres enrolled. FSA determines GRP rental rates by using an
administrative process which considers rates established for similar
uses under other conservation programs. This process considers rates
such as marginal pastureland rates and other rates used for CRP, as
well as trying to ensure consistency between counties. With the current
high demand for GRP rental contracts at the present rental rates, no
changes were made to the final rule.
Conservation and Grazing Plans
Comments: One commenter recommended USDA revise Sec. 1415.2(b)(6)
to include ``developing conservation plans'' to the list of State
Conservationist's responsibilities.
Response: The State Conservationist is responsible for all planning
activities including conservation plans, when applicable. USDA agrees
with the commenter that clarity is needed. USDA is using the term GRP
management plan to include conservation plans and restoration plans in
addition to any applicable grazing management systems. Therefore, USDA
revised Sec. 1415.2(b)(6) to read ``Developing GRP management plans
and restoration agreements, when applicable.''
Cooperative Agreement
Comments: One commenter questioned how Sec. 1415.12(a) will be
[[Page 73919]]
interpreted. The commenter recommended that USDA clarify that
conservation easements may be amended if such amendments clearly
preserve or benefit the conservation values of the property. Most
easements include an amendment provision. The commenter expressed
concern that a strict no amendment standard may have future adverse and
unintended consequences as management practices change and knowledge of
proper resource management advances.
Response: USDA agrees that Sec. 1415.12(a) should be clarified.
USDA understands the commenter's concerns and is aware that easement
deeds typically include modification provisions if the modification
serves the conservation purposes of the easement. USDA does not
currently have legal authority to change the substantive terms of a GRP
conservation easement once it has been recorded. Specifically,
modifications that would result in acquisition or divestiture of
additional property rights cannot be made. However, deed changes that
do not result in the acquisition or divestiture of property rights may
be made, such as technical changes or clarifications of deed text. As
management practices change, the GRP management plan may be modified to
address advances in resource management knowledge.
Comments: One commenter expressed that to the extent an eligible
entity is holding and managing an easement, the eligible entity must be
privy to the grazing plan in addition to USDA and the landowner. The
eligible entity should also be privy and a party to any modifications
of a grazing plan if it is holding the easement. The commenter believes
this is what is meant under statutory reference to mutual agreement of
the parties under section 12380(b)(6). Another commenter questioned
whether it is the responsibility of the eligible entity or NRCS to
develop these plans. If it is the role of NRCS, the commenter suggested
the eligible entity should provide input into the plans if they are
expected to monitor and enforce them.
Response: Section 1415.4(c) provides that all participants are
required to implement a GRP management plan. USDA added, ``NRCS will
develop GRP management plans with eligible entities.'' This language
ensures the partnering entity is fully aware of the GRP management plan
requirements and is party to the development of these plans. No changes
were made to the final rule.
Comments: One commenter stated that the GRP statute does not
specify that a dedicated fund is required by an eligible entity for the
purpose of easement management, monitoring, and enforcement. While the
commenter agreed that it is appropriate and desirable for entities to
have an adequate stewardship endowment fund to assure they can meet the
perpetual management of conservation easements they hold and
administer, they identified that conservation monitoring and management
functions may be addressed separately from enforcement purposes in the
organization's operational budget. In such cases, the various funding
sources may not be considered dedicated. They recommend that USDA
change the final rule to clarify the funds be a necessary requirement
for eligible entities, but the fund need not be dedicated. The
commenter also expressed that GRP should be set up and run in a similar
manner to the FRPP, so that eligible third parties can certify for both
programs.
Response: The GRP statute provides that the Secretary may approve
an eligible entity if the Secretary determines the entity has the
resources necessary to effectuate the purposes of its charter. The
dedicated fund requirement established in the interim final rule
provides USDA a level of assurance that the easement will be managed,
monitored, and enforced for the duration of the easement. Unlike the
FRPP statute, the GRP statute does not include a certification process.
The dedicated fund requirement, however, provides USDA a means to
evaluate if an eligible entity has sufficient resources to administer,
manage, monitor, and defend a GRP conservation easement. NRCS will
evaluate the funding structure of an entity's stewardship activities
when making the determination of whether there is a dedicated fund. No
changes were made to the final rule.
Comments: Six commenters expressed that USDA should include
landowners' donations, when applicable, as part of the entity's share
of the purchase. The commenters further expressed that it is important
to note that eligible entities are providing a significant role in
furthering the purpose of GRP by committing to perpetually monitoring
and enforcing the terms of the easements and plans. Many States with
considerable grassland resources do not have dedicated State resources
for leveraging Federal funds. The commenters believe USDA's policy
inhibits GRP participation in areas of the country where local
conservation easement purchase funds are limited or nonexistent, and
thus, the restriction places too great a financial burden on potential
cooperating entities.
Response: USDA evaluated the policy related to landowner donations
and entity purchase price. USDA agrees with the commenters and has
revised the definition of purchase price to read: ``Purchase price
means the amount paid to acquire an easement under a cooperative
agreement between NRCS and an eligible entity. It is the fair market
value of the easement.'' This change allows landowner donations to
count as part of the entity share.
Comments: USDA received a number of comments related to the Federal
Government's interest in GRP easements. The GRP interim final rule
amendment alleviated a number of concerns related to the easement
acquisition process and whether Federal real property acquisition
requirements apply. One commenter supported maintaining language in
Sec. 1415.17(e)(1) that the rights acquired by the United States are a
vested property right and cannot be condemned or terminated by State or
local government.
Response: USDA agrees with the comment about Sec. 1415.17(e)(1).
No changes were made to the final rule regarding the interest of the
United States being a vested property right.
Definitions
Biodiversity
Comments: Eleven commenters requested USDA add a definition for the
term biodiversity. They would like to add a definition for biodiversity
to read: Biodiversity means the variety and variability among living
organisms native to the local ecological sub-region and ecological
complex. They also want the term biodiversity added to the Common
Grazing Practices definition as follows: ``Common Grazing Practices
means * * * activities necessary to maintain and improve the
biodiversity and viability of forage. * * *''
Response: USDA agrees with the commenters that including a
definition for biological diversity improves understanding of the
regulation. Therefore, USDA adds a definition for biological diversity
to the final rule that reads as follows: ``Biological diversity means
the variety and variability among living organisms and the ecological
complexes in which they live.'' USDA removed the definition for the
term ``plant and animal biodiversity'' because this term is no longer
needed.
Common grazing practices are allowable uses in a local area. Plant
species composition is considered in the development of GRP management
plans. Because specific grazing practices vary by region, they may or
may not improve biodiversity. While GRP emphasizes
[[Page 73920]]
support of biodiversity, common grazing practices customary to the
region are allowed. No change was made to the definition of common
grazing practices in the final rule.
Conservation Plan
Comments: One commenter requested USDA expand the definition of
conservation plan to reflect all grassland values. Specifically, the
commenter requested the definition be amended as follows:
``conservation plan means a record of the GRP participant's decisions
and supporting information that will be developed to address resource
concerns in addition to grazing land uses. The conservation plan will
describe the conservation values of the grassland or shrubland to be
addressed and will include. * * *''
Response: USDA agrees with the comment and added the definition of
GRP management plan to include a conservation plan. The GRP management
plan means the document developed by NRCS that describes the
implementation of the grazing management system consistent with the
prescribed grazing standard contained in the FOTG. The GRP management
plan will include a description of the grazing management system,
permissible and prohibited activities, any associated restoration plan
or conservation plan if applicable, and a description of USDA's right
of ingress and egress.
A conservation plan will be accepted as a GRP management plan and
will describe the implementation and maintenance of grazing management
and conservation practices directly related to eligibility criteria
under which the land is enrolled.
Conservation Values
Comments: One commenter recommended USDA revise the definition of
conservation values to mean those natural resource attributes that
``sustain and enhance ecosystem functions and values of grasslands and
shrublands including, but not limited to, native plant and animal
biodiversity, habitat for native grassland and shrubland. * * *''
Response: The purpose of GRP is to assist owners and operators to
protect grazing use and related conservation values. Improved range and
pasture which protect grazing uses may or may not include native
grasslands as a related conservation value. USDA did not restrict the
definition of conservation value to only native plants and animals
since the primary purpose of the program is to protect grazing uses.
However, USDA agrees the definition can be improved. Therefore, the
definition has been amended to read ``Conservation values means those
natural resource attributes that sustain and enhance ecosystem
functions and values of the grassland area including, but not limited
to, habitat for grassland and shrubland dependent plants and animals,
native plant and animal biodiversity, soil erosion control, forage
production, and air and water quality protection.''
Enhancement
Comments: One commenter expressed that the definition of
enhancement refers to the viability of grassland resources but fails to
recognize grazing values. The definition only refers to wildlife
habitat, which is just one purpose of the program. The commenter wants
the definition of enhancement to recognize grazing values.
Response: USDA agrees with the comment and added grazing resources
to the definition.
Grazing Management Plan
Comments: Several comments were received regarding the definition
of grazing management plans. They expressed that the grazing management
plan should always be associated with a conservation plan and
recommended rewording the definition to reflect this. One specific
concern is that grazing management plans will not address related
conservation values; another concern is that the definition of grazing
management plans does not accomplish the protection of related
conservation values and is not consistent with the stated intent of the
managers to ensure conservation purposes are met.
One commenter recommended specific amendatory language to read:
``The grazing management plan will include a description of the grazing
management system, permissible and prohibited activities, an associated
conservation plan, any associated restoration plan, if applicable, and
a description of USDA's right of ingress and egress.'' Other commenters
also expressed that requiring participants and grantees to develop and
follow two separate plans adds complexity and confusion. Section
1415.4(c) indicates participants may have to agree to and implement a
grazing management plan and a conservation plan when a participant
receives ranking points for resource concerns other than grazing
resources. A more practicable approach would be to require the grazing
management plan to incorporate specific conservation objectives if the
application is accepted because of State priorities for local
conservation needs. They want to stress that any management plan must
be developed and agreed to by the grantor and grantee prior to the
closing of the easement deed. Furthermore, especially for land in
perpetual easements, it may be necessary to modify or restructure
management plans as environmental conditions and grassland management
knowledge and opportunities develop in the future.
Response: USDA agrees that the language in the interim final rule
is confusing regarding when a grazing management plan is required and
when a conservation plan is required. This final rule changes the
definition of ``grazing management plan'' to a ``GRP management plan''
as the minimum planning requirement for GRP participation. A
conservation plan is not required, but can be used as a GRP management
plan for certain lands enrolled in the program. The prescribed grazing
standard used for developing a GRP management plan does address related
conservation values because it includes vegetation and forage
management, water quality and quantity, riparian and watershed
function, soil erosion and condition, wildlife, and prescribed fire.
USDA revised the language in Sec. 1415.4(c) to read that all
participants in GRP are required to implement a GRP management plan
approved by NRCS. NRCS will develop GRP management plans with eligible
entities. In cases where a participant receives ranking points on the
basis of resource concerns other than grazing land concerns, all such
resource concerns will be addressed in an applicable conservation plan.
Infrastructure
Comments: The interim final rule amendment discusses the footprint
of the related infrastructure but does not include a definition. USDA
received comments that suggested describing the infrastructure of power
generation facilities to include transmission corridors and roads.
Response: USDA did not adopt the recommendation to add a definition
for the term infrastructure. Specific infrastructure needs may vary
from project-to-project and are difficult to define. Since USDA will
conduct site-specific environmental analysis for proposed projects
associated with renewable energy, the specific types of infrastructure
will be addressed on a case-by-case basis.
[[Page 73921]]
Native
Comments: USDA received multiple comments recommending that GRP be
restricted to native grassland systems.
Response: The GRP statute provides that the purpose of the program
is to ``assist owners and operators in protecting grazing uses and
related conservation values. * * *'' Native grasslands are included in
program purposes, as are improved rangeland and pastureland for which
grazing is the predominant use. Priority for native grasslands can be
addressed through the ranking process. Native grasslands can be a
priority at either the national, State, or regional level. No changes
were made to the final rule.
Nesting Season
Comments: GRP participants are permitted to hay, mow, or harvest
for seed production subject to appropriate restrictions, as determined
by the State Conservationist, during the nesting season for birds in
the local area that are in significant decline, or are conserved in
accordance with Federal or State law. The interim final rule defined
nesting season as the time of year that animals (birds and others)
build or otherwise find a place of refuge for purposes of reproduction
or dormancy. Commenters requested clarification of the intent of the
term dormancy in the definition. USDA received a number of comments on
the definition of nesting season including clarifying or removing the
phrase ``subject to appropriate restrictions;'' insert ``birds and
other animals'' in place of birds and others; and clarify ``or
dormancy.''
Response: The GRP statute identifies birds in the local area that
are in significant decline. For clarification, given the specificity in
the statute, USDA revises the definition of nesting season to read
``the time of year that grassland dependent birds in significant
decline in the local area build nests or otherwise find a place of
refuge for purposes of reproduction.'' NRCS identifies the bird species
and nesting season in the GRP management plan.
Purchase Price
Comments: USDA received comments expressing that the rule goes
beyond statutory authority to define the term purchase price in such a
way as to require a cash match from the eligible entity, which the
statute does not require. The commenters suggested that the eligible
entity at least match the Secretary with a combination of cash and
landowner donation.
Response: USDA has revised the definition of purchase price to read
``Purchase price means the amount paid to acquire an easement under a
cooperative agreement between NRCS and an eligible entity. It is the
fair market value of the easement.'' This change allows landowner
donations to count as part of the entity share.
Shrubland
Comments: One commenter recommended USDA remove the following words
from the shrubland definition: ``and generally produces several basal
shoots instead of a single bole.'' The commenter explained there is a
number of shrubland species that are single boled and such distinction
is not necessary to include in this definition.
Response: USDA agrees with the comment and has changed the
definition in the final rule.
Easements or Agreements (Duration)
Comments: One commenter disagreed with the removal of the 30-year
rental agreement as an enrollment option. The commenter supports
shorter-term easements and cost-share agreements over permanent
easements.
Response: The removal of the 30-year agreement and easement options
was the result of the 2008 Act, and therefore, USDA has no discretion
to change it. No changes were made to the final rule.
Easements or Agreements (60/40 Split)
Comments: USDA received four comments on the statutory requirement
that the Secretary will use, to the extent practicable, 40 percent of
the funds for rental contracts and 60 percent of the funds for
easements. The interim final rule provides that USDA will manage the
program nationally to ensure that, to the extent practicable, ``no more
than 60 percent of the funds are used for the purchase of easements * *
* and no more than 40 percent of the funds are used for rental
contracts.'' The commenters recommended USDA drop the ``no more than''
language since it is not required in statute and is unnecessarily
limiting.
Response: USDA agrees that the phrase ``no more than'' creates an
inflexibility that was not established in statute. Further, it creates
an impractical impediment to efficient program implementation.
Therefore, USDA removed ``no more than'' in Sec. 1415.8(j).
Ecosystem Credits
Comments: Three comments were received requesting Sec. 1415.10(h)
be revised to be consistent with the Healthy Forest Reserve Program
(HFRP) regulation in 7 CFR part 625.
Response: The following revision was made to Sec. 1415.10(h) to be
consistent with HFRP:
USDA recognizes that environmental benefits will be achieved by
implementing conservation practices and activities funded through
GRP, and that ecosystem credits may be gained as a result of
implementing activities compatible with the purposes of a GRP
easement, rental contract, or associated restoration agreement. USDA
asserts no direct or indirect interest in these credits except:
(1) In the event the participant sells or trades credits arising
from GRP funded activities, USDA retains the authority to ensure
that the requirements for GRP rental contracts, easements, or
restoration agreements are met and maintained consistent with this
part; and
(2) If activities required under an ecosystem credit agreement
may affect land covered under a GRP rental contract, easement, or
restoration agreement, participants are highly encouraged to request
an assessment from USDA about the compatibility of the activity
prior to entering into such agreements.
Enrollment Requirements
Comments: In addition to the requests to amend the definition of
grazing management plan as explained above, USDA received requests to
revise the second sentence of Sec. 1415.9(e) to read ``NRCS will
proceed with the development of the grazing and conservation management
plans and the restoration plan, if applicable.'' The commenters
expressed that all grazing management plans should be part of a
conservation plan which addresses related conservation values
associated with the program purpose.
Response: Grazing management plans are usually a part of a
conservation plan. The GRP management plan includes grazing,
conservation, and restoration planning. No changes were made to the
final rule.
Comments: One commenter expressed concern about policy related to
crop acreage bases in Sec. 1415.4(l). Paragraph (l) requires rental
contract participants to suspend any existing cropland base and
allotment history for the land under another program administered by
the Secretary. The commenter expressed support for allowing producers
to maintain their crop base history as long as the producer has met all
contract obligations. However, the commenter recommends that if program
payments are reduced or delayed for 90 days or longer, the producer
should have the option to withdraw from the contract without penalty,
and program crop bases would be restored to their prior level.
Response: GRP rental contracts are fully funded for all years under
the
[[Page 73922]]
contract once it is approved and signed by the CCC. USDA does not
foresee a situation where producer's payments could be delayed for 90
days; therefore, no changes were made to the final rule.
General
Comments: One commenter recommended that Sec. 1415.4(h)(4) be
revised to read: ``Grazing related activities, such as fencing and
livestock watering facilities, provided that such activities will not
adversely affect the related conservation values, including habitat for
grassland and shrubland dependent birds and other animals.''
Response: All permitted activities listed under Sec. 1415.4(h)
must be consistent with the conservation easement deed or rental
contract terms. Permitted activities, such as grazing related
activities, must also follow the GRP management plan and be consistent
with GRP purposes, including related conservation values and
appropriate restrictions during the nesting season for birds in the
local area that are in significant decline.
Comments: USDA received one comment on the provisions related to
permitted activities in Sec. 1415.4(h)(6) that describes limits on
infrastructure development along existing right-of-ways. The commenter
identified that the text appears to prohibit any development on future
right-of-ways. It was suggested that USDA and the grantee should have
the ability to use discretion for future right-of-ways, especially when
it is determined to be in the public benefit and grassland resources
and related conservation values will not be adversely impacted.
Response: USDA recognizes the difficulty related to developing
agreements without complete foresight into the potential future needs
for the enrolled property. However, USDA does not have the statutory
authority to amend GRP conservation easements. Therefore, USDA cannot
amend an easement to reflect future right-of-ways. No changes were made
to the final rule.
Comments: One commenter supports the use of the grazing management
plan as the primary plan for GRP participants. No matter which of these
plans are used (conservation plans, restoration plans, and grazing
management plans), the commenter believed that landowners operating
under these plans or agreements should have assurance they will not be
found in violation of the Endangered Species Act or other Federal or
State environmental laws by implementing their requirements.
Response: USDA follows its National Planning and Procedures
Handbook in the development of GRP management plans to ensure that
conservation practices are identified in accordance with NRCS standards
and specifications. While the GRP management plans identify the
management activities the landowner will conduct on the easement area,
including implementation of conservation practices, the identification
of an activity in a plan does not bestow upon the activity immunity
from other legal requirements that a landowner must follow when
conducting activities on private land, nor do USDA approvals bind other
Federal or State agencies in the implementation of their own
regulations. A landowner remains responsible for ensuring the
activities conducted on his or her farm or ranch operation are in
compliance with the law, including obtaining any necessary permits or
approvals by other governmental entities. No changes were made to the
final rule.
Comments: One commenter recommended an increase in the percentage
of incidental land allowed. The commenter expressed that limiting the
amount of incidental land that may be included in the GRP easement to
10 percent will result in awkward configurations that may not be the
best conservation outcome and may be difficult to steward.
Response: The regulation does not limit incidental land to a
percentage. The interim final rule provided in Sec. 1415.5(c) that
incidental land may be considered for enrollment to allow for the
efficient administration of an easement or rental contract. The rule
did not specify a percentage. Since the regulation provides USDA the
flexibility to make determinations about incidental land, no changes
were made to the final rule.
Comments: One commenter strongly disagreed with the statement in
the preamble (in the section entitled Summary of 2008 Act Changes) that
the expansion of the statement of purposes was intended to change the
program's focus from protecting, conserving, and restoring grassland
resources on private lands. Both the 2002 Act and the 2008 Act referred
to restoring and conserving eligible land. The commenters identified
that no language in the statute or the Statement of Managers supports
the interpretation the agency has apparently taken that the addition of
the reference to grazing uses represents a significant shift that
justifies a decreased focus in the rule on meeting the program's
conservation purposes. The commenter expressed that it is important to
make this point because the change in program purposes in the statute
is cited in the preamble to the interim final rule as justification for
a number of changes USDA has made to the final rule. For example, the
change in purposes is cited to support the agency's decision to remove
in Sec. 1415.1(b), the statement that one of the objectives of GRP is
to emphasize preservation of native and naturalized grasslands and
shrublands. The preamble states that the change in program purposes
means that the program is not limited to native and naturalized
grasslands.
Response: The change in emphasis was made to implement the intent
of Congress as indicated in the statutory changes made in the new Farm
Bill. Specifically, the statute states that the purpose of GRP is to
assist owners and operators in protecting grazing uses and related
conservation values. The previous statute emphasized preservation of
native and naturalized grasslands and shrublands. Native grasslands are
included in program purposes in this statute, as are improved rangeland
and pastureland for which grazing is the predominant use. Applications
are evaluated and ranked to emphasize support for grazing operations,
plant and animal biodiversity, and threat to conversion to uses other
than grazing. Native grasses are considered during the ranking process,
and native grasslands are considered as part of the biodiversity
emphasis. No changes were made to the final rule.
Land Eligibility
Comments: Two commenters supported the policy that allows and gives
priority to enrollment of expiring CRP lands and for continuing to
recognize the value of native grasslands. One commenter that
recommended priority to native grasslands also suggested that expiring
CRP, that was not established to native grasslands but that supported
lesser or greater prairie chickens, should be an exception to a
priority of native grasslands.
Response: USDA appreciates the support for its policies and
maintains decisionmaking responsibilities at the lowest level
reasonable. Priority for expiring CRP is authorized in 16 U.S.C.
3838n(A). Determination of the high ecological value and threat of
conversion to uses other than grazing of these lands is determined by
the State Conservationist, with input from the State Technical
Committee. Local stakeholders do have the opportunity in GRP to provide
input on land eligibility by participating in local working groups
[[Page 73923]]
authorized under 7 CFR part 610. No changes were made to the final
rule.
Comments: Three commenters recommended adding the word native in
Sec. 1415.5(b)(2)(i).
Response: The purpose of GRP is to assist owners and operators in
protecting grazing uses and related conservation values, and USDA
recognizes the value of conserving native grasslands. USDA does not
want to limit land eligibility to only native grasslands because this
would preclude acceptance of other significant habitats such as
expiring CRP lands with non-native grasses supporting lesser or greater
prairie chickens. No changes were made to the final rule.
Comments: Two commenters suggested USDA coordinate with U.S. Fish
and Wildlife Service (USFWS) and State fish and wildlife agencies when
assessing potential impact of third party mineral rights for a GRP
easement under Sec. 1415.5(e). Another commenter believes that Sec.
1415.5(e) will make it possible to place a GRP easement on a property
with a split estate.
Response: Gas, oil, earth, or other mineral rights exploration may
have adverse affects on the conservation values the GRP is protecting.
USDA reserves the right to deny funding when there are exceptions to
clear title on a property offered for a GRP easement that may undermine
the purposes for which the United States acquired the easement. As part
of its due diligence to determine whether outstanding rights may impact
the conservation values, USDA will require a mineral remoteness test
for any property with severed mineral rights. Consultation with the
USFWS and State fish and wildlife agencies would not determine the
potential for extraction of resources; therefore, no changes were made
to the final rule.
Comments: One commenter appreciated the recognition of State,
regional, and national conservation priorities and the inclusion of
incidental lands under Sec. 1415.5.
Response: USDA agrees with the comment and appreciates support of
its policies.
Comments: One commenter believes that Sec. 1415.5(b)(1) will allow
USDA to target large tracts of grassland in the West.
Response: Grasslands, land that contains forbs, or shrubland, for
which grazing is the predominant use, are eligible for funding
consideration. Lands located in areas historically dominated by
grassland, forbs, or shrubland that is compatible with grazing uses and
related conservation values are also eligible. USDA is not targeting
any particular region of the country. No changes were made to the final
rule.
Misrepresentation and Violations
Comments: One commentor requested that USDA revise Sec.
1415.14(b)(2) and (3) to include provisions for NRCS or an easement
holder representative to enter easement lands when there is an easement
violation and to allow both NRCS and an easement holder, who acquires
an easement in accordance with either Sec. 1415.17 or Sec. 1415.18,
to monitor the easement for violations.
Response: Section 1415.14 includes provisions for when the United
States remains the easement holder. Sections 1415.17 and 1415.18
include provisions for when someone other than the United States holds
title to the deed. The GRP deed provides ``Upon notification to the
grantor, grantee, or grantee's agents may enter the property to inspect
for violations including, but not limited to, assessing compliance with
the GRP management plan. However, notification by the grantee prior to
entry is not required when the grantee believes there may be a
violation of the terms of this deed. If the grantee finds a violation,
the grantee may at its discretion take appropriate legal action in law
or equity. Upon discovery of a violation, the grantee will notify the
grantor in writing of the violation. Except when an ongoing or imminent
violation could, as determined by grantee, seriously impair the
conservation values of the property, the grantee will give the grantor
written notice of the violation and 30 days to correct it before filing
any legal action.''
Participant
Comments: Two commenters recommended adding the following phrase to
Sec. 1415.4(h)(6): `` * * * when it is determined by NRCS, in
consultation with USFWS and State fish and wildlife agencies, that
granting such right-of-way. * * *''
Response: USDA recognizes the need to engage appropriate expertise
when considering allowing infrastructure development. Each State
Technical Committee includes USFWS and State and fish wildlife
agencies. USDA will coordinate with those agencies when evaluating any
allowable activities. No changes were made to the final rule.
Program Requirements
Comments: One commenter suggested removing any restrictions to
haying, mowing, or harvesting for seed production, stating that there
should not be any restrictions on GRP land due to nesting season. The
commenter also suggested that restrictions during the nesting season
may be considered as part of a grazing management plan only if it is in
the interest of the landowner.
Response: These restrictions are required by section 1238O(d)(1)(B)
of the Food Security Act of 1985, as amended. Haying, mowing, or
harvesting for seed production were made permissible activities
provided appropriate restrictions were in place to protect birds in the
local area that are in significant decline or are conserved in
accordance with Federal or State law. No changes were made to the final
rule.
Comments: Several commenters suggested adding the words other
animals after birds in the restriction to haying, mowing, or harvesting
for seed production in Sec. 1415(h)(2).
Response: Haying, mowing, or harvesting for seed production may
impact habitat for grassland dependent bird species if done during the
nesting season in some areas. USDA agrees that other animals may also
be impacted in local areas. The State Conservationist has authority to
determine these impacts based upon species concerns at the local level.
No changes were made to the final rule.
Comments: Two commenters suggested adding ``and related
conservation values'' in Sec. 1415.4(i)(1) and Sec. 1415.4(i)(2). One
of the commenters also suggested that orchards be specifically
prohibited.
Response: USDA agrees that consistent terms should be used in both
Sec. 1415.4(i)(1) and Sec. 1415.4(i)(2) and so has added the phrase
``and related conservation values'' to both sections in the final rule.
Because orchards include fruit trees, as well as other agricultural
commodities such as nuts, USDA has revised Sec. 1415.4(i)(1) to read:
``The production of crops (other than hay), orchards, vineyards, or
other agricultural commodity that is inconsistent with maintaining
grazing land and related conservation values.''
Ranking
Comments: Three commenters requested USDA insert in Sec.
1415.8(i)(2) the words ``with advice from the State Technical
Committee'' after USDA to ensure informed decisions regarding high
ecological value and significant threats.
Response: USDA accepts the comment and has revised Sec.
1415.8(i)(2) accordingly.
Comments: Section 1415.8(i)(4) provides that expired CRP land
enrolled under the CRP priority will not exceed 10 percent of the total
number of acres accepted for enrollment in GRP in any year. Three
commenters requested
[[Page 73924]]
USDA insert national before enrollment so that the CRP 10 percent
limitation is managed at a national level. Another commenter requested
USDA limit use of the CRP priority enrollment to areas where there is
little or no remnant native prairie available.
Response: Because the CRP enrollment is managed nationally, the
suggested change was made to Sec. 1415.8(i)(4). USDA supports
decisionmaking at the lowest level reasonable and believes that States
with expiring CRP acres in areas with little or no remnant native
prairie will rank these applications appropriately.
Comments: USDA received multiple requests to give the highest
priority to native grasslands.
Response: No changes were made to the final rule. The statutory
language does not restrict GRP to native grassland systems. There are
situations in which the native habitat has been destroyed and
introduced species are utilized to protect soil resources. The
insertion of the term native would create a barrier for participation
in those situations. Additionally, the GRP management plan addresses
plant composition and is written to accomplish grazing management
objectives, including biodiversity.
Restoration Agreements
The interim final rule in Sec. 1415.11(g) provides if the
participant is receiving cost-share for the same conservation practice
or activity from another conservation program, USDA will adjust the GRP
cost-share rate proportionately so that the amount received by the
participant does not exceed 100 percent of the costs of restoration.
The participant cannot receive cost-share from more than one USDA cost-
share program for the same conservation practice or activity on the
same land.
Comments: Two commenters recommended changing another conservation
program to another Federal source. USDA and the States need the ability
to use other non-Federal funding sources and opportunities to
facilitate implementation. Both commenters also expressed that the
paragraph was confusing as written.
Response: To reduce confusion, NRCS separated Sec. 1415.11(g) into
two paragraphs, paragraphs (g) and (h), to read as follows:
``(g) If the participant is receiving cost-share for the same
conservation practice or activity from another conservation program,
USDA will adjust the GRP cost-share rate proportionately so that the
amount received by the participant does not exceed 100 percent of
the costs of restoration.
(h) The participant cannot receive cost-share from more than one
USDA cost-share program for the same conservation practice or
activity on the same land.
Regarding the cost-share limitation language, USDA believes that
the Federal cost-share assistance contribution should not enable a
participant to receive more than 100 percent of the cost of the
practice, no matter what the source. No changes were made to the final
rule.
Windmills
Comments: In response to USDA's specific request for public comment
on its policy related to windmill placement, the following comments
were received:
(a) The GRP statute does not specifically address wind turbines or
renewable energy within context of GRP. It is not authorized. Based on
soil disturbance and associated road infrastructure needed for
maintenance, as well as potential power substations, wind turbines
should not be allowed with GRP. Wind turbines are not consistent with
the GRP purpose to protect grazing uses and related conservation values
or priority to land that could provide habitat for animal or plant
populations of significant ecological value.
(b) USDA should revise the preamble to read:
* * * USDA will follow the guidelines being developed by the
USFWS on avoiding and minimizing wildlife impacts from wind
turbines. Until the guidelines are published, USDA will assess
potential wildlife impacts in coordination with USFWS and the
appropriate State fish and wildlife agency before authorizing any
wind power generation facilities (on-farm or off-farm) on GRP lands.
USDA will authorize power generation facilities only when the
footprint of the facility and related infrastructure would have a
minimal impact on the nature of the grazing lands and other
conservation values obtained through the contract or easement.
(c) One commenter was encouraged by open communication and
coordination between USDA and interested stakeholders to develop a
consistent process for determining impacts from wind and solar
generation and related infrastructure to grassland and migratory
wildlife and other natural resources. The commenter expressed support
for USDA following USFWS guidelines to minimize wildlife impacts in
landscapes where wind energy development is pursued. The commenter
asked that USDA consider site-specific scale of energy generation
facilities and impact on original intent and purpose of GRP.
(d) The siting of wind power generation facilities must be
consistent with the voluntary program's goal of protecting grassland
for which grazing is the predominant use. Clearly, wind power
generation for any end-user is consistent with a voluntary grazing
program. The final rule should acknowledge this. Requirements for an
onsite evaluation to determine potential impacts from wind generation
on threatened and endangered species or at-risk species, etc. should be
removed. In addition Sec. 1415.4(i)(3) also prohibits wind power
generation and should be removed from the final rule. It should make no
difference to USDA if the wind power is being generated for on-farm use
or for sale to electrical generators.
(e) One commenter recommended that existing or future State or
Federal regulatory siting documents be used for wind energy
developments proposed on GRP easements to minimize adverse effects on
biodiversity.
(f) Impact to wildlife and habitat from power generation facilities
are often cumulative across the landscape. The commenter recommended
analyses conducted on a case-by-case basis that includes larger,
landscape consideration as part of the NEPA review. NRCS will still
have to coordinate with USFWS and the appropriate State fish and
wildlife agency in order to allow power generation facilities that do
not adversely affect biodiversity.
(g) Multiple comments were received that NRCS should consult with
USFWS until the guidelines for windmill sitings are finalized. Some
recommended USDA revise Sec. 1415.4(h)(5) to read: ``In addition, USDA
will follow the guidelines being developed by the USFWS on avoiding and
minimizing wildlife impacts from wind turbines. USDA will authorize
wind power facilities only when the footprint of the facility and
related infrastructure would have a minimal impact on the nature of the
grazing lands and other conservation values obtained through the
contract or easement.''
(h) Four commenters agreed with the language in the interim final
rule that limits consideration for windmill placement to on-farm use
only. Another commended USDA for limiting wind power development on GRP
easements. Footprint and associated disturbance can have adverse
effects on biological diversity, a purpose of the program.
(i) One commenter expressed that there may be instances for the
marketing of excess electricity generation from smaller wind turbines
and other renewable energy structures such as hydroelectric facilities
and solar panels (designed for on-farm use) through net-metering or
parallel electricity generation. USDA should consider
[[Page 73925]]
allowing such small-scale use on GRP lands and allowing landowners to
utilize the various renewable energy sources that are available, as
long as they do not adversely impact the conservation values.
Response: USDA will consider potential renewable energy on GRP
lands when the scope and scale of the facility and associated
infrastructure is consistent with protection of grazing uses and
related conservation values. A site-specific analysis of the potential
environmental effects will be conducted in consultation with the USFWS.
USDA will not authorize any renewable energy generating facilities on
GRP lands unless USDA determines, based on a site-specific NEPA
environmental analysis conducted in coordination with USFWS and the
appropriate State fish and wildlife agency, that there will be no
adverse effect on threatened, endangered, or other at-risk species,
migratory wildlife, or related natural resources, cultural resources,
or the human environment or when the impacts of such facilities can be
mitigated to a level of non-significance. Furthermore, USDA will only
authorize power generation facilities after evaluating their site-
specific and cumulative environmental effects, whether a reasonable
alternative exists, whether there is a compelling public need, whether
the purposes for which the easement was acquired can be maintained, and
the degree to which the footprint of the facility and related
infrastructure impacts the nature of the grazing lands and other
conservation values obtained through the contract or easement. No
changes were made to the final rule.
Other
Comments: Several comments were received regarding the content of
the GRP conservation easement deed. One commenter recommended that USDA
omit the language in the deed that prohibits any activity that breaks
the surface of the soil. Another commenter suggested that USDA's
easement template deed be modified, and urged USDA to consider
submitting a draft GRP easement deed for public review and comment
before sign-up begins.
Another commenter suggested that language be added to allow for
periodic inspection upon appropriate notice to the landowner in Sec.
1415.18(b). Another commenter suggested that requiring notices to be in
writing and personally delivered or sent by certified return receipt
would be over-burdensome and that electronic e-mail correspondence
would be sufficient.
Response: With the changes made to GRP by section 2403 of the 2008
Act, the GRP deed was changed, and the prohibition against breaking the
surface of the soil was removed. Other changes include the requirement
that all GRP easements will be permanent or the maximum duration
allowed under State law. The GRP template deed ensures legal
requirements of the authorizing legislation are met and is reviewed by
USDA attorneys for legal sufficiency. USDA may also accept conservation
easements owned, written, and enforced by eligible entities through a
cooperative agreement. All GRP deeds require notification to the
landowner prior to entering the property. In Sec. 1415.18(b), if USDA
transfers title of ownership of an easement to an eligible entity, the
terms and conditions of the deed remain in force, thus USDA or the
eligible entity will be required to notify a landowner prior to
entering a property. USDA has an established deed review process. No
changes were made to the final rule.
Comments: One commenter questioned the need to require prior
approval in writing for every instance of applying animal waste to
property subject to a GRP easement.
Response: The required GRP management plan addresses application of
animal waste and can be updated with changes to the grazing management
system. A written approval is not required for each instance of
applying animal waste or fertilizer. The GRP deed supports the program
requirement of a written grazing management plan. No changes were made
to the final rule.
Comments: One commenter points out that grasslands desirable for
GRP participation are in remote areas where future public utility
access may be unavoidable. The commenter supports the prohibition of
development, but suggests that a total prohibition will invite
unnecessary conflicts between public utility interests, neighbors,
governments, and GRP participants. The commenter suggested language
that ensures that any public utility access must be done in a manner
that maintains the grassland and that other conservation values is
sufficient to preserve the objectives of the program.
Response: USDA understands the commenter's concerns and is aware
that easement deeds typically include modification provisions if the
modification serves the conservation purposes of the easement. USDA
does not currently have legal authority to change the substantive terms
of a GRP conservation easement once it has been recorded. Specifically,
modifications that would not result in acquisition or divestiture of
additional property rights cannot be made. USDA will not knowingly
enroll GRP easements in areas located along potential right-of-ways for
infrastructure projects and will include adequate buffers on existing
infrastructure to allow for inevitable expansion. Additionally, the
current deed will allow for utility easements that service the needs of
the landowner's operation.
Comments: One commenter says that controlling wildlife damage is a
critical factor in maintaining the success of American agriculture and
suggests language that recognizes the lawful ability of landowners to
remove trees, brush, and wildlife that may be jeopardizing agricultural
or livestock enterprises.
Response: USDA understands the rights of private landowners and
utilizes conservation easements on a voluntary basis. GRP assists
landowners and operators in protecting grazing uses and related
conservation values. Protection of related conservation values, such as
habitat for wildlife under GRP, may not be consistent with some
landowner's desires. Consequently, USDA encourages landowners and
operators to consider their decision to enroll in any conservation
easement program carefully. No changes were made to the final rule.
Comments: One commenter requested clarification that the
regulations require consultation with Indian Tribes when actions USDA
funds off the reservation directly impact a treaty reserved resource of
the Tribes.
Response: USDA will comply with section 106 of the National
Historic Preservation Act and all applicable Federal laws, including
treaties and executive orders. No changes were made to the final rule.
List of Subjects in 7 CFR Part 1415
Administrative practice and procedure, agriculture, soil
conservation, grassland, grassland protection, grazing land protection.
0
For reasons stated above, the CCC revises part 1415 of Title 7 of the
CFR to read as follows:
PART 1415--GRASSLANDS RESERVE PROGRAM
Sec.
1415.1 Purpose.
1415.2 Administration.
1415.3 Definitions.
1415.4 Program requirements.
1415.5 Land eligibility.
1415.6 Participant eligibility.
1415.7 Application procedures.
1415.8 Establishing priority for enrollment of properties.
[[Page 73926]]
1415.9 Enrollment of easements and rental contracts.
1415.10 Compensation for easements and rental contracts acquired by
the Secretary.
1415.11 Restoration agreements.
1415.12 Modifications to easements and rental contracts.
1415.13 Transfer of land.
1415.14 Misrepresentation and violations.
1415.15 Payments not subject to claims.
1415.16 Assignments.
1415.17 Cooperative agreements.
1415.18 Easement transfer to eligible entities.
1415.19 Appeals.
1415.20 Scheme or device.
Authority: 16 U.S.C. 3838n-3838q.
Sec. 1415.1 Purpose.
(a) The purpose of the Grassland Reserve Program (GRP) is to assist
landowners and operators in protecting grazing uses and related
conservation values by conserving and restoring grassland resources on
eligible private lands through rental contracts, easements, and
restoration agreements.
(b) GRP emphasizes:
(1) Supporting grazing operations;
(2) Maintaining and improving plant and animal biodiversity; and
(3) Protecting grasslands and shrublands from the threat of
conversion to uses other than grazing.
Sec. 1415.2 Administration.
(a) The regulations in this part set forth policies, procedures,
and requirements for program implementation of GRP, as administered by
the Natural Resources Conservation Service (NRCS) and the Farm Service
Agency (FSA). The regulations in this part are administered under the
general supervision and direction of the NRCS Chief and the FSA
Administrator. These two agency leaders:
(1) Concur in the establishment of program policy and direction,
development of the national allocation formula, and development of
broad national ranking criteria;
(2) Use a national allocation formula to provide GRP funds to NRCS
State Conservationists and FSA State Executive Directors that
emphasizes support for grazing operations, biodiversity of plants and
animals, and grasslands under the greatest threat of conversion to uses
other than grazing. The national allocation formula may also include
additional factors related to improving program implementation, as
determined by the NRCS Chief and the FSA Administrator. The allocation
formula may be modified periodically to change the emphasis of any
factor(s) in order to address a particular natural resource concern,
such as the precipitous decline of a population of a grassland-
dependent bird(s) or animal(s);
(3) Ensure the national, State, and local-level information
regarding program implementation is made available to the public;
(4) Consult with USDA leaders at the State level and other Federal
agencies with the appropriate expertise and information when evaluating
program policies and direction; and
(5) Authorize NRCS State Conservationists and FSA State Executive
Directors to determine how funds will be used and how the program will
be implemented at the State level.
(b) At the State level, the NRCS State Conservationist and the FSA
State Executive Director are jointly responsible for:
(1) Determining how funds will be used and how the program will be
implemented at the State level to achieve the program purposes;
(2) Identifying State priorities for project selection based on
input from the State Technical Committee;
(3) Identifying Department of Agriculture (USDA) employees at the
field level responsible for implementing the program by considering the
nature and extent of natural resource concerns throughout the State and
the availability of human resources to assist with activities related
to program enrollment;
(4) Developing, with advice from the State Technical Committee,
program outreach materials at the State and local levels to help ensure
landowners, operators, and tenants of eligible land are aware and
informed that they may be eligible for the program;
(5) Approving conservation practices eligible for cost-share and
cost-share rates;
(6) Developing GRP management plans and restoration agreements,
when applicable;
(7) Administering and enforcing the terms of easements and rental
contracts unless this responsibility is transferred to an eligible
entity as provided in Sec. 1415.17 and Sec. 1415.18; and
(8) Developing, with advice from the State Technical Committee,
criteria for ranking eligible land consistent with national criteria
and program objectives and State priorities.
(c) The funds, facilities, and authorities of the Commodity Credit
Corporation (CCC) are available to NRCS and FSA to implement GRP.
(d) Subject to funding availability, the program may be implemented
in any of the 50 States, the District of Columbia, the Commonwealth of
Puerto Rico, Guam, the Virgin Islands of the United States, American
Samoa, and the Commonwealth of the Northern Mariana Islands.
(e) The NRCS Chief or the FSA Administrator may modify or waive a
provision of this part if he or she deems the application of that
provision to a particular limited situation to be inappropriate and
inconsistent with the conservation purposes and sound administration of
GRP. This authority cannot be further delegated. No provision of this
part, which is required by law, may be waived.
(f) No delegation in this part to lower organizational levels will
preclude the NRCS Chief or the FSA Administrator from determining any
issue arising under this part or from reversing or modifying any
determination arising from this part.
(g) The USDA Forest Service may hold GRP easements on properties
adjacent to USDA Forest Service land, with the consent of the
landowner.
(h) Program participation is voluntary.
(i) Applications for participation will be accepted on a continual
basis at local USDA Service Centers. Eligible entities wishing to enter
into a cooperative agreement under Sec. 1415.17 in order to purchase,
own, write, and hold easements may apply on a continuous basis to the
NRCS State Conservationist. The NRCS State Conservationist and FSA
State Executive Director will establish cut-off periods to rank and
select applications for participation. These cut-off periods will be
available in program outreach material provided by the local USDA
Service Center. Once funding levels have been exhausted, unfunded
eligible applications will remain on file until they are funded or the
applicant chooses to be removed from consideration.
(j) The services of third parties as provided for in part 652 of
this title may be used to provide technical services to participants.
Sec. 1415.3 Definitions.
Activity means an action other than a conservation practice that is
included as a part of a GRP management or conservation plan that has
the effect of alleviating problems or improving treatment of the
resources, including ensuring proper management or maintenance of the
functions and values restored, protected, or enhanced through an
easement or rental contract.
Administrator means the Administrator of FSA or the person
delegated authority to act for the Administrator.
Applicant means a person, legal entity, joint operator, or Indian
Tribe who applies to participate in the program.
[[Page 73927]]
Chief means the Chief of NRCS or designee.
Biological diversity means the variety and variability among living
organisms and the ecological complexes in which they live.
Commodity Credit Corporation is a government-owned and operated
entity that was created to stabilize, support, and protect farm income
and prices. The CCC is managed by a Board of Directors, subject to the
general supervision and direction of the Secretary of Agriculture, who
is an ex-officio director and chairperson of the Board. The CCC
provides the funding for GRP, and FSA and NRCS administer GRP on its
behalf.
Common grazing practices means those grazing practices, including
those related to forage and seed production, common to the area of the
subject ranching or farming operation. Included are routine management
activities necessary to maintain the viability of forage or browse
resources that are common to the locale of the subject ranching or
farming operation.
Conservation district means any district or unit of State, Tribal,
or local government formed under State, Tribal, or territorial law for
the express purpose of developing and carrying out a local soil and
water conservation program. Such district or unit of government may be
referred to as a conservation district, soil conservation district,
soil and water conservation district, resource conservation district,
natural resource district, land conservation committee, or similar
name.
Conservation plan means a record of the GRP participants' decisions
and supporting information that will be developed to address resource
concerns in addition to grazing land uses. The conservation plan will
describe the implementation and maintenance of GRP management and
conservation practices directly related to any additional land
eligibility criteria under which the land is enrolled. Additional land
eligibility criteria may include, but is not limited to, significant
animal or plant habitat and historical or archeological resources.
Conservation practice means a specified treatment, such as a
vegetative, structural, or land management practice, that is planned
and applied according to NRCS Field Office Technical Guide (FOTG)
standards and specifications.
Conservation values means those natural resource attributes that
sustain and enhance ecosystem functions and values of the grassland
area including, but not limited to, habitat for grassland and shrubland
dependent plants and animals, native plant and animal biodiversity,
soil erosion control, forage production, and air and water quality
protection.
Cost-share payment means the payment made by USDA to a program
participant or vendor to achieve the restoration, enhancement, and
protection goals in accordance with the GRP restoration plan component
of the restoration agreement.
Dedicated account means a dedicated fund of the eligible entity
held in a separate account for the management, monitoring, and
enforcement of conservation easements and that cannot be used for other
purposes.
Easement means a conservation easement, which is an interest in
land defined and delineated in a deed whereby the landowner conveys
certain rights, title, and interests in a property to the United
States, an eligible entity, or both for the purpose of protecting the
grassland and other conservation values of the property. Under GRP, the
property rights are conveyed by a conservation easement deed.
Easement area means the land encumbered by an easement.
Easement payment means the consideration paid to a landowner for an
easement conveyed to the United States, an eligible entity, or both
under GRP.
Eligible entity means, for the purposes of entering into a
cooperative agreement under 16 U.S.C. 3838q(d), an agency of State or
local government, an Indian Tribe, or a nongovernmental organization
that has the relevant experience necessary, as appropriate for the
application, to administer an easement on grassland, land that contains
forbs, or shrubland; has a charter that describes a commitment to
conserving ranchland, agricultural land, or grassland for grazing and
conservation purposes; and has the resources necessary to effectuate
the purposes of the charter.
Enhancement means to increase or improve the viability of grassland
and grazing resources, including habitat for declining species of
grassland dependent birds and animals.
Farm Service Agency is an agency of the Department of Agriculture.
FSA State Executive Director means the FSA employee authorized to
implement GRP and direct and supervise FSA activities in a State,
Caribbean Area, or the Pacific Islands Area.
Field Office Technical Guide means the official local NRCS source
of resource information and interpretations of guidelines, criteria,
and requirements for planning and applying conservation practices and
conservation management systems. It contains detailed information on
the conservation of soil, water, air, plant, and animal resources
applicable to the local area for which it is prepared.
Fire pre-suppression means activities as outlined in a GRP
management plan such as the establishment and maintenance of firebreaks
and prescribed burning to prevent or limit the spread of fires.
Forb means any herbaceous plant other than those in the grass
family.
Functions and values of grasslands and shrublands means ecosystem
services provided, including domestic animal productivity, biological
productivity, plant and animal richness and diversity, fish and
wildlife habitat (including habitat for pollinators and native
insects), water quality and quantity benefits, aesthetics, open space,
and recreation.
Grantor means the landowner who is transferring land rights to the
United States or an eligible entity, or both through an easement.
Grassland means land on which the vegetation is dominated by
grasses, grass-like plants, shrubs, or forbs, including shrubland, land
that contains forbs, pastureland, and rangeland, and improved
pastureland and rangeland.
GRP management plan means the document developed by NRCS that
describes the implementation of the grazing management system
consistent with the prescribed grazing standard contained in the FOTG.
The GRP management plan will include a description of the grazing
management system, permissible and prohibited activities, any
associated restoration plan or conservation plan, if applicable, and a
description of USDA's right of ingress and egress.
Grazing value means the financial worth of the land as used for
grazing or forage production. The term is used in the calculation of
compensation for rental contracts and easements. For easements, this
value is determined by NRCS through an appraisal process or a market
survey process. For rental contracts, FSA determines the grazing value
based upon an administrative process.
Historical and archeological resources mean resources that are:
(1) Listed in the National Register of Historic Places (established
under the National Historic Preservation Act (NHPA), 16 U.S.C. 470, et
seq.);
(2) Formally determined eligible for listing the National Register
of Historic Places by the State Historic Preservation Officer (SHPO) or
Tribal Historic Preservation Officer (THPO) and Keeper
[[Page 73928]]
of the National Register in accordance with section 106 or the NHPA);
(3) Formally listed in the State or Tribal Register of Historic
Places of the SHPO (designated under section 101(b)(1)(B) of the NHPA)
or the Tribal Register of Historic Places (designated under section
101(d)(1)(C) of the NHPA); or
(4) Included in the SPHO or THPO inventory with written
justification as to why it meets National Register of Historic Places
criteria.
Improved rangeland or pastureland means grazing land permanently
producing naturalized forage species that receives varying degrees of
periodic cultural treatment to enhance forage quality and yields and is
primarily harvested by grazing animals.
Indian Tribe means any Indian Tribe, band, nation, or other
organized group or community, including any Alaska Native village or
regional or village corporation as defined in or established pursuant
to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.)
that is eligible for the special programs and services provided by the
United States to Indians because of their status as Indians.
Landowner means a person, legal entity, or Indian Tribe having
legal ownership of land and those who may be buying eligible land under
a purchase agreement. The term landowner may include all forms of
collective ownership including joint tenants, tenants-in-common, and
life tenants. The term landowner includes Indian Tribes. State
governments, local governments, and nongovernmental organizations that
qualify as eligible entities are not eligible as landowners.
Legal entity means an entity created under Federal or State law and
that: (1) Owns land or an agricultural commodity, product, or
livestock; or (2) produces an agricultural commodity, product, or
livestock.
Maintenance means work performed to keep the applied conservation
practice functioning for the intended purpose during its life span.
Maintenance includes work to manage and prevent deterioration, repair
damage, or replace the practice to its original condition if one or
more components fail.
Native means a species that is indigenous and is a part of the
original fauna or flora of the area.
Natural Resources Conservation Service is an agency of the
Department of Agriculture.
NRCS State Conservationist means the NRCS employee authorized to
implement GRP and direct and supervise NRCS activities in a State,
Caribbean Area, or the Pacific Islands Area.
Naturalized means an introduced, desirable forage species that is
ecologically adapted to the site and can perpetuate itself in the
community without cultural treatment. The term naturalized does not
include noxious weeds.
Nesting season means the time of year that grassland dependent
birds in significant decline in the local area build nests or otherwise
find a place of refuge for purposes of reproduction.
Nongovernmental organization means any organization that:
(1) Is organized for, and at all times since, the formation of the
organization, and has been operated principally for one or more of the
conservation purposes specified in clause (i), (ii), (iii), or (iv) of
section 170(h)(4)(A) of the Internal Revenue Code of 1986;
(2) Is an organization described in section 501(c)(3) of that Code
that is exempt from taxation under 501(a) of that Code; and
(3) Is described--
(i) In section 509(a)(1) or 509(a)(2) of that Code, or
(ii) Is described in section 509(a)(3) of that Code and is
controlled by an organization described in section 509(a)(2) of that
Code.
Participant means a person, legal entity, joint operation, or
Indian Tribe who is accepted to participate in GRP through a rental
contract or option agreement to purchase an easement.
Pastureland means grazing lands comprised of introduced or
domesticated native forage species that are used primarily for the
production of livestock. These lands receive periodic renovation and
cultural treatments, such as tillage, aeration, fertilization, mowing,
and weed control, and may be irrigated. This term does not include
lands that are in rotation with crops.
Permanent easement means an easement that lasts in perpetuity or
for the maximum duration allowed under the law of a State.
Private land means land that is not owned by a governmental entity
and includes Tribal lands.
Purchase price means the amount paid to acquire an easement under a
cooperative agreement between NRCS and an eligible entity. It is the
fair market value of the easement.
Rangeland means a land cover or use category with a climax or
potential plant cover composed principally of native grasses, grass-
like plants, forbs, or shrubs suitable for grazing and browsing, and
introduced forage species that are managed like rangeland. Rangeland
includes lands re-vegetated naturally or artificially when routine
management of that vegetation is accomplished mainly through
manipulation of grazing. This term includes areas where introduced
hardy and persistent grasses are planted and such practices as deferred
grazing, burning, chaining, and rotational grazing are used with little
or no chemicals or fertilizer being applied. Grasslands, savannas, many
wetlands, some deserts, and tundra are considered to be rangeland.
Certain communities of low forbs and shrubs, such as mesquite,
chaparral, mountain shrub, and pinyon juniper are also included as
rangeland.
Rental contract means the legal document that specifies the
obligations and rights of a participant in GRP, including the annual
rental payments to be provided to the participant for the length of the
contract to maintain or restore grassland functions and values under
GRP.
Restoration means implementing any conservation practice, system of
practices, or activities to restore functions and values of grasslands
and shrublands. The restoration may re-establish grassland functions
and values on degraded land, or on land that has been converted to
another use.
Restoration agreement means an agreement between the program
participant and NRCS or eligible entity to carry out activities and
conservation practices necessary to restore or improve the functions
and values of that land. A restoration agreement will include a
restoration plan.
Restoration plan is the portion of the restoration agreement that
includes the schedule and conservation practices and activities to
restore the functions and values of grasslands and shrublands,
including protection of associated streams, ponds, and wetlands. The
restoration plan incorporates the requirement that program participants
will maintain GRP-funded conservation practices and activities for
their expected lifespan as described in the plan.
Right of enforcement means a property interest in the easement the
Chief may exercise on behalf of the United States under specific
circumstances in order to enforce the terms of the conservation
easement. The right of enforcement provides that the Chief has the
right to inspect and enforce the easement if the eligible entity fails
to uphold the easement or attempts to transfer the easement without
first securing the consent of the Secretary.
Secretary means the Secretary of the Department of Agriculture.
[[Page 73929]]
Shrubland means land where the dominant plant species is shrubs,
which are plants that are persistent, have woody stems, and a
relatively low growth habit.
Significant decline means a decrease of a species population to
such an extent that it merits conservation priority as determined by
the State Conservationist, in consultation with the State Technical
Committee.
State Technical Committee means a committee established by the
Secretary in a State pursuant to 16 U.S.C. 3861.
Tribal land means:
(1) Land held in trust by the United States for individual Indians
or Indian Tribes; or
(2) Land, the title to which is held by individual Indians or
Indian Tribes subject to Federal restrictions against alienation or
encumbrance; or
(3) Land which is subject to rights of use, occupancy, and benefit
of certain Indian Tribes; or
(4) Land held in fee title by an Indian, Indian family, or Indian
Tribe.
USDA means the Department of Agriculture and its agencies and
offices, as applicable.
Sec. 1415.4 Program requirements.
(a) Except as provided for under Sec. 1415.17, only landowners may
submit applications for easements. For rental contracts, applicants
must own or provide written evidence of control of the property for the
duration of the rental contract.
(b) The easement or rental contract will require that the area be
maintained in accordance with GRP goals and objectives for the term of
the easement or rental contract, including the conservation,
protection, enhancement, and if necessary, restoration of the grassland
functions and values.
(c) All participants in GRP are required to implement a GRP
management plan approved by NRCS. When an eligible entity holds the GRP
easement, NRCS will develop GRP management plans with eligible
entities. In cases where a participant receives ranking points on the
basis of resource concerns other than grazing land concerns, all such
resource concerns will be addressed in an applicable conservation plan.
(d) The easement or rental contract must grant USDA or its
representatives a right of ingress and egress to the easement or rental
contract area. For easements, this access is legally described by the
conservation easement deed and the GRP management plan. Access to
rental contract areas is identified in the GRP management plan.
(e) Easement participants are required to convey unencumbered title
that is acceptable to the United States and provide consent or
subordination agreements from each holder of a security or other
interest in the land. The landowner must warrant that the easement
granted the United States or eligible entity is superior to the rights
of all others, except for exceptions to the title that are deemed
acceptable by USDA.
(f) Landowners are required to use a standard GRP conservation
easement deed developed by USDA or developed by an eligible entity and
approved by USDA under Sec. 1415.17 of this part. The easement grants
development rights, title, and interest in the easement area in order
to protect grassland and other conservation values.
(g) The program participant must comply with the terms of the
easement or rental contract, and comply with all terms and conditions
of the GRP management plan and any associated conservation plan or
restoration agreement.
(h) Easements and rental contracts allow, consistent with their
terms and the program purposes, the following activities as outlined in
the GRP management plan:
(1) Common grazing practices, including maintenance and necessary
conservation practices and activities (e.g., prescribed grazing; upland
wildlife habitat management; prescribed burning; fencing, watering, and
feeding necessary for the raising of livestock; and related forage and
seed production) on the land in a manner that is consistent with
maintaining the viability of grassland, forb, and shrub species common
to the locality;
(2) Haying, mowing, or harvesting for seed production subject to
appropriate restrictions, as determined by the State Conservationist,
during the nesting season for birds in the local area that are in
significant decline, or are conserved in accordance with Federal or
State law;
(3) Fire pre-suppression, rehabilitation, and construction of
firebreaks;
(4) Grazing related activities, such as fencing and livestock
watering facilities;
(5) Facilities for power generation through renewable sources of
energy production provided the scope and scale of the footprint of the
facility and associated infrastructure is consistent with program
purposes as determined by USDA through analysis of the potential site-
specific environmental effects; and
(6) Other activities that USDA determines the manner, number,
intensity, location, operation, and other features associated with the
activity will not adversely affect the grassland resources or related
conservation values protected under an easement or rental contract.
This includes infrastructure development along existing right-of-ways
where the easement deed allows the landowner to grant right-of-ways
when it is determined by NRCS that granting such right-of-ways are in
the public interest, that grassland resources and related conservation
values will not be adversely impacted, and the landowner agrees to a
restoration plan for the disturbed area as developed by NRCS, but at no
cost to NRCS. This also includes undeveloped, passive, recreational
uses such as hiking, camping, bird watching, hunting, and fishing as
long as such uses, as determined by the grantee, do not impair the
grazing uses and other conservation values.
(i) Easement and rental contracts prohibit the following
activities:
(1) The production of crops (other than hay), orchards, vineyards,
or other agricultural commodity that is inconsistent with maintaining
grazing land and related conservation values; and
(2) Except as permitted under a restoration plan, the conduct of
any other activity that would be inconsistent with maintaining grazing
uses and related conservation values protected under an easement or
rental contract.
(j) Rental contracts may be terminated by USDA without penalty or
refund if the original participant dies, is declared legally
incompetent, or is otherwise unavailable during the contract period.
(k) Participants, with the agreement of USDA, may convert a rental
contract to an easement, provided that funds are available and the
project meets conditions established by USDA. Land cannot be enrolled
in both a rental contract option and an easement enrollment option at
the same time. The rental contract will be terminated prior to the date
the easement is recorded in the local land records office.
(l) Rental contract participants are required to suspend any
existing cropland base and allotment history for the land under another
program administered by the Secretary.
(m) Easement participants are required to eliminate any existing
cropland base and allotment history for the land under another program
administered by the Secretary.
Sec. 1415.5 Land eligibility.
(a) GRP is available on privately owned lands, which include
private and Tribal land. Publicly owned land is not eligible.
(b) Land is eligible for funding consideration if the State
[[Page 73930]]
Conservationist determines that the land is:
(1) Grassland, land that contains forbs or shrubland (including
improved rangeland and pastureland) for which grazing is the
predominant use; or
(2) Located in an area that has been historically dominated by
grassland, forbs, or shrubland, and the State Conservationist, with
advice from the State Technical Committee, determines that it is
compatible with grazing uses and related conservation values, and
(i) Could provide habitat for animal or plant populations of
significant ecological value if the land is retained in its current use
or is restored to a natural condition,
(ii) Contains historical or archeological resources, or
(iii) Would address issues raised by State, regional, and national
conservation priorities.
(c) Incidental lands, in conjunction with eligible land, may also
be considered for enrollment to allow for the efficient administration
of an easement or rental contract. Incidental lands may include
relatively small areas that do not specifically meet the eligibility
requirements, but as a part of the land unit, may contribute to
grassland functions and values and related conservation values, or its
inclusion may increase efficiencies in land surveying, easement
management, and monitoring by reducing irregular boundaries.
(d) Land will not be enrolled if the functions and values of the
grassland are already protected under an existing contract, easement,
or deed restriction, or if the land already is in ownership by an
entity whose purpose is to protect and conserve grassland and related
conservation values. This land becomes eligible for enrollment in GRP
if the existing contract, easement, or deed restriction expires or is
terminated, and the grassland values and functions are no longer
protected.
(e) Land on which gas, oil, earth, or other mineral rights
exploration has been leased or is owned by someone other than the
applicant may be offered for participation in the program. However, if
an applicant submits an offer for an easement project, USDA will assess
the potential impact that the third party rights may have upon the
grassland resources. USDA reserves the right to deny funding for any
application where there are exceptions to clear title on the property.
Sec. 1415.6 Participant eligibility.
To be eligible to participate in GRP, an applicant, except as
otherwise described in Sec. 1415.17:
(a) Must be a landowner for easement participation or be a
landowner or have control of the eligible acreage being offered for
rental contract participation;
(b) Agree to provide such information to USDA that is necessary or
desirable to assist in its determination of eligibility for program
benefits and for other program implementation purposes;
(c) Meet the Adjusted Gross Income requirements in 7 CFR part 1400
of this title, unless exempted under part 1400 of this title;
(d) Meet the conservation compliance requirements found in part 12
of this title; and
(e) Comply with applicable registration and reporting requirements
of the Federal Funding Accountability and Transparency Act of 2006
(Pub. L. 109-282, as amended) and 3 CFR parts 25 and 170.
Sec. 1415.7 Application procedures.
(a) Applicants, except as otherwise described under Sec. 1415.17,
may submit an application through a USDA Service Center for
participation in GRP. Applications may be submitted throughout the
year.
(b) By filing an application for participation, the applicant
consents to a USDA representative entering upon the land offered for
enrollment for purposes of assessing the grassland functions and values
and for other activities that are necessary for USDA to make an offer
of enrollment. Generally, the applicant will be notified prior to a
USDA representative entering upon their property.
(c) Applicants submit applications that identify the duration of
the easement or rental contract for which they seek to enroll their
land. Rental contracts may be for the duration of 10-years, 15-years,
or 20-years; easements may be permanent in duration or for the maximum
duration authorized by State law.
Sec. 1415.8 Establishing priority for enrollment of properties.
(a) USDA, at the national level, will provide to NRCS State
Conservationists and FSA State Executive Directors, national guidelines
for establishing State-specific ranking criteria for selection of
applications for funding.
(b) NRCS State Conservationists and FSA State Executive Directors,
with advice from State Technical Committees, establish criteria to
evaluate and rank applications for easement and rental contract
enrollment, including applications from eligible entities under Sec.
1415.17, following the guidance established in paragraph (a) of this
section.
(c) Ranking criteria will emphasize support for:
(1) Grazing operations;
(2) Protection of grassland, land that contains forbs, and
shrubland at the greatest risk from the threat of conversion to uses
other than grazing;
(3) Plant and animal biodiversity; and
(4) In ranking parcels offered by eligible entities, these
additional criteria will also be considered--
(i) Leveraging of non-Federal funds, and
(ii) Entity contributions in excess of 50 percent of the purchase
price, as defined in Sec. 1415.3.
(d) When funding is available, NRCS State Conservationists and FSA
State Executive Directors will periodically select for funding the
highest ranked applications, including applications from entities under
Sec. 1415.17, based on applicant and land eligibility and the State-
developed ranking criteria.
(e) NRCS State Conservationists and FSA State Executive Directors
may establish separate ranking pools to address, for example, specific
conservation issues raised by State, regional, and national
conservation priorities.
(f) The NRCS State Conservationist and FSA State Executive
Director, with advice from the State Technical Committee, may emphasize
enrollment of unique grasslands or specific geographic areas of the
State.
(g) The NRCS State Conservationist and the FSA State Executive
Director, with advice from the State Technical Committee, will select
applications for funding.
(h) If available funds are insufficient to accept the highest
ranked application, and the applicant is not interested in reducing the
acres offered to match available funding, the State Conservationist or
State Executive Director may select a lower ranked application that can
be fully funded.
(i) Land enrolled in a Conservation Reserve Program (CRP) contract
that is within one year of the scheduled expiration date will receive a
priority for enrollment. To receive this priority, the following
criteria must be met:
(1) The land must be eligible as defined in Sec. 1415.5;
(2) USDA, with advice from the State Technical Committee, must
determine it is of high ecological value and under significant threat
of conversion to uses other than grazing;
(3) The land must be offered for easement or 20-year rental
contract enrollment;
(4) Expired CRP land enrolled under this priority will not exceed
10 percent of the total number of acres accepted for
[[Page 73931]]
national enrollment in GRP in any year; and
(5) This priority applies only up to 12 months before the scheduled
expiration of the CRP contract.
(j) USDA will manage the program nationally to ensure that, to the
extent practicable, 60 percent of funds are used for the purchase of
easements, either directly or through cooperative agreements with
eligible entities as set forth in Sec. 1415.17 and 40 percent of funds
are used for rental contracts.
Sec. 1415.9 Enrollment of easements and rental contracts.
(a) Based on the priority ranking, NRCS or FSA, as appropriate,
will notify applicants in writing of their tentative acceptance into
the program for either rental contract or conservation easement
options. The letter notifies the applicant of the intent to continue
the enrollment process unless otherwise notified by the applicant.
Enrollment under cooperative agreements is described under Sec.
1415.17.
(b) An offer of tentative acceptance into the program neither binds
USDA to acquire an easement or enter into a rental contract, nor binds
the applicant to convey an easement, enter into a rental contract, or
agree to restoration activities.
(c) Offer of enrollment will be through either:
(1) An agreement to purchase an easement presented by NRCS to the
applicant which will describe the easement, the easement terms and
conditions, and other terms and conditions that may be required by
NRCS; or
(2) A rental contract will be presented by FSA to the applicant
which will describe the contract area, the contract terms and
conditions, and other terms and conditions that may be required by FSA.
(d) For rental contracts, land will be considered to be enrolled in
GRP once an FSA representative approves the GRP rental contract. FSA
may withdraw the offer before approval of the contract due to lack of
available funds or other reasons.
(e) For easements, after the option agreement to purchase an
easement is executed by NRCS and the participant, the land will be
considered enrolled in GRP. NRCS will proceed with the development of
the GRP management plan, conservation or restoration plan if
applicable, and various easement acquisition activities, which may
include conducting a legal survey of the easement area, securing
necessary subordination agreements, procuring title insurance, and
conducting other activities necessary to record the easement or
implement GRP.
(f) Prior to closing an easement, NRCS may withdraw the land from
enrollment at any time due to lack of available funds, title concerns,
or other reasons.
Sec. 1415.10 Compensation for easements and rental contracts acquired
by the Secretary.
(a) The Chief will not pay more than the fair market value of the
land, less the grazing value of the land encumbered by the easement.
(b) To determine this amount, the Chief will pay as compensation
the lowest of:
(1) The fair market value of the land encumbered by the easement as
determined by the Chief using--
(i) The Uniform Standards of Professional Appraisal Practice, or
(ii) An area-wide market analysis or market survey;
(2) The amount corresponding to a geographical cap, as determined
by the State Conservationist, with advice from the State Technical
Committee; or
(3) An offer made by the landowner.
(c) For 10-, 15-, and 20-year rental contracts, the participant
will receive not more than 75 percent of the grazing value in an annual
payment for the length of the contract, as determined by FSA. As
provided by the regulations at part 1400 of this title, payments made
under one or more rental contracts to a person or legal entity,
directly or indirectly, may not exceed, in the aggregate, $50,000 per
year.
(d) In order to provide for better uniformity among States, the
NRCS Chief and FSA Administrator may review and adjust, as appropriate,
State or other geographically based payment rates for rental contracts.
(e) Easement or rental contract payments received by a participant
will be in addition to, and not affect, the total amount of payments
that the participant is otherwise eligible to receive under other USDA
programs.
(f) Easement payments will be made in a single payment to the
landowner unless otherwise requested by the landowner.
(g) USDA may accept and use contributions of non-Federal funds to
support the purposes of the program. These funds are available to USDA
without further appropriation and until expended, to carry out the
program.
(h) USDA recognizes that environmental benefits will be achieved by
implementing conservation practices and activities funded through GRP,
and that ecosystem credits may be gained as a result of implementing
activities compatible with the purposes of a GRP easement, rental
contract, or associated restoration agreement. USDA asserts no direct
or indirect interest in these credits except:
(1) In the event the participant sells or trades credits arising
from GRP funded activities, USDA retains the authority to ensure that
the requirements for GRP rental contracts, easements, or restoration
agreements are met and maintained consistent with this part; and
(2) If activities required under an ecosystem credit agreement may
affect land covered under a GRP rental contract, easement, or
restoration agreement, participants are required to obtain an
assessment from USDA about the compatibility of the activity prior to
entering into such agreements.
Sec. 1415.11 Restoration agreements.
(a) Restoration agreements are only authorized to be used in
conjunction with easements and rental contracts. NRCS, in consultation
with the program participant, determines if the grassland resources are
adequate to meet the participant's objectives and the purposes of the
program, or if a restoration agreement is needed. Such a determination
is also subject to the availability of funding. USDA may condition
participation in the program upon the execution of a restoration
agreement depending on the condition of the grassland resources. When
the functions and values of the grassland are determined adequate by
NRCS, a restoration agreement is not required. However, if a
restoration agreement is required, NRCS will set the terms of the
restoration agreement. The restoration plan component of the
restoration agreement identifies conservation practices and activities
necessary to restore or improve the functions and values of the
grassland to meet both USDA and the participant's objectives and
purposes of the program. If the functions and values of the grassland
decline while the land is subject to a GRP easement or rental contract
through no fault of the participant, the participant may enter into a
restoration agreement at that time to improve the functions and values
with USDA approval and when funds are available.
(b) The NRCS State Conservationist, with advice from the State
Technical Committee and in consultation with FSA, determines the
conservation practices and activities and the cost-share percentages,
not to exceed statutory limits available under GRP. A list of
conservation practices and activities approved for cost-share
assistance under GRP restoration plans is available to the public
through the
[[Page 73932]]
local USDA Service Center. NRCS may work through the local conservation
district with the program participant to determine the terms of the
restoration plan. The conservation district may assist NRCS with
determining eligible conservation practices and activities and
approving restoration agreements.
(c) Only approved conservation practices and activities are
eligible for cost-sharing. Payments under the GRP restoration
agreements may be made to the participant of not more than 50 percent
for the cost of carrying out the conservation practices or activities.
As provided by the regulations at part 1400 of this chapter, payments
made under one or more restoration agreements to a person or legal
entity, directly or indirectly, may not exceed, in the aggregate,
$50,000 per year.
(d) The participant is responsible for the operation and
maintenance of conservation practices in accordance with the
restoration agreement.
(e) All conservation practices must be implemented in accordance
with the FOTG.
(f) Technical assistance is provided by NRCS, or an NRCS approved
third party.
(g) If the participant is receiving cost-share for the same
conservation practice or activity from another conservation program,
USDA will adjust the GRP cost-share rate proportionately so that the
amount received by the participant does not exceed 100 percent of the
costs of restoration.
(h) The participant cannot receive cost-share from more than one
USDA cost-share program for the same conservation practice or activity
on the same land.
(i) Cost-share payments may be made only upon a determination by a
qualified individual approved by the NRCS State Conservationist that an
eligible restoration practice has been established in compliance with
appropriate standards and specifications.
(j) Conservation practices and activities identified in the
restoration plan may be implemented by the participant or other
designee.
(k) Cost-share payments will not be made for conservation practices
or activities implemented or initiated prior to the approval of a
rental contract or easement acquisition unless a written waiver is
granted by the NRCS State Conservationist or FSA State Executive
Director, as appropriate, prior to installation of the practice.
(l) Upon transfer of an easement with a restoration agreement to an
eligible entity as described in Sec. 1415.18, the entity will be
responsible for administration of the agreement and providing funds for
payment of any costs associated with the completion of the restoration
agreement. The eligible entity may, with participant consent, revise an
existing restoration agreement or develop a new restoration agreement.
Restoration plans must be consistent with the GRP management plan or
any associated conservation plan as described in Sec. 1415.4.
(m) Cooperating entities under Sec. 1415.17 will be responsible
for development, administration, and implementation costs of
restoration plans.
Sec. 1415.12 Modifications to easements and rental contracts.
(a) After an easement has been recorded, no substantive
modification will be made to the easement. Modifications that would not
result in acquisition or divestiture of additional property rights may
be made.
(b) State Conservationists may approve modifications for
restoration agreements and GRP management plans or conservation plans
where applicable, as long as the modifications do not affect the
provisions of the easement and meet program objectives.
(c) USDA may approve modifications to rental contracts, including
corresponding changes to conservation plans, GRP management plans, and
restoration plans to facilitate the practical administration and
management of the enrolled area so long as the modification will not
adversely affect the grassland functions and values for which the land
was enrolled.
Sec. 1415.13 Transfer of land.
(a) Any transfer of the property prior to an applicant's acceptance
into the program will void the offer of enrollment, unless at the
option of the State Conservationist or State Executive Director, as
appropriate, an offer is extended to the new landowner and the new
landowner agrees to the same easement or rental contract terms and
conditions.
(b) After acreage is accepted in the program, for easements with
multiple payments, any remaining easement payments will be made to the
original participant unless NRCS receives an assignment of proceeds.
(c) Future annual rental payments will be made to the successor
participant.
(d) The new landowner is responsible for complying with the terms
of the recorded easement, and the contract successor is responsible for
complying with the terms of the rental contract and for assuring
completion of all activities and practices required by any associated
restoration agreement. Eligible cost-share payments will be made to the
new participant upon presentation that the successor assumed the costs
of establishing the practices.
(e) With respect to any and all payments owed to participants, the
United States bears no responsibility for any full payments or partial
distributions of funds between the original participant and the
participant's successor. In the event of a dispute or claim on the
distribution of cost-share payments, USDA may withhold payments,
without the accrual of interest, pending an agreement or adjudication
on the rights to the funds.
(f) The rights granted to the United States in an easement will
apply to any of its agents or assigns. All obligations of the
participant under the GRP conservation easement deed also bind the
participant's heirs, successors, agents, assigns, lessees, and any
other person claiming under them.
(g) Rental contracts may be transferred to another landowner,
operator, or tenant that acquires an interest in the land enrolled in
GRP. The successor must be determined by FSA to be eligible to
participate in GRP and must assume full responsibility under the
contract. FSA may require a participant to refund all or a portion of
any financial assistance awarded under GRP, plus interest, if the
participant sells or loses control of the land under a GRP rental
contract, and the new landowner, operator, or tenant is not eligible to
participate in the program or declines to assume responsibility under
the contract.
Sec. 1415.14 Misrepresentation and violations.
(a) The following provisions apply to violations of rental
contracts:
(1) Rental contract violations, determinations, and appeals are
handled in accordance with the terms of the rental contract;
(2) A participant who is determined to have erroneously represented
any fact affecting a program determination made in accordance with this
part may not be entitled to rental contract payments and must refund to
CCC all payments, plus interest, in accordance with part 1403 of this
title; and
(3) In the event of a violation of a rental contract, the
participant will be given notice and an opportunity to voluntarily
correct the violation within 30 days of the date of the notice, or such
additional time as CCC may allow. Failure to correct the violation may
result in termination of the rental contract.
[[Page 73933]]
(b) The following provisions apply to violations of easement deeds:
(1) Easement violations are handled under the terms of the easement
deed;
(2) Upon notification of the participant, NRCS has the right to
enter upon the easement area at any time to monitor compliance with the
terms of the GRP conservation easement deed or remedy deficiencies or
violations;
(3) When NRCS believes there may be a violation of the terms of the
GRP conservation easement deed, NRCS may enter the property without
prior notice; and
(4) The participant will be liable for any costs incurred by the
United States as a result of the participant's negligence or failure to
comply with the easement terms and conditions.
(c) USDA may require the participant to refund all or part of any
payments received by the participant under the program contract or
agreement.
(d) In addition to any and all legal and equitable remedies
available to the United States under applicable law, USDA may withhold
any easement payment, rental payment, or cost-share payments owing to
the participant at any time there is a material breach of the easement
covenants, rental contract, or any contract. Such withheld funds may be
used to offset costs incurred by the United States in any remedial
actions or retained as damages pursuant to court order or settlement
agreement.
(e) Under a GRP conservation easement, the United States will be
entitled to recover any and all administrative and legal costs,
including attorney's fees or expenses, associated with any enforcement
or remedial action.
Sec. 1415.15 Payments not subject to claims.
Any cost-share, rental, or easement payment or portion thereof due
any person under this part will be allowed without regard to any claim
or lien in favor of any creditor, except agencies of the United States
Government.
Sec. 1415.16 Assignments.
(a) Any person entitled to any cash payment under this program may
assign the right to receive such cash payments, in whole or in part.
(b) If a participant that is entitled to a payment dies, is
declared legally incompetent, or is otherwise unable to receive the
payment, or is succeeded by another person who renders or completes the
required performance, such a participant may be eligible to receive
payment in such a manner as USDA determines is fair and reasonable in
light of all the circumstances.
Sec. 1415.17 Cooperative agreements.
(a) NRCS may enter into cooperative agreements which establish
terms and conditions under which an eligible entity will use funds
provided by NRCS to own, write, and enforce a grassland protection
easement.
(b) To be eligible to receive GRP funding, an eligible entity must
demonstrate:
(1) A commitment to long-term conservation of agricultural lands,
ranch land, or grassland for grazing and conservation purposes;
(2) A capability to acquire, manage, and enforce easements;
(3) Sufficient number of staff dedicated to monitoring and easement
stewardship;
(4) The availability of funds; and
(5) For nongovernmental organizations, the existence of a dedicated
account and funds for the purposes of easement management, monitoring,
and enforcement of each easement held by the eligible entity.
(c) NRCS enters into a cooperative agreement with those eligible
entities selected for funding. Once a proposal is selected by the State
Conservationist, the eligible entity must work with the appropriate
State Conservationist to finalize and sign the cooperative agreement,
incorporating all necessary GRP requirements. The cooperative agreement
addresses:
(1) The interests in land to be acquired, including the form of the
easement deeds to be used and terms and conditions;
(2) The management and enforcement of the interests acquired;
(3) The responsibilities of NRCS;
(4) The responsibilities of the eligible entity on lands acquired
with the assistance of GRP;
(5) The parcels accepted by the State Conservationist, landowners'
names, addresses, location map(s), and other relevant information in an
a attachment to the cooperative agreement;
(6) The allowance of parcel substitution upon mutual agreement of
the parties;
(7) The manner in which violations are addressed;
(8) The right of the Secretary to conduct periodic inspections to
verify the eligible entity's enforcement of the easements;
(9) The manner in which the eligible entity will evaluate and
report the use of funds to the Secretary;
(10) The eligible entity's agreement to assume the costs incurred
in administering and enforcing the easement, including the costs of
restoration and rehabilitation of the land as specified by the owner
and eligible entity. The entity will also assume the responsibility for
enforcing the GRP management plan or conservation plan, as applicable.
The eligible entity must incorporate any required plan into the
conservation easement deed by reference or otherwise;
(11) The source of funding. The eligible entity may include a
charitable donation or qualified conservation contribution (as defined
by section 170(h) of the Internal Revenue Code of 1986) from the
landowner as part of the entity's share of the purchase price;
(12) The schedule of payments to an eligible entity, as agreed to
by NRCS and the eligible entity;
(13) GRP funds may not be used for expenditures such as appraisals,
surveys, title insurance, legal fees, costs of easement monitoring, and
other related administrative and transaction costs incurred by the
entity;
(14) NRCS may provide a share of the purchase price of an easement
under the program. The eligible entity will be required to provide a
share of the purchase price at least equivalent to that provided by
NRCS. The Federal share will be no more than 50 percent of the purchase
price, as defined in Sec. 1415.3;
(15) The eligible entity's succession plan, which describes how its
successors or assigns will hold, manage, and enforce the interests in
land acquired in the event that the eligible entity is no longer able
to fulfill its obligations under the cooperative agreement entered into
with NRCS; and
(16) Other requirements deemed necessary by NRCS to protect the
interests of the United States.
(d) Easements funded under the cooperative agreement option will be
in perpetuity, except where State law prohibits a permanent easement,
and will require that the easement area be maintained in accordance
with GRP goals and objectives for the term of the easement.
(e) The entity may use its own terms and conditions in the
conservation easement deed, but a conservation easement deed template
used by the eligible entity will be submitted to the Chief within 30
days of the signing of the cooperative agreement. The conservation
easement deed templates will be reviewed and approved by the Chief.
NRCS reserves the right to require additional specific language or to
remove language in the conservation easement deed to protect the
interests of the United States.
(1) In order to protect the public investment, the conveyance
document must contain a right of enforcement. NRCS will specify the
terms for the right of enforcement clause to read as set
[[Page 73934]]
forth in the GRP cooperative agreement. This right is a vested property
right and cannot be condemned or terminated by State or local
government;
(2) The eligible entity will acquire, hold, manage, and enforce the
easement. The eligible entity may have the option to enter into an
agreement with governmental or private organizations to carry out
easement stewardship responsibilities if approved by NRCS;
(3) Prior to closing, NRCS must sign an acceptance of the
conservation easement, concurring with the terms of the conservation
easement and accepting its interest in the conservation easement deed;
(4) All conservation easement deeds acquired with GRP funds must be
recorded in the appropriate land records. Proof of recordation will be
provided to NRCS by the eligible entity; and
(5) The conservation easement deed must include an indemnification
clause requiring the participant (grantor) to indemnify and hold
harmless the United States from any liability arising from or related
to the property enrolled in GRP.
Sec. 1415.18 Easement transfer to eligible entities.
(a) NRCS may transfer title of ownership to an easement to an
eligible entity to hold and enforce an easement if:
(1) The Chief determines that transfer will promote protection of
grassland, land that contains forbs, or shrubland;
(2) The owner authorizes the eligible entity to hold and enforce
the easement; and
(3) The eligible entity agrees to assume the costs incurred in
administering and enforcing the easement, including the costs of
restoration or rehabilitation of the land as specified by the owner and
the eligible entity, and the entity assumes responsibility for
enforcing the GRP management plan or conservation plan, as applicable,
as approved by NRCS.
(b) NRCS has the right to conduct periodic inspections to verify
the eligible entities enforcement of the easement, which includes the
terms and requirements set forth in the GRP management plan and any
associated restoration or conservation plan for any easements
transferred pursuant to this section.
(c) An eligible entity that seeks to hold and enforce an easement
will apply to the NRCS State Conservationist for approval.
(d) The Chief may approve an application if the eligible entity:
(1) Has relevant experience necessary, as appropriate for the
application, to administer an easement on grassland, land that contains
forbs, or shrublands;
(2) Has a charter that describes the commitment of the eligible
entity to conserving ranch land, agricultural land, or grassland for
grazing and conservation purposes;
(3) Possesses the human and financial resources necessary, as
determined by the Chief, to effectuate the purposes of the charter;
(4) Has sufficient financial resources to carry out easement
administrative and enforcement activities;
(5) Presents proof of a dedicated fund for enforcement as described
in Sec. 1415.17(b)(5), if the entity is a nongovernmental
organization; and
(6) Presents documentation that the landowner has concurred in the
transfer.
(e) The Chief or his or her successors and assigns, will retain a
right of enforcement in any transferred GRP funded easement, which
provides the Secretary the right to inspect the easement for violations
and enforce the terms of this easement through any and all authorities
available under Federal or State law, in the event that the eligible
entity fails to enforce the terms of the easement, as determined by
NRCS.
(f) Should an easement be transferred pursuant to this section, all
warranties and indemnifications provided for in the deed will continue
to apply to the United States. Upon transfer of the easement, the
easement holder will be responsible for enforcement of the GRP
management plan, as approved by NRCS, and implementation of any
associated conservation or restoration plans and costs of such
restoration as agreed to by the landowner and entity.
(g) Due to the Federal interest in the GRP easement, GRP-funded
easements cannot be condemned.
Sec. 1415.19 Appeals.
(a) Applicants or participants may obtain a review of any
administrative determination concerning eligibility for participation
utilizing the administrative appeal regulations provided in parts 614
and 780 of this title.
(b) Before a person may seek judicial review of any administrative
action concerning eligibility for program participation under this
part, the person must exhaust all administrative appeal procedures set
forth in paragraph (a) of this section, and for the purposes of
judicial review, no decision will be a final agency action except a
decision of the NRCS Chief or the FSA Administrator, as applicable,
under these procedures.
(c) Any appraisals, market analysis, or supporting documentation
that may be used by NRCS in determining property value are considered
confidential information, and will only be disclosed as determined at
the sole discretion of NRCS in accordance with applicable law.
(d) Enforcement actions undertaken by NRCS in furtherance of its
Federally held property rights are under the jurisdiction of the
Federal District Courts and are not subject to review under
administrative appeal regulations.
Sec. 1415.20 Scheme or device.
(a) If it is determined by USDA that a participant has employed a
scheme or device to defeat the purposes of this part, any part of any
program payment otherwise due or paid to such participant during the
applicable period may be withheld or be required to be refunded with
interest thereon, as determined appropriate by USDA.
(b) A scheme or device includes, but is not limited to, coercion,
fraud, misrepresentation, depriving any other person of payments for
cost-share practices, rental contracts, or easements for the purpose of
obtaining a payment to which a person would otherwise not be entitled.
(c) A participant who succeeds to the responsibilities under this
part will report in writing to USDA any interest of any kind in
enrolled land that is held by a predecessor or any lender. A failure of
full disclosure will be considered a scheme or device under this
section.
Signed this 15th day of November, 2010 in Washington, DC.
Dave White,
Vice President, Commodity Credit Corporation, and Chief, Natural
Resources Conservation Service.
Jonathan W. Coppess,
Executive Vice President, Commodity Credit Corporation, and
Administrator, Farm Service Agency.
[FR Doc. 2010-29513 Filed 11-26-10; 8:45 am]
BILLING CODE 3410-16-P