Healthy Forests Reserve Program, 1954-1971 [E9-506]
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Federal Register / Vol. 74, No. 9 / Wednesday, January 14, 2009 / Proposed Rules
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BILLING CODE 6325–39–P
DEPARTMENT OF AGRICULTURE
Natural Resources Conservation
Service
7 CFR Part 625
RIN 0578–AA52
Healthy Forests Reserve Program
AGENCY: Natural Resources
Conservation Service (NRCS), United
States Department of Agriculture
(USDA).
ACTION: Proposed rule; request for
comment.
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SUMMARY: On May 17, 2006, NRCS
published an interim final rule for the
Healthy Forests Reserve Program
(HFRP) and received 11 comment
letters. NRCS proposes to amend this
rule to incorporate changes associated
with enactment of the Food,
Conservation, and Energy Act of 2008
(the 2008 Act). The 2008 Act authorizes
$9,750,000 for each of the fiscal years
2009 through 2012 to carry out the
program. As a result of the 2008 Act,
NRCS will allow land enrollment
through permanent easements, or
easements for a maximum duration
allowed under state law and continue to
allow enrollment through 10-year costshare agreements; and allow enrollment
of land owned by tribes or members of
tribes in 30-year contracts or 10-year
cost-share agreements, or any
combination of both. Forty percent of
program expenditures in any fiscal year
will be used for restoration cost-share
agreement enrollment and 60 percent of
program expenditures in any fiscal year
will be for easement enrollment.
In addition to changes associated with
the 2008 Act, NRCS is addressing
comments received on the interim final
rule and proposing additional changes
that improve program implementation
based on the experience gained from the
HRFP implementation under the interim
final rule.
DATES: Comments must be received on
or before February 13, 2009. Comments
will be made available to the public or
posted publicly in their entirety.
ADDRESSES: You may send comments
using any of the following methods:
Government-wide rulemaking Web
site: Go to https://www.regulations.gov
and follow the instructions for sending
comments electronically.
NRCS Web site: Go to https://
www.nrcs.usda.gov and follow the
instructions for sending comments
electronically.
Mail: Easements Programs Division,
Natural Resources Conservation Service,
Healthy Forests Reserve Program
Comments, P.O. 2890, Room 6819–S,
Washington, DC 20013.
Fax: 1–202–720–4265
Hand Delivery: Room 6819–S of the
USDA South Office Building, 1400
Independence Avenue, SW.,
Washington, DC 20250, between 9 a.m.
and 4 p.m., Monday through Friday,
except Federal Holidays. Please ask the
guard at the entrance to the South Office
Building to call 202–720–4527 in order
to be escorted into the building.
This proposed rule may be accessed
via Internet. Users can access the NRCS
homepage at https://
www.nrcs.usda.gov/; select Farm Bill
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link from the menu; select the Proposed
Rule link from beneath the Rules Index
title. Persons with disabilities who
require alternative means for
communication (Braille, large print,
audiotape, etc.) should contact the
USDA Target Center at (202) 720–2600
(voice and TDD).
FOR FURTHER INFORMATION CONTACT:
Robin Heard, Director, Easement
Programs Division, NRCS, P.O. Box
2890, Washington, DC 20013–2890;
Phone: (202) 720–1854; Fax: (202) 720–
4265; or e-mail: HFRP@wdc.usda.gov.
SUPPLEMENTARY INFORMATION:
Regulatory Certifications
Executive Order 12866
The Office of Management and Budget
(OMB) determined that this proposed
rule is not a significant regulatory
action, and a benefit cost assessment has
not been undertaken.
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.
Regulatory Flexibility Act
Pursuant to 5 U.S.C. 605(c) of the
Regulatory Flexibility Act, this
proposed rule will not have a significant
economic impact on a substantial
number of small entities as defined by
that Act. Therefore, a regulatory
flexibility analysis is not required for
this proposed rule. This proposed rule
would amend the HFRP, which involves
the voluntary acquisition of interests in
property by NRCS.
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Small Business Regulatory Enforcement
Fairness Act of 1996
This proposed rule is not a major rule
as defined by section 804 of the Small
Business Regulatory Enforcement
Fairness Act of 1996. This proposed 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 U.S.-based companies to compete in
domestic and export markets.
The 30-day comment period
associated with this rulemaking will
provide the public the opportunity to
comment on the changes to this
regulation. To ensure that NRCS has the
regulatory framework in place to
implement the Food, Conservation, and
Energy Act of 2008 (the 2008 Act),
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Public Law 110–246, for a fiscal year
2009 sign-up, NRCS has determined that
a 30 day comment period is necessary.
Environmental Analysis
The proposed rule for the Healthy
Forests Reserve Program amends the
current regulation to include
congressionally required statutory
changes to the program as a result of the
Food, Conservation, and Energy Act of
2008 (the 2008 Act), Public Law 110–
246. The 2008 Act changes the
enrollment options for acreage owned
by Indian tribes. In addition to using 10year cost-share agreements, Indian
Tribes may now enroll lands under a 30year contracts option. The 2008 Act also
allows the Natural Resources
Conservation Service (NRCS) to acquire
permanent easements, and establish
limitations on the use of funds for costshare agreements and easements. The
proposed rule also amends the
regulation in response to comments
received by the Agency as a result of a
public comment period in 2006; these
changes would include language to
clarify the Landowner Protections and
Safe Harbor Agreements provisions. In
addition, the proposed rule makes a
number of minor changes to clarify the
regulations for the public; such changes
include clarifying the enrollment
process, providing clear guidance on
methods of determination of
compensation, providing guidance on
the Agency’s treatment of ecosystem
service credits, and clarifying language
on Agency appeals.
After review of the previous
Environmental Assessment (EA)
prepared in April 2006, it has been
determined that the proposed changes
are minor and do not present significant
new circumstances or new information
relative to environmental issues from
those analyzed in the 2006 EA.
Accordingly, NRCS has determined and
reaffirms that the previous EA and
Finding of No Significant Impact
(FONSI) have sufficiently analyzed the
program’s potential environmental
impacts and are inclusive of the
proposed rule. Copies of the EA and
FONSI impact may be obtained from the
National Environmental Coordinator,
Natural Resources Conservation Service,
Ecological Sciences Division, 1400
Independence Ave., SW., Washington,
DC 20250; the Healthy Forests Reserve
Program Manager, Easements Programs
Division, NRCS, P.O. Box 2890, Room
6813-S, Washington, DC 20013; or
electronically on the Internet through
the NRCS homepage, at https://
www.nrcs.usda.gov/programs/HFRP/
ProgInfo/
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Paperwork Reduction Act
The forms that will be utilized to
implement this regulation have
previously been approved for use and
OMB assigned the control number
0578–0013. NRCS estimates that HFRP
results in the following changes to the
current package:
Type of Request: New Information
Collection Package/form/etc.
• Increase of 26,020 respondents
• Increase of 23,926.3 responses
• Increase Burden Hours by 27,768.12
hours
• Increase in the average time to
execute a form in the collection: 0.229
hours or 14.03 minutes.
Government Paperwork Elimination Act
NRCS is committed to compliance
with the Government Paperwork
Elimination Act and the Freedom to
E-File Act, which require government
agencies in general, and NRCS in
particular, to provide the public the
option of submitting information or
transacting business electronically to
the maximum extent possible.
Civil Rights Impact Analysis
USDA has determined through a Civil
Rights Impact Analysis that the issuance
of this rule would disclose no
disproportionately adverse impacts for
minorities, women, or persons with
disabilities. Copies of the Civil Rights
Impact Analysis are available, and may
be obtained from the Director, Easement
Programs Division, Natural Resources
Conservation Service, P.O. Box 2890,
Washington, DC 20013–2890, or
electronically at https://
www.nrcs.usda.gov/programs/HFRP.
Civil Justice Reform
This proposed 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 614 and 11 must
be exhausted.
Executive Order 13132, Federalism
This proposed rule has been reviewed
in accordance with the requirements of
Executive Order 13132, Federalism.
NRCS has determined that this
proposed 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
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the States, or on the distribution of
power and responsibilities on the
various levels of government. Therefore,
NRCS concludes that this proposed rule
does not have Federalism implications.
Moreover, § 625.5 of this proposed rule
shows sensitivity to Federalism
concerns by providing an option for the
responsible official (State
Conservationist) to obtain input from
other agencies in proposal development.
Unfunded Mandates Reform Act of 1995
Pursuant to Title II of the Unfunded
Mandates Reform Act of 1995 (2 U.S.C.
1531–1538), NRCS assessed the effects
of this proposed rule on State, local, and
Tribal governments, and the public.
This proposed rule does not compel the
expenditure of $100 million or more by
any State, local, Tribal governments, or
anyone in the private sector; therefore,
a statement under section 202 of the
Unfunded Mandates Reform Act is not
required.
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Executive Order 13175, Consultation
and Coordination With Indian Tribal
Governments
NRCS has assessed the impact of this
proposed rule on Indian tribes and
concluded that this proposed rule will
not have a substantial direct effect on
one or more Indian tribes. Given the
legal complexity of acquiring easements
on acreage owned by Indian Tribes, the
2008 Act added an enrollment option,
in addition to the 10-year cost-share
agreement option, of offering 30-year
contracts. This change encourages
Indian Tribal participation in the
program. The proposed rule at § 625.12,
will outline the procedures for enrolling
land in the program through the 30-year
contract option. The rule will neither
impose compliance costs on Tribal
governments, nor preempt Tribal law.
Discussion of Program
America’s forests provide a wide
range of environmental, economic, and
social benefits including timber,
wilderness, minerals, recreation
opportunities, and fish and wildlife
habitat. In addition, a healthy forest
ecosystem provides habitat for
endangered and threatened species,
sustains biodiversity, protects
watersheds, sequesters carbon, and
helps purify the air. However, some
forest ecosystems have had their
ecological functions diminished by a
number of factors, including
fragmentation, reduction in periodic
fires, lack of proper management, or
invasive species. Habitat loss has been
severe enough in some circumstances to
cause dramatic population declines
such as in the case of the ivory-billed
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woodpecker. As a result of the pressures
on forest ecosystems, many forests need
active management and protection from
development in order to sustain
biodiversity and restore habitat for
species that have suffered significant
population declines. Active
management and protection of forest
ecosystems can also increase carbon
sequestration and improve air quality.
Many forest ecosystems are located on
private lands and provide habitat for
species that have been listed as
endangered or threatened under Section
4 of the Endangered Species Act (ESA),
16 U.S.C. 1533, (listed species).
Congress enacted the Healthy Forests
Reserve Program (HFRP), Title V of the
Healthy Forest Restoration Act of 2003
(Pub. L. 108–148, 16 U.S.C. 6571–6578,
to provide financial assistance to private
landowners to undertake projects that
restore and enhance forest ecosystems to
help promote the recovery of threatened
and endangered species, improve
biodiversity, and enhance carbon
sequestration.
The Secretary of Agriculture has
delegated authority to implement HFRP
to the NRCS Chief (Chief). In addition,
technical support associated with forest
management practices may also be
provided by the U.S. Forest Service.
Section 501 of Title V of the Healthy
Forests Restoration Act of 2003 (Pub. L.
108–148) provides that the program will
be carried out in coordination with the
Secretary of the Interior and the
Secretary of Commerce. NRCS works
closely with the FWS and the NMFS to
further the species recovery objectives
of the HFRP and to help make available
to HFRP participants safe harbor or
similar assurances and protection under
ESA section 7(b)(4) or Section 10(a)(1),
16 U.S.C. 1536(b)(4), 1539(a)(1).
Proposed Changes to the Regulations
Based on the Prior Comment Period
NRCS published an interim final rule
that established the regulations
captioned ‘‘Healthy Forests Reserve
Program’’ in the Federal Register on
May 17, 2006 (71 FR 28547). The
Agency provided a 90-day comment
period that ended on August 15, 2006.
NRCS received comments from 11
commenters who raised a number of
issues. This section discusses all of the
relevant comments except for those that
expressed agreement with provisions of
the interim final rule. Based on the
reasons set forth in the interim final rule
and this document, NRCS proposes the
changes discussed below.
Purpose and Eligibility
The statutory provisions at 16 U.S.C.
6571 state that the purpose of HFRP is
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to restore and enhance forest ecosystems
in order to: (1) Promote the recovery of
threatened and endangered species, (2)
improve biodiversity, and (3) enhance
carbon sequestration. Under 16 U.S.C.
6572(b), to be eligible for enrollment,
land must be:
(1) Private land the enrollment of
which will restore, enhance, or
otherwise measurably increase the
likelihood of recovery of a species listed
as endangered or threatened under 16
U.S.C. 1533 and
(2) private land the enrollment of
which will restore, enhance, or
otherwise measurably improve the wellbeing of species that—
(a) are not listed as endangered or
threatened under 16 U.S.C. 1533; but
(b) are candidates for such listing,
State-listed species, or special concern
species.
The authorizing statute further
provides at 16 U.S.C. 6572(c) that the
Secretary of Agriculture shall give
additional consideration to enrollment
of eligible land that will improve
biological diversity and increase carbon
sequestration.
One Federal agency commenter
questioned whether land had to meet
both criteria in order to be eligible.
While the language of 16 U.S.C. 6572(b)
uses ‘‘and’’ between both criteria, it has
been determined that both categories of
land are individually eligible. The
interpretation that eligible land must
meet both criteria is overly restrictive
and is likely to occur rarely. The NRCS
interpretation is intended to avoid
negatively impacting its ability to
achieve the program purposes. This is
clarified in 7 CFR 625.4.
One commenter asserted that
eligibility for the HFRP should be
limited to non-industrial private forest
lands. No changes were made to the
regulations based on this comment
because the Agency does not see any
basis in the statute for limiting
enrollment to non-industrial private
forest lands. As noted above, 16 U.S.C.
6572 provides that any private land
(including industrial private forest land)
that meets the specified conditions is
eligible.
Commenters asserted that HFRP
places too much emphasis on protecting
endangered species and too little
emphasis on protecting the forest
ecosystem. To help change the
emphasis, commenters asserted that
professional foresters should be heavily
involved in ranking proposed sites for
the HFRP. No changes were made to the
regulations based on this comment. The
emphasis on endangered species reflects
the purpose of the program detailed in
the statute: to promote the recovery of
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threatened and endangered species, to
improve biodiversity, and to enhance
carbon sequestration. See 16 U.S.C.
6571 and 6572.
Two commenters questioned why
clear-cutting was singled out as
incompatible with HFRP and asserted
that HFRP should allow for clear-cutting
when it would enhance the long-term
forest and wildlife health. No changes
were made to the regulations based on
these comments. It appears that the
commenters referred to an example
concerning clear-cutting in the preamble
of the interim final rule, which
indicated that clear-cutting may not be
a compatible use for enrollment under
the HFRP if the purpose was to achieve
economic gain at the expense of the
forest ecosystem or essential fish and
wildlife habitat (71 FR 28551). The
discussion was just an example and was
not intended to cover all circumstances.
Clear-cutting may be allowed under
HFRP if such activity were designed to
help accomplish the purposes of the
program.
A number of commenters made
reference to non-forest lands as part of
a forest ecosystem. No changes were
made to the regulations because nonforest land is eligible to be included if
it is part of an eligible forest ecosystem.
Two commenters asserted that ‘‘forest
ecosystems’’ eligible for HFRP should
not be limited to lands with trees on
them, but should include rangelands
and other lands that are integral parts of
a forest ecosystem and vital to the
habitat of species or the enhancement of
biodiversity and carbon sequestration.
No changes were made to the
regulations based on these comments.
‘‘Rangelands and other lands’’ described
by the commenter are not prohibited
from inclusion in HFRP. The statutory
provisions at 16 U.S.C. 6572, state that
to be eligible for enrollment, land must
be:
(1) Private land the enrollment of
which will restore, enhance, or
otherwise measurably increase the
likelihood of recovery of a species listed
as endangered or threatened under 16
U.S.C. 1533 and
(2) private land the enrollment of
which will restore, enhance, or
otherwise measurably improve the wellbeing of species that—
(a) Are not listed as endangered or
threatened under 16 U.S.C. 1533; but
(b) are candidates for such listing,
State-listed species, or special concern
species.
With respect to the statutory
eligibility for enrollment of private land
which would restore, enhance, or
otherwise measurably improve the wellbeing of State-listed species, one
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commenter asserted that for States that
do not have State lists, enrollment
eligibility should include lands that
provide habitat for G1–G2 species
recognized by NatureServe and requests
made by applicants. No changes were
made to the regulations based on this
comment. As noted above, the statutory
provisions allow for eligibility for
enrollment of private land the
enrollment of which would restore,
enhance, or otherwise measurably
improve the well-being of ‘‘special
concern species.’’ This provides a basis
for enrolling lands in those States that
do not have State lists.
One commenter asserted that the
interim final rule should be changed by
adding a definition of ‘‘forestland.’’ This
comment appears to have been made to
help clarify land eligibility. No changes
were made to the regulations based on
this comment. As noted above, private
land that meets the eligibility criteria
specified above is eligible for HFRP; the
statute does not include a term
‘‘forestland’’.
One commenter asserted that
rangelands and other lands that are
integral parts of a forest ecosystem and
vital to the habitat of species or the
enhancement of biodiversity and carbon
sequestration, should be eligible for
inclusion in the HFRP to the extent that
areas covered by trees might be eligible.
One commenter asserted that riparian
corridors that would protect aquatic
species, such as salmon, should be
eligible land for HFRP. NRCS did not
make any changes to the regulations
based on these comments. HFRP does
not limit eligible lands to a particular
type of private lands. Except as
described in § 625.4(d), any type of
private land may be eligible for
inclusion in HFRP.
One commenter asserted that NRCS
should remove the requirement that
eligible property must have access from
a public road. No changes were made to
the regulations based on this comment.
Although the 2006 interim final rule
preamble indicated that there must be
access to the property from a public
road (71 FR 28551 and 28553), the
interim final rule text at § 625.11(b)(1)
provides merely that the easement shall
grant the United States a right of access
to the easement area. The Agency
affirms the regulatory language that
direct access from a public road is not
required, if access to the easement area
is conveyed to the United States through
an acceptable right-of-way easement.
Priority for Enrollment
The statutory provisions at 16 U.S.C.
6572 set forth priority criteria for
enrollment in HFRP. Subsection (f)
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provides the following regarding
enrollment priority:
(1) Species—The Secretary of
Agriculture shall give priority to the
enrollment of land that provides the
greatest conservation benefit to—
(a) Primarily, species listed as
endangered or threatened under 16
U.S.C. 1533; and
(b) Secondarily, species that—
(i) Are not listed as endangered or
threatened under 16 U.S.C. 1533; but
(ii) Are candidates for such listing,
State-listed species, or special concern
species.
(2) Cost-effectiveness—The Secretary
of Agriculture shall also consider the
cost-effectiveness of each agreement or
easement, and associated restoration
plans, so as to maximize the
environmental benefits per dollar
expended.
One commenter asserted that the
HFRP should place emphasis on
pollinator-related enhancements.
Another commenter suggested that the
HFRP should change the emphasis for
enrollment under the HFRP from
‘‘promoting’’ the recovery of listed
species, ‘‘improving’’ biodiversity, and
‘‘enhancing’’ carbon sequestration to
‘‘does not detract from’’ the recovery of
listed species, ‘‘does not detract from
biodiversity,’’ and ‘‘does not detract
from’’ carbon sequestration. No changes
were made to the regulations based on
these comments. The Agency does not
have statutory authority to change the
emphasis of the HFRP as requested by
commenters. However, issues regarding
the forest ecosystem and pollinatorrelated enhancements would be
considered for purposes of eligibility as
set forth above.
One commenter recommended
inclusion of the hardwoods of the
Mississippi River and its tributaries and
the mesic hardwoods forests of the
Appalachian region (including the
Cumberland plateau) as a regional forest
ecosystem to be included as HFRP focus
areas. No changes were made to the
regulations based on this comment.
Under the provisions of 16 U.S.C.
6572(f), any eligible lands, including
those described by the commenter, may
be considered if they meet the
requirements for enrollment priority.
One commenter asserted that eligible
non-profit conservation organizations
should receive higher priority in
application selection. No changes were
made to the regulations based on this
comment. As noted above, 16 U.S.C.
6572(f) sets forth the criteria for
enrollment priority, and no statutory
authority exists to give priority to nonprofit conservation organizations
eligible for participation in HFRP.
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One commenter suggested that
affected State Conservationists develop
a uniform set of ranking criteria for a
particular regional enrollment. No
changes were made to the regulations
based on this comment because the
statute does not give NRCS the
discretion to use priorities other than
those set forth in 16 U.S.C. 6572. The
required ranking considerations are
found in the interim final rule at
§ 625.6. As a matter of policy, the NRCS
State Conservationists will ensure that
local conditions are considered in
applying the ranking criteria.
Term of Enrollment
Statutory provisions at 16 U.S.C.
6572(e)(1) provide that land may be
enrolled in the HFRP in accordance
with:
• A 10-year cost-share agreement,
• A 30-year easement, or
• A permanent easement; or an
easement for the maximum duration
allowed under State law.
Under the provisions of 16 U.S.C.
6572(e)(3), the statute allows acreage
owned by Indian Tribes to be enrolled
into the program through the use of 30year contracts or 10-year cost-share
agreements or a combination of the two.
Two commenters asserted that NRCS
should not adopt informal quotas for the
three enrollment types. The original
HFRP statutory language required that
‘‘the extent to which each enrollment
method is used shall be based on the
approximate proportion of owner
interest expressed in that method in
comparison to the other methods.’’ No
changes were made to the regulations
based on these comments. However, the
2008 Act included language specifying
that 40 percent of program expenditures
in any FY be for restoration cost-share
agreement enrollment and 60 percent of
program expenditures in any FY be for
easement enrollment. The 2008 Act
allows re-allocation if funds are not
obligated by April 1st of the FY in
which the funds were made available.
One commenter asserted that HFRP
should allow a continuous enrollment
process. Although NRCS recognizes that
continuous enrollment may be more
convenient for some landowners, no
changes were made to the regulation
based on this comment. Given the
limited funding for HFRP, continuous
enrollment would increase the
administrative costs of implementing
the program without providing
additional beneficial effects.
Restoration Plans
The interim final rule provided that as
a condition of HFRP participation, a
landowner must agree to the
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implementation of a HFRP restoration
plan. The purpose of the restoration
plan is to restore, protect, enhance,
maintain, and manage the habitat
conditions necessary to increase the
likelihood of recovery of listed species
under the ESA, or measurably improve
the well-being of species that are not
listed but are candidates for such listing,
State-listed species, or species identified
by the Chief for special consideration
for funding.
One commenter asserted that the
HFRP should allow existing plans
prepared for other forestry and
conservation programs to be used to
satisfy the requirement for a HFRP
restoration plan. No changes were made
to the regulations based on this
comment because no other plans
prepared for other forestry and
conservation programs meet the criteria
for participation in the HFRP. Further,
16 U.S.C. 6573 requires that the HFRP
restoration plan be developed ‘‘jointly,
by the landowner and the Secretary of
Agriculture, in coordination with the
Secretary of the Interior.’’
One commenter asserted that the
HFRP should compensate applicants for
the use of consulting services for
preparing applications. No changes
were made to the regulations based on
this comment. Under the provisions of
16 U.S.C. 6575, NRCS is responsible for
providing, including obtaining from
third parties, any needed assistance in
preparing the HFRP restoration plan.
With respect to reviewing and
approving restoration plans, three
commenters suggested that NRCS use
the word ‘‘confer’’ instead of ‘‘consult
with’’ based on the assertion that
‘‘consult with’’ could be misinterpreted
to have a more formal meaning than
intended. The interim final rule defined
‘‘consultation’’ or ‘‘consult with’’ to
mean ‘‘to talk things over for the
purpose of providing information; to
offer an opinion for consideration; and/
or to meet for discussion or to confer,
while reserving final decision-making
authority with NRCS.’’ Accordingly,
‘‘consultation’’ or ‘‘consult with’’ does
not refer to a formal process. To avoid
confusion, the Agency has eliminated
the terms ‘‘consultation’’ and ‘‘consult
with’’ and, instead, without a change in
meaning, is using the term ‘‘confer’’ as
suggested by the commenters.
Cost-Share Payments
Two commenters asserted that NRCS
should use actual costs, including
maximum caps, rather than average
costs for determining cost-share
assistance reimbursement rates as
allowed under 16 U.S.C. 6574. They
assert that the average may be far lower
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than the actual costs and thereby make
full program implementation less likely
in those places if landowners are not
repaid for their full expenses. No
changes were made to the regulation
based on these comments. Calculating
actual costs would require extensive
reviews of each applicant’s situation,
including review of every relevant
receipt. This would significantly
increase the administrative workload
and reduce the financial assistance
available to HFRP participants. Average
costs as determined on a regional basis
will be used to ensure that the average
costs are close to actual costs in that
area.
Easements
One commenter asserted that the
HFRP should provide for permanent
easements. NRCS did not make any
changes to the regulations based on this
comment. The statute sets forth the
methods through which land can be
enrolled into the program. The 2008 Act
amended the statutory language to allow
for the enrollment of permanent
easements. This change is discussed
along with other statutory changes in a
separate section which follows.
The Agency proposed to use a
standard conservation easement deed,
termed a negative restricted deed. The
Agency specifically requested
comments on whether the standard
conservation easement deed or the
reserved interest deed should be used in
HFRP (71 FR 28551). The standard
conservation easement deed, termed a
negative restricted easement deed,
represents an interest in land where the
holder of the easement has the right to
require the owner of the encumbered
land (i.e., the easement area) to take, or
not take, specific actions with respect to
that land. On the other hand, the
reserved interest deed acquires all rights
in the property not specifically reserved
to the landowner. In response, NRCS
received two comments, asserting that
the HFRP should use the standard
conservation easement deed for HFRP.
No changes were made to the
regulations based on these comments
because the Agency has been using the
standard conservation easement deed in
HFRP and will continue to do so.
Standard conservation easement deeds
work best on working lands in programs
such as HFRP where the landowner will
continue to conduct various activities
on the easement area and few activities
need to be prohibited in order to meet
program purposes.
Cooperation and Technical Assistance
Under the provisions of 16 U.S.C.
6572, NRCS is to carry out the HFRP in
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coordination with the FWS and the
NMFS. The provisions of § 625.13(c),
which concern the HFRP restoration
plan development, state that NRCS, in
coordination with FWS, will determine
the conservation practices and measures
for the restoration plan.
One commenter asserted that the
reference to coordination with FWS
should also include cooperation with
NMFS. The language of 16 U.S.C. 6573
says that NRCS, the landowner, and
FWS will develop the HFRP restoration
plan. However, given that 16 U.S.C.
6572 states that NRCS is to carry out
HFRP in coordination with FWS and
NMFS, NRCS is changing the regulation
text to refer to coordination with both
FWS and NMFS as appropriate, in light
of the species or habitat involved, in
developing the HFRP conservation plan.
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Landowner Protections and Safe Harbor
Agreements
The 2006 interim final rule (71 FR
28557), included a definition of
Landowner Protections as part of § 625.2
and the preamble described those
protections and how program
participants obtain them (71 FR 28548–
28550). Landowner Protections were
defined in the interim final rule as
‘‘protections and assurances made
available to HFRP participants whose
voluntary conservation activities result
in a net conservation benefit for listed,
candidate, or other species. Landowner
Protections made available by the
Secretary of Agriculture to HFRP
participants may be provided under
section 7(b)(4) or section 10(a)(1) of the
Endangered Species Act of 1973 (ESA;
16 U.S.C. 1536(b)(4), 1539(a)(1)). These
Landowner Protections may be provided
by NRCS in conjunction with meeting
its responsibilities under section 7 of
the ESA, or by FWS or NFMS through
section 10 of the ESA. These Landowner
Protections include a permit providing
coverage for incidental take of species
listed under the ESA. Landowner
Protections also include assurances
related to potential modifications of
HFRP restoration plans and assurances
related to the potential (unlikely)
termination of Landowner Protections
and any 10-year cost share agreement.’’
Commenters asserted that NRCS
should establish specific provisions in
agreements or in the regulations
regarding how NRCS will cooperate
with FWS and NMFS concerning the
preparation of restoration plans and
other activities under the HFRP. NRCS
should include how it will cooperate
with FWS and NMFS to make
Landowner Protections available to
participating landowners.
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Under the statutory provisions at 16
U.S.C. 6573, NRCS is responsible for
preparing restoration plans. NRCS
develops the restoration plans jointly
with the program participant in
coordination with the FWS or NMFS, as
appropriate. Further, NRCS will work
with FWS and NMFS to establish
memorandums of understanding to
enhance the coordination process. In
response to the commenters’ request for
more procedural details, NRCS clarified
the definition of Landowner Protections
in § 625.2 and added a new section in
the regulations at § 625.13(d) to indicate
how NRCS will help program
participants obtain Landowner
Protections.
NRCS has also added a definition for
Candidate Conservation Agreement with
Assurances (CCAA) and clarified the
definitions of Landowner Protections
and Safe Harbor Agreement (SHA) in
§ 625.2 of this rule to more fully
describe the two types of Landowner
Protections. These Landowner
Protections are conditioned on to the
HFRP restoration plan and associated
cost-share agreement or easement being
properly implemented. There is no
requirement that HFRP participants
obtain any Landowner Protections.
Generally, the three elements of
Landowner Protections are: (1)
Authorization for the take of endangered
or threatened species when conducting
management activities under a HFRP
restoration plan and when returning to
the baseline conditions at the end of the
cost-share agreement or easement period
(whichever is longer), (2) assurance that
the landowner will not be required to
undertake additional or different
management activities without the
consent of the landowner, and (3)
limitations on the possibility of
termination of a HFRP restoration plan
that is being properly implemented by
the landowner.
The definition of Landowner
Protections in the interim final rule (and
text in the preamble), included a
description of two approaches that the
Secretary of Agriculture may use to
make Landowner Protections available
to HFRP participants. Based on the
suggestions from commenters and to
help ensure clarity, NRCS clarified the
description in the definition in section
§ 625.2 and added § 625.13(d) to specify
the two ways that NRCS can make
Landowner Protections available to
HFRP participants upon request. The
first approach involves NRCS and the
HFRP participant, and does not require
direct involvement by FWS or NMFS
with the participant. Under this
approach, NRCS will extend to
participants the incidental take
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authorization received by NRCS from
FWS or NMFS through biological
opinions issued as part of the
interagency consultation process under
section 7(a)(2) of the ESA.
Under the second approach for
Landowner Protections, NRCS will
provide technical assistance to help
participants design and use their HFRP
restoration plan for the dual purposes of
qualifying for HFRP financial assistance
and as a basis for entering into a SHA
or CCAA with FWS or NMFS under
section 10(a)(1)A of the ESA. SHAs are
voluntary arrangements between either
the FWS or NMFS and cooperating
participants who agree to adopt
practices and measures, or refrain from
certain activities, in order to achieve net
conservation benefits, i.e., a
contribution to the recovery of listed
species. A CCAA is a voluntary
agreement between FWS or NMFS and
cooperating landowners, who
voluntarily agree to manage their lands
or waters to remove threats to species at
risk of becoming threatened or
endangered, receive assurances that
their conservation efforts will not result
in future regulatory obligations in
excess of those they agree to at the time
they enter into the Agreement. CCAAs
are intended to help conserve proposed
and candidate species, and species
likely to become candidates, by giving
private, non-Federal landowners
incentives to implement conservation
measures for declining species. The
primary incentive for a CCAA is an
assurance that no further additional
land, water, or resource use restrictions
would be imposed should the species
later become listed under the ESA.
There is no requirement that HFRP
participants enter into a SHA or a
CCAA. All SHAs are subject to the SHA
policy jointly adopted by FWS and
NMFS (Announcement of Final Policy,
64 FR 32717, June 17, 1999), and SHAs
with the FWS also are subject to
regulations at 50 CFR Part 17, and
specifically 50 CFR 17.22(c) for
endangered species or 17.32(c) for
threatened species. All CCAAs are
subject to the CCAA policy jointly
adopted by FWS and NMFS
(Announcement of Final Policy, 64 FR
32726, June 17, 1999), and CCAAs with
the FWS are also subject to regulations
at 50 CFR Part 17, and specifically 50
CFR 17.22(d) for endangered species or
17.32(d) for threatened species.
The provisions of 16 U.S.C. 6575
require that the Secretary of Agriculture
offer landowners with technical
assistance to assist the landowners ‘‘in
complying’’ with the terms of
restoration plans (as included in
agreements or easements) under the
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HFRP. One commenter requested that
NRCS indicate how this will be carried
out. No changes were made to the
regulation based on this comment
because NRCS works with the
landowner when developing the
restoration plan. As part of the planning
process, NRCS ensures that the
landowner understands the plan
requirements. The existing regulations
at § 625.16 provide guidance as to how
NRCS would work with those found to
have deficiencies or committed
violations.
notice and comment, NRCS is not
required by law to provide public notice
and an opportunity to comment on
easements under HFRP. The last two
comments are related to potential
conflicts between the placement of an
easement and the placement of utilities.
NRCS policy requires that State
Conservationists take into account
utilities that are being planned for
installation when making project
funding decisions and seek to avoid
conflicts with infrastructure projects
when feasible.
Electric Transmission Facilities
One commenter asserted that the
HFRP should not be implemented in a
way that would be contrary to the use
of electric transmission facilities. The
commenter stated:
• NRCS should consider electronic
transmission facilities to be compatible
with HFRP and allow such facilities to
be located on lands covered by NRCS
easements without the need to modify
each individual easement.
• NRCS should provide public notice
of and the opportunity for comments on
all pending NRCS projects, including
easements in the HFRP.
• NRCS should have an up-to-date
system at the regional level for obtaining
information about existing and planned
easements rather than an annual system
so that utilities could easily identify
where the easements may be located.
• After a utility has filed a formal
application for construction of facilities,
NRCS should stay any further action on
proposed easements within the
identified utility routes until final
action is taken on the application by
State and Federal agencies.
No changes were made to the
regulations based on these comments.
The Agency understands the importance
of electric transmission facilities that
provide electricity to homes and
businesses across America. However,
NRCS is purchasing conservation
easements for the protection of certain
conservation values: promoting the
recovery of threatened and endangered
species, improving biodiversity, and
enhancing carbon sequestration. The
protection of those conservation values
will dictate the terms of any
conservation easement deed. Most
conservation easement deeds limit the
development of structures and utilities.
Whether an electric transmission facility
would be allowed on an easement
property is determined on a case-bycase basis and depends on whether the
electronic transmission facilities would
be compatible with the purposes of
HFRP and the easement at issue.
Regarding the comment about public
Termination of Landowner Protection
The preamble of the 2006 interim
final rule states that ‘‘In easement
circumstances, where a change of
conditions requires the FWS and the
NMFS to terminate a Landowner
Protection, NRCS will work to address
the changed conditions in the HFRP
restoration plan in coordination with
the landowner’’ (71 FR 28549). One
commenter questioned whether this
referred to landowner non-compliance
or changed environmental or ecological
conditions. NRCS will work to address
the changed conditions in coordination
with the landowner regardless of the
cause of the change. As provided for in
this proposed rule in the clarified
definition of Landowner Protections in
§ 625.2 and the associated provision at
§ 625.13(d), provided that the contract
holder has acted in good faith and
without the intent to violate the terms
of the HFRP restoration plan, all
appropriate options will be pursued
with the participant to avoid
termination in the case of landowner
non-compliance or changed conditions.
If the participant has entered into a SHA
or CCAA with FWS or NMFS (the
Services) based on a HFRP restoration
plan, NRCS will work with the
participant and the Services to seek
appropriate means of avoiding
revocation of a permit issued under
section 10(a)(1) of the ESA by FWS or
NMFS to implement the SHA or CCAA.
However, in the event of a termination,
any requested assurances from NRCS
will be voided and the landowner will
be responsible to FWS or NMFS for any
violations of the ESA, as clarified in this
proposed rule at § 625.13(d). The SHA
policy regarding revocation of a permit
issued in association with a SHA is:
‘‘The Services are prepared as a last
resort to revoke a permit implementing
a Safe Harbor Agreement where
continuation of the permitted activity
would be likely to result in jeopardy to
a species covered by the permit. Prior to
taking such a step, however, the
Services would first have to exercise all
possible means to remedy such a
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situation.’’ (Fish and Wildlife Service
and National Fisheries Marine Service,
Safe Harbor Agreements and Candidate
Conservation Agreements with
Assurances, Final Rule and Notices, 64
FR 32724). Regulations pertaining to
SHA permits issued by FWS have a
similar provision (50 CFR 17.22(c)(7)
and 17.32(c)(7)) for endangered and
threatened wildlife.
Proposed Changes Resulting From
Passage of the Food, Conservation, and
Energy Act of 2008
NRCS proposes to amend the current
regulation to include statutory changes
included in Section 8205 of the 2008
Act (Pub. L. 110–246) as follows:
• Section 8205 amended the methods
of enrollment by replacing the 99-year
enrollment method with enrollment of
permanent easements or the maximum
duration allowed by state law. NRCS
proposes to amend § 625.8(b),
§ 625.10(e)(1) and § 625.11(a) by
removing reference to 99 year easements
and inserting in its place the words
‘‘permanent easement’’.
• Section 8205 also expanded the
enrollment methods to include the use
of 30-year contracts or 10-year cost
share agreements, or any combination of
both, for acreage owned by Indian
tribes. The statement of managers
(Conference Report H.R. 110–627 for HR
2419, pages 202 and 203, May 13, 2008)
provided additional clarification of
Congressional intent by stating that ‘‘the
Managers intend that Tribal land
enrolled in the program should be land
held in private ownership by a tribe or
an individual Tribal member. Tribal
lands held in trust or reserved by the
U.S. government or restricted fee lands
should not be enrolled in the program
regardless of ownership.’’ NRCS
proposes to add the definition of
‘‘acreage owned by Indian Tribes’’ in
§ 625.3 to read as follows: ‘‘acreage
owned by Indian Tribes means private
lands to which the title is held by
individual Indians and Indian tribes,
including Alaska Native Corporations.
This term does not include land held in
trust by the United States or lands the
title to which is held subject to Federal
restrictions against alienation.’’
NRCS also proposes to amend the
following sections to incorporate
reference to 30-year contracts:
§ 625.1(a); § 625.2; § 625.3 in the
definition of ‘‘restoration agreement;’’
§ 625.4(a); § 625.5(b); § 625.8(b)(2);
§ 625.8(d); § 625.15(b)(5); § 625.16(b);
and § 625.20(b); NRCS proposes to add
the term ‘‘contract’’ in reference to 30year contracts in § 625.6(a)(7); § 625.7(a)
and (b); § 625.14; § 625.17; and
§ 625.16(a)(3); and NRCS proposes to
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add a new § 625.12, 30-year contracts, to
include the provisions related to this
new enrollment method. Consistent
with the statutory requirement, NRCS
must treat 30-year contracts like
easements to the extent possible. In
particular, statutory language in 16
U.S.C. 6572 requires that the value of a
30-year contract for Tribal lands shall be
equivalent to the value of a 30-year
easement. Although there are
limitations to handling 30-year contacts
like 30-year easements because of the
fundamental differences between
contract law and real property law
related to easements, NRCS has
structured 30-year contract
requirements in § 625.12 to be as
comparable as possible to the easements
requirements in § 625.11.
Section 8205 of the 2008 Act
establishes requirements regarding the
use of funds for cost-share agreements
and easements. Specifically, this section
directs that of the total amount of funds
expended under the program for a fiscal
year to acquire easements and enter into
cost-share agreements, not more than 40
percent shall be used for 10-year costshare agreements and not more than 60
percent shall be used for easements.
Funds not obligated by April 1st of the
fiscal year may be used to carryout
either enrollment method. Cost-share
agreements and easements under the
Tribal lands option do not count toward
the 60/40 calculation. NRCS proposes to
incorporate this statutory requirement
in § 625.4(a).
Other Proposed Minor Changes for
Clarification or Improved Program
Administration
NRCS proposes to make other changes
to clarify the regulations for the public;
such changes include clarifying the
enrollment process, providing clear
language about determining easement,
contract, and agreement compensation,
providing guidance on the Agency’s
treatment of ecosystem service credits,
and clarifying language on Agency
appeals. The proposed changes include:
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Section 625.1 Purpose and Scope
Section 625.1(b)(1) identifies one
objective of the program as being to
‘‘Promote the recovery of endangered
and threatened species under the ESA.’’
NRCS proposes to amend § 625.1(b)(1)
to clarify that ESA is an abbreviation for
the Endangered Species Act.
Section 625.2 Definitions
In addition to the definition of
‘‘Acreage owned by Indian Tribes,’’
which NRCS proposes to add as a result
of statutory changes described in the
previous section, NRCS proposes to add
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definitions for ‘‘Candidate Conservation
Agreement with Assurances,’’
‘‘Conservation practice’’ and ‘‘Forest
ecosystem’’.
NRCS proposes to add a definition for
the term ‘‘Candidate Conservation
Agreement with Assurances’’ to ensure
the public has clear understanding of
the Landowner Protections provided
through HFRP. NRCS proposes the
definition to read as follows: ‘‘Candidate
Conservation Agreement with
Assurances (CCAA) means a voluntary
arrangement between FWS or NMFS,
and cooperating non-Federal
landowners under the authority of
Section 10(a)(1) of the Endangered
Species Act of 1973 (the Act), 16 U.S.C.
1539(a)(1). Under the CCAA and an
associated enhancement of survival
permit, the non-Federal landowner
implements actions that are consistent
with the conditions of the permit.
Candidate Conservation Agreements
with Assurances with FWS are also
subject to regulations at 50 CFR 17.22(d)
for endangered species or 50 CFR
17.32(d) for threatened species, or
applicable subsequent regulations.’’
NRCS proposes to add the term
‘‘Conservation practice’’ to replace the
definition of ‘‘practice.’’ The definition
of ‘‘conservation practice’’ describes a
broader array of activities than the
definition of the term ‘‘practice.’’ NRCS
proposes to incorporate the following
language as the definition of
‘‘conservation practice.’’ ‘‘Conservation
practice means one or more
conservation improvements and
activities, including structural practices,
land management practices, vegetative
practices, forest management, and other
improvements that benefit the eligible
land and optimize environmental
benefits, planned and applied according
to NRCS standards and specifications.’’
The purpose of HFRP is to restore and
enhance forest ecosystems. NRCS
proposes to add the term ‘‘forest
ecosystem’’ to clarify the program’s
purpose.
NRCS proposes amendments to other
definitions as follows:
The definition of ‘‘Activity’’ is
removed because statutory authority is
only provided for ‘‘Practices’’ and
‘‘Measures.’’
The definition of ‘‘Biodiversity’’ is
changed to clarify that ‘‘biodiversity’’ is
the shortened term for biological
diversity.
The definition of ‘‘Contract’’ is
changed to be consistent with other
programs administered by NRCS. NRCS
proposes amending the definition to
read as follows:
‘‘Contract/agreement means the legal
document that specifies the obligations
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and rights of any applicant who has
been accepted to participate in the
program. A contract/agreement is a
binding agreement for the transfer of
assistance from USDA to the participant
for conducting the prescribed program
implementation actions.’’
The term ‘‘30-year contract’’ is added
to incorporate the 30-year contract
option.
The Agency is removing the
definition of ‘‘Indian Trust Lands,’’
‘‘Practice,’’ and ‘‘Consultation or
consult.’’ The definition of ‘‘Indian
Trust Lands’’ is removed and replaced
by the definition of ‘‘Acreage owned by
Indian Tribes’’ to be consistent with the
statutory language. The definition of
‘‘Practice’’ is removed and replaced
with the more specific term
‘‘Conservation practice.’’ The definition
of ‘‘Consultation or consult’’ is removed
and revised to change the term to confer
for the reasons described in the public
comment section above.
The definition of ‘‘landowner’’ is
revised to remove the term
‘‘remaindermen’’ as a category of
ownership. NRCS proposes removing
this term because it unnecessarily
complicates the definition.
The definition of ‘‘Landowner
Protections’’ is changed as a result of the
public comments received. The
explanation for this proposal is
provided under ‘‘Proposed changes
based on public comment.’’
The definition of ‘‘Liquidated
damages’’ is amended to read:
‘‘Liquidated damages’’ is defined as ‘‘a
sum of money stipulated in the HFRP
restoration agreement that the
participant agrees to pay NRCS if the
participant fails to adequately complete
the terms of the restoration agreement.
The sum represents an estimate of the
expenses incurred by NRCS to service
the restoration agreement, and reflects
the difficulties of proof of loss and the
inconvenience or non-feasibility of
otherwise obtaining an adequate
remedy.’’ This is consistent with how
the term is defined in other programs
administered by NRCS.
The definition of ‘‘Participant’’ is
amended to incorporate non-substantive
changes to make the definition
consistent with the definition of
‘‘Participant’’ in other conservation
programs and to address the addition of
the 30-year contract option provided in
the 2008 Act for Tribal lands.
Specifically, a ‘‘Participant’’ is an
applicant who is party to a 10-year cost
share agreement, 30-year contract, or an
option agreement to purchase an
easement. The Agency is also taking the
opportunity to note in this regulation,
consistent with the appeal regulations at
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7 CFR Part 614 and Federal real
property law, that once a conservation
easement is conveyed, the landowner is
no longer a ‘‘Participant’’ for easement
enforcement and management matters
and, therefore, may not file an
administrative appeal on those matters.
The definition of ‘‘Private land’’ is
changed to read: ‘‘Private land means
land that is not owned by a
governmental entity, and includes land
meeting the definition of ‘‘acreage
owned by Indian Tribes.’’ This proposed
change ensures the public recognizes
that the term ‘‘Private land,’’ as used in
this regulation, includes acreage owned
by Indian Tribes. The previous
definition included the term ‘‘Indian
Trust Lands.’’
The definition of ‘‘Safe harbor
agreement’’ is changed as described in
the public comment section above.
The definition of ‘‘State
Conservationist’’ is changed to clarify
that the former State Conservationist of
Hawaii position has become the director
of the Pacific Islands.
sroberts on PROD1PC70 with PROPOSALS
Section 625.4
Program Requirements
NRCS proposes to revise § 625.4(a) to
incorporate the statutory limitation on
the use of funds for cost-share
agreements and easements. As described
in the statutory change section above,
Section 8205 of the 2008 Act requires an
allocation of no more than 40 percent of
program expenditures toward
enrollment of restoration cost-share
agreements and no more than 60 percent
of program expenditures toward
enrollment of easements. Any contracts
on acreage owned by Indian Tribes are
not included in this calculation. The
2008 Act allows the Secretary to use any
funds that are not obligated by April 1st
of the fiscal year to be used for either
agreements or easements during that
fiscal year. Any funds not obligated by
April 1 or later will be re-distributed to
projects with agreements or easements
ready to obligate funding. NRCS
proposes to manage this process at the
national level to ensure that the
allocation of funds meets the statutory
requirements.
NRCS proposes to amend § 625.4(b) to
clarify that an individual or entity can
enroll in HFRP by replacing the term
‘‘person’’ with the words ‘‘individual or
entity.’’ The current language refers to a
‘‘person.’’ This term is inaccurate due to
participation of entities and Indian
tribes.
NRCS proposes, for clarity purposes,
to change § 625.4(d) to clarify that any
land not eligible under the categories
listed in § 625.4(c) is ineligible land.
Section 625.4(c) identifies eligible land.
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Section 625.5
Application Procedures
NRCS proposes revising § 625.5(a) to
clarify the sign-up process. Specifically,
the State Conservationists will develop
proposals for the State to receive funds
and may seek input from other agencies
in doing so. The State Conservationists
will submit proposals to the Chief for
funding consideration. The Chief will
evaluate and select proposals for
funding and provide the State
Conservationist with a funding
allocation. Upon a State’s selection for
funding, the State Conservationists will
issue a public sign-up notice to obtain
applications from eligible landowners.
The State Conservationists may consult
with organizations or units of
government with appropriate technical
expertise in developing ranking criteria
to be used in selecting applications best
suited to achieving the project purpose.
The applications will be ranked based
on these criteria. The highest ranking
applications are funded by the State
Conservationists. Due to the limited
funding provided for this program,
continuous enrollment would likely
increase the administrative burden of
implementing the program. This sign-up
process will ensure that the limited
HFRP funding will be used for the best
projects nationally, and help maximize
the expected benefits related to habitat
restoration and protection that address
the recovery of endangered species,
improvement in biodiversity, and
enhanced carbon sequestration. In short,
national competition will result in the
optimal use of funds.
NRCS proposes to amend § 625.5(d) to
clarify that any voluntary reduction in
compensation must not be below the
lowest rate allowed by the statute.
Section 625.6 Establishing Priority for
Enrollment in HFRP
NRCS proposes to amend § 625.6(a) to
reflect the change in the definition of
biological diversity discussed above at
§ 625.2
Section 625.7 Enrollment of
Easements, Contracts, and Agreements
NRCS proposes to amend § 625.7 to
reflect a change in the NRCS business
process that is designed to reduce the
potential for de-obligating funds. NRCS
has experienced difficulty in other
easement programs where funds are
obligated to projects whose enrollment
is subsequently terminated due to
irresolvable title issues and hazardous
materials concerns. NRCS will no longer
use commitment accounting, but will
use the option agreement to purchase as
the point of obligation. Also, additional
evaluation that was formerly performed
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after the signing of the option agreement
to purchase will now be performed prior
to the obligation.
Section 625.7(a) is changed to clarify
that the obligation of HFRP funds occurs
when the landowner signs the option
agreement to purchase, cost-share
agreement, or 30-year contract. This
policy helps ensures that HFRP funds
are used to the greatest extent possible
by reducing the potential for deobligation.
Section 625.7(c) is changed to clarify
the point at which land is considered
enrolled into the program to be
consistent with other easement
programs administered by NRCS.
Section 625.7(d) is amended to clarify
the conditions and procedures for
withdrawing an offer after the land is
considered enrolled in the program.
Section 625.8 Compensation for
Easements and 30-Year Contracts
NRCS proposes to amend § 625.8(c) to
clarify the Agency’s existing authority to
accept and use non-Federal
contributions.
NRCS proposes to amend § 625.8(d) to
identify that payments for 30-year
contracts will be treated the same as 30year easement payments. The statutory
language in 16 U.S.C. 6572 instructs that
the value of a 30-year contract shall be
equivalent to the value of a 30-year
easement.
Additionally, the following
information about the appraisal
methodology will be used for the
valuation of HFRP offers: For permanent
easements (or easements for the
maximum duration allowed under State
law), the HFRP statute states that the
Secretary of Agriculture shall pay the
landowner not less than 75 percent, nor
more than 100 percent of (as determined
by the Secretary) the fair market value
of the land enrolled unencumbered by
the easement, less the fair market value
of such land encumbered by the
easement. The term ‘‘encumbered’’
refers to the period of time when the
easement becomes effective. The
appraisal process established by NRCS
is aimed at determining the difference
between the value of the enrolled land
prior to and after easement
encumbrance.
When acquiring real property, Federal
agencies generally follow the Uniform
Relocation Assistance and Real Property
Acquisition Policies for Federal and
federally Assisted Programs (‘‘the
Uniform Relocation Act’’) found in
regulations at Part 24 of Title 49 of the
Code of Federal Regulations. Section
24.103 of that title establishes that
‘‘appraisals are to be prepared according
to these requirements, which are
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intended to be consistent with the
Uniform Standards of Professional
Appraisal Practice (USPAP). The
Agency may have appraisal
requirements that supplement these
requirements, including, to the extent
appropriate, the Uniform Appraisal
Standards for Federal Land Acquisition
(UASFLA).’’ [Yellow Book] The Yellow
Book requires that compensation be
based upon the impact that the
easement encumbrance will have on the
value of the ‘‘larger parcel,’’ which is all
land owned by the landowner that may
be impacted by the easement, as
determined by the appraiser.
The HFRP language for permanent
and maximum duration easements
requires that compensation be based on
the impact to value of only the land
enrolled and encumbered by the
easement. Thus, the Yellow Book
requirement of appraising the larger
parcel conflicts with the HFRP statutory
requirement related to determining
easement value for permanent
easements, or those of the maximum
duration required by state law.
Therefore, the Agency proposes to use
Uniform Standards for Professional
Appraisal Practice (USPAP) for those
easements, which is consistent with
49CFR24. Even though the HFRP statute
states the approach for valuing
permanent and 30-year easements in
slightly different language, there is no
actual distinction since both result in
basing value on the enrolled land
encumbered by the easement.
Correspondingly, the Agency is
maintaining consistency in the
approach to determining easement
compensation values for 30-year and
permanent easements.
NRCS proposes to add language in
§ 625.8(h) that clarifies USDA policy
regarding environmental credits such as
carbon, water quality, biodiversity, or
wetlands preservation, on land enrolled
in HFRP. USDA considers these credits
the property of the farmer, the
landowner, or the person who applied
the conservation practices on the land,
regardless of the Federal funds invested.
Section 625.10
Section 625.9 10-Year Restoration
Cost-Share Agreements
NRCS proposes to amend § 625.9 (a)
to reflect a change in section numbering
caused by the addition of the 30-year
contract section. Amendments to this
section reflect the change from the term
‘‘practice’’ to ‘‘conservation practice.’’
NRCS proposes to amend § 625.9 (d)
to clarify the meaning of the sentence
and to clarify that termination of the
restoration cost-share agreement can
occur when the terms of § 625.9(d) 1, 2,
or 3 are met.
Section 625.14 Modification of the
HFRP Restoration Plan
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Cost-Share Payments
NRCS proposes to amend § 625.10(b)
to clarify the addition of the term
‘‘candidate species,’’ as well as listed
species, through a Candidate
Conservation Agreement with
Assurances.
Section 625.10(c) and § 625.10(g) and
(h) are amended to reflect the change in
the definition from ‘‘practice’’ to the
more specific term ‘‘conservation
practice’’ as discussed above at § 625.2.
Section 625.10(e) is also amended for
the same reason and to clarify that the
conservation practice would need to
meet NRCS standards and
specifications.
Section 625.11
Requirements
Easement Participation
NRCS proposes to amend § 625.11(a)
to clarify the sentence to include not
only listed species but to allow for other
types of management that support forest
ecosystem functions and values, such as
activities to protect candidate species.
Section 625.12
30-Year Contracts
A new section is added to incorporate
the statutory provision for 30-year
contracts for acreage owned by Indian
Tribes. The section describes enrollment
and minimum requirements of the
contract. Terms of the 30-year contract
are kept as consistent as possible with
terms of a 30-year easement, considering
the differences in the legal instruments.
Section 625.13 The HFRP Restoration
Plan Development and Landowner
Protections
NRCS proposes to amend § 625.13(a),
§ 625.13(c) and § 625.13(d) to reflect the
changes discussed above as a result of
public comments. Section 625.13(a),
was amended to replace the term
‘‘consult’’ with ‘‘confer.’’ In § 625.13(c)
‘‘The National Marine Fisheries
Service’’ was added as an agency that
would assist in determining eligible
practices. Section 625.13(d) was
amended to clarify Landowner
Protections.
NRCS proposes to amend § 625.14 to
make non-substantive changes to the
sentence structure.
Section 625.15
Transfer of Land
NRCS proposes the following
changes: Amend § 625.15(a) to clarify
that this section refers to offers voided
prior to enrollment in the program. This
section would also be amended to
clarify that this section applies to
easements, agreements, and contracts.
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In addition, amend § 625.15(b) to
clarify that this section refers to actions
following transfer of land. These
changes clarify that cost-share payments
can be transferred to the new owner
upon presentation of an assignment of
rights. Landowner Protections can be
transferred to the new landowner, and
if a SHA or CCAA is involved, the
landowners need to coordinate with
FWS or NMFS to transfer the agreement
and assurances to the new landowner.
Section 625.16
Remedies
Violations and
NRCS proposes to make the following
amendments to this section: Amend
§ 625.16 (a) to clarify that extensions to
correct violations beyond 30 days,
under this section, should be made
based on the State Conservationists
determination of how much time is
necessary to correct the violation.
Section 625.16(b) is amended to
clarify that extensions to correct
violations beyond 30 days should be
based on the State Conservationists
determination of how much time is
necessary to correct the violation. NRCS
is also removing the last sentence of
paragraph (b)(3), all of paragraph (b)(4),
and paragraph (b)(6). The last sentence
of (b)(3) is removed because it is
administratively burdensome to
continue to monitor and enforce the
operation and maintenance of practices
for which the Agency no longer has a
contract. Due to limited resources and
funding, the Agency has determined
that to administer the program more
effectively after an agreement is
terminated, that the Agency will recover
the appropriate amount and will not
continue to monitor the installed
practices or measures. Paragraph (b)(4)
is removed because it has been
incorporated into (b)(3). Paragraph (b)(6)
is removed because the Agency has
determined that it is not in the interests
of the program to allow participants to
unilaterally terminate a contract without
penalty or repayment, even when
participants are in compliance with all
conditions. The Agency is interested in
ensuring practices are continued for the
original duration of the contract and
maintaining a high level of
environmental benefits.
Section 625.18
Assignments
The text of Section § 625.18 is not
amended. The only change to this
section is the section heading which has
been changed to reflect the insertion of
the 30-year contract section above at
§ 625.12.
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Section 625.19
Appeals
§ 625.1
NRCS proposes to amend § 625.19(b)
to clarify that appeals procedures apply
to administrative actions and not for
other purposes such as enforcement
actions.
Section 625.19(d) is added to further
clarify that enforcement actions taken
by NRCS are not subject to review under
administrative appeal regulations. This
language is consistent with the appeal
regulations at 7 CFR Part 614 and
Federal real property law.
Specific Request for Public Comment
The Agency is particularly interested
in receiving public input regarding the
following topics: (1) The definition of
acreage owned by Indian Tribes and the
accompanying requirements for 30-year
contracts at § 625.12; (2) the language
regarding ownership of ecosystem
services credits; and (3) the language
regarding the establishment of easement
compensation rates.
List of Subjects in 7 CFR Part 625
Administrative practice and
procedure, Agriculture, Soil
conservation, Forestry.
§ 625.2
Text of Rule Amendments
For the reasons stated in the
preamble, the Natural Resources
Conservation Service proposes to revise
7 CFR part 625 to read as follows:
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PART 625—HEALTHY FORESTS
RESERVE PROGRAM
Sec.
625.1 Purpose and scope.
625.2 Definitions.
625.3 Administration.
625.4 Program requirements.
625.5 Application procedures.
625.6 Establishing priority for enrollment in
HFRP.
625.7 Enrollment of easements, contracts,
and agreements.
625.8 Compensation for easements and 30year contracts.
625.9 10-year restoration cost-share
agreements.
625.10 Cost-share payments.
625.11 Easement participation
requirements.
625.12 30-year contracts.
625.13 The HFRP restoration plan
development and landowner protections.
625.14 Modification of the HFRP
restoration plan.
625.15 Transfer of land.
625.16 Violations and remedies.
625.17 Payments not subject to claims.
625.18 Assignments.
625.19 Appeals.
625.20 Scheme and device.
Authority: 16 U.S.C. 6571–6578.
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Purpose and scope.
(a) The purpose of the Healthy Forests
Reserve Program (HFRP) is to assist
landowners, on a voluntary basis, in
restoring and enhancing forest
ecosystems on private lands through
easements, 30-year contracts, and 10year cost-share agreements.
(b) The objectives of HFRP are to:
(1) Promote the recovery of
endangered and threatened species
under the Endangered Species Act
(ESA);
(2) Improve plant and animal
biodiversity; and
(3) Enhance carbon sequestration.
(c) The regulations in this part set
forth the policies, procedures, and
requirements for the HFRP as
administered by the Natural Resources
Conservation Service (NRCS) for
program implementation and processing
applications for enrollment.
(d) The Chief of NRCS may
implement HFRP 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
Marianna Islands.
Definitions
The following additions shall be
applicable to this part:
30-year Contract means a contract that
is limited to acreage held in private
ownership by Indian Tribes or
individual tribal members. The 30-year
contract is not eligible for use on tribal
lands held in trust or subject to Federal
restrictions against alienation.
Acreage Owned by Indian Tribes
means private lands to which the title
is held by individual Indians and Indian
tribes, including Alaska Native
Corporations. This term does not
include land held in trust by the United
States or lands where the fee title
contains restraints against alienation.
Biodiversity (Biological Diversity)
means the variety and variability among
living organisms and the ecological
complexes in which they live.
Candidate Conservation Agreement
with Assurances (CCAA) means a
voluntary arrangement between U.S.
FWS or NMFS, and cooperating nonFederal landowners under the authority
of Section 10(a)(1) of the Endangered
Species Act of 1973, 16 U.S.C.
1539(a)(1). Under the CCAA and an
associated enhancement of survival
permit, the non-Federal landowner
implements actions that are consistent
with the conditions of the permit.
Candidate Conservation Agreements
with Assurances with FWS are also
subject to regulations at 50 CFR 17.22(d)
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for endangered species or 50 CFR
17.32(d) for threatened species, or
applicable subsequent regulations.
Carbon sequestration means the long
term storage of carbon in soil (as soil
organic matter) or in plant material
(such as in trees).
Chief means the Chief of the NRCS,
United States Department of Agriculture
(USDA), or designee.
Confer means to discuss for the
purpose of providing information; to
offer an opinion for consideration; or to
meet for discussion, while reserving
final decision-making authority with
NRCS.
Conservation practice means one or
more conservation improvements and
activities, including structural practices,
land management practices, vegetative
practices, forest management, and other
improvements that benefit the eligible
land and optimize environmental
benefits, planned and applied according
to NRCS standards and specifications.’’
Conservation treatment means any
and all conservation practices,
measures, activities, and works of
improvement that have the purpose of
alleviating resource concerns, solving or
reducing the severity of natural resource
use problems, or taking advantage of
resource opportunities, including the
restoration, enhancement, maintenance,
or management of habitat conditions for
HFRP purposes.
Contract or agreement means the legal
document that specifies the obligations
and rights of any applicant who has
been accepted to participate in the
program. A contract or agreement is a
binding agreement for the transfer of
assistance, including financial or
technical assistance, from USDA to the
participant for conducting the
prescribed program implementation
actions.
Coordination means to obtain input
and involvement from others while
reserving final decision-making
authority with NRCS.
Cost-share agreement means a legal
document that specifies the rights and
obligations of any participant accepted
into the program. A HFRP cost-share
agreement is a binding agreement for the
transfer of assistance from USDA to the
participant to share in the costs of
applying conservation. A cost-share
agreement under HFRP has a duration of
10-years.
Cost-share payment means the
payment made by NRCS to a program
participant or vendor to achieve the
restoration, enhancement, and
protection goals of enrolled land in
accordance with the HFRP restoration
plan.
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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 for the purpose of
protecting the forest ecosystem and the
conservation values of the property.
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 under the HFRP.
Fish and Wildlife Service (FWS) is an
agency of the United States Department
of the Interior.
Forest ecosystem means a dynamic set
of living organisms, including plants,
animals and microorganisms interacting
among themselves and with the
environment in which they live. A
forest ecosystem is characterized by a
predominance of trees, and by the
fauna, flora, and ecological cycles
(energy, water, carbon, and nutrients)
Forest Service is an agency of the
USDA.
HFRP restoration plan means the
document that identifies the
conservation treatments that are
scheduled for application to land
enrolled in HFRP in accordance with
NRCS standards and specifications.
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 (85 Stat. 688, 43 U.S.C.
1601 et seq.), which is recognized as
eligible for the special programs and
services provided by the United States
to Indians because of their status as
Indians.
Landowner means an individual or
entity having legal ownership of land,
including those who may be buying
land under a purchase agreement. The
term ‘‘landowner’’ may also include all
forms of collective ownership including
joint tenants, tenants in common, and
life tenants.
Landowner Protections means
protections and assurances made
available by NRCS to HFRP participants
when requested and whose voluntary
conservation activities result in a net
conservation benefit for listed,
candidate, or other species, and meet
other requirements of the program.
These Landowner Protections are
subject to an HFRP restoration plan and
associated cost-share agreement, 30-year
contract, or easement being properly
implemented. Landowner Protections
made available by the Secretary of
Agriculture to HFRP participants may
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include an incidental take authorization
received by NRCS from FWS or NMFS
or may be provided by a Safe Harbor
Agreement or Candidate Conservation
Agreement with Assurances directly
between the HFRP participant and FWS
or NMFS as appropriate.
Liquidated Damages means a sum of
money stipulated in the HFRP
restoration agreement that the
participant agrees to pay NRCS if the
participant fails to adequately complete
the terms of the restoration agreement.
The sum represents an estimate of the
expenses incurred by NRCS to service
the restoration agreement, and reflects
the difficulties of proof of loss and the
inconvenience or non-feasibility of
otherwise obtaining an adequate
remedy.
Maintenance means work performed
to keep the applied conservation
practice functioning for the intended
purpose during its life span.
Maintenance includes work to prevent
deterioration of the practice, repairing
damage, or replacement of the practice
to its original condition if one or more
components fail.
Measure means one or more specific
actions that is not a conservation
practice, but has the effect of alleviating
problems or improving the treatment of
the resources.
National Marine Fisheries Service
(NMFS) is an agency of the United
States Department of Commerce.
Natural Resources Conservation
Service (NRCS) is an agency of the
USDA, which has the responsibility for
administering HFRP.
Participant means a person or entity
who is a party to a 10-year cost share
agreement, 30-year contract, or an
option agreement to purchase an
easement.
Private land means land that is not
owned by a governmental entity, and
includes land that meets the definition
of ‘‘acreage owned by Indian Tribes.’’
Restoration means implementing any
conservation practice (vegetative,
management, or structural) or measure
that improves forest ecosystem values
and functions (native and natural plant
communities).
Restoration agreement means a costshare agreement between the program
participant and NRCS to restore,
enhance, and protect the functions and
values of a forest ecosystem for the
purposes of HFRP under either an
easement, 30-year contract, or a 10-year
cost-share agreement enrollment option.
Safe Harbor Agreement means a
voluntary arrangement between FWS or
NMFS, and cooperating non-Federal
landowners under the authority of
Section 10(a)(1) of the Endangered
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Species Act of 1973 (the Act), 16 U.S.C.
1539(a)(1). Under the Safe Harbor
Agreement and an associated
enhancement of survival permit, the
private property owner implements
actions that are consistent with the
conditions of the permit. Safe Harbor
Agreements with FWS are also subject
to regulations at 50 CFR 17.22(c) for
endangered species or 50 CFR 17.32 (c)
for threatened species, or applicable
subsequent regulations.
Sign-up notice means the public
notification document that NRCS
provides to describe the particular
requirements for a specific HFRP signup.
State Conservationist means the
NRCS employee authorized to
implement HFRP and direct and
supervise NRCS activities in a State, the
Caribbean Area, or the Pacific Island
Area.
Technical service provider means an
individual, private-sector entity, or
public agency certified by NRCS to
provide technical services to program
participants in lieu of or on behalf of
NRCS.
§ 625.3
Administration.
(a) The regulations in this part will be
administered under the general
supervision and direction of the Chief.
(b) The Chief may modify or waive a
provision of this part if the Chief
determines that the application of such
provision to a particular limited
situation is inappropriate and
inconsistent with the goals of the
program. This authority cannot be
further delegated. The Chief may not
modify or waive any provision of this
part which is required by applicable
law.
(c) No delegation in this part to lower
organizational levels shall preclude the
Chief from determining any issue
arising under this part or from reversing
or modifying any determination arising
from this part.
(d) The State Conservationist will
develop the rates of compensation for an
easement and 30-year contract, a
priority ranking process, and any related
technical matters.
(e) The NRCS shall coordinate with
FWS and NMFS in the implementation
of the program and in establishing
program policies. In carrying out this
program, NRCS may confer with private
forest landowners, including Indian
tribes, the Forest Service and other
Federal agencies, State fish and wildlife
agencies, State forestry agencies, State
environmental quality agencies, other
State conservation agencies; and
nonprofit conservation organizations.
No determination by FWS, NMFS, the
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Forest Service, any Federal or State
agency, conservation district, or other
organization shall compel the NRCS to
take any action which the NRCS
determines will not serve the purposes
of the program established by this part.
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§ 625.4
Program requirements.
(a) General. Under the HFRP, NRCS
will purchase conservation easements
from, or enter into 30-year contracts or
10-year cost-share agreements with
eligible landowners who voluntarily
cooperate in the restoration and
protection of forestlands and associated
lands. To participate in HFRP, a
landowner will agree to the
implementation of a HFRP restoration
plan, the effect of which is to restore,
protect, enhance, maintain, and manage
the habitat conditions necessary to
increase the likelihood of recovery of
listed species under the ESA, or
measurably improve the well-being of
species that are not listed as endangered
or threatened under the ESA but are
candidates for such listing, State-listed
species, or species identified by the
Chief for special consideration for
funding. NRCS may provide cost-share
assistance for the activities that promote
the restoration, protection,
enhancement, maintenance, and
management of forest ecosystem
functions and values. Specific
restoration, protection, enhancement,
maintenance, and management
activities may be undertaken by the
landowner or other NRCS designee.
(1) Of the total amount of funds
expended under the program for a fiscal
year to acquire easements and enter into
10-year cost-share agreements, not more
than 40 percent shall be used for costshare agreements and not more than 60
percent shall be used for easements.
(2) The Chief may use any funds that
are not obligated by April 1st of the
fiscal year for which the funds are made
available to carry out a different method
of enrollment during that fiscal year.
(b) Landowner eligibility. To be
eligible to enroll an easement in the
HFRP, an individual or entity must:
(1) Be the landowner of eligible land
for which enrollment is sought; and
(2) Agree to provide such information
to NRCS as the agency deems necessary
or desirable to assist in its
determination of eligibility for program
benefits and for other program
implementation purposes.
(c) Eligible land.
(1) The NRCS, in coordination with
FWS or NMFS, shall determine whether
land is eligible for enrollment and
whether, once found eligible, the lands
may be included in the program based
on the likelihood of successful
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restoration, enhancement, and
protection of forest ecosystem functions
and values when considering the cost of
acquiring the easement, 30-year
contract, or 10-year cost share
agreement, and the restoration,
protection, enhancement, maintenance,
and management costs.
(2) Land shall be considered eligible
for enrollment in the HFRP only if the
NRCS determines that:
(i) Such private land is capable of
supporting habitat for a selected species
listed under Section 4 of the ESA; or
(ii) Such private land is capable of
supporting habitat for a selected species
not listed under Section 4 of the ESA
but is candidate for such listing, or the
selected species is State-listed species,
or is a species identified by the Chief for
special consideration for funding.
(3) NRCS may also enroll land
adjacent to eligible land if the
enrollment of such adjacent land would
contribute significantly to the practical
administration of the easement area, but
not more than it determines is necessary
for such contribution.
(4) To be enrolled in the program,
eligible land must be configured in a
size and with boundaries that allow for
the efficient management of the area for
easement purposes and otherwise
promote and enhance program
objectives.
(5) In the case of acreage owned by an
Indian Tribe, the NRCS may enroll
acreage into the HFRP which is
privately owned by either the Tribe or
an individual.
(d) Ineligible land. The following land
is not eligible for enrollment in the
HFRP:
(1) Lands owned by the United States,
States, or units of local government;
(2) Land subject to an easement or
deed restriction that already provides
for the protection of fish and wildlife
habitat or which would interfere with
HFRP purposes, as determined by
NRCS; and
(3) Lands that would not be eligible
for HFRP under paragraphs (c) (1)
through (c) (5).
§ 625.5
Application procedures.
(a) Sign-up process. As funds are
available, the Chief will solicit project
proposals from the State
Conservationist. The State
Conservationist may consult with other
agencies at the State, Federal, and local
levels to develop proposals. The State
Conservationist will submit the
proposal(s) to the Chief for funding
selection. Upon selection for funding,
the State Conservationist will issue a
public sign-up notice which will
announce and explain the rationale for
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decisions based on the following
information:
(1) The geographic scope of the signup;
(2) Any additional program eligibility
criteria that are not specifically listed in
this part;
(3) Any additional requirements that
participants must include in their HFRP
applications that are not specifically
identified in this part;
(4) Information on the priority order
of enrollment for funding;
(5) An estimate of the total funds
NRCS expects to obligate during a given
sign-up; and
(6) The schedule for the sign-up
process, including the deadline(s) for
applying.
(b) Application for participation. To
apply for enrollment through an
easement, 30-year contract, or 10-year
cost-share agreement, a landowner must
submit an application for participation
in the HFRP during an announced
period for such sign-up.
(c) Preliminary agency actions. By
filing an application for participation,
the applicant consents to an NRCS
representative entering upon the land
for purposes of determining land
eligibility, and for other activities that
are necessary or desirable for the NRCS
to make offers of enrollment. The
applicant is entitled to accompany an
NRCS representative on any site visits.
(d) Voluntary reduction in
compensation. In order to enhance the
probability of enrollment in HFRP, an
applicant may voluntarily offer to
accept a lesser payment amount than is
being offered by NRCS. Such offer and
subsequent payments may not be less
than those rates set forth in 625.8 and
625.10 of this part.
§ 625.6 Establishing priority for enrollment
in HFRP.
(a) Ranking considerations. Based on
the specific criteria set forth in a signup announcement and the applications
for participation, NRCS, in coordination
FWS and NMFS, may consider the
following factors to rank properties:
(1) Estimated conservation benefit to
habitat required by threatened or
endangered species listed under Section
4 of the ESA;
(2) Estimated conservation benefit to
habitat required by species not listed as
endangered or threatened under Section
4 of the ESA but that are candidates for
such listing, State-listed species, or
species identified by the Chief for
special consideration for funding;
(3) Estimated improvement of
biodiversity, if enrolled;
(4) Potential for increased capability
of carbon sequestration, if enrolled;
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(5) Availability of contribution of nonfederal funds;
(6) Significance of forest ecosystem
functions and values;
(7) Estimated cost-effectiveness of the
particular restoration cost-share
agreement, contract, or easement, and
associated HFRP restoration plan; and
(8) Other factors identified in an
HFRP sign-up notice.
(b) The NRCS may place higher
priority on certain forest ecosystems
based regions of the State or multi-State
area where restoration of forestland may
better achieve NRCS programmatic and
sign-up goals and objectives.
(c) Notwithstanding any limitation of
this part, NRCS may enroll eligible
lands at any time in order to encompass
project areas subject to multiple land
ownership or otherwise to achieve
program objectives. Similarly, NRCS
may, at any time, exclude otherwise
eligible lands if the participation of the
adjacent landowners is essential to the
successful restoration of the forest
ecosystem and those adjacent
landowners are unwilling to participate.
(d) 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, NRCS may select a
lower ranked application that can be
fully funded. In cases where HFRP
funds are not sufficient to cover the
costs of an application selected for
funding, the applicant may lower the
cost of the application by changing the
duration of the easement or agreement
or reducing the acreage offered, unless
these changes result in a reduction of
the application ranking score below that
of the score of the next available
application on the ranking list.
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§ 625.7 Enrollment of easements,
contracts, and agreements.
(a) Offers of enrollment. Based on the
priority ranking, NRCS will notify an
affected landowner of tentative
acceptance into the program. This
notice of tentative acceptance into the
program does not bind NRCS or the
United States to enroll the proposed
project in HFRP, nor does it bind the
landowner to convey an easement, or to
contract, or agree to HFRP activities.
The letter notifies the landowner that
NRCS intends to continue the
enrollment process on their land unless
otherwise notified by the landowner.
(b) Acceptance of offer of enrollment.
An option agreement to purchase or a
restoration cost-share agreement or
contract will be presented by NRCS to
the landowner, which will describe the
easement, agreement, or contract area;
the easement, agreement, or contract
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terms and conditions; and other terms
and conditions for participation that
may be required by NRCS.
(c) Effect of the acceptance of the offer
(enrollment). After the option agreement
to purchase or restoration cost-share
agreement or contract is executed by
NRCS and the landowner, the land will
be considered enrolled in the HFRP. For
easements, NRCS will proceed with
various easement acquisition activities,
which may include conducting a survey
of the easement area, securing necessary
subordination agreements, procuring
title insurance, and conducting other
activities necessary to record the
easement or implement the HFRP, as
appropriate for the enrollment option
being considered. For restoration costshare agreements and contracts the
landowner will proceed to implement
the restoration plan with technical
assistance and cost-share from NRCS.
(d) Withdrawal of offers. Prior to
execution of an option agreement to
purchase, a restoration cost-share
agreement, and/or contract between the
United States and the landowner, NRCS
may withdraw the land from enrollment
at any time due to lack of availability of
funds, inability to clear title, or other
reasons. An option to purchase shall be
void, and the offer withdrawn, if not
executed by the landowner within the
time specified.
§ 625.8 Compensation for easements and
30-year contracts.
(a) Determination of easement
payment rates.
(1) NRCS shall offer to pay not less
than 75 percent nor more than 100
percent of the fair market value of the
enrolled land during the period the land
is subject to the easement less the fair
market value of the land encumbered by
the easement for permanent easements
or easements for the maximum duration
allowed under State law.
(2) NRCS shall offer to pay not more
than 75 percent of the fair market value
of the enrolled land less the fair market
value of the land encumbered by the
easement for 30-year easements or 30year contracts.
(b) Acceptance and use of
contributions. NRCS may accept and
use contributions of non-federal funds
to make payments under this section.
(c) Acceptance of offered easement or
30-year contract compensation.
(1) NRCS will not acquire any
easement or 30-year contract unless the
landowner accepts the amount of the
payment that is offered by NRCS. The
payment may or may not equal the fair
market value of the interests and rights
to be conveyed by the landowner under
the easement or 30-year contract. By
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1967
voluntarily participating in the program,
a landowner waives any claim to
additional compensation based on fair
market value.
(2) Payments may be made in a single
payment or no more than 10 annual
payments of equal or unequal size, as
agreed to between NRCS and the
landowner.
(d) If a landowner believes they may
be eligible for a bargain sale tax
deduction that is the difference between
the fair market value of the easement
conveyed to the United States and the
easement payment made to the
landowner, it is the landowner’s
responsibility to discuss those matters
with the Internal Revenue Service.
NRCS disclaims any representations
concerning the tax implications of any
easement or cost-share transaction.
(e) Per acre payments. If easement
payments are calculated on a per acre
basis, adjustment to stated easement
payment will be made based on final
determination of acreage.
(f) Environmental Services Credits for
Conservation Improvements. USDA
recognizes that environmental benefits
will be achieved by implementing
conservation practices, measures, and
activities funded through HFRP, and
that environmental credits may be
gained as a result of implementing
activities compatible with the purposes
of an HFRP easement, contract, or
restoration agreement. NRCS asserts no
direct or indirect interest on these
credits. However, NRCS retains the
authority to ensure the requirements of
an HFRP easement, contract, cost-share
agreement, or restoration plan are met
consistent with §§ 625.9 through 625.13
of this part. Where activities required
under an environmental credit
agreement may affect land covered
under an HFRP easement, restoration
cost-share agreement, or contract, an
amendment to the restoration agreement
or contract, or a compatible use
approval under an easement, may be
required and participants are highly
encouraged to request a compatibility
assessment from NRCS prior to entering
into such environmental credit
agreements.
§ 625.9 10-year restoration cost-share
agreements
(a) The restoration plan developed
under § 625.13 forms the basis for the
10-year cost-share agreement and its
terms are incorporated therein.
(b) A 10-year cost-share agreement
will:
(1) Incorporate all portions of a
restoration plan;
(2) Be for a period of 10 years;
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(3) Include all provisions as required
by law or statute;
(4) Specify the requirements for
operation and maintenance of applied
conservation practices;
(5) Include any participant reporting
and recordkeeping requirements to
determine compliance with the
agreement and HFRP;
(6) Be signed by the participant;
(7) Identify the amount and extent of
cost-share assistance that NRCS will
provide for the adoption or
implementation of the approved
conservation treatment identified in the
restoration plan; and
(8) Include any other provision
determined necessary or appropriate by
the NRCS representative.
(c) Once the participant and NRCS
have signed a 10-year cost-share
agreement, the land shall be considered
enrolled in HFRP.
(d) The State Conservationist may, by
mutual agreement with the parties to the
10-year cost-share agreement, consent to
the termination of the restoration
agreement where:
(1) The parties to the 10-year costshare agreement are unable to comply
with the terms of the restoration
agreement as the result of conditions
beyond their control;
(2) Compliance with the terms of the
10-year cost-share agreement would
cause a severe hardship on the parties
to the agreement; or
(3) Termination of the 10-year costshare agreement would, as determined
by the State Conservationist, be in the
public interest.
(e) If a 10-year cost-share agreement is
terminated in accordance with the
provisions of this section, the State
Conservationist may allow the
participants to retain any cost-share
payments received under the 10-year
cost-share agreement in a proportion
appropriate to the effort the participant
has made to comply with the restoration
agreement, or, in cases of hardship,
where forces beyond the participant’s
control prevented compliance with the
agreement.
sroberts on PROD1PC70 with PROPOSALS
§ 625.10
Cost-share payments.
(a) NRCS may share the cost with
landowners of restoring land enrolled in
HFRP as provided in the HFRP
restoration plan. The HFRP restoration
plan may include periodic manipulation
to maximize fish and wildlife habitat
and preserve forest ecosystem functions
and values over time and measures that
are needed to provide the Landowner
Protections under section 7(b)(4) or
section 10(a)(1) of the ESA, including
the cost of any permit.
(b) Landowner Protections may be
made available to landowners enrolled
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in the HFRP who agree, for a specified
period, to restore, protect, enhance,
maintain, and manage the habitat
conditions on their land in a manner
that is reasonably expected to result in
a net conservation benefit that
contributes to the recovery of listed
species under the ESA, candidate, or
other species covered by this regulation.
These protections operate with lands
enrolled in the HFRP and are valid for
as long as the landowner is in
compliance with the terms and
conditions of such assurances, any
associated permit, the easement,
contract, or the restoration agreement.
(c) If the Landowner Protections, or
any associated permit, require the
adoption of a conservation practice or
measure in addition to the conservation
practices and measures identified in the
applicable HFRP restoration plan, NRCS
and the landowner will incorporate the
conservation practice or measure into
the HFRP restoration plan as an item
eligible for cost-share assistance.
(d) Failure to perform planned
management activities can result in
violation of the easement, 10-year costshare agreement, or the agreement under
which Landowner Protections have
been provided. NRCS will work with
landowners to plan appropriate
management activities.
(e) The amount and terms and
conditions of the cost-share assistance
shall be subject to the following
restrictions on the costs of establishing
or installing NRCS approved
conservation practices or implementing
measures specified in the HFRP
restoration plan:
(1) On enrolled land subject to a
permanent easement or an easement for
the maximum duration allowed under
State law, NRCS shall offer to pay not
less than 75 percent nor more than 100
percent of the average cost; and
(2) On enrolled land subject to a 30year easement or 30 year contract, NRCS
shall offer to pay not more than 75
percent of the average cost.
(f) On enrolled land subject to a 10year cost-share agreement without an
associated easement, NRCS shall offer to
pay not more than 50 percent of the
average costs.
(g) Cost-share payments may be made
only upon a determination by NRCS
that an eligible conservation practice or
measure, or an identifiable component
of the conservation practice has been
established in compliance with
appropriate standards and
specifications. Identified conservation
practices and measures may be
implemented by the landowner or other
designee.
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(h) Cost-share payments may be made
for the establishment and installation of
additional eligible conservation
practices and measures, or the
maintenance or replacement of an
eligible conservation practice or
measure, but only if NRCS determines
the conservation practice or measure is
needed to meet the objectives of HFRP,
and the failure of the original
conservation practices or measures was
due to reasons beyond the control of the
landowner.
§ 625.11 Easement participation
requirements.
(a) To enroll land in HFRP through a
permanent easement, an easement for
the maximum duration allowed under
State law, or 30-year enrollment option,
a landowner shall grant an easement to
the United States. The easement deed
shall require that the easement area be
maintained in accordance with HFRP
goals and objectives for the duration of
the term of the easement, including the
restoration, protection, enhancement,
maintenance, and management of
habitat and forest ecosystem functions
and values.
(b) For the duration of its term, the
easement shall require, at a minimum,
that the landowner, and the landowner’s
heirs, successors and assignees, shall
cooperate in the restoration, protection,
enhancement, maintenance, and
management of the land in accordance
with the easement and with the terms of
the HFRP restoration plan. In addition,
the easement shall grant to the United
States, through the NRCS:
(1) A right of access to the easement
area;
(2) The right to permit compatible
uses by the landowner of the easement
area, which may include such activities
as hunting and fishing, managed timber
harvest, or periodic haying or grazing, if
such use is consistent with the longterm protection and enhancement of the
purposes for which the easement was
established;
(3) The right to determine compatible
uses on the easement area and specify
the amount, method, timing, intensity,
and duration of the compatible use;
(4) The rights, title, and interest to the
easement area as specified in the
conservation easement deed; and
(5) The right to perform restoration,
protection, enhancement, maintenance,
and management activities on the
easement area.
(c) The landowner shall convey title
to the easement which is acceptable to
the NRCS. The landowner shall warrant
that the easement granted to the United
States is superior to the rights of all
others, except for exceptions to the title
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and management activities on the
contract area.
(c) The landowner shall:
(1) Comply with the terms of the
contract;
(2) Comply with all terms and
conditions of any associated agreement
or contract;
(3) Agree to the long-term restoration,
protection, enhancement, maintenance,
and management of the contract area in
accordance with the terms of the
contract and related agreements.
(d) A 30-year contract will:
(1) Be signed by the participant;
(2) Identify the amount and extent of
cost-share assistance that NRCS will
provide for the adoption or
implementation of the approved
conservation treatment identified in the
restoration plan; and
(3) Include any other provision
determined necessary or appropriate by
the NRCS representative.
(e) Once the landowner and NRCS
have signed a 30-year contract, the land
shall be considered enrolled in HFRP.
§ 625.12
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which are deemed acceptable by the
NRCS.
(d) The landowner shall:
(1) Comply with the terms of the
easement;
(2) Comply with all terms and
conditions of any associated agreement
or contract;
(3) Agree to the long-term restoration,
protection, enhancement, maintenance,
and management of the easement in
accordance with the terms of the
easement and related agreements;
(4) Have the option to enter into an
agreement with governmental or private
organizations to assist in carrying out
any landowner responsibilities on the
easement area; and
(5) Agree that each person who is
subject to the easement shall be jointly
and severally responsible for
compliance with the easement and the
provisions of this part and for any
refunds or payment adjustment that may
be required for violation of any terms or
conditions of the easement or the
provisions of this part.
§ 625.13 The HFRP restoration plan
development and landowner protections.
30-year contracts.
(a) To enroll land in HFRP through
the 30-year contract option, a landowner
shall sign a 30-year contract with NRCS.
The contract shall require that the
contract area be maintained in
accordance with HFRP goals and
objectives for the duration of the term of
the contract, including the restoration,
protection, enhancement, maintenance,
and management of habitat and forest
ecosystem functions and values.
(b) For the duration of its term, the 30year contract shall require, at a
minimum, that the landowner, and the
landowner’s assignees, shall cooperate
in the restoration, protection,
enhancement, maintenance, and
management of the land in accordance
with the contract and with the terms of
the HFRP restoration plan. In addition,
the contract shall grant to the United
States, through the NRCS:
(1) A right of access to the contract
area;
(2) The right to allow such activities
by the landowner as hunting and
fishing, managed timber harvest, or
periodic haying or grazing, if such use
is consistent with the long-term
protection and enhancement of the
purposes for which the contract was
established;
(3) The right to specify the amount,
method, timing, intensity, and duration
of the activities listed in paragraph
(b)(2) of this section, as incorporated
into the terms of the contract; and
(4) The right to perform restoration,
protection, enhancement, maintenance,
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(a) The development of the HFRP
restoration plan shall be made through
an NRCS representative, who shall
confer with the program participant and
with the FWS and NMFS, as
appropriate.
(b) The HFRP restoration plan shall
specify the manner in which the
enrolled land under easement, 30-year
contract, or 10-year cost-share
agreement shall be restored, protected,
enhanced, maintained, and managed to
accomplish the goals of the program.
(c) Eligible restoration practices and
measures may include land
management, vegetative, and structural
practices and measures that will restore
and enhance habitat conditions for
listed species, candidate, State-listed,
and other species identified by NRCS
for special funding consideration. To
the extent practicable, eligible practices
and measures will improve biodiversity
and increase the sequestration of
carbon. NRCS, in coordination with
FWS and NMFS, will determine the
conservation practices and measures.
NRCS will determine payment rates and
cost-share percentages within statutory
limits that will be available for
restoration. A list of eligible practices
will be available to the public.
(d) Landowner Protections. An HFRP
participant who enrolls land in HFRP
and whose conservation treatment
results in a net conservation benefit for
listed, candidate, or other species. A
participant may request such
Landowner Protections as follows:
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(1) Incidental Take Authorization.
(i) NRCS will extend to participants
the incidental take authorization
received by NRCS from FWS or NMFS
through biological opinions issued as
part of the interagency cooperation
process under section 7(a)(2) of the ESA;
(ii) NRCS will provide assurances, as
a provision of the restoration plan, that
when a participant is provided
authorization for incidental take of a
listed species, NRCS will not require
management activities related to that
species to be undertaken in addition to
or different from those specified in the
restoration plan without the
participant’s consent;
(iii) Provided the landowner has acted
in good faith and without intent to
violate the terms of the HFRP
restoration plan, NRCS will pursue all
appropriate options with the participant
to avoid termination in the event of the
need to terminate an HFRP restoration
plan that is being properly
implemented; and
(iv) If the 30-year contract or 10-year
restoration cost-share agreement is
terminated, any requested assurances,
including an incidental take
authorization under this section,
provided by NRCS will be voided. As
such, the landowner will be responsible
to FWS or NMFS for any violations of
the ESA.
(2) SHA or CCAA.
(i) NRCS will provide technical
assistance to help participants design
and use their HFRP restoration plan for
the dual purposes of qualifying for
HFRP financial assistance and as a basis
for entering into a SHA or CCAA with
FWS or NMFS and receiving an
associated permit under section
10(a)(1)(a) of the ESA.
(ii) All SHAs and associated permits
issued by FWS or NMFS are subject to
the Safe Harbor Policy jointly adopted
by FWS and NMFS according to the
regulations at 64 FR 32717 or applicable
subsequently adopted policy, and SHAs
with FWS also are subject to regulations
at 50 CFR 17.22(c) for endangered
species or 50 CFR 17.32(c) for
threatened species, or applicable
subsequent regulations.
(iii) All CCAAs and associated
permits issued by FWS or NMFS are
subject to the CCAAs policy jointly
adopted by FWS and NMFS according
to the regulations at 64 FR 32706 or
applicable subsequently adopted policy,
and Candidate Conservation
Agreements with Assurances with FWS
also are subject to regulations at 50 CFR
17.22(d) for endangered species or 50
CFR 17.32(d) for threatened species, or
applicable subsequent regulations.
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(iv) If the 30-year contract or 10-year
restoration cost-share agreement is
terminated, the landowner will be
responsible to notify and coordinate
with FWS and NMFS, as appropriate,
for any modifications related to the SHA
or CCAA.
§ 625.14 Modification of the HFRP
restoration plan.
The State Conservationist may
approve modifications to the HFRP
restoration plan that do not modify or
void provisions of the easement,
contract, restoration agreement, or
Landowner Protections, and are
consistent with applicable law. NRCS
may obtain and receive input from the
landowner and coordinate with FWS
and NMFS to determine whether a
modification is justified. Any HFRP
restoration plan modification must meet
HFRP program objectives, and must
result in equal or greater wildlife
benefits and ecological and economic
values to the United States.
Modifications to the HFRP restoration
plan which are substantial and affect
provisions of the easement, contract,
restoration cost-share agreement, or
Landowner Protections will require
agreement from the landowner, FWS or
NMFS, as appropriate, and may require
execution of an amended easement,
contract, and 10-year restoration costshare agreement and modification to the
protections afforded by the safe harbor
assurances.
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§ 625.15
Transfer of land.
(a) Offers voided prior to enrollment.
Any transfer of the property prior to the
applicant’s acceptance into the program
shall void the offer of enrollment. At the
option of the State Conservationist, an
offer can be extended to the new
landowner if the new landowner agrees
to the same or more restrictive
easement, agreement, and contract terms
and conditions.
(b) Actions following transfer of land.
(1) For easements or 30-year contracts
with multiple annual payments, any
remaining payments will be made to the
original landowner unless NRCS
receives an assignment of proceeds.
(2) Eligible cost-share payments shall
be made to the new landowner upon
presentation of an assignment of rights
or other evidence that title has passed.
(3) Landowner protections shall be
available to the new landowner and the
new landowner shall be held
responsible for assuring completion of
all measures and conservation practices
required by the contract, deed, and
incidental take permit.
(4) If a SHA or CCAA, is involved, the
previous and new landowners may
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coordinate with FWS or NMFS, as
appropriate, to transfer the agreement
and associated permits and assurances.
(5) The landowner and NRCS may
agree to transfer a 30-year contract. The
transferee must be determined by NRCS
to be eligible to participate in HFRP and
must assume full responsibility under
the contract, including operation and
maintenance of all conservation
practices and measures required by the
contract.
(c) Claims to payments. With respect
to any and all payments owed to a
person, the United States shall bear no
responsibility for any full payments or
partial distributions of funds between
the original landowner and the
landowner’s successor. In the event of a
dispute or claim on the distribution of
cost-share payments, NRCS may
withhold payments without the accrual
of interest pending an agreement or
adjudication on the rights to the funds.
§ 625.16
Violations and remedies.
(a) Easement Violations.
(1) In the event of a violation of the
easement or any associated agreement
involving a landowner, the landowner
shall be given reasonable notice and an
opportunity to voluntarily correct the
violation within 30 days of the date of
the notice, or such additional time as
the State Conservationist determines is
necessary to correct the violation.
(2) Notwithstanding paragraph (a)(1)
of this section, NRCS reserves the right
to enter upon the easement area at any
time to remedy deficiencies or easement
violations. Such entry may be made at
the discretion of NRCS when such
actions are deemed necessary to protect
important listed species, candidate
species, and forest ecosystem functions
and values or other rights of the United
States under the easement. The
landowner shall be liable for any costs
incurred by the United States as a result
of the landowner’s negligence or failure
to comply with easement or contractual
obligations.
(3) In addition to any and all legal and
equitable remedies as may be available
to the United States under applicable
law, NRCS may withhold any easement
and cost-share payments owed to
landowners at any time there is a
material breach of the easement
covenants, associated restoration
agreement, or any associated 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.
(4) The United States shall be entitled
to recover any and all administrative
and legal costs, including attorney’s fees
PO 00000
Frm 00023
Fmt 4702
Sfmt 4702
or expenses, associated with any
enforcement or remedial action.
(b) 30-year Contract and 10-year CostShare Agreement Violations.
(1) If the NRCS determines that a
participant is in violation of the terms
of a 30-year contract, or 10-year costshare agreement, or documents
incorporated by reference into the 30year contract or 10-year cost-share
agreement, the landowner shall be given
reasonable notice and an opportunity to
voluntarily correct the violation within
30 days of the date of the notice, or such
additional time as the State
Conservationist determines is necessary
to correct the violation. If the violation
continues, the State Conservationist
may terminate the 30-year contract or
10-year cost-share agreement.
(2) Notwithstanding the provisions of
paragraph (b)(1) of this section, a 10year cost-share agreement or 30-year
contract termination is effective
immediately upon a determination by
the State Conservationist that the
participant has: Submitted false
information; filed a false claim; engaged
in any act for which a finding of
ineligibility for payments is permitted
under this part; or taken actions NRCS
deems to be sufficiently purposeful or
negligent to warrant a termination
without delay.
(3) If NRCS terminates a 10-year costshare agreement or 30-year contract, the
participant will forfeit all rights for
future payments under the 10-year costshare agreement or 30-year contract, and
must refund all or part of the payments
received, plus interest, and liquidated
damages.
(4) When making any 30-year contract
or 10-year cost-share agreement
termination decisions, the State
Conservationist may provide equitable
relief in accordance with 7 CFR part
635.
§ 625.17
Payments not subject to claims.
Any cost-share, contract, or easement
payment or portion thereof due any
person under this part shall be allowed
without regard to any claim or lien in
favor of any creditor, except agencies of
the United States Government.
§ 625.18
Assignments.
Any person entitled to any cash
payment under this program may assign
the right to receive such cash payments,
in whole or in part.
§ 625.19
Appeals.
(a) A person participating in the HFRP
may obtain a review of any
administrative determination
concerning eligibility for participation
utilizing the administrative appeal
E:\FR\FM\14JAP1.SGM
14JAP1
Federal Register / Vol. 74, No. 9 / Wednesday, January 14, 2009 / Proposed Rules
regulations provided in 7 CFR parts 11
and 614.
(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 purposes of judicial
review, no decision shall be a final
Agency action except a decision of the
Chief 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 shall 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 Court
and are not subject to review under
administrative appeal regulations.
§ 625.20
Scheme and device.
(a) If it is determined by NRCS that a
person has employed a scheme or
device to defeat the purposes of this
part, any part of any program payment
otherwise due or paid such person
during the applicable period may be
withheld or be required to be refunded
with interest thereon, as determined
appropriate by NRCS.
(b) A scheme or device includes, but
is not limited to, coercion, fraud,
misrepresentation, depriving any other
person of payments for 10-year cost
share agreements, contracts, or
easements for the purpose of obtaining
a payment to which a person would
otherwise not be entitled.
(c) A person who succeeds to the
responsibilities under this part shall
report in writing to NRCS 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.
sroberts on PROD1PC70 with PROPOSALS
Arlen L. Lancaster,
Vice President, Commodity Credit
Corporation and Chief, Natural Resources
Conservation Service.
[FR Doc. E9–506 Filed 1–13–09; 8:45 am]
BILLING CODE 3410–16–P
VerDate Nov<24>2008
16:42 Jan 13, 2009
Jkt 217001
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 985
[Docket Nos. AMS–FV–08–0104; FV09–985–
1 PR]
Marketing Order Regulating the
Handling of Spearmint Oil Produced in
the Far West; Salable Quantities and
Allotment Percentages for the 2009–
2010 Marketing Year
AGENCY: Agricultural Marketing Service,
USDA.
ACTION: Proposed rule.
SUMMARY: This rule would establish the
quantity of spearmint oil produced in
the Far West, by class that handlers may
purchase from, or handle for, producers
during the 2009–2010 marketing year,
which begins on June 1, 2009. This rule
invites comments on the establishment
of salable quantities and allotment
percentages for Class 1 (Scotch)
spearmint oil of 842,171 pounds and 42
percent, respectively, and for Class 3
(Native) spearmint oil of 1,196,109
pounds and 53 percent, respectively.
The Spearmint Oil Administrative
Committee (Committee), the agency
responsible for local administration of
the marketing order for spearmint oil
produced in the Far West,
recommended these limitations for the
purpose of avoiding extreme
fluctuations in supplies and prices to
help maintain stability in the spearmint
oil market.
DATES: Comments must be received by
March 16, 2009.
ADDRESSES: Interested persons are
invited to submit written comments
concerning this proposal. Comments
must be sent to the Docket Clerk,
Marketing Order Administration
Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence
Avenue, SW., STOP 0237, Washington,
DC 20250–0237; Fax: (202) 720–8938; or
Internet: https://www.regulations.gov. All
comments should reference the docket
number and the date and page number
of this issue of the Federal Register and
will be made available for public
inspection in the Office of the Docket
Clerk during regular business hours, or
can be viewed at: https://
www.regulations.gov. All comments
submitted in response to this rule will
be included in the record and will be
made available to the public. Please be
advised that the identity of the
individuals or entities submitting the
comments will be made public on the
Internet at the address provided above.
PO 00000
Frm 00024
Fmt 4702
Sfmt 4702
1971
FOR FURTHER INFORMATION CONTACT:
Susan M. Coleman, Marketing Specialist
or Gary D. Olson, Regional Manager,
Northwest Marketing Field Office,
Marketing Order Administration
Branch, Fruit and Vegetable Programs,
AMS, USDA; Telephone: (503) 326–
2724; Fax: (503) 326–7440; or E-mail:
Sue.Coleman@usda.gov or
GaryD.Olson@usda.gov.
Small businesses may request
information on complying with this
regulation by contacting Jay Guerber,
Marketing Order Administration
Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence
Avenue, SW., STOP 0237, Washington,
DC 20250–0237; Telephone: (202) 720–
2491, Fax: (202) 720–8938, or E-mail:
Jay.Guerber@usda.gov.
This rule
is issued under Marketing Order No.
985 (7 CFR Part 985), as amended,
regulating the handling of spearmint oil
produced in the Far West (Washington,
Idaho, Oregon, and designated parts of
Nevada and Utah), hereinafter referred
to as the ‘‘order.’’ This order is effective
under the Agricultural Marketing
Agreement Act of 1937, as amended (7
U.S.C. 601–674), hereinafter referred to
as the ‘‘Act.’’
The Department of Agriculture
(USDA) is issuing this rule in
conformance with Executive Order
12866.
This rule has been reviewed under
Executive Order 12988, Civil Justice
Reform. Under the marketing order now
in effect, salable quantities and
allotment percentages may be
established for classes of spearmint oil
produced in the Far West. This
proposed rule would establish the
quantity of spearmint oil produced in
the Far West, by class, which may be
purchased from or handled for
producers by handlers during the 2009–
2010 marketing year, which begins on
June 1, 2009. This rule will not preempt
any State or local laws, regulations, or
policies, unless they present an
irreconcilable conflict with this rule.
The Act provides that administrative
proceedings must be exhausted before
parties may file suit in court. Under
section 608c(15)(A) of the Act, any
handler subject to an order may file
with USDA a petition stating that the
order, any provision of the order, or any
obligation imposed in connection with
the order is not in accordance with law
and request a modification of the order
or to be exempted therefrom. A handler
is afforded the opportunity for a hearing
on the petition. After the hearing, USDA
would rule on the petition. The Act
provides that the district court of the
SUPPLEMENTARY INFORMATION:
E:\FR\FM\14JAP1.SGM
14JAP1
Agencies
[Federal Register Volume 74, Number 9 (Wednesday, January 14, 2009)]
[Proposed Rules]
[Pages 1954-1971]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-506]
=======================================================================
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DEPARTMENT OF AGRICULTURE
Natural Resources Conservation Service
7 CFR Part 625
RIN 0578-AA52
Healthy Forests Reserve Program
AGENCY: Natural Resources Conservation Service (NRCS), United States
Department of Agriculture (USDA).
ACTION: Proposed rule; request for comment.
-----------------------------------------------------------------------
SUMMARY: On May 17, 2006, NRCS published an interim final rule for the
Healthy Forests Reserve Program (HFRP) and received 11 comment letters.
NRCS proposes to amend this rule to incorporate changes associated with
enactment of the Food, Conservation, and Energy Act of 2008 (the 2008
Act). The 2008 Act authorizes $9,750,000 for each of the fiscal years
2009 through 2012 to carry out the program. As a result of the 2008
Act, NRCS will allow land enrollment through permanent easements, or
easements for a maximum duration allowed under state law and continue
to allow enrollment through 10-year cost-share agreements; and allow
enrollment of land owned by tribes or members of tribes in 30-year
contracts or 10-year cost-share agreements, or any combination of both.
Forty percent of program expenditures in any fiscal year will be used
for restoration cost-share agreement enrollment and 60 percent of
program expenditures in any fiscal year will be for easement
enrollment.
In addition to changes associated with the 2008 Act, NRCS is
addressing comments received on the interim final rule and proposing
additional changes that improve program implementation based on the
experience gained from the HRFP implementation under the interim final
rule.
DATES: Comments must be received on or before February 13, 2009.
Comments will be made available to the public or posted publicly in
their entirety.
ADDRESSES: You may send comments using any of the following methods:
Government-wide rulemaking Web site: Go to https://
www.regulations.gov and follow the instructions for sending comments
electronically.
NRCS Web site: Go to https://www.nrcs.usda.gov and follow the
instructions for sending comments electronically.
Mail: Easements Programs Division, Natural Resources Conservation
Service, Healthy Forests Reserve Program Comments, P.O. 2890, Room
6819-S, Washington, DC 20013.
Fax: 1-202-720-4265
Hand Delivery: Room 6819-S of the USDA South Office Building, 1400
Independence Avenue, SW., Washington, DC 20250, between 9 a.m. and 4
p.m., Monday through Friday, except Federal Holidays. Please ask the
guard at the entrance to the South Office Building to call 202-720-4527
in order to be escorted into the building.
This proposed rule may be accessed via Internet. Users can access
the NRCS homepage at https://www.nrcs.usda.gov/; select Farm Bill
[[Page 1955]]
link from the menu; select the Proposed Rule link from beneath the
Rules Index title. Persons with disabilities who require alternative
means for communication (Braille, large print, audiotape, etc.) should
contact the USDA Target Center at (202) 720-2600 (voice and TDD).
FOR FURTHER INFORMATION CONTACT: Robin Heard, Director, Easement
Programs Division, NRCS, P.O. Box 2890, Washington, DC 20013-2890;
Phone: (202) 720-1854; Fax: (202) 720-4265; or e-mail:
HFRP@wdc.usda.gov.
SUPPLEMENTARY INFORMATION:
Regulatory Certifications
Executive Order 12866
The Office of Management and Budget (OMB) determined that this
proposed rule is not a significant regulatory action, and a benefit
cost assessment has not been undertaken.
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.
Regulatory Flexibility Act
Pursuant to 5 U.S.C. 605(c) of the Regulatory Flexibility Act, this
proposed rule will not have a significant economic impact on a
substantial number of small entities as defined by that Act. Therefore,
a regulatory flexibility analysis is not required for this proposed
rule. This proposed rule would amend the HFRP, which involves the
voluntary acquisition of interests in property by NRCS.
Small Business Regulatory Enforcement Fairness Act of 1996
This proposed rule is not a major rule as defined by section 804 of
the Small Business Regulatory Enforcement Fairness Act of 1996. This
proposed 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 U.S.-based companies to
compete in domestic and export markets.
The 30-day comment period associated with this rulemaking will
provide the public the opportunity to comment on the changes to this
regulation. To ensure that NRCS has the regulatory framework in place
to implement the Food, Conservation, and Energy Act of 2008 (the 2008
Act), Public Law 110-246, for a fiscal year 2009 sign-up, NRCS has
determined that a 30 day comment period is necessary.
Environmental Analysis
The proposed rule for the Healthy Forests Reserve Program amends
the current regulation to include congressionally required statutory
changes to the program as a result of the Food, Conservation, and
Energy Act of 2008 (the 2008 Act), Public Law 110-246. The 2008 Act
changes the enrollment options for acreage owned by Indian tribes. In
addition to using 10-year cost-share agreements, Indian Tribes may now
enroll lands under a 30-year contracts option. The 2008 Act also allows
the Natural Resources Conservation Service (NRCS) to acquire permanent
easements, and establish limitations on the use of funds for cost-share
agreements and easements. The proposed rule also amends the regulation
in response to comments received by the Agency as a result of a public
comment period in 2006; these changes would include language to clarify
the Landowner Protections and Safe Harbor Agreements provisions. In
addition, the proposed rule makes a number of minor changes to clarify
the regulations for the public; such changes include clarifying the
enrollment process, providing clear guidance on methods of
determination of compensation, providing guidance on the Agency's
treatment of ecosystem service credits, and clarifying language on
Agency appeals.
After review of the previous Environmental Assessment (EA) prepared
in April 2006, it has been determined that the proposed changes are
minor and do not present significant new circumstances or new
information relative to environmental issues from those analyzed in the
2006 EA. Accordingly, NRCS has determined and reaffirms that the
previous EA and Finding of No Significant Impact (FONSI) have
sufficiently analyzed the program's potential environmental impacts and
are inclusive of the proposed rule. Copies of the EA and FONSI impact
may be obtained from the National Environmental Coordinator, Natural
Resources Conservation Service, Ecological Sciences Division, 1400
Independence Ave., SW., Washington, DC 20250; the Healthy Forests
Reserve Program Manager, Easements Programs Division, NRCS, P.O. Box
2890, Room 6813-S, Washington, DC 20013; or electronically on the
Internet through the NRCS homepage, at https://www.nrcs.usda.gov/
programs/HFRP/ProgInfo/
Paperwork Reduction Act
The forms that will be utilized to implement this regulation have
previously been approved for use and OMB assigned the control number
0578-0013. NRCS estimates that HFRP results in the following changes to
the current package:
Type of Request: New Information Collection Package/form/etc.
Increase of 26,020 respondents
Increase of 23,926.3 responses
Increase Burden Hours by 27,768.12 hours
Increase in the average time to execute a form in the
collection: 0.229 hours or 14.03 minutes.
Government Paperwork Elimination Act
NRCS is committed to compliance with the Government Paperwork
Elimination Act and the Freedom to E-File Act, which require government
agencies in general, and NRCS in particular, to provide the public the
option of submitting information or transacting business electronically
to the maximum extent possible.
Civil Rights Impact Analysis
USDA has determined through a Civil Rights Impact Analysis that the
issuance of this rule would disclose no disproportionately adverse
impacts for minorities, women, or persons with disabilities. Copies of
the Civil Rights Impact Analysis are available, and may be obtained
from the Director, Easement Programs Division, Natural Resources
Conservation Service, P.O. Box 2890, Washington, DC 20013-2890, or
electronically at https://www.nrcs.usda.gov/programs/HFRP.
Civil Justice Reform
This proposed 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 614 and 11 must be exhausted.
Executive Order 13132, Federalism
This proposed rule has been reviewed in accordance with the
requirements of Executive Order 13132, Federalism. NRCS has determined
that this proposed 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
[[Page 1956]]
the States, or on the distribution of power and responsibilities on the
various levels of government. Therefore, NRCS concludes that this
proposed rule does not have Federalism implications. Moreover, Sec.
625.5 of this proposed rule shows sensitivity to Federalism concerns by
providing an option for the responsible official (State
Conservationist) to obtain input from other agencies in proposal
development.
Unfunded Mandates Reform Act of 1995
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), NRCS assessed the effects of this proposed rule on
State, local, and Tribal governments, and the public. This proposed
rule does not compel the expenditure of $100 million or more by any
State, local, Tribal governments, or anyone in the private sector;
therefore, a statement under section 202 of the Unfunded Mandates
Reform Act is not required.
Executive Order 13175, Consultation and Coordination With Indian Tribal
Governments
NRCS has assessed the impact of this proposed rule on Indian tribes
and concluded that this proposed rule will not have a substantial
direct effect on one or more Indian tribes. Given the legal complexity
of acquiring easements on acreage owned by Indian Tribes, the 2008 Act
added an enrollment option, in addition to the 10-year cost-share
agreement option, of offering 30-year contracts. This change encourages
Indian Tribal participation in the program. The proposed rule at Sec.
625.12, will outline the procedures for enrolling land in the program
through the 30-year contract option. The rule will neither impose
compliance costs on Tribal governments, nor preempt Tribal law.
Discussion of Program
America's forests provide a wide range of environmental, economic,
and social benefits including timber, wilderness, minerals, recreation
opportunities, and fish and wildlife habitat. In addition, a healthy
forest ecosystem provides habitat for endangered and threatened
species, sustains biodiversity, protects watersheds, sequesters carbon,
and helps purify the air. However, some forest ecosystems have had
their ecological functions diminished by a number of factors, including
fragmentation, reduction in periodic fires, lack of proper management,
or invasive species. Habitat loss has been severe enough in some
circumstances to cause dramatic population declines such as in the case
of the ivory-billed woodpecker. As a result of the pressures on forest
ecosystems, many forests need active management and protection from
development in order to sustain biodiversity and restore habitat for
species that have suffered significant population declines. Active
management and protection of forest ecosystems can also increase carbon
sequestration and improve air quality.
Many forest ecosystems are located on private lands and provide
habitat for species that have been listed as endangered or threatened
under Section 4 of the Endangered Species Act (ESA), 16 U.S.C. 1533,
(listed species). Congress enacted the Healthy Forests Reserve Program
(HFRP), Title V of the Healthy Forest Restoration Act of 2003 (Pub. L.
108-148, 16 U.S.C. 6571-6578, to provide financial assistance to
private landowners to undertake projects that restore and enhance
forest ecosystems to help promote the recovery of threatened and
endangered species, improve biodiversity, and enhance carbon
sequestration.
The Secretary of Agriculture has delegated authority to implement
HFRP to the NRCS Chief (Chief). In addition, technical support
associated with forest management practices may also be provided by the
U.S. Forest Service. Section 501 of Title V of the Healthy Forests
Restoration Act of 2003 (Pub. L. 108-148) provides that the program
will be carried out in coordination with the Secretary of the Interior
and the Secretary of Commerce. NRCS works closely with the FWS and the
NMFS to further the species recovery objectives of the HFRP and to help
make available to HFRP participants safe harbor or similar assurances
and protection under ESA section 7(b)(4) or Section 10(a)(1), 16 U.S.C.
1536(b)(4), 1539(a)(1).
Proposed Changes to the Regulations Based on the Prior Comment Period
NRCS published an interim final rule that established the
regulations captioned ``Healthy Forests Reserve Program'' in the
Federal Register on May 17, 2006 (71 FR 28547). The Agency provided a
90-day comment period that ended on August 15, 2006. NRCS received
comments from 11 commenters who raised a number of issues. This section
discusses all of the relevant comments except for those that expressed
agreement with provisions of the interim final rule. Based on the
reasons set forth in the interim final rule and this document, NRCS
proposes the changes discussed below.
Purpose and Eligibility
The statutory provisions at 16 U.S.C. 6571 state that the purpose
of HFRP is to restore and enhance forest ecosystems in order to: (1)
Promote the recovery of threatened and endangered species, (2) improve
biodiversity, and (3) enhance carbon sequestration. Under 16 U.S.C.
6572(b), to be eligible for enrollment, land must be:
(1) Private land the enrollment of which will restore, enhance, or
otherwise measurably increase the likelihood of recovery of a species
listed as endangered or threatened under 16 U.S.C. 1533 and
(2) private land the enrollment of which will restore, enhance, or
otherwise measurably improve the well-being of species that--
(a) are not listed as endangered or threatened under 16 U.S.C.
1533; but
(b) are candidates for such listing, State-listed species, or
special concern species.
The authorizing statute further provides at 16 U.S.C. 6572(c) that
the Secretary of Agriculture shall give additional consideration to
enrollment of eligible land that will improve biological diversity and
increase carbon sequestration.
One Federal agency commenter questioned whether land had to meet
both criteria in order to be eligible. While the language of 16 U.S.C.
6572(b) uses ``and'' between both criteria, it has been determined that
both categories of land are individually eligible. The interpretation
that eligible land must meet both criteria is overly restrictive and is
likely to occur rarely. The NRCS interpretation is intended to avoid
negatively impacting its ability to achieve the program purposes. This
is clarified in 7 CFR 625.4.
One commenter asserted that eligibility for the HFRP should be
limited to non-industrial private forest lands. No changes were made to
the regulations based on this comment because the Agency does not see
any basis in the statute for limiting enrollment to non-industrial
private forest lands. As noted above, 16 U.S.C. 6572 provides that any
private land (including industrial private forest land) that meets the
specified conditions is eligible.
Commenters asserted that HFRP places too much emphasis on
protecting endangered species and too little emphasis on protecting the
forest ecosystem. To help change the emphasis, commenters asserted that
professional foresters should be heavily involved in ranking proposed
sites for the HFRP. No changes were made to the regulations based on
this comment. The emphasis on endangered species reflects the purpose
of the program detailed in the statute: to promote the recovery of
[[Page 1957]]
threatened and endangered species, to improve biodiversity, and to
enhance carbon sequestration. See 16 U.S.C. 6571 and 6572.
Two commenters questioned why clear-cutting was singled out as
incompatible with HFRP and asserted that HFRP should allow for clear-
cutting when it would enhance the long-term forest and wildlife health.
No changes were made to the regulations based on these comments. It
appears that the commenters referred to an example concerning clear-
cutting in the preamble of the interim final rule, which indicated that
clear-cutting may not be a compatible use for enrollment under the HFRP
if the purpose was to achieve economic gain at the expense of the
forest ecosystem or essential fish and wildlife habitat (71 FR 28551).
The discussion was just an example and was not intended to cover all
circumstances. Clear-cutting may be allowed under HFRP if such activity
were designed to help accomplish the purposes of the program.
A number of commenters made reference to non-forest lands as part
of a forest ecosystem. No changes were made to the regulations because
non-forest land is eligible to be included if it is part of an eligible
forest ecosystem.
Two commenters asserted that ``forest ecosystems'' eligible for
HFRP should not be limited to lands with trees on them, but should
include rangelands and other lands that are integral parts of a forest
ecosystem and vital to the habitat of species or the enhancement of
biodiversity and carbon sequestration. No changes were made to the
regulations based on these comments. ``Rangelands and other lands''
described by the commenter are not prohibited from inclusion in HFRP.
The statutory provisions at 16 U.S.C. 6572, state that to be eligible
for enrollment, land must be:
(1) Private land the enrollment of which will restore, enhance, or
otherwise measurably increase the likelihood of recovery of a species
listed as endangered or threatened under 16 U.S.C. 1533 and
(2) private land the enrollment of which will restore, enhance, or
otherwise measurably improve the well-being of species that--
(a) Are not listed as endangered or threatened under 16 U.S.C.
1533; but
(b) are candidates for such listing, State-listed species, or
special concern species.
With respect to the statutory eligibility for enrollment of private
land which would restore, enhance, or otherwise measurably improve the
well-being of State-listed species, one commenter asserted that for
States that do not have State lists, enrollment eligibility should
include lands that provide habitat for G1-G2 species recognized by
NatureServe and requests made by applicants. No changes were made to
the regulations based on this comment. As noted above, the statutory
provisions allow for eligibility for enrollment of private land the
enrollment of which would restore, enhance, or otherwise measurably
improve the well-being of ``special concern species.'' This provides a
basis for enrolling lands in those States that do not have State lists.
One commenter asserted that the interim final rule should be
changed by adding a definition of ``forestland.'' This comment appears
to have been made to help clarify land eligibility. No changes were
made to the regulations based on this comment. As noted above, private
land that meets the eligibility criteria specified above is eligible
for HFRP; the statute does not include a term ``forestland''.
One commenter asserted that rangelands and other lands that are
integral parts of a forest ecosystem and vital to the habitat of
species or the enhancement of biodiversity and carbon sequestration,
should be eligible for inclusion in the HFRP to the extent that areas
covered by trees might be eligible. One commenter asserted that
riparian corridors that would protect aquatic species, such as salmon,
should be eligible land for HFRP. NRCS did not make any changes to the
regulations based on these comments. HFRP does not limit eligible lands
to a particular type of private lands. Except as described in Sec.
625.4(d), any type of private land may be eligible for inclusion in
HFRP.
One commenter asserted that NRCS should remove the requirement that
eligible property must have access from a public road. No changes were
made to the regulations based on this comment. Although the 2006
interim final rule preamble indicated that there must be access to the
property from a public road (71 FR 28551 and 28553), the interim final
rule text at Sec. 625.11(b)(1) provides merely that the easement shall
grant the United States a right of access to the easement area. The
Agency affirms the regulatory language that direct access from a public
road is not required, if access to the easement area is conveyed to the
United States through an acceptable right-of-way easement.
Priority for Enrollment
The statutory provisions at 16 U.S.C. 6572 set forth priority
criteria for enrollment in HFRP. Subsection (f) provides the following
regarding enrollment priority:
(1) Species--The Secretary of Agriculture shall give priority to
the enrollment of land that provides the greatest conservation benefit
to--
(a) Primarily, species listed as endangered or threatened under 16
U.S.C. 1533; and
(b) Secondarily, species that--
(i) Are not listed as endangered or threatened under 16 U.S.C.
1533; but
(ii) Are candidates for such listing, State-listed species, or
special concern species.
(2) Cost-effectiveness--The Secretary of Agriculture shall also
consider the cost-effectiveness of each agreement or easement, and
associated restoration plans, so as to maximize the environmental
benefits per dollar expended.
One commenter asserted that the HFRP should place emphasis on
pollinator-related enhancements. Another commenter suggested that the
HFRP should change the emphasis for enrollment under the HFRP from
``promoting'' the recovery of listed species, ``improving''
biodiversity, and ``enhancing'' carbon sequestration to ``does not
detract from'' the recovery of listed species, ``does not detract from
biodiversity,'' and ``does not detract from'' carbon sequestration. No
changes were made to the regulations based on these comments. The
Agency does not have statutory authority to change the emphasis of the
HFRP as requested by commenters. However, issues regarding the forest
ecosystem and pollinator-related enhancements would be considered for
purposes of eligibility as set forth above.
One commenter recommended inclusion of the hardwoods of the
Mississippi River and its tributaries and the mesic hardwoods forests
of the Appalachian region (including the Cumberland plateau) as a
regional forest ecosystem to be included as HFRP focus areas. No
changes were made to the regulations based on this comment. Under the
provisions of 16 U.S.C. 6572(f), any eligible lands, including those
described by the commenter, may be considered if they meet the
requirements for enrollment priority.
One commenter asserted that eligible non-profit conservation
organizations should receive higher priority in application selection.
No changes were made to the regulations based on this comment. As noted
above, 16 U.S.C. 6572(f) sets forth the criteria for enrollment
priority, and no statutory authority exists to give priority to non-
profit conservation organizations eligible for participation in HFRP.
[[Page 1958]]
One commenter suggested that affected State Conservationists
develop a uniform set of ranking criteria for a particular regional
enrollment. No changes were made to the regulations based on this
comment because the statute does not give NRCS the discretion to use
priorities other than those set forth in 16 U.S.C. 6572. The required
ranking considerations are found in the interim final rule at Sec.
625.6. As a matter of policy, the NRCS State Conservationists will
ensure that local conditions are considered in applying the ranking
criteria.
Term of Enrollment
Statutory provisions at 16 U.S.C. 6572(e)(1) provide that land may
be enrolled in the HFRP in accordance with:
A 10-year cost-share agreement,
A 30-year easement, or
A permanent easement; or an easement for the maximum
duration allowed under State law.
Under the provisions of 16 U.S.C. 6572(e)(3), the statute allows
acreage owned by Indian Tribes to be enrolled into the program through
the use of 30-year contracts or 10-year cost-share agreements or a
combination of the two.
Two commenters asserted that NRCS should not adopt informal quotas
for the three enrollment types. The original HFRP statutory language
required that ``the extent to which each enrollment method is used
shall be based on the approximate proportion of owner interest
expressed in that method in comparison to the other methods.'' No
changes were made to the regulations based on these comments. However,
the 2008 Act included language specifying that 40 percent of program
expenditures in any FY be for restoration cost-share agreement
enrollment and 60 percent of program expenditures in any FY be for
easement enrollment. The 2008 Act allows re-allocation if funds are not
obligated by April 1st of the FY in which the funds were made
available.
One commenter asserted that HFRP should allow a continuous
enrollment process. Although NRCS recognizes that continuous enrollment
may be more convenient for some landowners, no changes were made to the
regulation based on this comment. Given the limited funding for HFRP,
continuous enrollment would increase the administrative costs of
implementing the program without providing additional beneficial
effects.
Restoration Plans
The interim final rule provided that as a condition of HFRP
participation, a landowner must agree to the implementation of a HFRP
restoration plan. The purpose of the restoration plan is to restore,
protect, enhance, maintain, and manage the habitat conditions necessary
to increase the likelihood of recovery of listed species under the ESA,
or measurably improve the well-being of species that are not listed but
are candidates for such listing, State-listed species, or species
identified by the Chief for special consideration for funding.
One commenter asserted that the HFRP should allow existing plans
prepared for other forestry and conservation programs to be used to
satisfy the requirement for a HFRP restoration plan. No changes were
made to the regulations based on this comment because no other plans
prepared for other forestry and conservation programs meet the criteria
for participation in the HFRP. Further, 16 U.S.C. 6573 requires that
the HFRP restoration plan be developed ``jointly, by the landowner and
the Secretary of Agriculture, in coordination with the Secretary of the
Interior.''
One commenter asserted that the HFRP should compensate applicants
for the use of consulting services for preparing applications. No
changes were made to the regulations based on this comment. Under the
provisions of 16 U.S.C. 6575, NRCS is responsible for providing,
including obtaining from third parties, any needed assistance in
preparing the HFRP restoration plan.
With respect to reviewing and approving restoration plans, three
commenters suggested that NRCS use the word ``confer'' instead of
``consult with'' based on the assertion that ``consult with'' could be
misinterpreted to have a more formal meaning than intended. The interim
final rule defined ``consultation'' or ``consult with'' to mean ``to
talk things over for the purpose of providing information; to offer an
opinion for consideration; and/or to meet for discussion or to confer,
while reserving final decision-making authority with NRCS.''
Accordingly, ``consultation'' or ``consult with'' does not refer to a
formal process. To avoid confusion, the Agency has eliminated the terms
``consultation'' and ``consult with'' and, instead, without a change in
meaning, is using the term ``confer'' as suggested by the commenters.
Cost-Share Payments
Two commenters asserted that NRCS should use actual costs,
including maximum caps, rather than average costs for determining cost-
share assistance reimbursement rates as allowed under 16 U.S.C. 6574.
They assert that the average may be far lower than the actual costs and
thereby make full program implementation less likely in those places if
landowners are not repaid for their full expenses. No changes were made
to the regulation based on these comments. Calculating actual costs
would require extensive reviews of each applicant's situation,
including review of every relevant receipt. This would significantly
increase the administrative workload and reduce the financial
assistance available to HFRP participants. Average costs as determined
on a regional basis will be used to ensure that the average costs are
close to actual costs in that area.
Easements
One commenter asserted that the HFRP should provide for permanent
easements. NRCS did not make any changes to the regulations based on
this comment. The statute sets forth the methods through which land can
be enrolled into the program. The 2008 Act amended the statutory
language to allow for the enrollment of permanent easements. This
change is discussed along with other statutory changes in a separate
section which follows.
The Agency proposed to use a standard conservation easement deed,
termed a negative restricted deed. The Agency specifically requested
comments on whether the standard conservation easement deed or the
reserved interest deed should be used in HFRP (71 FR 28551). The
standard conservation easement deed, termed a negative restricted
easement deed, represents an interest in land where the holder of the
easement has the right to require the owner of the encumbered land
(i.e., the easement area) to take, or not take, specific actions with
respect to that land. On the other hand, the reserved interest deed
acquires all rights in the property not specifically reserved to the
landowner. In response, NRCS received two comments, asserting that the
HFRP should use the standard conservation easement deed for HFRP. No
changes were made to the regulations based on these comments because
the Agency has been using the standard conservation easement deed in
HFRP and will continue to do so. Standard conservation easement deeds
work best on working lands in programs such as HFRP where the landowner
will continue to conduct various activities on the easement area and
few activities need to be prohibited in order to meet program purposes.
Cooperation and Technical Assistance
Under the provisions of 16 U.S.C. 6572, NRCS is to carry out the
HFRP in
[[Page 1959]]
coordination with the FWS and the NMFS. The provisions of Sec.
625.13(c), which concern the HFRP restoration plan development, state
that NRCS, in coordination with FWS, will determine the conservation
practices and measures for the restoration plan.
One commenter asserted that the reference to coordination with FWS
should also include cooperation with NMFS. The language of 16 U.S.C.
6573 says that NRCS, the landowner, and FWS will develop the HFRP
restoration plan. However, given that 16 U.S.C. 6572 states that NRCS
is to carry out HFRP in coordination with FWS and NMFS, NRCS is
changing the regulation text to refer to coordination with both FWS and
NMFS as appropriate, in light of the species or habitat involved, in
developing the HFRP conservation plan.
Landowner Protections and Safe Harbor Agreements
The 2006 interim final rule (71 FR 28557), included a definition of
Landowner Protections as part of Sec. 625.2 and the preamble described
those protections and how program participants obtain them (71 FR
28548-28550). Landowner Protections were defined in the interim final
rule as ``protections and assurances made available to HFRP
participants whose voluntary conservation activities result in a net
conservation benefit for listed, candidate, or other species. Landowner
Protections made available by the Secretary of Agriculture to HFRP
participants may be provided under section 7(b)(4) or section 10(a)(1)
of the Endangered Species Act of 1973 (ESA; 16 U.S.C. 1536(b)(4),
1539(a)(1)). These Landowner Protections may be provided by NRCS in
conjunction with meeting its responsibilities under section 7 of the
ESA, or by FWS or NFMS through section 10 of the ESA. These Landowner
Protections include a permit providing coverage for incidental take of
species listed under the ESA. Landowner Protections also include
assurances related to potential modifications of HFRP restoration plans
and assurances related to the potential (unlikely) termination of
Landowner Protections and any 10-year cost share agreement.''
Commenters asserted that NRCS should establish specific provisions
in agreements or in the regulations regarding how NRCS will cooperate
with FWS and NMFS concerning the preparation of restoration plans and
other activities under the HFRP. NRCS should include how it will
cooperate with FWS and NMFS to make Landowner Protections available to
participating landowners.
Under the statutory provisions at 16 U.S.C. 6573, NRCS is
responsible for preparing restoration plans. NRCS develops the
restoration plans jointly with the program participant in coordination
with the FWS or NMFS, as appropriate. Further, NRCS will work with FWS
and NMFS to establish memorandums of understanding to enhance the
coordination process. In response to the commenters' request for more
procedural details, NRCS clarified the definition of Landowner
Protections in Sec. 625.2 and added a new section in the regulations
at Sec. 625.13(d) to indicate how NRCS will help program participants
obtain Landowner Protections.
NRCS has also added a definition for Candidate Conservation
Agreement with Assurances (CCAA) and clarified the definitions of
Landowner Protections and Safe Harbor Agreement (SHA) in Sec. 625.2 of
this rule to more fully describe the two types of Landowner
Protections. These Landowner Protections are conditioned on to the HFRP
restoration plan and associated cost-share agreement or easement being
properly implemented. There is no requirement that HFRP participants
obtain any Landowner Protections. Generally, the three elements of
Landowner Protections are: (1) Authorization for the take of endangered
or threatened species when conducting management activities under a
HFRP restoration plan and when returning to the baseline conditions at
the end of the cost-share agreement or easement period (whichever is
longer), (2) assurance that the landowner will not be required to
undertake additional or different management activities without the
consent of the landowner, and (3) limitations on the possibility of
termination of a HFRP restoration plan that is being properly
implemented by the landowner.
The definition of Landowner Protections in the interim final rule
(and text in the preamble), included a description of two approaches
that the Secretary of Agriculture may use to make Landowner Protections
available to HFRP participants. Based on the suggestions from
commenters and to help ensure clarity, NRCS clarified the description
in the definition in section Sec. 625.2 and added Sec. 625.13(d) to
specify the two ways that NRCS can make Landowner Protections available
to HFRP participants upon request. The first approach involves NRCS and
the HFRP participant, and does not require direct involvement by FWS or
NMFS with the participant. Under this approach, NRCS will extend to
participants the incidental take authorization received by NRCS from
FWS or NMFS through biological opinions issued as part of the
interagency consultation process under section 7(a)(2) of the ESA.
Under the second approach for Landowner Protections, NRCS will
provide technical assistance to help participants design and use their
HFRP restoration plan for the dual purposes of qualifying for HFRP
financial assistance and as a basis for entering into a SHA or CCAA
with FWS or NMFS under section 10(a)(1)A of the ESA. SHAs are voluntary
arrangements between either the FWS or NMFS and cooperating
participants who agree to adopt practices and measures, or refrain from
certain activities, in order to achieve net conservation benefits,
i.e., a contribution to the recovery of listed species. A CCAA is a
voluntary agreement between FWS or NMFS and cooperating landowners, who
voluntarily agree to manage their lands or waters to remove threats to
species at risk of becoming threatened or endangered, receive
assurances that their conservation efforts will not result in future
regulatory obligations in excess of those they agree to at the time
they enter into the Agreement. CCAAs are intended to help conserve
proposed and candidate species, and species likely to become
candidates, by giving private, non-Federal landowners incentives to
implement conservation measures for declining species. The primary
incentive for a CCAA is an assurance that no further additional land,
water, or resource use restrictions would be imposed should the species
later become listed under the ESA. There is no requirement that HFRP
participants enter into a SHA or a CCAA. All SHAs are subject to the
SHA policy jointly adopted by FWS and NMFS (Announcement of Final
Policy, 64 FR 32717, June 17, 1999), and SHAs with the FWS also are
subject to regulations at 50 CFR Part 17, and specifically 50 CFR
17.22(c) for endangered species or 17.32(c) for threatened species. All
CCAAs are subject to the CCAA policy jointly adopted by FWS and NMFS
(Announcement of Final Policy, 64 FR 32726, June 17, 1999), and CCAAs
with the FWS are also subject to regulations at 50 CFR Part 17, and
specifically 50 CFR 17.22(d) for endangered species or 17.32(d) for
threatened species.
The provisions of 16 U.S.C. 6575 require that the Secretary of
Agriculture offer landowners with technical assistance to assist the
landowners ``in complying'' with the terms of restoration plans (as
included in agreements or easements) under the
[[Page 1960]]
HFRP. One commenter requested that NRCS indicate how this will be
carried out. No changes were made to the regulation based on this
comment because NRCS works with the landowner when developing the
restoration plan. As part of the planning process, NRCS ensures that
the landowner understands the plan requirements. The existing
regulations at Sec. 625.16 provide guidance as to how NRCS would work
with those found to have deficiencies or committed violations.
Electric Transmission Facilities
One commenter asserted that the HFRP should not be implemented in a
way that would be contrary to the use of electric transmission
facilities. The commenter stated:
NRCS should consider electronic transmission facilities to
be compatible with HFRP and allow such facilities to be located on
lands covered by NRCS easements without the need to modify each
individual easement.
NRCS should provide public notice of and the opportunity
for comments on all pending NRCS projects, including easements in the
HFRP.
NRCS should have an up-to-date system at the regional
level for obtaining information about existing and planned easements
rather than an annual system so that utilities could easily identify
where the easements may be located.
After a utility has filed a formal application for
construction of facilities, NRCS should stay any further action on
proposed easements within the identified utility routes until final
action is taken on the application by State and Federal agencies.
No changes were made to the regulations based on these comments.
The Agency understands the importance of electric transmission
facilities that provide electricity to homes and businesses across
America. However, NRCS is purchasing conservation easements for the
protection of certain conservation values: promoting the recovery of
threatened and endangered species, improving biodiversity, and
enhancing carbon sequestration. The protection of those conservation
values will dictate the terms of any conservation easement deed. Most
conservation easement deeds limit the development of structures and
utilities. Whether an electric transmission facility would be allowed
on an easement property is determined on a case-by-case basis and
depends on whether the electronic transmission facilities would be
compatible with the purposes of HFRP and the easement at issue.
Regarding the comment about public notice and comment, NRCS is not
required by law to provide public notice and an opportunity to comment
on easements under HFRP. The last two comments are related to potential
conflicts between the placement of an easement and the placement of
utilities. NRCS policy requires that State Conservationists take into
account utilities that are being planned for installation when making
project funding decisions and seek to avoid conflicts with
infrastructure projects when feasible.
Termination of Landowner Protection
The preamble of the 2006 interim final rule states that ``In
easement circumstances, where a change of conditions requires the FWS
and the NMFS to terminate a Landowner Protection, NRCS will work to
address the changed conditions in the HFRP restoration plan in
coordination with the landowner'' (71 FR 28549). One commenter
questioned whether this referred to landowner non-compliance or changed
environmental or ecological conditions. NRCS will work to address the
changed conditions in coordination with the landowner regardless of the
cause of the change. As provided for in this proposed rule in the
clarified definition of Landowner Protections in Sec. 625.2 and the
associated provision at Sec. 625.13(d), provided that the contract
holder has acted in good faith and without the intent to violate the
terms of the HFRP restoration plan, all appropriate options will be
pursued with the participant to avoid termination in the case of
landowner non-compliance or changed conditions. If the participant has
entered into a SHA or CCAA with FWS or NMFS (the Services) based on a
HFRP restoration plan, NRCS will work with the participant and the
Services to seek appropriate means of avoiding revocation of a permit
issued under section 10(a)(1) of the ESA by FWS or NMFS to implement
the SHA or CCAA. However, in the event of a termination, any requested
assurances from NRCS will be voided and the landowner will be
responsible to FWS or NMFS for any violations of the ESA, as clarified
in this proposed rule at Sec. 625.13(d). The SHA policy regarding
revocation of a permit issued in association with a SHA is: ``The
Services are prepared as a last resort to revoke a permit implementing
a Safe Harbor Agreement where continuation of the permitted activity
would be likely to result in jeopardy to a species covered by the
permit. Prior to taking such a step, however, the Services would first
have to exercise all possible means to remedy such a situation.'' (Fish
and Wildlife Service and National Fisheries Marine Service, Safe Harbor
Agreements and Candidate Conservation Agreements with Assurances, Final
Rule and Notices, 64 FR 32724). Regulations pertaining to SHA permits
issued by FWS have a similar provision (50 CFR 17.22(c)(7) and
17.32(c)(7)) for endangered and threatened wildlife.
Proposed Changes Resulting From Passage of the Food, Conservation, and
Energy Act of 2008
NRCS proposes to amend the current regulation to include statutory
changes included in Section 8205 of the 2008 Act (Pub. L. 110-246) as
follows:
Section 8205 amended the methods of enrollment by
replacing the 99-year enrollment method with enrollment of permanent
easements or the maximum duration allowed by state law. NRCS proposes
to amend Sec. 625.8(b), Sec. 625.10(e)(1) and Sec. 625.11(a) by
removing reference to 99 year easements and inserting in its place the
words ``permanent easement''.
Section 8205 also expanded the enrollment methods to
include the use of 30-year contracts or 10-year cost share agreements,
or any combination of both, for acreage owned by Indian tribes. The
statement of managers (Conference Report H.R. 110-627 for HR 2419,
pages 202 and 203, May 13, 2008) provided additional clarification of
Congressional intent by stating that ``the Managers intend that Tribal
land enrolled in the program should be land held in private ownership
by a tribe or an individual Tribal member. Tribal lands held in trust
or reserved by the U.S. government or restricted fee lands should not
be enrolled in the program regardless of ownership.'' NRCS proposes to
add the definition of ``acreage owned by Indian Tribes'' in Sec. 625.3
to read as follows: ``acreage owned by Indian Tribes means private
lands to which the title is held by individual Indians and Indian
tribes, including Alaska Native Corporations. This term does not
include land held in trust by the United States or lands the title to
which is held subject to Federal restrictions against alienation.''
NRCS also proposes to amend the following sections to incorporate
reference to 30-year contracts: Sec. 625.1(a); Sec. 625.2; Sec.
625.3 in the definition of ``restoration agreement;'' Sec. 625.4(a);
Sec. 625.5(b); Sec. 625.8(b)(2); Sec. 625.8(d); Sec. 625.15(b)(5);
Sec. 625.16(b); and Sec. 625.20(b); NRCS proposes to add the term
``contract'' in reference to 30-year contracts in Sec. 625.6(a)(7);
Sec. 625.7(a) and (b); Sec. 625.14; Sec. 625.17; and Sec.
625.16(a)(3); and NRCS proposes to
[[Page 1961]]
add a new Sec. 625.12, 30-year contracts, to include the provisions
related to this new enrollment method. Consistent with the statutory
requirement, NRCS must treat 30-year contracts like easements to the
extent possible. In particular, statutory language in 16 U.S.C. 6572
requires that the value of a 30-year contract for Tribal lands shall be
equivalent to the value of a 30-year easement. Although there are
limitations to handling 30-year contacts like 30-year easements because
of the fundamental differences between contract law and real property
law related to easements, NRCS has structured 30-year contract
requirements in Sec. 625.12 to be as comparable as possible to the
easements requirements in Sec. 625.11.
Section 8205 of the 2008 Act establishes requirements regarding the
use of funds for cost-share agreements and easements. Specifically,
this section directs that of the total amount of funds expended under
the program for a fiscal year to acquire easements and enter into cost-
share agreements, not more than 40 percent shall be used for 10-year
cost-share agreements and not more than 60 percent shall be used for
easements. Funds not obligated by April 1st of the fiscal year may be
used to carryout either enrollment method. Cost-share agreements and
easements under the Tribal lands option do not count toward the 60/40
calculation. NRCS proposes to incorporate this statutory requirement in
Sec. 625.4(a).
Other Proposed Minor Changes for Clarification or Improved Program
Administration
NRCS proposes to make other changes to clarify the regulations for
the public; such changes include clarifying the enrollment process,
providing clear language about determining easement, contract, and
agreement compensation, providing guidance on the Agency's treatment of
ecosystem service credits, and clarifying language on Agency appeals.
The proposed changes include:
Section 625.1 Purpose and Scope
Section 625.1(b)(1) identifies one objective of the program as
being to ``Promote the recovery of endangered and threatened species
under the ESA.'' NRCS proposes to amend Sec. 625.1(b)(1) to clarify
that ESA is an abbreviation for the Endangered Species Act.
Section 625.2 Definitions
In addition to the definition of ``Acreage owned by Indian
Tribes,'' which NRCS proposes to add as a result of statutory changes
described in the previous section, NRCS proposes to add definitions for
``Candidate Conservation Agreement with Assurances,'' ``Conservation
practice'' and ``Forest ecosystem''.
NRCS proposes to add a definition for the term ``Candidate
Conservation Agreement with Assurances'' to ensure the public has clear
understanding of the Landowner Protections provided through HFRP. NRCS
proposes the definition to read as follows: ``Candidate Conservation
Agreement with Assurances (CCAA) means a voluntary arrangement between
FWS or NMFS, and cooperating non-Federal landowners under the authority
of Section 10(a)(1) of the Endangered Species Act of 1973 (the Act), 16
U.S.C. 1539(a)(1). Under the CCAA and an associated enhancement of
survival permit, the non-Federal landowner implements actions that are
consistent with the conditions of the permit. Candidate Conservation
Agreements with Assurances with FWS are also subject to regulations at
50 CFR 17.22(d) for endangered species or 50 CFR 17.32(d) for
threatened species, or applicable subsequent regulations.''
NRCS proposes to add the term ``Conservation practice'' to replace
the definition of ``practice.'' The definition of ``conservation
practice'' describes a broader array of activities than the definition
of the term ``practice.'' NRCS proposes to incorporate the following
language as the definition of ``conservation practice.'' ``Conservation
practice means one or more conservation improvements and activities,
including structural practices, land management practices, vegetative
practices, forest management, and other improvements that benefit the
eligible land and optimize environmental benefits, planned and applied
according to NRCS standards and specifications.''
The purpose of HFRP is to restore and enhance forest ecosystems.
NRCS proposes to add the term ``forest ecosystem'' to clarify the
program's purpose.
NRCS proposes amendments to other definitions as follows:
The definition of ``Activity'' is removed because statutory
authority is only provided for ``Practices'' and ``Measures.''
The definition of ``Biodiversity'' is changed to clarify that
``biodiversity'' is the shortened term for biological diversity.
The definition of ``Contract'' is changed to be consistent with
other programs administered by NRCS. NRCS proposes amending the
definition to read as follows:
``Contract/agreement means the legal document that specifies the
obligations and rights of any applicant who has been accepted to
participate in the program. A contract/agreement is a binding agreement
for the transfer of assistance from USDA to the participant for
conducting the prescribed program implementation actions.''
The term ``30-year contract'' is added to incorporate the 30-year
contract option.
The Agency is removing the definition of ``Indian Trust Lands,''
``Practice,'' and ``Consultation or consult.'' The definition of
``Indian Trust Lands'' is removed and replaced by the definition of
``Acreage owned by Indian Tribes'' to be consistent with the statutory
language. The definition of ``Practice'' is removed and replaced with
the more specific term ``Conservation practice.'' The definition of
``Consultation or consult'' is removed and revised to change the term
to confer for the reasons described in the public comment section
above.
The definition of ``landowner'' is revised to remove the term
``remaindermen'' as a category of ownership. NRCS proposes removing
this term because it unnecessarily complicates the definition.
The definition of ``Landowner Protections'' is changed as a result
of the public comments received. The explanation for this proposal is
provided under ``Proposed changes based on public comment.''
The definition of ``Liquidated damages'' is amended to read:
``Liquidated damages'' is defined as ``a sum of money stipulated in the
HFRP restoration agreement that the participant agrees to pay NRCS if
the participant fails to adequately complete the terms of the
restoration agreement. The sum represents an estimate of the expenses
incurred by NRCS to service the restoration agreement, and reflects the
difficulties of proof of loss and the inconvenience or non-feasibility
of otherwise obtaining an adequate remedy.'' This is consistent with
how the term is defined in other programs administered by NRCS.
The definition of ``Participant'' is amended to incorporate non-
substantive changes to make the definition consistent with the
definition of ``Participant'' in other conservation programs and to
address the addition of the 30-year contract option provided in the
2008 Act for Tribal lands. Specifically, a ``Participant'' is an
applicant who is party to a 10-year cost share agreement, 30-year
contract, or an option agreement to purchase an easement. The Agency is
also taking the opportunity to note in this regulation, consistent with
the appeal regulations at
[[Page 1962]]
7 CFR Part 614 and Federal real property law, that once a conservation
easement is conveyed, the landowner is no longer a ``Participant'' for
easement enforcement and management matters and, therefore, may not
file an administrative appeal on those matters.
The definition of ``Private land'' is changed to read: ``Private
land means land that is not owned by a governmental entity, and
includes land meeting the definition of ``acreage owned by Indian
Tribes.'' This proposed change ensures the public recognizes that the
term ``Private land,'' as used in this regulation, includes acreage
owned by Indian Tribes. The previous definition included the term
``Indian Trust Lands.''
The definition of ``Safe harbor agreement'' is changed as described
in the public comment section above.
The definition of ``State Conservationist'' is changed to clarify
that the former State Conservationist of Hawaii position has become the
director of the Pacific Islands.
Section 625.4 Program Requirements
NRCS proposes to revise Sec. 625.4(a) to incorporate the statutory
limitation on the use of funds for cost-share agreements and easements.
As described in the statutory change section above, Section 8205 of the
2008 Act requires an allocation of no more than 40 percent of program
expenditures toward enrollment of restoration cost-share agreements and
no more than 60 percent of program expenditures toward enrollment of
easements. Any contracts on acreage owned by Indian Tribes are not
included in this calculation. The 2008 Act allows the Secretary to use
any funds that are not obligated by April 1st of the fiscal year to be
used for either agreements or easements during that fiscal year. Any
funds not obligated by April 1 or later will be re-distributed to
projects with agreements or easements ready to obligate funding. NRCS
proposes to manage this process at the national level to ensure that
the allocation of funds meets the statutory requirements.
NRCS proposes to amend Sec. 625.4(b) to clarify that an individual
or entity can enroll in HFRP by replacing the term ``person'' with the
words ``individual or entity.'' The current language refers to a
``person.'' This term is inaccurate due to participation of entities
and Indian tribes.
NRCS proposes, for clarity purposes, to change Sec. 625.4(d) to
clarify that any land not eligible under the categories listed in Sec.
625.4(c) is ineligible land. Section 625.4(c) identifies eligible land.
Section 625.5 Application Procedures
NRCS proposes revising Sec. 625.5(a) to clarify the sign-up
process. Specifically, the State Conservationists will develop
proposals for the State to receive funds and may seek input from other
agencies in doing so. The State Conservationists will submit proposals
to the Chief for funding consideration. The Chief will evaluate and
select proposals for funding and provide the State Conservationist with
a funding allocation. Upon a State's selection for funding, the State
Conservationists will issue a public sign-up notice to obtain
applications from eligible landowners. The State Conservationists may
consult with organizations or units of government with appropriate
technical expertise in developing ranking criteria to be used in
selecting applications best suited to achieving the project purpose.
The applications will be ranked based on these criteria. The highest
ranking applications are funded by the State Conservationists. Due to
the limited funding provided for this program, continuous enrollment
would likely increase the administrative burden of implementing the
program. This sign-up process will ensure that the limited HFRP funding
will be used for the best projects nationally, and help maximize the
expected benefits related to habitat restoration and protection that
address the recovery of endangered species, improvement in
biodiversity, and enhanced carbon sequestration. In short, national
competition will result in the optimal use of funds.
NRCS proposes to amend Sec. 625.5(d) to clarify that any voluntary
reduction in compensation must not be below the lowest rate allowed by
the statute.
Section 625.6 Establishing Priority for Enrollment in HFRP
NRCS proposes to amend Sec. 625.6(a) to reflect the change in the
definition of biological diversity discussed above at Sec. 625.2
Section 625.7 Enrollment of Easements, Contracts, and Agreements
NRCS proposes to amend Sec. 625.7 to reflect a change in the NRCS
business process that is designed to reduce the potential for de-
obligating funds. NRCS has experienced difficulty in other easement
programs where funds are obligated to projects whose enrollment is
subsequently terminated due to irresolvable title issues and hazardous
materials concerns. NRCS will no longer use commitment accounting, but
will use the option agreement to purchase as the point of obligation.
Also, additional evaluation that was formerly performed after the
signing of the option agreement to purchase will now be performed prior
to the obligation.
Section 625.7(a) is changed to clarify that the obligation of HFRP
funds occurs when the landowner signs the option agreement to purchase,
cost-share agreement, or 30-year contract. This policy helps ensures
that HFRP funds are used to the greatest extent possible by reducing
the potential for de-obligation.
Section 625.7(c) is changed to clarify the point at which land is
considered enrolled into the program to be consistent with other
easement programs administered by NRCS.
Section 625.7(d) is amended to clarify the conditions and
procedures for withdrawing an offer after the land is considered
enrolled in the program.
Section 625.8 Compensation for Easements and 30-Year Contracts
NRCS proposes to amend Sec. 625.8(c) to clarify the Agency's
existing authority to accept and use non-Federal contributions.
NRCS proposes to amend Sec. 625.8(d) to identify that payments for
30-year contracts will be treated the same as 30-year easement
payments. The statutory language in 16 U.S.C. 6572 instructs that the
value of a 30-year contract shall be equivalent to the value of a 30-
year easement.
Additionally, the following information about the appraisal
methodology will be used for the valuation of HFRP offers: For
permanent easements (or easements for the maximum duration allowed
under State law), the HFRP statute states that the Secretary of
Agriculture shall pay the landowner not less than 75 percent, nor more
than 100 percent of (as determined by the Secretary) the fair market
value of the land enrolled unencumbered by the easement, less the fair
market value of such land encumbered by the easement. The term
``encumbered'' refers to the period of time when the easement becomes
effective. The appraisal process established by NRCS is aimed at
determining the difference between the value of the enrolled land prior
to and after easement encumbrance.
When acquiring real property, Federal agencies generally follow the
Uniform Relocation Assistance and Real Property Acquisition Policies
for Federal and federally Assisted Programs (``the Uniform Relocation
Act'') found in regulations at Part 24 of Title 49 of the Code of
Federal Regulations. Section 24.103 of that title establishes that
``appraisals are to be prepared according to these requirements, which
are
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intended to be consistent with the Uniform Standards of Professional
Appraisal Practice (USPAP). The Agency may have appraisal requirements
that supplement these requirements, including, to the extent
appropriate, the Uniform Appraisal Standards for Federal Land
Acquisition (UASFLA).'' [Yellow Book] The Yellow Book requires that
compensation be based upon the impact that the easement encumbrance
will have on the value of the ``larger parcel,'' which is all land
owned by the landowner that may be impacted by the easement, as
determined by the appraiser.
The HFRP language for permanent and maximum duration easements
requires that compensation be based on the impact to value of only the
land enrolled and encumbered by the easement. Thus, the Yellow Book
requirement of appraising the larger parcel conflicts with the HFRP
statutory requirement related to determining easement value for
permanent easements, or those of the maximum duration required by state
law. Therefore, the Agency proposes to use Uniform Standards for
Professional Appraisal Practice (USPAP) for those easements, which is
consistent with 49CFR24. Even though the HFRP statute states the
approach for valuing permanent and 30-year easements in slightly
different language, there is no actual distinction since both result in
basing value on the enrolled land encumbered by the easement.
Correspondingly, the Agency is maintaining consistency in the approach
to determining easement compensation values for 30-year and permanent
easements.
NRCS proposes to add language in Sec. 625.8(h) that clarifies USDA
policy regarding environmental credits such as carbon, water quality,
biodiversity, or wetlands preservation, on land enrolled in HFRP. USDA
considers these credits the property of the farmer, the landowner, or
the person who applied the conservation practices on the land,
regardless of the Federal funds invested.
Section 625.9 10-Year Restoration Cost-Share Agreements
NRCS proposes to amend Sec. 625.9 (a) to reflect a change in
section numbering caused by the addition of the 30-year contract
section. Amendments to this section reflect the change from the term
``practice'' to ``conservation practice.''
NRCS proposes to amend Sec. 625.9 (d) to clarify the meaning of
the sentence and to clarify that termination of the restoration cost-
share agreement can occur when the terms of Sec. 625.9(d) 1, 2, or 3
are met.
Section 625.10 Cost-Share Payments
NRCS proposes to amend Sec. 625.10(b) to clarify the addition of
the term ``candidate species,'' as well as listed species, through a
Candidate