Grassland Reserve Program, 3856-3879 [E9-1075]

Agencies

• DEPARTMENT OF AGRICULTURE
• Commodity Credit Corporation

[Federal Register Volume 74, Number 12 (Wednesday, January 21, 2009)]
[Rules and Regulations]
[Pages 3856-3879]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-1075]



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Part IV





Department of Agriculture





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Commodity Credit Corporation



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7 CFR Part 1415



Grassland Reserve Program; Final Rule

Federal Register / Vol. 74, No. 12 / Wednesday, January 21, 2009 / 
Rules and Regulations

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DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1415

RIN 0578-AA38


Grassland Reserve Program

AGENCY: Commodity Credit Corporation (CCC), United States Department of 
Agriculture (USDA).

ACTION: Interim final rule with request for comments.

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SUMMARY: The Grasslands Reserve Program (GRP) assists landowners and 
operators in protecting grazing uses and other related conservation 
values by restoring and conserving eligible grassland and certain other 
lands through rental contracts and easements. This interim final rule 
sets forth how USDA, using the funds, facilities, and authorities of 
the Commodity Credit Corporation (CCC), will implement GRP in response 
to the changes made to the program by section 2403 of the Food, 
Conservation, and Energy Act of 2008. In addition, this interim final 
rule incorporates other changes to the regulation for clarification or 
program administrative improvement.

DATES: Effective date: The rule is effective January 21, 2009.
    Comment date: Submit comments on or before March 23, 2009.

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.
     Mail: Easements Programs Division, Natural Resources 
Conservation Service, Grassland Reserve Program Comments, P.O. 2890, 
Room 6819-S, Washington, DC 20013.
     E-mail: grp2008@wdc.usda.gov.
     Fax: 1-202-720-9689.
     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 interim final rule may be accessed via Internet. 
Users can access the NRCS homepage at https://www.nrcs.usda.gov/; select 
the Farm Bill link from the menu; select the Interim final link from 
beneath the Final and Interim Final Rules Index title. Persons with 
disabilities who require alternative means for communication (Braille, 
large print, audio tape, etc.) should contact the USDA TARGET Center 
at: (202) 720-2600 (voice and TDD).

FOR FURTHER INFORMATION CONTACT: Robin Heard, Director, Easement 
Programs Division, U.S. Department of Agriculture, Natural Resources 
Conservation Service, Room 6819, P.O. Box 2890, Washington, DC 20013-
2890; phone (202) 720-1875; fax (202) 720-9689.

SUPPLEMENTARY INFORMATION: 

Regulatory Certifications

Executive Order 12866

    Pursuant to Executive Order 12866, this interim final rule with 
request for comment was reviewed by the Office of Management and Budget 
(OMB) and determined that this interim final rule is a significant 
regulatory action. The administrative record is available for public 
inspection in Room 5831 South Building, USDA, 14th and Independence 
Avenue, SW., Washington, DC. Pursuant to Executive Order 12866, NRCS 
conducted an economic analysis of the potential impacts associated with 
this program.

Regulatory Flexibility Act

    The Regulatory Flexibility Act is not applicable to this interim 
final rule because the CCC is not required by 5 U.S.C. 553, or by any 
other provision of law, to publish a notice of proposed rulemaking with 
respect to the subject matter of this rule.

Environmental Analysis

    A programmatic environmental assessment has been prepared in 
association with this rulemaking. NRCS has determined that there will 
not be a significant impact to the human environment and as a result an 
Environmental Impact Statement is not required to be prepared (40 CFR 
part 1508.13). The EA and FONSI are available for review and comment 
for 60 days from the date of publication of this interim final rule in 
the Federal Register. A copy of the Environmental Assessment (EA) and 
Finding of No Significant Impact (FONSI) may be obtained from the 
following Web site: https://www.nrcs.usda.gov/programs/Env_Assess/. A 
hard copy may also be requested from the following address and contact: 
National Environmental Coordinator, Natural Resources Conservation 
Service, Ecological Sciences Division, 1400 Independence Ave., SW., 
Washington, DC 20250. Comments from the public should be specific and 
reference that comments provided are on the EA and FONSI. Public 
comment may be submitted by any of the following means: (1) E-mail 
comments to NEPA2008@wdc.usda.gov, (2) E-mail to egov Web site--https://
www.regulations.gov, or (3) written comments to: National Environmental 
Coordinator, Natural Resources Conservation Service, Ecological 
Sciences Division, 1400 Independence Ave., SW., Washington, DC 20250.

Civil Rights Impact Analysis

    USDA has determined through a Civil Rights Impact Analysis that the 
issuance of this interim final rule discloses 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/GRP.

Paperwork Reduction Act

    Section 2904 of the Food, Conservation and Energy Act of 2008 
requires that the implementation of programs authorized under Title II 
of the Act be made without regard to the Paperwork Reduction Act of 
1995 (44 U.S.C. 3501 et seq.). Therefore, USDA is not reporting 
recordkeeping or estimated paperwork burden associated with this 
interim final rule.

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.

Executive Order 12988

    This interim final rule has been reviewed in accordance with 
Executive Order 12988. The provisions of this interim final rule are 
not retroactive. Furthermore, the provisions of this interim final rule 
preempt State and local laws to the extent such laws are inconsistent 
with this interim final rule. Before an action may be brought in a 
Federal court of competent jurisdiction, the administrative appeal 
rights afforded persons at 7 CFR parts 11, 614, and 780 must be 
exhausted.

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

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(Pub. L. 103-354), USDA classified this rule as non-major. Therefore, a 
risk analysis was not conducted.

Unfunded Mandates Reform Act of 1995

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), USDA assessed the effects of this interim final rule 
on State, local, and Tribal governments, and the public. This action 
does not compel the expenditure of $100 million or more by any State, 
local, or Tribal government, or anyone in the private sector; 
therefore, a statement under section 202 of the Unfunded Mandates 
Reform Act is not required.

Small Business Regulatory Enforcement Fairness Act of 1996

    This interim final rule is not a major rule as defined by section 
804 of the Small Business Regulatory Enforcement Fairness Act of 1996. 
This interim final 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.

Executive Order 13132

    This interim final rule has been reviewed in accordance with the 
requirements of Executive Order 13132, Federalism. USDA has determined 
that this interim final rule conforms with the Federalism principles 
set forth in the Executive Order; would not impose any compliance costs 
on the States; and would not have substantial direct effects on the 
States, on the relationship between the Federal Government and the 
States, or on the distribution of power and responsibilities on the 
various levels of government. Therefore, USDA concludes that this 
interim final rule does not have Federalism implications.

Executive Order 13175

    This interim final rule has been reviewed in accordance with the 
requirements of Executive Order 13175, Consultation and Coordination 
with Indian Tribal Governments. USDA has concluded that this rule will 
not negatively affect communities of Indian Tribal governments. The 
rule will neither impose substantial direct compliance costs on tribal 
governments, nor preempt tribal law.

Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)

    Section 2904(c) of the Food, Conservation, and Energy Act of 2008 
requires that the Secretary use the authority in section 808(2) of 
title 5, United States Code, which allows an agency to forgo SBREFA's 
usual Congressional Review delay of the effective date of a regulation 
if the agency finds that there is a good cause to do so. NRCS hereby 
determines that it has good cause to do so in order to meet the 
Congressional intent to have the conservation programs authorized or 
amended by Title II in effect as soon as possible. Accordingly, this 
rule is effective upon filing for public inspection by the Office of 
the Federal Register.

Economic Analysis--Executive Summary

    Pursuant to Executive Order 12866, Regulatory Planning and Review, 
the Natural Resources Conservation Service (NRCS) has conducted a 
benefit-cost analysis of the Grassland Reserve Program (GRP) as 
formulated for the Interim Final Rule. This requirement provides 
decision makers with the opportunity to develop and implement a program 
that is beneficial, cost effective and that minimizes negative impacts 
to health, human safety, and the environment.
    GRP is a voluntary program for landowners and operators to protect, 
restore, and enhance grassland, including rangeland, pastureland, 
shrubland, and certain other lands. The program emphasizes support for 
grazing operations; enhancement of plant and animal biodiversity; and 
protection of grassland and land containing shrubs and forbs under 
threat of conversion.
    GRP is one tool in the suite of agricultural land retention 
mechanisms available to agricultural producers and local communities. 
Producers and local communities are the main drivers in agricultural 
land retention efforts and incur the greatest costs and potential 
benefits. These efforts are driven by local decision makers and involve 
site-specific impacts which affect a host of non-use valued attributes 
(scenic views, environmental amenities, etc), making it difficult to 
accurately quantify the costs and benefits of various policy 
alternatives. This analysis recognizes these problems and offers an 
analysis weighed heavily on identifying the main costs and benefits in 
qualitative terms to explore policy and program alternatives.
    The main costs of this agricultural land retention effort include 
the restriction on the range of activities placed on the grazing land 
on landowners and the initial contract cost (in the case of easements) 
and annual payments (in the case of rental contracts) to the 
government. These costs must then be compared with the benefits of 
preserving its current land use in grazing or forage production. These 
benefits include: the maintenance (and possible improvement) of the 
flow of ecological goods and services (EGS) emanating from its current 
use in agriculture; the possibility of increased forage production; and 
difficult to quantify non-use values associated with the provision of 
scenic views and recreational opportunities; wildlife habitat; and the 
preservation of current land-use patterns.
    In many cases, the funding provided through GRP leverages landowner 
donations, local governmental monies, and non-governmental 
contributions to preserve its' current land use in grazing. This 
qualitative benefit-cost analysis suggests that GRP assistance to local 
agricultural land preservation programs can bear positive net benefits. 
A main determinant of the realization of positive net benefits would be 
the actual fate of the current land use (grazing) in the future with 
respect to its conversion to non-agricultural and non-grazing 
agricultural use. Programs such as GRP could play an important role in 
keeping this land in its most highly valued grazing use (taking into 
account its non-use value attributes).

Administrative Requirements for Conservation Programs

    Section 2708, ``Compliance and Performance'', of the 2008 Act added 
a paragraph to section 1244(g) of the 1985 Act entitled, 
``Administrative Requirements for Conservation Programs,'' which states 
the following:
    ``(g) Compliance and performance.--For each conservation program 
under Subtitle D, the Secretary shall develop procedures--
    (1) To monitor compliance with program requirements;
    (2) To measure program performance;
    (3) To demonstrate whether long-term conservation benefits of the 
program are being achieved;
    (4) To track participation by crop and livestock type; and
    (5) To coordinate activities described in this subsection with the 
national conservation program authorized under section 5 of the Soil 
and Water Resources Conservation Act of 1977 (16 U.S.C. 2004).''
    This new provision presents in one place the accountability 
requirements placed on the Agency as it implements conservation 
programs and reports on program results. The requirements apply to all 
programs under Subtitle D, including the Wetlands Reserve program, the 
Conservation Security Program, the Conservation Stewardship

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Program, the Farm and Ranch Lands Protection Program, the Grassland 
Reserve Program, the Environmental Quality Incentives Program 
(including the Agricultural Water Enhancement Program), the Wildlife 
Habitat Incentive Program, and the Chesapeake Bay Watershed initiative. 
These requirements are not directly incorporated into these 
regulations, which set out requirements for program participants. 
However, certain provisions within these regulations relate to elements 
of section 1244(g) of the 1985 Act and the Agency's accountability 
responsibilities regarding program performance. NRCS is taking this 
opportunity to describe existing procedures that relate to meeting the 
requirements of section 1244(g) of the 1985 Act, and Agency 
expectations for improving its ability to report on each program's 
performance and achievement of long-term conservation benefits. Also 
included is reference to the sections of these regulations that apply 
to program participants and that relate to the Agency accountability 
requirements as outlined in section 1244(g) of the 1985 Act.985,
    Monitor compliance with program requirements. NRCS has established 
application procedures to ensure that participants and eligible 
entities meet eligibility requirements, and follow-up procedures to 
ensure that participants and eligible entities are complying with the 
terms and conditions of their contractual arrangement with the 
government and that the installed conservation measures are operating 
as intended. These and related program compliance evaluation policies 
will be set forth in Agency guidance.
    The program requirements applicable to participants and eligible 
entities that relate to compliance are set forth in these regulations 
in Sec.  1415.4, ``Program requirements,'' Sec.  1415.11, ``Restoration 
agreements,'' and Sec.  1415.17, ``Cooperative agreements.'' These 
sections make clear the general program requirements, as well as 
participant and entity obligations.
    Measure program performance. Pursuant to the requirements of the 
Government Performance and Results Act of 1993 (Pub. L. 103-62, Sec. 
1116) and guidance provided by OMB Circular A-11, NRCS has established 
performance measures for its conservation programs. Program-funded 
conservation activity is captured through automated field-level 
business tools and the information is made publicly available at: 
https://ias.sc.egov.usda.gov/PRSHOME/. Program performance also is 
reported annually to Congress and the public through the annual 
performance budget, annual accomplishments report and the USDA 
Performance Accountability Report. Related performance measurement and 
reporting policies are set forth in Agency guidance (GM--340--401 and 
GM--340--403 (https://directives.sc.egov.usda.gov/)). The conservation 
actions undertaken by participants are the basis for measuring program 
performance--specific actions are tracked and reported annually, while 
the effects of those actions relate to whether the long-term benefits 
of the program are being achieved. The program requirements applicable 
to participants that relate to undertaking conservation actions are set 
forth in these regulations in Sec.  1415.4, ``Program requirements,'' 
Sec.  1415.11, ``Restoration agreements, and Sec.  1415.17'', 
``Cooperative agreements.'' These sections make clear participant and 
eligible entity obligations for implementing, operating, and 
maintaining GRP-funded conservation improvements, which in aggregate 
result in the program performance that is reflected in Agency 
performance reports.
    Demonstrate whether long-term conservation benefits of the program 
are being achieved. Demonstrating the long-term natural resource 
benefits achieved through conservation programs is subject to the 
availability of needed data, the capacity and capability of modeling 
approaches, and the external influences that affect actual natural 
resource condition. While NRCS captures many measures of ``output'' 
data, such as acres of conservation practices, it is still in the 
process of developing methods to quantify the contribution of those 
outputs to environmental outcomes. NRCS currently uses a mix of 
approaches to evaluate whether long-term conservation benefits are 
being achieved through its programs. Since 1982, NRCS has reported on 
certain natural resource status and trends through the National 
Resources Inventory (NRI), which provides statistically reliable, 
nationally consistent land cover/use and related natural resource data. 
However, lacking has been a connection between these data and specific 
conservation programs. In the future, the interagency Conservation 
Effects Assessment Project (CEAP), which has been underway since 2003, 
will provide nationally consistent estimates of environmental effects 
resulting from conservation practices and systems applied. CEAP results 
will be used in conjunction with performance data gathered through 
Agency field-level business tools to help produce estimates of 
environmental effects accomplished through Agency programs, such as 
GRP. In 2006 a Blue Ribbon panel evaluation of CEAP strongly endorsed 
the project's purpose, but concluded ``CEAP must change direction'' to 
achieve its purposes. In response, CEAP has focused on priorities 
identified by the Panel and clarified that its purpose is to quantify 
the effects of conservation practices applied on the landscape. 
Information regarding CEAP, including reviews and current status is 
available at (https://www.nrcs.usda.gov/technical/NRI/ceap). Since 2004 
and the initial establishment of long-term performance measures by 
program, NRCS has been estimating and reporting progress toward long-
term program goals. Natural resource inventory and assessment, and 
performance measurement and reporting policies set forth in Agency 
guidance (GM--290--400; GM--340--401; GM--340--403)) (https://
directives.sc.egov.usda.gov/)).
    Demonstrating the long-term conservation benefits of conservation 
programs is an Agency responsibility. Through CEAP, NRCS is in the 
process of evaluating how these long-term benefits can be achieved 
through the conservation practices and systems applied by participants 
under the program. The program requirements applicable to participants 
that relate to producing long-term conservation benefits are described 
previously under ``measuring program performance.''
    Track participation by crop and livestock type. NRCS' automated 
field-level business tools capture participant, land, and operation 
information. This information is aggregated in the National 
Conservation Planning database and is used in a variety of program 
reports. Additional reports will be developed to provide more detailed 
information on program participation to meet congressional needs. These 
and related program management procedures supporting program 
implementation will be set forth in Agency guidance.
    The program requirements applicable to participants that relate to 
tracking participation by crop and livestock type are put forth in 
these regulations in Sec.  1415.4, ``Program Requirements,'' which 
makes clear program eligibility requirements, including the requirement 
to provide NRCS the information necessary to implement GRP.
    Coordinate these actions with the national conservation program 
authorized under the Soil and Water Resources Conservation Act (RCA). 
The 2008 Act reauthorized and expanded on a number of elements of the 
RCA related

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to evaluating program performance and conservation benefits. 
Specifically, the 2008 Farm Bill added a provision stating, ``Appraisal 
and inventory of resources, assessment and inventory of conservation 
needs, evaluation of the effects of conservation practices, and 
analyses of alternative approaches to existing conservation programs 
are basic to effective soil, water, and related natural resources 
conservation.''
    The program, performance, and natural resource and effects data 
described previously will serve as a foundation for the next RCA, which 
will also identify and fill, to the extent possible, data and 
information gaps. Policy and procedures related to the RCA are set 
forth in Agency guidance (GM--290--400; M--440--525; GM--130--402) 
(https://directives.sc.egov.usda.gov/).
    The coordination of the previously described components with the 
RCA is an Agency responsibility and is not reflected in these 
regulations. However, it is likely that results from the RCA process 
will result in modifications to the program and performance data 
collected, to the systems used to acquire data and information, and 
potentially to the program itself. Thus, as the Secretary proceeds to 
implement the RCA in accordance with the statute, the approaches and 
processes developed will improve existing program performance 
measurement and outcome reporting capability and provide the foundation 
for improved implementation of the program performance requirements of 
section 1244(g) of the 1985 Act.

Background

    The Grassland Reserve Program is a voluntary program to assist 
landowners and agricultural operators in restoring and protecting 
eligible grassland, land that contains forbs, or shrublands for which 
grazing is the predominant use through rental contracts and easements. 
The Farm Security and Rural Investment Act of 2002 (the 2002 Act), 
Public Law 107-171, 116 Stat. 237, authorized GRP by adding sections 
1238N through 1238Q to the Food Security Act of 1985, as amended, 16 
U.S.C. 3801 et seq.; and providing $254 million through fiscal year 
(FY) 2007 to enroll no more than 2 million acres of restored or 
improved grassland, rangeland, shrubland, and pastureland. USDA 
promulgated an interim final rule on May 21, 2004 (69 FR 29173), and a 
final rule on March 6, 2006 (71 FR 11139). The program regulations are 
set forth at 7 CFR part 1415. Section 2403 of the Food, Conservation, 
and Energy Act of 2008 (the 2008 Act), Public Law 110-246, 122 Stat. 
1819, reauthorized GRP and made several amendments. The 2008 Act 
authorized the enrollment of an additional 1.22 million acres of 
eligible land from FY 2009 through FY 2012.
    The Secretary of Agriculture delegated the authority to administer 
GRP on behalf of the CCC, to the Chief, NRCS, who is a CCC Vice 
President, and the Administrator, Farm Service Agency (FSA), who is the 
CCC Executive Vice President. NRCS has the lead responsibility on 
regulatory matters, technical issues, and easement administration, and 
FSA has the lead responsibility for rental contract administration and 
financial activities. The agencies consult on regulatory and policy 
matters pertaining to both rental contracts and easements. At the State 
level, the NRCS State Conservationist and the FSA State Executive 
Director determine how best to utilize the human resources of both 
agencies to deliver the program and implement National policies in an 
efficient manner given the general responsibilities of each agency.

Summary of 2008 Act Changes

    The 2008 Act amended the Grassland Reserve Program to:
     Change the program's focus from protecting, conserving and 
restoring grassland resources on private lands to assisting owners and 
operators of private and tribal land in protecting grazing uses and 
related conservation values by restoring and conserving eligible land;
     Change rental agreements to rental contracts;
     Remove the 30-year rental agreement and 30-year easement 
enrollment options;
     Remove the minimum acreage enrollment requirement. 
Previously, applicants needed to submit 40 contiguous acres for 
enrollment to be eligible;
     Require the Secretary to offer enrollment priority for 
land previously enrolled in the Conservation Reserve Program providing 
certain conditions exist, such as: the land is eligible for GRP, the 
land is of high ecological value, and the land is under significant 
threat of conversion to uses other than grazing. The number of acres 
enrolled under this priority is limited to ten percent of the total 
acreage enrolled in that year;
     Expand land eligibility criteria to include land that has 
been historically dominated by grassland, forbs, or shrubland when it 
contains historical or archaeological resources, or when it would 
address issues raised by State, regional, and national conservation 
priorities;
     Require participants with rental contracts to suspend any 
existing cropland base and allotment history for the land under another 
program administered by the Secretary. Easement participants must 
``eliminate'' base and allotment history;
     Allow for the inclusion of permissible and prohibited 
activities under a rental contract or easement;
     Include a separate payment limitation for restoration 
agreements and rental contracts;
     Establish the requirements for determining fair market 
value for easement compensation;
     Include a definition of eligible entity;
     Require implementation of a grazing management plan;
     Add the authority for the Secretary to enter into 
cooperative agreements with eligible entities to own, write, and 
enforce easements; and
     Establish that the entity shall pay an amount of the 
purchase price at least equivalent to the amount provided by the 
Secretary, when eligible entities are acquiring easements under 
cooperative agreements.

Description of Changes to the Regulations

Section 1415.1 Purpose

    Section 1415.1(a) describes the purpose of GRP. Section 1415.1(a) 
is revised to emphasize that the purpose of GRP is to assist owners and 
operators of private lands in protecting grazing uses and related 
conservation values by restoring and conserving eligible land. The term 
``rental agreements'' is changed to ``rental contracts'' in this 
section and throughout the regulation. The changes to Sec.  1415.1(a) 
address the 2008 Act amendment of GRP to apply to operators as well as 
owners.
    Section 1415.1(b) describes the objectives of GRP. Section 
1415.1(b) is revised by replacing the phrase ``The objectives of GRP 
are to:'' with the phrase ``GRP emphasizes,'' consistent with the 
statutory changes in the 2008 Act. Paragraph (b)(1), which states that 
an objective of GRP is the preservation of native and naturalized 
grasslands and shrublands, is being removed to reflect the program 
purposes established by the 2008 Act. USDA continues to recognize the 
conservation value of native and naturalized grasslands and provide 
States the authority to prioritize such lands in program ranking 
criteria; however, the 2008 Act's purpose of protecting grazing uses 
and related conservation values are not limited to

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native and naturalized grasslands. Paragraph (b)(2) describes the GRP 
objective of protecting grasslands and shrublands from the threat of 
conversion. Paragraph (b)(2), redesignated as paragraph (b)(3), is 
revised by adding ``to uses other than grazing'' following the term 
``conversion,'' consistent with the 2008 Act. Paragraphs (b)(3) and 
(b)(4) are redesignated as paragraphs (b)(1) and (b)(2) respectively. 
This redesignation mirrors the order listed in statute.

Section 1415.2 Administration

    Section 1415.2(a) describes the administration of GRP by NRCS and 
FSA. This rulemaking revises paragraph (a)(1) to replace ``State'' with 
``National,'' which clarifies that the National office has 
responsibility for developing the allocation formula. Paragraph (a)(2) 
describes the use of a national allocation funding formula. Paragraph 
(a)(2) is revised to replace the term ``USDA State offices'' with 
``NRCS State Conservationists and FSA State Executive Directors'' to 
make clear that they are the State level fund allowance holders. 
Additionally paragraph (a)(2) is changed to include the words ``to uses 
other than grazing'' after ``conversion.'' The revisions made to 
paragraph (a)(2) are to align GRP with the 2008 Act by emphasizing the 
protection of land that contains forbs and shrubland, and reflecting 
the program purposes of protecting grazing uses with the addition of 
``conversion to uses other than grazing.''
    Section 1415.2(b) describes the administration of GRP by NRCS and 
FSA at the state level. A new paragraph (b)(1) is added that emphasizes 
the role of the State Conservationist and State Executive Director in 
determining how GRP will be implemented at the State level. Subsequent 
paragraphs are redesignated. Former paragraph (b)(5), relating to the 
development of conservation plans and restoration agreements, is 
redesignated as paragraph (b)(6). In compliance with new language in 
2008 Act, the term ``conservation plans'' is removed and the term 
``grazing management plans'' is added. Former paragraph (b)(6), 
redesignated as paragraph (b)(7), relates to administering and 
enforcing the terms of easements and rental contracts. The paragraph is 
revised by replacing the ``third party'' with ``eligible entity.'' The 
term ``eligible entity'' is substituted for ``third party'' to avoid 
confusion because the term ``third party'' is also used to refer to 
technical service providers. A reference to Sec.  1415.18 is added at 
the end of paragraph (b)(7), because a new section on cooperative 
agreements is added at Sec.  1415.17, and the former section at Sec.  
1415.17, is redesignated as Sec.  1415.18. Paragraph (b)(8), formerly 
(b)(7) in the 2006 GRP final rule, describes the consideration of State 
Technical Committee recommendations. The last sentence of this 
paragraph is removed because the language was redundant of provisions 
of the State Technical Committee regulation found in part 610 of this 
title.
    Section 1415.2(e) describes the ability to modify or waive a 
provision of this part. This rulemaking replaces the term ``Secretary'' 
with the ``Chief, NRCS, or the Administrator, FSA'' to better align 
with how these determinations are made.
    Section 1415.2(i) describes the acceptance of applications. A 
sentence is being added allowing NRCS to enter into cooperative 
agreements with eligible entities to own, write, and enforce easements. 
This addition is required by section 2403 of the 2008 Act, which now 
provides authority for NRCS to partner with eligible entities to 
purchase easements. This section is also being modified to provide that 
eligible entities may apply to participate in GRP through the 
cooperative agreement on a continuous basis. This change is discussed 
in detail in the description of changes for Sec.  1415.17, cooperative 
agreements, of this regulation.

Section 1415.3 Definitions

    Section 1415.3, ``Definitions,'' sets forth definitions for terms 
used throughout this regulation. New definitions are being added, 
others have been revised for clarity and consistency with other USDA-
administered programs, and some have been removed as no longer relevant 
to these regulations. Specifically, this rulemaking makes the following 
changes to the definitions:
    The definition of ``activity'' is added to Sec.  1415.3 to describe 
an action that is not a conservation practice but alleviates resource 
problems or improves treatment and is included in a grazing management 
or conservation plan. This term is used throughout this USDA 
regulation, as well as other easement program regulations, and is 
intended to provide a consistent definition for the public. The 
definition was added to clarify a term that was previously used in the 
regulation but not defined.
    The definition of ``applicant'' is added to describe ``a person, 
legal entity, joint operation, or Indian Tribe who applies to 
participate in the program.'' The definition is consistent with other 
USDA easement programs and is intended to provide a consistent 
definition for the public. The definition was added to clarify a term 
that was previously used in the regulation but not defined.
    The definition of ``common grazing practices'' is revised to 
include ``browse'' as a forage resource that is utilized by grazing 
livestock for food. This change provides clarification of a grazing 
practice term based on technical recommendations. Other minor editorial 
corrections are made to the definition to improve the sentence 
structure.
    The definition of ``Conservation District'' is modified to add 
``natural resource district''. This change is intended to ensure that 
all types of conservation districts are included by expanding the list 
to include another commonly used name for conservation districts.
    The definition of ``conservation plan'' is amended to clarify that 
for GRP purposes a conservation plan will only be required under 
certain circumstances. This new definition of conservation plan is 
being adopted to comport with the 2008 Act statute that requires a 
``grazing management plan'' be implemented and specifies that the plan 
also include implementation and maintenance schedule for planned 
practices. The requirements of a conservation plan and the 
relationships between grazing management plan, conservation plan, and 
restoration plan are further discussed in the description of changes to 
Sec.  1415.4 of this regulation.
    The definition of ``Conservation practice'' is modified to include 
``vegetative'' practices as a type of conservation practice, in 
addition to structural and land management practices, which were 
already included in the definition. In addition, the reference to 
``standards and specifications'' is clarified to refer to ``NRCS Field 
Office Technical Guide standards and specifications''.
    The definition of ``conservation values'' is revised to reflect 
``those natural resource attributes that provide ecosystem functions 
and values of the grassland area.'' The 2008 Act changed the statutory 
purpose to focus on support for grazing uses and related conservation 
values. This statutory change requires the definition be expanded to 
include all conservation values rather than the existing focus on 
declining species.
    The term ``cost-share payment'' is added to describe a type of 
payment made to a GRP participant. The term cost-share is associated 
with the GRP restoration plan, which is a part of the restoration 
agreement. The definition was added to clarify a term that was

[[Page 3861]]

previously used in the regulation but not defined.
    The term ``cultural practice'' is removed. The term was used only 
in the context of common grazing practices, so the definition language 
is placed within the discussion of common grazing practices in Sec.  
1415.4(h)(1).
    The term ``Department'' is removed. The term was only used in Sec.  
1415.20, Scheme or Device, the use of which has now been obviated by 
the substitution of ``U.S. Department of Agriculture,'' in that 
section.
    The term ``dedicated account'' is added and describes a dedicated 
fund that can only be used for the purposes of management, monitoring, 
and enforcement of conservation easements. This term is added to ensure 
the qualifications of the non-governmental organizations to carry out 
their responsibilities under the program are clear. These 
responsibilities include the acquisition, monitoring, enforcement and 
implementation of management policies and procedures that ensure the 
long-term integrity of the easement protections.
    The phrase ``eligible entity or both'' is added to the definition 
of ``easement.'' This modification adds eligible entities as having 
interest in land, through a deed, for the purpose of protecting 
grasslands and other conservation values under GRP easements. This 
addition ensures the interests of eligible entities holding and 
enforcing easements under the terms of the cooperative agreement in 
Sec.  1415.17 and the easement transfer to third parties in Sec.  
1415.18.
    The phrase ``eligible entity or both'' is added to the definition 
of ``easement payment.'' This revision incorporates the addition of 
eligible entities as having an interest in property for which the 
landowner receives an easement payment. This addition ensures the 
inclusion of eligible entities as holders of easements under the terms 
of the cooperative agreement in Sec.  1415.17.
    The definition of ``eligible entity'' is added to incorporate the 
2008 Act's requirements that eligible entities own, write, and enforce 
a GRP easement. This new term explains the meaning of ``eligible 
entity'' used in the cooperative agreement in Sec.  1415.17 and the 
easement transfer to third parties in Sec.  1415.18.
    The definition of ``Farm Service Agency (FSA)'' is added to define 
the USDA agency that shares authority in implementing GRP.
    The term ``FSA State Executive Director'' is added to refer to the 
FSA employee authorized to implement GRP at the State level.
    The definition of ``Field Office Technical Guide'' is revised to 
include ``requirements'' in place of ``standards'' and ``practices'' in 
place of ``treatments.'' The change updates the definition to the 
current NRCS definition of the Field Office Technical Guide.
    The definition of ``fire pre-suppression'' is added to clarify the 
term used in the 2008 Act describing an activity in the grazing 
management plan. Fire pre-suppression may include the establishment and 
maintenance of fire breaks and prescribed burning to prevent or limit 
the spread of fires.
    The definition of ``functions and values of grasslands and 
shrublands'' is added to clarify the term's use in the regulation and 
provide a consistent definition with other USDA easement programs. USDA 
is providing a definition that includes a variety of values intrinsic 
to grasslands and shrublands that will be considered during ranking of 
applications and the development of grazing management plans, 
conservation plans, or restoration plans.
    The phrase ``eligible entity or both'' is added to the definition 
of ``grantor.'' This addition ensures the inclusion of the transfer of 
land rights to eligible entities holding and enforcing easements under 
the terms of the cooperative agreement in Sec.  1415.17 and the 
easement transfer to third parties in Sec.  1415.18.
    The definition of ``grassland'' is revised to include grammatical 
corrections that are intended to improve the sentence structure. No 
technical changes were made to the definition.
    The definition of ``grazing management plan'' is added to describe 
the document used in implementing a grazing management system. This 
addition was made to incorporate the 2008 Act language that requires 
the implementation of a grazing management plan. The requirements of a 
grazing management plan and the relationships between grazing 
management plan, conservation plan, and restoration plan are further 
discussed in the description of changes to Sec.  1415.4 of this 
regulation.
    The definition of ``grazing value'' adds the phrase ``or a market 
survey'' in place of ``an appraisal'' as an option to establish grazing 
values for easements. This change is made to be consistent with the 
changes in the 2008 Act.
    The definition of ``historical and archeological resources'' is 
added to describe the criteria required for a resource to be considered 
historical or archeological. This addition is made as part of 
implementing the 2008 Act's requirement that land containing historical 
or archeological resources and located in an area that has been 
historically dominated by grassland, forbs or shrublands is eligible 
for GRP. This definition also ensures consistency with other USDA 
programs, including FRPP, and with State, local and Tribal preservation 
office practices.
    The term ``improved grassland, pasture, or rangeland'' is modified 
to read ``improved rangeland or pastureland.'' This change is 
consistent with the use of these terms in the regulation. ``Grassland'' 
was dropped because it is redundant in the definition.
    The definition of ``Indian Tribe'' is added and has the meaning 
given in section 4(e) of the Indian Self-Determination and Education 
Assistance Act, 25 U.S.C. 450b(e). This definition is consistent with 
the definition in section 1001 of the 2008 Act.
    The definition of ``landowner'' is revised to include various types 
of owners and ownership, including legal entities and Indian Tribes, as 
eligible for GRP participation. The definition also adds language that 
clarifies that governments and non-governmental organizations that meet 
eligible entity requirements are not considered eligible landowners 
because the land owned by these entities is already under protection 
from the conversion to non-grazing uses.
    The definition of ``legal entity'' is added to describe an entity 
that is created under Federal or State law. This term is defined 
because it is included in the definitions of ``applicant'' and 
``landowner''. The definition clarifies that a legal entity does not 
include State and local governments; this rationale is explained in 
Sec.  1415.5(d).
    The definition of ``maintenance'' is added to describe work 
performed on lands enrolled in GRP to keep the applied conservation 
practices functioning for the intended purpose, and includes work that 
prevents a practice from failing, such as repairing damage and 
replacement. The definition is added to provide consistency with other 
USDA easement programs.
    The word ``indigenous'' is added to the definition of ``native.'' 
This addition clarifies the definition of native.
    The definition of ``Natural Resources Conservation Service (NRCS)'' 
is added to define the USDA agency that shares authority to implement 
GRP.
    The definition of ``NRCS State Conservationist'' is added to refer 
to the NRCS employee with authority to implement GRP and direct 
activities at the State level.

[[Page 3862]]

    The phrase ``for the purposes of this regulation'' is removed from 
the definition of ``naturalized.'' This change reflects a minor 
grammatical correction that is intended to improve the sentence 
structure.
    The definition of ``nesting season'' is added to denote a specific 
time of year for species whose habitat is being protected on enrolled 
lands.
    The definition of term ``non-governmental organization'' is added 
to describe the criteria such an organization must meet in order to be 
considered as an eligible entity for purposes of holding or acquiring 
easements with GRP funds, and is taken directly from the 2008 Act.
    The definition of ``participant'' is revised by removing the phrase 
``landowner, operator, or tenant'' and replacing it with ``person, 
legal entity, joint operation, or Indian Tribe'' to reflect the breadth 
of individuals and entities that may participate in the program. The 
modification also removes the last sentence that described that owners 
of land subject to a GRP easement are considered program participants 
regardless of whether they were a party to the conveyance of easement. 
This sentence is inconsistent with the appeal regulations at part 614 
of this title. After a conservation easement is conveyed, the landowner 
is no longer a ``participant'' for easement enforcement and management 
matters and, therefore, may not appeal those matters administratively. 
This rationale based upon real property law principles and is 
consistent with NRCS appeal regulations at part 614 of this title.
    The definition of ``pastureland'' is revised to describe a type of 
grazing land, its uses, and treatments. This definition is added to 
provide consistency with other USDA easement programs and clarifies 
that cropland in rotation is not considered pastureland.
    The definition of ``permanent easement'' is revised by adding ``or 
for the maximum duration allowed under the law of a State.'' This 
addition clarifies that easements of the maximum duration allowed under 
the law of a State are considered to be permanent easements.
    The definition of ``plant and animal biodiversity'' is added to 
describe a wide variety of plant and animal species.
    The term ``Tribal lands'' was added to the definition of ``private 
land.'' The addition further clarifies that Tribal Lands are also 
qualify as private lands under GRP.
    The definition of ``purchase price'' is added and applies to 
easement compensation when an eligible entity is purchasing the 
easement under the provisions of a cooperative agreement. USDA will pay 
no more than 50 percent of the purchase price, which is the fair market 
value of the easement minus the landowner contribution. This definition 
is consistent with the GRP provisions in the 2008 Act, and ensures that 
entities have a vested financial interest if they write and hold the 
easement using GRP dollars, by requiring that their contribution be at 
least equal to that of the USDA. Adoption of this definition by the 
USDA also reflects a policy decision to leverage funding through 
landowner donation to stretch GRP funding further and protect more 
acres. Eligible entities may receive increased ranking points when they 
provide a higher percentage of the purchase price.
    The rangeland plant example of ``crested wheatgrass'' is removed 
from the definition of ``rangeland.'' Crested wheatgrass may out-
compete native rangeland plants and is less desirable for the promotion 
of biodiversity.
    The term ``agreement'' is replaced by ``contract'' in the 
definition of ``rental agreement.'' This change incorporates the 2008 
Act change from the term ``rental agreement'' to ``rental contract'' 
and is restructured to improve clarity.
    The definition of ``restoration'' is revised to clarify that one of 
the reasons that restoration may be needed is to re-establish the 
grassland functions and values of grasslands where the land has been 
degraded or converted to other uses. This addition is consistent with 
the eligible land definition set forth in the 2008 Act. The definition 
also adds the phrase ``or system of practices'' following 
``conservation practices or activity'' to further clarify that an array 
of conservation practices or activities may be needed in the 
restoration of eligible land. The definition removes the parenthetical 
implication that restoration can only be used to restore native and 
naturalized plant communities. This change is made to implement section 
2403 of the 2008 Act, which amends the program's focus from protecting, 
conserving, and restoring grassland resources on private lands to 
assisting owners and operators in protecting grazing uses and related 
conservation values by restoring and conserving eligible land. These 
changes are also discussed above in the description of Sec.  1415.1.
    The definition of ``restoration agreement'' is revised to add the 
term ``eligible entities'' as parties able to enter into agreements 
with program participants and adds a restoration plan as a component of 
the restoration agreement. Eligible entities are responsible for 
developing, holding, enforcing, and providing cost-share for 
restoration under the terms of the cooperative agreement in Sec.  
1415.17 or the easement transfer to third parties in Sec.  1415.18.
    The definition of a ``restoration plan'' is added to establish the 
portion of the restoration agreement that will include the schedule and 
conservation practices to restore the functions and values of 
grasslands and shrublands and to incorporate USDA's expectation that 
conservation practices or measures installed with GRP federal cost-
share assistance will be operated and maintained by participants for 
the lifespan of the practice or measure. A more detailed discussion of 
the restoration plan can be found in the description of changes to 
Sec.  1415.4(c).
    The term ``restored grassland'' is removed. This term is no longer 
used in this regulation.
    The definition of ``right of enforcement'' is added to clarify that 
a right of enforcement is an interest in land which the United States 
may exercise under specific circumstances to enforce the terms of the 
conservation easement. A description of the exercise of this right is 
included in the discussion of changes to Sec.  1415.17 in this 
regulation.
    The definition of ``Secretary'' is amended to clarify that the term 
applies to the Secretary of the U.S. Department of Agriculture, or his 
or her designee.
    The definition of ``significant decline'' is modified to specify 
that species determined to be in significant decline merit conservation 
priority in the program. The revised language recognizes that the 
direct actions to conserve species in significant decline are 
undertaken voluntarily by program participants using program 
assistance.
    The definition of ``similar functions and values'' is removed. This 
term is no longer used in this regulation.
    The definition of ``State Technical Committee'' is changed by 
deleting the words ``Secretary of the United States Department of 
Agriculture'' and replacing them with ``Secretary'' because the term 
``Secretary'' is already defined to reference the ``United States 
Department of Agriculture''.
    The definition of ``Tribal land'' is added and means any land owned 
by Indian Tribes, which are defined in accordance with section 4(e) of 
the Indian Self-Determination and Education Assistance Act, 25 U.S.C. 
450b(e). The addition of this term addresses changes made by the 2008 
Act to enrollment options for Tribal land.
    The definition of the term ``USDA'' is expanded to clarify that 
such term refers to the U.S. Department of Agriculture,

[[Page 3863]]

and its Agencies and Offices, as applicable.

Section 1415.4 Program Requirements

    Section 1415.4(a) describes who may submit applications for 
easements and rental contracts. It is revised to require applicants for 
rental contracts to own the property or be able to provide written 
evidence of control of the property for rental contracts.
    Section 1415.4(b) is simplified by removing the phrase ``duration 
of the'' to refer to the term of the easement or rental contract.
    Section 1415.4(c) removes the term ``conservation plan'' and 
substitutes ``grazing management plan,'' reflecting the 2008 Act 
requirement for implementation of a grazing management plan. The 
revisions clarify the requirement for a grazing management plan and 
specify conditions when a conservation plan may be required. The last 
sentence is removed because ``conservation plan'' is now defined in 
Sec.  1415.3.
    USDA is taking this opportunity to explain the differences and 
relationships between conservation plans, grazing management plans, and 
restoration plans. The 2008 Act requires the implementation of a 
grazing management plan for all GRP participants. Although the 2002 Act 
was silent on planning requirements, the 2006 GRP final rule required 
participants to implement conservation plans in order to help protect 
the grassland functions and values. The 2006 GRP final rule defined a 
conservation plan as a resource management system (RMS) plan, which is 
the standard level of NRCS conservation planning. This level of 
planning is more rigorous than the 2008 Act's requirement for grazing 
management plan implementation. Because the 2008 Act requires the 
implementation of a grazing management plan and not a conservation 
plan, USDA is defining a grazing management plan as a document that 
describes the implementation of the grazing management system which 
meets the prescribed grazing standard included in the Field Office 
Technical Guide. USDA is also removing the requirement that all GRP 
participants implement a conservation plan. The grazing management plan 
will also include the permitted and prohibited activities, USDA's right 
of ingress and egress, and any associated conservation plans or 
restoration plans. Although all GRP participants will be required to 
implement a grazing management plan, conservation plans or restoration 
plans will only be required to be implemented under certain 
circumstances. For example, a conservation plan will be required in 
cases where ranking points were received for resource concerns not 
directly related to the grazing system or when a land eligibility 
criterion was used for enrollment that would not be part of a grazing 
management system. In these cases, the conservation plan must address 
the resource concerns associated with the ranking points or land 
eligibility. Examples of such circumstances where the development and 
implementation of a conservation plan will be needed are when points 
are received related to wildlife habitat management or haying and seed 
production issues, or when land eligibility is based on conditions at 
Sec.  1415.5(b)(2), such as historical and archeological resources in 
areas historically dominated by grassland, land that contains forbs, or 
shrubland. A restoration plan will only be required when a restoration 
agreement to restore grassland functions and values is developed in 
conjunction with a GRP rental contract or easement. The grazing 
management plan will be the primary plan for GRP participants. The NRCS 
planning process will be used in the development of grazing management 
plans, conservation plans, and restoration plans.
    Section 1415.4(d) replaces ``conservation plan'' with ``grazing 
management plan.'' This change reflects the 2008 Act requirement for 
the use of a grazing management plan.
    Section 1415.4(e) describes requirements of program participants 
with respect to conveying an easement. This rulemaking modifies this 
section to add the term ``eligible entity'' to clarify that these 
requirements also apply in this case where the easement is being 
conveyed to an eligible entity. This addition implements changes in the 
2008 Act authorizing third parties to purchase and hold GRP-funded 
conservation easements and also ensures sufficient title interest is 
acquired when eligible entities holding and enforcing easements under 
the terms of the cooperative agreement in Sec.  1415.17 and the 
easement transfer to third parties in Sec.  1415.18. The term 
``unencumbered'' is added before ``title'' in paragraph (e) to clarify 
that the title conveyed in the easement must be free from encumbrances.
    Section 1415.4(f) requires use of a standard GRP conservation 
easement deed. The phrase ``or developed by an eligible entity and 
approved by USDA under Sec.  1415.17 of this part'' is added after 
``USDA.'' This addition incorporates the 2008 Act change allowing an 
eligible entity to use the entity's own deed when owning an easement 
pursuant to a GRP cooperative agreement.
    Section 1415.4(g) is modified to replace the term ``conservation 
plan'' to ``grazing management plan'' to be consistent with the 
terminology used in the 2008 Act.
    Section 1415.4(h) adds ``as outlined in the grazing management 
plan'' to the end of the sentence. This change reflects the 2008 Act 
requirement for implementation of a grazing management plan and 
specifies the location of approved activities for GRP easements and 
rental contracts. Paragraph (h)(1) removes the phrase ``native and 
naturalized grass and shrub species'' and adds ``grassland, forb, and 
shrub species common to the locality.'' This revision reflects the GRP 
program purpose as described in the discussion of Sec.  1415.1(b) and 
required by the 2008 Act. The term ``cultural'' is struck and replaced 
with the conservation practice examples that had been used as the 
definition of the term in Sec.  1415.3. Paragraph (h)(2) is revised to 
remove cumbersome language and provide clarity related to haying and 
mowing restrictions during nesting seasons. The term ``pre-
suppression'' is added to paragraph (h)(3) following ``fire.'' This 
term is used in the 2008 Act describing an activity in the grazing 
management plan. The addition is intended to bring further 
clarification to the activity and comply with the 2008 Act definition. 
The remaining language in paragraph (h)(3) is broken out into 
subsequent paragraphs. A new paragraph (h)(4) is added at the beginning 
phrase ``grazing related activities, such as fencing and livestock.'' 
This addition provides clarification that fencing and livestock 
watering facilities must be grazing related.
    Wind power generation was not specifically addressed in the 2006 
regulatory text because the Secretary was prohibited by statute from 
authorizing activities that would disturb the surface of the land. 
Section 2403 of the 2008 Act removed this prohibition. A new paragraph 
(h)(5) is added to section 1415.4 to allow for the inclusion of wind 
power facilities for on farm use as a potential permitted use for the 
GRP participant's farming or ranching operation pursuant to the 
Secretary's discretionary authority established in the 2008 Act. This 
regulatory change results from USDA's interest in assisting producers 
with their energy conservation efforts.
    Although USDA is supportive of wind power generation for on-farm 
use on GRP lands, the opportunity to place generating stations on 
easement or

[[Page 3864]]

contract acres is not a guaranteed right. The siting of such facilities 
for on-farm energy generation must be consistent with the protection of 
the grazing uses and related conservation values promoted by the GRP 
program. In addition, authorization may only be provided after USDA 
conducts a site-specific evaluation to determine that there are no 
negative impacts on threatened, endangered or at-risk species, 
migratory wildlife, or related natural resources, cultural resources or 
the human environment. In addition, USDA will follow the guidelines 
being developed by the U.S. Fish and Wildlife Service, ``Guidance on 
Avoiding and Minimizing Wildlife Impacts from Wind Turbines,'' and will 
authorize wind power facilities only when the footprint of the facility 
would have a minimal impact on the nature of the grazing lands and 
other conservation values obtained through the contract or easement. 
These evaluation considerations will be incorporated into the 
environmental analyses that NRCS conducts pursuant to its National 
Environmental Policy Act (NEPA) responsibilities. USDA requests comment 
on whether wind energy generation activities are compatible with the 
grazing uses and related conservation values of the GRP program.
    Paragraph 1415.4(i) provided that activities that disturb the 
surface of the land are prohibited in GRP and listed exceptions in 
paragraphs (1), (2), and (3). The 2008 Act removed this prohibition on 
disturbing the land surface, providing USDA with the discretion to 
permit some surface-disturbing activities if they are carried out in a 
manner that is consistent with protecting the grazing uses and related 
conservation values. Section 1415.4(i) is revised to describe the 
specific activities that are prohibited, as reflected in the 2008 Act, 
rather than list the exceptions. Paragraph (i)(3) is revised and re-
designated as paragraph (h)(6). Given the removal of the soil 
disturbance prohibition, USDA requests comments on the nature of 
potential impacts on grazing uses and related conservation values 
resulting from activities that disturb the surface of the land.
    Section 1415.4(j) is being amended to add the term ``legally'' 
before ``incompetent'' to reflect a more definitive determination of 
mental competency.
    Section 1415.4(k) is being amended to remove the phrase ``the 
easement is for a longer duration than the rental agreement.'' This 
language indirectly refers to 30-year contracts and easements, which 
are no longer authorized under the 2008 Act.
    Paragraphs (l) and (m) are added to Sec.  1415.4 to require the 
suspension or elimination of cropland base and allotment history for 
rental contracts or easements, respectively. These changes are required 
by the 2008 Act.

Section 1415.5 Land Eligibility

    Section 1415.5(b) describes land eligible for funding 
consideration. Paragraph (b)(1) removes ``native and naturalized'' and 
replaces with ``improved,'' and ``for which grazing is the predominant 
use'' is added to the end of the sentence. This revision is a 
reflection of the change in purpose instituted by the 2008 Act, and is 
discussed in greater detail in the description of changes to Sec.  
1415.1 of this regulation. Paragraph (b)(2) removes language describing 
the State Conservationist consulting with the State Technical Committee 
on habitat. This language is unnecessary and was removed for 
simplification and clarity. Paragraph (b)(2)(i) is amended to be 
consistent with the statute and to simplify the eligible land 
description. Paragraph (b)(2)(ii) is replaced with ``contains 
historical or archeological resources.'' This addition addresses the 
2008 Act's requirement that land containing historical or archeological 
resources and located in an area that has been historically dominated 
by grassland, forbs or shrublands is eligible for GRP. Paragraph 
(b)(2)(iii) is added to address issues raised by State, regional, and 
national conservation priorities. Such priorities could include, for 
example: The North American Waterfowl Management Plan, the National 
Fish Habitat Action Plan, the Greater Sage Grouse Conservation Society, 
the State Comprehensive Wildlife Conservation Strategies (also referred 
to as the State Wildlife Action Plans), the Northern Bobwhite 
Conservation Initiative, the Gulf of Hypoxia Action Plan 2008 (and 
associated annual operating plans), and State forest resource 
strategies.
    Section 1415.5(c) clarifies how the enrollment of incidental land 
may improve the efficient administration of an easement or rental 
con