Healthy Forests Reserve Program, 6539-6553 [2010-2812]

Agencies

• DEPARTMENT OF AGRICULTURE
• Natural Resources Conservation Service

[Federal Register Volume 75, Number 27 (Wednesday, February 10, 2010)]
[Rules and Regulations]
[Pages 6539-6553]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-2812]



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Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / 
Rules and Regulations

[[Page 6539]]



DEPARTMENT OF AGRICULTURE

Natural Resources Conservation Service

7 CFR Part 625

RIN 0578-AA52


Healthy Forests Reserve Program

AGENCY: Natural Resources Conservation Service, United States 
Department of Agriculture.

ACTION: Final rule.

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SUMMARY: This final rule amends Natural Resources Conservation Service 
(NRCS) regulations for the Healthy Forests Reserve Program (HFRP). The 
Food, Conservation, and Energy Act of 2008 (the 2008 Act) amended 
provisions of HFRP that changed the duration, type, and funding 
allocation of program agreements, and NRCS published a proposed rule 
for these changes on January 14, 2009. This final rule responds to the 
comments received on the proposed rule and amends NRCS regulations for 
HFRP to incorporate changes associated with enactment of the 2008 Act.

DATES: Effective Date: This rule is effective February 10, 2010.

FOR FURTHER INFORMATION CONTACT: John Glover, Branch Chief, Easement 
Programs Branch, Department of Agriculture, Natural Resources 
Conservation Service, 1400 Independence Avenue, SW., Room 6811 South 
Building, Washington, DC 20250; Telephone: (202) 720-5477; Fax: (202) 
720-9689. 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).

SUPPLEMENTARY INFORMATION:

Regulatory Certifications

Executive Order 12866

    The Office of Management and Budget (OMB) determined that this 
final 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), the Department of Agriculture (USDA) classified 
this rule as non-major. Therefore, a risk analysis was not conducted.

Regulatory Flexibility Act

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

Small Business Regulatory Enforcement Fairness Act of 1996

    This final rule is not a major rule as defined by section 804 of 
the Small Business Regulatory Enforcement Fairness Act of 1996. This 
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 United States-based companies to compete 
in domestic and export markets.

Environmental Analysis

    The final rule for the HFRP amends the current regulation to 
include congressionally required statutory changes to the program as a 
result of the 2008 Act, Public Law 110-246. The 2008 Act changes the 
use of 30-year tribal contracts, allows NRCS to acquire permanent 
easements, and establishes limitations on the use of funds for cost-
share agreements and easements. The final rule also amends the 
regulation in response to comments received by the agency on the 
proposed rule.
    After review of the previous Environmental Assessment (EA) prepared 
in April 2006, it has been determined that the 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 have sufficiently analyzed the 
program's potential environmental impacts and are inclusive of the 
final rule.
    Copies of the EA and the Finding of No Significant Impact may be 
obtained from the Healthy Forests Reserve Program Manager, Easements 
Programs Division, Department of Agriculture, Natural Resources 
Conservation Service, 1400 Independence Avenue, SW., Room 6813 South 
Building, Washington, DC 20250; or electronically on the Internet 
through the NRCS homepage at: https://www.nrcs.usda.gov, and by 
selecting ``Programs,'' then ``Healthy Forests Reserve Program.''

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.
     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, to provide the public the option of submitting 
information or transacting business electronically to the maximum 
extent possible.

Civil Rights Impact Analysis

    NRCS has determined through a Civil Rights Impact Analysis that 
this final rule discloses no disproportionately adverse impacts for 
minorities, women, or persons with disabilities. The data presented 
indicates producers who are members of the protected groups have 
participated in NRCS conservation programs at parity with other 
producers. Extrapolating from historical participation data, it is 
reasonable to

[[Page 6540]]

conclude that NRCS programs, including the HFRP, will continue to be 
administered in a non-discriminatory manner. Outreach and communication 
strategies are in place to ensure all producers will be provided the 
same information to allow them to make informed compliance decisions 
regarding the use of their lands that will affect their participation 
in USDA programs. The HFRP applies to all persons equally. Therefore, 
this final rule portends no adverse civil rights implications for 
women, minorities, and persons with disabilities.
    Copies of the Civil Rights Impact Analysis are available, and may 
be obtained from John Glover, Branch Chief, Easement Programs Branch, 
Natural Resources Conservation Service, 1400 Independence Avenue, SW., 
Room 6819 South Building, Washington, DC 20250, or electronically at: 
https://www.nrcs.usda.gov/programs/HFRP.

Civil Justice Reform

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

Executive Order 13132

    This final rule has been reviewed in accordance with the 
requirements of Executive Order 13132, Federalism. NRCS has determined 
that this final rule conforms with the Federalism principles set forth 
in the Executive Order; would not impose any compliance costs on the 
States; and would not have substantial direct effects on the States, on 
the relationship between the Federal Government and the States, or on 
the distribution of power and responsibilities on the various levels of 
government. Therefore, NRCS concludes that this final rule does not 
have Federalism implications. Moreover, Sec.  625.5 of this final 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 rulemaking action 
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 governments or anyone in the private sector; 
therefore, a statement under section 202 of the Unfunded Mandates 
Reform Act of 1995 is not required.

Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments

    NRCS has assessed the impact of this final rule on Indian tribal 
governments and has concluded that this rule will not negatively affect 
communities of Indian tribal governments. The statutory changes to the 
HFRP as a result of the 2008 Act created an option of offering 30-year 
contracts to encourage Indian tribal participation in the program. 
Section 625.12 of this final rule outlines the procedures for enrolling 
land in the program through the 30-year contract option. The rule will 
neither impose substantial direct compliance costs on tribal 
governments, nor preempt tribal law.

Background

    America's forests provide a wide range of environmental, economic, 
and social benefits including timber, wilderness, minerals, recreation 
opportunities, 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 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 listed species, improve biodiversity, and enhance carbon 
sequestration.
    The Secretary of Agriculture has delegated authority to implement 
HFRP to the NRCS 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 Interior and the Secretary of 
Commerce. NRCS works closely with the U.S. Fish and Wildlife Service 
(FWS) and the National Marine Fisheries Service (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).

Response to Comments and Changes to the Regulation

    On January 14, 2009, NRCS published in the Federal Register a 
proposed rule for the HFRP with a 30-day public comment period that 
ended on February 13, 2009 (74 FR 1954). On February 18, 2009, the 
agency reopened the public comment period for the HFRP proposed rule 
for an additional 30 days, which ended on March 20, 2009 (74 FR 7563). 
NRCS received 13 responses to the proposed rule, encompassing 
approximately 68 comments. The respondents included individuals 
representing eight different agricultural or environmental 
organizations, three private citizens, a Federal agency respondent, and 
an Indian tribe. This section discusses all of the relevant comments 
except for those that expressed agreement with provisions of the 
proposed rule.

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

[[Page 6541]]

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 will give additional consideration to 
enrollment of eligible land that will improve biological diversity and 
increase carbon sequestration.
    Comment: Three respondents recommended that the term native be used 
throughout the rule prior to the term forest ecosystem to focus 
attention on native forest ecosystems.
    Response: No changes were made to the regulation based on these 
comments. As stated above, the statutory language does not restrict 
HFRP to native forest ecosystems. There are situations in which the 
native habitat has been destroyed, and threatened and endangered 
species have adapted to using non-native habitats as their primary 
habitat. The insertion of native would create a barrier for 
participation in those situations. Additionally, the FWS and NMFS are 
part of the consultation process and can provide guidance and 
assistance on a case-by-case basis.
    Comment: One respondent recommended changing the definition of 
biodiversity to require organisms to be native to the ecological sub-
region and ecological complex.
    Response: NRCS made no changes to the regulation based on this 
comment. The definition of biodiversity in the proposed rule is 
consistent with the definitions used in other NRCS programs.
    Comment: One respondent asserted that NRCS should clarify the 
extent of the access required in the rule to distinguish between public 
access and agency access.
    Response: The regulation does not require HFRP participants to 
provide general public access. Based on the comment, NRCS inserted 
language at Sec.  625.11 (b)(1) and Sec.  625.12 (b)(1) to clarify that 
the right of access to the easement area is access for NRCS personnel 
or agency representatives.

Priority for Enrollment

    The statutory provisions at 16 U.S.C. 6572(f) provides the 
following regarding enrollment priority:
    (1) Species--The Secretary of Agriculture will 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 will also 
consider the cost-effectiveness of each agreement or easement and 
associated restoration plans, so as to maximize the environmental 
benefits per dollar expended.
    Comment: Two respondents requested additional clarity regarding the 
priority that will be given to enrolling projects that benefit wildlife 
species not listed under the ESA. They suggested defining State-listed 
species in the regulation.
    Response: Based on the comments, the agency added a definition of 
State-listed species under Sec.  625.2. NRCS has defined State-listed 
species as ``a species listed as threatened or endangered under State 
endangered species laws, a candidate for such listing, or a species 
listed in a State Wildlife Action Plan as a species of greatest 
conservation need.''
    Comment: Two respondents recommended that only native species be 
identified by the Chief for special consideration for funding.
    Response: No changes were made to the regulation based on these 
comments. While the rule allows the Chief to designate species of 
special concern, restricting this designation to only native species 
unnecessarily curtails the Chief's discretion and could serve as a 
barrier, preventing protection in areas where it is needed.
    Comment: One respondent suggested that a dedicated amount of funds 
be set aside for family forest lands.
    Response: No changes were made to the regulations based on this 
comment because NRCS determined there is no statutory basis supporting 
a set-aside for family forest lands. A separate set-aside for family 
forest lands creates a special priority category. 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 family forest lands 
eligible for participation in HFRP.
    Comment: Two respondents suggested that priority be given to 
projects based on the priority forest areas identified in the State 
Forest Resource Assessment and Strategy required by section 8002 of the 
2008 Act. Another respondent suggested that attention to forest 
resources should be immediate and not wait for the completion of the 
state-wide assessment.
    Response: No changes were made to the regulation based on these 
comments. NRCS agrees that the concept of using the priority forest 
areas established by the report is a good concept. However, the report 
is currently underway and will not be complete until the end of fiscal 
year 2010. NRCS will incorporate guidance in policy on utilizing the 
information provided by the report once it is complete.
    Comment: One respondent suggested that significant weight should be 
given to projects that increase carbon sequestration.
    Response: No changes were made to the regulations based on this 
comment. Enhancing carbon sequestration is one of the purposes of the 
program which is detailed in the statute (16 U.S.C. 6571 and 6572). 
Under Sec.  625.6 of the final rule, one of the ranking criteria is the 
extent to which projects have the potential for increased capability of 
carbon sequestration.
    Comment: Two respondents asserted that the rule does not clearly 
articulate how cost-effectiveness will be estimated. Both suggested 
that the cost-effectiveness of the restoration cost-share agreement, 
contract, or easement and associated HFRP restoration plans be 
calculated by dividing the total expected environmental benefits by the 
total expected cost of the project.
    Response: No changes were made to the regulation based on these 
comments. NRCS will address this issue in policy to provide the maximum 
flexibility. The State Conservationist needs the flexibility to 
determine how cost-effectiveness will be estimated due to the wide 
variability of environmental benefits and diverse habitats of land 
enrolled in the program.
    Comment: One respondent suggested that NRCS use separate ranking 
pools to evaluate fairly the cost-effectiveness of short-term and long-
term agreements. Another respondent suggested NRCS compare projects 
with other projects of similar ownership and size. The respondent was 
concerned that smaller projects are disadvantaged when compared with 
larger projects that appear more cost-effective.
    Response: No changes were made to the regulation based on these 
comments. By policy, State Conservationists have the authority to 
create separate ranking pools for different types of agreements to 
ensure fair evaluation of projects.
    Comment: Several respondents recommended that NRCS require State 
Conservationists to work with other agencies and organizations when 
developing proposals. One respondent suggested the requirement include 
State Foresters, State Technical Committees,

[[Page 6542]]

and State Forest Stewardship Committees; three respondents suggested 
the requirement include all local, State, and Federal agencies; and one 
respondent suggested the requirement include the appropriate State fish 
and wildlife agency.
    Response: No changes were made to the regulation based on these 
comments. NRCS cannot require that the State Technical Committee be 
consulted because HFRP is not a program in the Conservation Title. The 
rule provides flexibility to the State Conservationists to determine 
with whom it is appropriate to work when developing proposals and 
implementing the program. The suggested changes would require 
consultation and limit the discretion and flexibility of the State 
Conservationist.
    Comment: Two respondents suggested that the ranking considerations 
be developed with State fish and wildlife agencies and be separated 
into primary and secondary ranking considerations, similar to the 
statutory language. Another respondent suggested that all ranking 
considerations should be required to be considered.
    Response: No changes were made to the regulation based on these 
comments. The required ranking considerations are found in the final 
rule at Sec.  625.6. The associated weighting of the ranking 
considerations is the responsibility of the State Conservationist. The 
State Conservationist works with cooperating agencies, which may 
include the State fish and wildlife agencies, to obtain input and 
advice on weighting and applying the ranking factors. The ranking 
structure proposed by the respondents would require specific ranking 
criteria to be considered regardless of the local conditions. The 
current structure of the regulation allows State Conservationists to 
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.
    Comment: NRCS specifically requested comments on the definition of 
``acreage owned by Indian tribes'' and the accompanying requirements 
for 30-year contracts at Sec.  625.12. In response, NRCS received one 
comment. The respondent suggested that NRCS revise the definition of 
``acreage owned by Indian tribes'' to allow Indian lands held in trust 
to be eligible for the program.
    Response: No changes were made to the regulation based on this 
comment. As stated in the preamble to the proposed rule, ``The 
statement of managers (Conference Report H.R. 110-627 for H.R. 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 United States Government or restricted fee lands 
should not be enrolled in the program regardless of ownership.'' The 
managers' report language can be used to elucidate the meaning of the 
statute. Based on this language, NRCS interpreted the meaning of 
``acreage owned by Indian tribes'' as including only land to which the 
title is held by individual Indians and Indian tribes, including Alaska 
Native Corporations. Lands held in Trust by the United States or 
allotted lands which contain restraints against alienation are not 
eligible under the definition of ``acreage owned by Indian tribes.'' 
For purposes of clarity, NRCS removed the word ``private'' from this 
definition in the final rule because the inclusion of the word 
``private'' was redundant and could create confusion when implemented. 
The definition of ``private land'' includes land that meets the 
definition of ``acreage owned by Indian tribes.'' NRCS also revised the 
definition of ``30-year contract'' to include the term ``acreage owned 
by Indian tribes'' and to remove the reference to land held in private 
ownership and the reference to ``individual tribal members'' for the 
reasons listed above. Additionally, NRCS removed the phrase ``including 
Alaska Native Corporations'' from the definition because it was 
repetitive.
    Comment: Two respondents suggested that NRCS require that direct 
benefits to the target species be realized during the contract period.
    Response: No changes were made to the regulation based on these 
comments. Section 625.4 applies to all eligible land, including 
permanent easements. The change suggested by the respondents to include 
``within the contract period'' would be confusing because this section 
addresses all enrollment options, and this phrase is not applicable to 
easements. Additionally, there are circumstances in which the desired 
benefits may not occur within the contract period, though such benefits 
will likely be obtained as a result of HFRP financial and technical 
assistance. For example, HFRP assistance through a 30-year easement may 
facilitate the establishment of a mature hardwood forest, though the 
trees planted with HFRP assistance will not have reached full maturity 
at the end of the 30-year easement period. The respondents proposed 
change would render such land ineligible for the program.
    Comment: Two respondents asserted that NRCS should spend no less 
than 60 percent of HFRP funds on permanent easements. Another 
respondent suggested that NRCS favor shorter term easements and 
restoration cost-share agreements over permanent easements.
    Response: No changes were made to the regulation based on these 
comments because the statutory requirements determine the allocation of 
funds. The original HFRP statutory language required that ``the extent 
to which each enrollment method is used will be based on the 
approximate proportion of owner interest expressed in that method in 
comparison to the other methods.'' However, the 2008 Act amended the 
HFRP statute to include language specifying that 40 percent of program 
expenditures in any fiscal year be for restoration cost-share agreement 
enrollment and 60 percent of program expenditures in any fiscal year be 
for easement enrollment. The 2008 Act allows re-allocation if funds are 
not obligated by April 1 of the fiscal year in which the funds were 
made available.
    Comment: One respondent asserted that NRCS should allow States the 
flexibility to allocate funds according to local needs under the re-
pooling provision.
    Response: No changes were made to the regulation based on this 
comment. The preamble of the proposed rule stated that ``NRCS proposes 
to manage this process at the national level to ensure that the 
allocation of funds meets the statutory requirements.'' The agency will 
manage the re-pooling of funds at National Headquarters to ensure that 
the statutory requirements are met.
    Comment: Two respondents suggested that NRCS limit the allocation 
of program resources to States that have developed proposals likely to 
result in the most significant and cost-effective benefits to the 
forest ecosystems and species.
    Response: No changes were made to the regulation based on these 
comments. The respondents' suggestion limits HFRP enrollment to a 
select number of

[[Page 6543]]

States. NRCS does not believe Congress intended to limit the 
implementation of the program in this manner. The sign-up process, 
detailed in Sec.  625.5(a), is designed to target funding to the most 
significant and cost-effective proposals.

Restoration Plans

    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.
    Under the provisions of 16 U.S.C. 6572, NRCS is to carry out the 
HFRP in coordination with FWS and NMFS. The provisions of Sec.  
625.13(c), which concern the HFRP restoration plan development, specify 
that NRCS, in coordination with the FWS, will determine the 
conservation practices and measures for the restoration plan.
    Comment: Two respondents suggested including other agencies in the 
development of the restoration plan.
    Response: No changes were made to the regulation based on these 
comments. The rule allows the State Conservationists to confer with FWS 
and NMFS in developing the restoration plan. The State Conservationists 
have the authority to consult with other agencies in the development of 
the restoration plan as necessary.
    Comment: Three respondents suggested that NRCS reword Sec.  
625.13(c) to require that carbon sequestration management promote 
diverse and high quality native forest ecosystems to accomplish the 
goals of the restoration plan.
    Response: Based on the comments, NRCS inserted the language 
suggested by the respondents in Sec.  625.13(c). NRCS agrees with the 
respondents and is concerned that the most effective plants for 
sequestering carbon may be non-native species that may not be 
appropriate for maintaining habitat. NRCS agrees that for carbon 
sequestration purposes, the plants should be required to be native to 
the environment in which they are being planted.
    Comment: One respondent recommended that restoration plans be 
tailored to help landowners adapt their management strategies in a 
changing climate.
    Response: No changes were made to the regulation based on this 
comment. The planning process includes selecting plants that are widely 
adapted to tolerate changes in climate. The restoration plan may be 
modified by the parties to address changing circumstances, including 
changes to facilitate climate adaptation.
    Comment: Two respondents suggested that the language in Sec.  
625.14 is inconsistent because the first sentence of the section says 
that modifications may be approved if they do not modify or void 
provisions of the easement, and later in the section the regulation 
says that modifications may require execution of an amended easement.
    Response: Section 625.14 discusses modifications to the HFRP 
restoration plan; it is not discussing modification to an HFRP 
easement. There is no statutory authority for HFRP easements to be 
modified. In order for a restoration plan to be modified, the 
modification must meet HFRP program objectives and must result in equal 
or greater wildlife benefits and ecological and economic values to the 
United States. In order to avoid confusion regarding the modification 
of an HFRP restoration plan, NRCS has inserted the phrase ``to the 
restoration plan'' and removed the word ``easement'' from Sec.  625.14.
    Comment: One respondent suggested that any modification to an HFRP 
restoration plan should require agreement from the landowner, FWS, 
NMFS, or the State fish and wildlife agency.
    Response: No changes were made to the regulation based on this 
comment. The final rule at Sec.  625.14 affirms that NRCS will 
coordinate with the landowner, FWS, and NMFS to determine if a 
modification to the restoration plan is justified.

Cost-Share Payments

    Comment: One respondent asserted that NRCS should use actual costs 
rather than average costs for determining cost-share assistance 
reimbursement rates. The HFRP statutory language allows for NRCS to 
reimburse a percentage of either the actual cost or the average cost of 
approved practices. The respondent asserted that average costs may be 
far lower than the actual cost and therefore, make full program 
implementation less likely where landowners do not receive 
reimbursement for their full expenses.
    Response: No changes were made to the regulation based on this 
comment. Calculating actual costs would significantly increase the 
administrative workload and reduce the amount of 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.
    However, for purposes of clarity, NRCS revised Sec.  625.3(d) and 
Sec.  625.13(c) to establish that the State Conservationist will 
develop the list of eligible restoration practices, payment rates, and 
cost-share percentages. The State Conservationist will not determine 
the rates of compensation for an easement or 30-year contract because 
those rates will be established through the process outlined in Sec.  
625.8.
    NRCS also revised Sec.  625.10(g) to clarify that payments will not 
be made on components of a conservation practice or measure. This 
change was made to ensure consistency with other NRCS programs.

Compensation

    The statutory provisions at 16 U.S.C. 6574 establish the 
requirements for easement compensation rates. Subsection (a) provides 
that the Secretary of Agriculture will pay a landowner for a permanent 
easement not less than 75 percent, nor more than 100 percent of the 
fair market value of the land enrolled during the period the land is 
subject to the easement, less the fair market value of the land 
encumbered by the easement (as determined by the Secretary). The 
statute provides that the Secretary will pay the same rate for 
easements that are for the maximum duration allowed under State law.
    As stated in the preamble to the proposed rule, Federal agencies 
generally follow the Uniform Relocation Assistance and Real Property 
Acquisition Policies for Federal and Federally Assisted Programs (the 
Uniform Relocation Act), the Uniform Relocation Act's implementing 
regulations at 49 CFR part 24, and the Uniform Appraisal Standards for 
Federal Land Acquisitions (the 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 includes 
all land owned by the landowner that may be impacted by the easement, 
as determined by the appraiser.
    However, where agencies have statutory authority to waive general 
appraisal procedures, Federal agencies can develop alternative 
appraisal and valuation methodologies. Under the SAFE-TEA-LU Act, NRCS 
is exempt from the requirements of 49 CFR part 24. The HFRP language 
for permanent and maximum duration easements requires that compensation 
be based on the impact to the value of only the land

[[Page 6544]]

enrolled and encumbered by the easement. Thus, the Yellow Book 
requirement of appraising the larger parcel does not apply for 
permanent easements, or those of the maximum duration required by State 
law.
    Comment: NRCS specifically requested comments on the language 
regarding the establishment of easement compensation rates at Sec.  
625.8. In response, NRCS received three comments. All respondents were 
in agreement that NRCS should not use the Yellow Book appraisal 
process.
    Response: No changes were made to the regulation based on these 
comments. NRCS will use the Uniform Standards for Professional 
Appraisal Practice to determine easement compensation values under 
HFRP. NRCS will use the same methodology to determine compensation 
values for all HFRP easements, both permanent and 30-year, to reduce 
confusion and maintain consistency.
    Comment: One respondent suggested that HFRP use the same appraisal 
process as the Wetlands Reserve Program (WRP).
    Response: No changes were made to the regulation based on this 
comment. HFRP has different statutory requirements than the WRP. The 
statutory requirements of HFRP do not allow for the program to use the 
same method of compensation as the WRP.
    Comment: NRCS also specifically requested comments on the language 
regarding ownership of ecosystem services credits at Sec.  625.8(f). In 
response, the agency received three comments. All three respondents 
supported the ecosystem services credits language.
    Response: No changes were made to the regulation as a result of 
these comments. However, minor changes were made to the language in 
Sec.  625.8 to ensure consistency across all NRCS programs.

Landowner Protections and Safe Harbor Agreements

    The 2006 HFRP interim final rule (71 FR 28557) included a 
definition of Landowner Protections as part of Sec.  625.2 and the 
preamble to that rule described those protections and how program 
participants obtain them (71 FR 28548-28550). Landowner Protections 
were defined in the 2006 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.''

    Landowner Protections are contingent upon 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 Land Protections 
available to HFRP participants. The regulation at Sec.  625.13(d) 
specifies 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 the HFRP 
participant to have direct involvement with FWS or NMFS. 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 Safe Harbor 
Agreement (SHA) or Candidate Conservation Agreement with Assurances 
(CCAA) with the 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 the FWS or NMFS and 
cooperating participants whereby landowners who voluntarily agree to 
manage their lands or waters to remove threats to species at risk of 
becoming listed under the ESA as 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 
CCAAs 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.
    Comment: One Federal agency respondent suggested that the 
regulation clarify the landowner protection section to include a return 
to baseline conditions at the end of the easement, contract, or 
agreement. The respondent suggested that NRCS do this in one of two 
ways, either in the definition of landowner protection or in the 
landowner protections section of the regulation.
    Response: NRCS has decided that this clarification is needed, and 
that the issue will be better clarified in the landowner protections 
section of the regulation. Based on this comment, NRCS added Sec.  
625.13(d)(1)(iii) to the Incidental Take section and

[[Page 6545]]

Sec.  625.13(d)(2)(iv) to the SHA or CCAA section to include a return 
to baseline conditions at the end of the applicable period.
    Comment: Two respondents recommended that NRCS modify Sec.  
625.13(d) to clarify that the Landowner Protections discussed in that 
section are intended to apply to HFRP participants.
    Response: Based on these comments, NRCS corrected Sec.  625.13(d) 
by inserting a comma after ``species,'' removing the words ``a 
participant,'' and removing the period at the end of the sentence. 
These changes help clarify that Landowner Protections are available to 
HFRP participants.
    Comment: One respondent suggested that NRCS provide landowners with 
an assurance that they will not be found in violation of the ESA or 
other environmental laws.
    Response: No changes were made to the regulation based on this 
comment. NRCS cannot offer this type of assurance to landowners. A 
landowner may be in violation of the ESA if they are acting outside of 
the SHA/CCAA agreement. It is the responsibility of the landowner to 
ensure that actions outside of the landowner protections provided by 
NRCS are consistent with all applicable Federal and State laws. NRCS 
does not have the authority to provide any assurances regarding 
compliance with other applicable environmental laws.

Compatible Use Authorizations

    Comment: Two respondents suggested that it may be more important to 
address the issue of compatible uses in the context of 10-year 
agreements than in the context of easements. The respondents felt that 
compatible use agreements should not be needed for properties subject 
to easements since the easement specifically prohibits certain uses and 
allows all others.
    Response: No changes were made to the regulation based on these 
comments. The purpose of a compatible use agreement is to allow a 
landowner to conduct a prohibited activity on the easement if it will 
benefit the functions and values of the easement. A compatible use 
agreement is necessary in the context of an easement, particularly a 
permanent easement, which is a recorded property right and cannot be 
changed. However, a compatible use agreement is not necessary for a 10-
year restoration cost-share agreement because the agreement itself can 
be altered to permit the activity that will benefit the land.
    Comment: Two respondents recommended that NRCS include a definition 
of the term ``compatible use'' in the rule.
    Response: NRCS did not make any changes to the regulation based on 
these comments. Although the term is used in the rule, the types of 
activities that may be considered compatible may change depending on 
the circumstances. In order to allow for flexibility, NRCS will define 
the term compatible use in the policy consistent with other NRCS 
programs that allow compatible use authorizations.
    Comment: Three respondents asserted that NRCS does not have the 
authority to regulate hunting and fishing as compatible uses because 
they are a reserved right of the landowner.
    Response: Although undeveloped recreational hunting and fishing is 
identified in the deed as a reserved right to the landowner, any 
activity above and beyond undeveloped recreational use may only be 
authorized by NRCS through the compatible use process. The HFRP deed 
does not reserve to the landowner an unfettered right to hunt and fish 
as suggested by the respondents. In order to clarify this issue, the 
agency removed language from Sec.  625.11(b)(2) which gave examples of 
what types of activities may be granted a compatible use agreement. 
NRCS removed the compatible use paragraph from Sec.  625.11(b)(2) and 
combined it with Sec.  625.11(b)(3). The new combined paragraph at 
Sec.  625.11(b)(2) now allows NRCS the right to determine and permit 
compatible uses on the easement area and specify the amount, timing, 
method, intensity, and duration of the compatible use, if such use is 
consistent with the long-term protection and enhancement of the 
purposes for which the easement was established. This new paragraph 
avoids confusion over what activities may be granted a compatible use, 
and instead focuses on the standard an activity must meet in order for 
a compatible use to be granted.
    Comment: Three respondents suggested that NRCS should add 
prescribed fire, grazing, and silviculture practices as compatible uses 
which are consistent with the long-term protection and enhancement of 
the purposes for which the easement was established.
    Response: No changes were made to the regulation as a result of 
these comments. As mentioned above, whether or not these activities 
will be considered compatible uses will depend on site-specific 
circumstances. In addition, the change made in response to the comments 
regarding hunting and fishing at Sec.  625.11(b)(2) will provide 
additional clarity on this issue. The HFRP deed allows landowners to 
conduct routine forestry operations and management practices as long as 
such activities are consistent with the terms of the deed and the 
restoration plan. If the activity is allowed by the deed and consistent 
with the terms of the deed and the restoration plan, no compatible use 
authorization is required.

Termination of Landowner Protections

    As provided for in this final rule in the definition of Landowner 
Protections in Sec.  625.2 and the associated provision at Sec.  
625.13(d), all appropriate options will be pursued with the participant 
to avoid termination of the landowner protections in the case of 
landowner non-compliance or changed conditions. If the participant has 
entered into a SHA or CCAA with the 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.
    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'' (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.
    Comment: One respondent suggested that NRCS require the landowner 
to coordinate with all parties to the agreement if there is termination 
or transfer of a SHA or a CCAA.
    Response: The proposed rule at Sec.  625.13(d)(2)(iv) required 
landowners to notify and coordinate with FWS and NMFS, as appropriate, 
in the event of a termination of the agreement. NRCS agrees that the 
landowner should be responsible for coordinating with any party to the 
specific SHA or CCAA, as applicable, such as State fish and wildlife 
agencies. Based on this comment, NRCS inserted language at Sec.  
625.13(d)(2)(v) to require landowners to notify and coordinate with any 
relevant party to the specific SHA or CCAA.

[[Page 6546]]

Tribal Consultation

    Comment: One respondent suggested that the regulations should 
require consultation with Indian tribes to discuss impacts and evaluate 
the effectiveness of the program over time.
    Response: No changes were made to the regulation based on this 
comment. Participation in HFRP is voluntary, and the proposed rule did 
not meet the threshold for requiring consultation as specified by 
Executive Order 13175. However, NRCS remains committed to seeking 
advice, guidance, and counsel from Indian tribes in regard to natural 
resource concerns and issues. Indian tribes interested in providing 
input regarding HFRP policies may submit their request directly to the 
Chief.

Miscellaneous Changes for Clarification and Improved Program 
Administration

    NRCS removed the definition of ``contract or agreement'' for 
clarity because each of the possible contracts or agreements under HFRP 
are defined specifically so a general definition is not necessary and 
may create confusion.
    NRCS removed the term ``option agreement to purchase'' throughout 
the document and replaced the term with ``agreement to purchase'' to 
reflect more accurately the way the document is used and to allow for 
consistency with other easement programs.
    NRCS made other non-substantive changes for the purpose of clarity 
and consistency with other NRCS programs. These changes are set forth 
in the text portion of this document.

List of Subjects in 7 CFR Part 625

    Administrative practice and procedure, Agriculture, Soil 
conservation, and Forestry.

0
For the reasons stated in the preamble, NRCS revises 7 CFR part 625 to 
read as follows:

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 30-year 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.


Sec.  625.1  Purpose and scope.

    (a) The purpose of the Healthy Forests Reserve Program (HFRP) is to 
assist landowners, on a voluntary basis, in restoring, enhancing, and 
protecting forestland resources on private lands through easements, 30-
year contracts, and 10-year cost-share agreements.
    (b) The objectives of HFRP are to:
    (1) Promote the recovery of endangered and threatened species under 
the Endangered Species Act of 1973 (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 may implement HFRP in any of the 50 States, District 
of Columbia, Commonwealth of Puerto Rico, Guam, Virgin Islands, 
American Samoa, and the Commonwealth of the Northern Mariana Islands.


Sec.  625.2  Definitions.

    The following definitions will be applicable to this part:
    30-year Contract means a contract that is limited to acreage owned 
by Indian tribes. 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 lands to which the title is 
held by individual Indians and Indian tribes. 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 the U.S. Fish and Wildlife Service (FWS) 
or the National Marine Fisheries Service (NMFS), and cooperating non-
Federal 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. CCAA 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.
    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 Department of Agriculture (USDA) NRCS, 
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.
    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.
    Easement means a conservation easement, which is an interest in 
land defined and delineated in a deed

[[Page 6547]]

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 is an agency of the Department of 
Interior.
    Forest Service is an agency of USDA.
    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 predominance of trees, and by the fauna, flora, and 
ecological cycles (energy, water, carbon, and nutrients).
    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. 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 a 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 
include an incidental take authorization received by NRCS from FWS or 
NMFS, or may be provided by a Safe Harbor Agreement (SHA) or CCAA 
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 is an agency of the United States 
Department of Commerce.
    Natural Resources Conservation Service is an agency of USDA which 
has the responsibility for administering HFRP.
    Participant means a person, entity, or Indian tribe who is a party 
to a 10-year cost share agreement, 30-year contract, or an agreement to 
purchase an easement.
    Private land means land that is not owned by a local, State, or 
Federal 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 cost-share 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 Species Act of 1973, 16 U.S.C. 
1539(a)(1). Under the SHA and an associated enhancement of survival 
permit, the private property owner implements actions that are 
consistent with the conditions of the permit. SHAs 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.
    State-listed species means a species listed as threatened or 
endangered under State endangered species laws, a candidate for such 
listing, or a species listed in a State Wildlife Action Plan as a 
Species of Greatest Conservation Need.
    Sign-up notice means the public notification document that NRCS 
provides to describe the particular requirements for a specific HFRP 
sign-up.
    State Conservationist means the NRCS employee authorized to 
implement HFRP and direct and supervise NRCS activities in a State, 
Caribbean Area, or Pacific Islands 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.


Sec.  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 will 
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 a list of eligible 
restoration practices, payment rates and cost-share percentages, a 
priority ranking process, and any related technical matters.
    (e) NRCS will 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