[Federal Register: March 6, 2006 (Volume 71, Number 43)]
[Rules and Regulations]
[Page 11139-11151]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06mr06-1]
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Rules and Regulations
Federal Register
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[[Page 11139]]
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: Final rule.
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SUMMARY: The United States Department of Agriculture (USDA or the
Department) is publishing a final rule implementing the Grassland
Reserve Program (GRP). The GRP assists landowners and others in
restoring and conserving eligible grassland and certain other lands
through rental agreements and easements. This rule sets forth how the
Secretary of Agriculture (the Secretary), using the funds, facilities,
and authorities of the Commodity Credit Corporation (CCC), will
implement GRP to meet the statutory objectives of the program.
DATES: Effective date: March 6, 2006.
FOR FURTHER INFORMATION CONTACT: Floyd Wood, National Program Manager,
Easement Programs Division, NRCS, P.O. Box 2890, Washington, DC 20013-
2890; telephone: (202) 720-0242; fax: (202) 720-9689; e-mail:
floyd.wood@wdc.usda.gov, Attention: Grassland Reserve Program. 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: USDA promulgated the GRP interim final rule
in the Federal Register on May 21, 2004 (69 FR 29173). The GRP is
authorized under the Food Security Act of 1985, as amended, 16 U.S.C.
3838n-3838q. The Farm Security and Rural Investment Act of 2002 (2002
Farm Bill) amended Subchapter C to Chapter 2, Subtitle D, of Title XII
of the Food Security Act of 1985 to authorize GRP. GRP is a voluntary
program to assist landowners and agriculture operators in restoring and
conserving eligible private grassland and land that contains forbs and
shrublands through rental agreements and easements.
The interim final rulemaking provided a 60-day comment period that
ended July 20, 2004. USDA received comments from thirty-nine entities.
USDA addresses the comments received, including any changes to the
final rule made as a result of the comments. Some of the comments
received by the Department addressed the GRP template conservation
easement deed even though the deed was not a part of the rule making.
These comments may be of general interest, and the Department has
decided to address those comments in the preamble as well. USDA notes,
however, that it may make future changes to the easement deed without
notice and comment rulemaking. Since the interim final rule was
published, the statutory authority for GRP was amended by the
Consolidated Appropriations Act of 2005, Pub. L. 108-447. The final
rule addresses and implements this statutory change as well.
Background
Historically, grassland and shrublands occupied approximately 1
billion acres, about half the landmass of the 48 contiguous United
States. Roughly 50 percent of these lands have been converted to
cropland, urban land, and other land uses. Privately owned grasslands
(pastureland and rangeland) cover approximately 526 million acres in
this country. Grasslands provide ecological and economic benefits to
local residents and society in general. Grassland importance lies not
only in the immense area covered, but also in the diversity of benefits
they produce. These lands provide water for urban and rural uses,
livestock products, flood protection, wildlife habitat, and carbon
sequestration. These lands also provide aesthetic value in the form of
open space and are vital links in the enhancement of rural social
stability and economic vigor, as well as being part of the Nation's
history.
Grassland loss through conversion to other land uses such as
cropland, parcels for rural home sites, invasive species, woody
vegetation, and suburban and urban development threatens grassland
resources. About 24 million acres of grasslands and shrublands were
converted to cropland or non-agriculture uses between 1992 through
1997.
As noted above, GRP is a voluntary program to assist landowners and
agriculture operators in restoring and protecting eligible grassland
and land that contains forbs and shrublands through rental agreements
and easements. The 2002 Farm Bill provided that $254 million would be
made available through FY 2007 to enroll no more than 2 million acres
of restored or improved grassland, rangeland, shrubland and
pastureland. USDA will consider all enrolled native and naturalized
grasslands, both restored and existing, towards the 2 million acre cap.
The statute requires that 40 percent of the program funds be used for
10-year, 15-year, and 20-year rental agreements, and 60 percent of the
funds be used for 30-year rental agreements and easements.
The Secretary of Agriculture delegated the authority to administer
GRP on behalf of the CCC, to the Chief, Natural Resources Conservation
Service (NRCS), who is 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
agreement administration and financial activities. The agencies will
consult on regulatory and policy matters pertaining to both rental
agreements and easements. The Secretary also delegated authority to the
Forest Service to hold easements, at the option of the landowner, on
properties adjacent to USDA Forest Service lands. At the State level,
the NRCS State Conservationist and the FSA State Executive Director
will 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.
This final rule describes the various enrollment options through
rental agreements and easements, the
[[Page 11140]]
compensation rates for each, the manner in which USDA establishes
criteria to evaluate and rank applications at the State level, and the
various protections and enhancements that rental agreements and
easements would provide to grassland resources.
Summary of Comments
Approximately, one-half of all comments received in response to the
interim final rule were from livestock organizations, another one-third
from State wildlife and agriculture agencies and non-governmental
wildlife organizations, and the remainder from private landowners. The
responses to the comments on the interim final rule are set forth
below. USDA also received comments on the GRP template easement deed
even though the deed was not the subject of notice and comment rule
making. Those comments may be of general interest, and USDA has decided
to address those comments in the preamble under a separate subsection
entitled ``GRP Easement Deed.'' In addition to responding to the
comments, USDA made nonsubstantive changes to the text of the final
rule for purpose of clarity and improved organization. In the
subsequent section, USDA provides a section-by-section description of
the substantive changes.
State Allocations
Under Sec. 1415.2 of the interim final rule, USDA used a national
allocation formula to provide GRP funds to USDA State offices with the
direction to emphasize support for biodiversity of plants and animals,
protection of grasslands under the greatest threat of conversion, and
support for grazing operations. The interim final rule at Sec. 1415.2
also identified that the allocation formula would include a factor
representing program ``demand'' which could be expressed in terms of
applications received, acres offered, funding needs, or a combination
of these elements.
USDA received eight comments from entities which asserted that
allocations to States should be based on grassland resource needs and
not program demand. These commenters were concerned that the ``demand''
factor could result in less funding for States with the most critical
grassland protection needs. USDA received an almost equal number of
comments supporting the use of an allocation formula based partially on
program demand.
USDA did not intend for a demand factor to interfere with the
ability to fund the most critical grassland resource needs. To avoid
any misinterpretation, USDA has not included the language in the final
rule concerning a program demand factor. The remaining provisions of
the regulations provide for the allocation of funds consistent with
meeting the most critical grassland resource needs and additional
factors related to improving program implementation. For example, the
regulations provide for allocations based on emphasis for ``support of
biodiversity of plants and animals, grasslands under the greatest
threat of conversion, and grazing operations.''
Conservation Plan
The interim final rule required that participants in GRP implement
a conservation plan approved by USDA to preserve, and if necessary
restore and enhance, the viability of the grassland enrolled in the
GRP. USDA received comments from entities both supporting and opposing
requirements for landowners to establish a conservation plan. A
conservation plan is designed to document the present and planned
grassland characteristics and other conservation values, current and
future land practices for the property, and the specific conservation
requirements that would apply to the landowner's property based on the
implementation of the provisions of the regulations. USDA believes a
conservation plan is necessary to ensure that the landowner fully
understands how the provisions of the final rule apply to their
particular property enrolled in the GRP. In order to clarify USDA
policy and terminology regarding GRP conservation plans, the Department
has included in the final rule definitions for ``conservation values''
and ``enhancement,'' and has modified the definition of ``conservation
plan,'' ``restoration `` and ``restored grassland.'' USDA made no
changes in the final rule related to conservation plan requirements.
Right of Access
The regulations at Sec. 1415.4(d) provide that the easement or
rental agreement shall grant USDA or its representatives a right of
access to the easement or rental agreement area. Commenters asserted
that USDA should be allowed to enter such property only after prior
notification to landowners. To address this comment, USDA will strive
to provide prior notice, except when it believes that there has been a
violation of the terms of the easement deed or rental agreement. USDA
determined that an exception to the notification requirement is
warranted in cases where the Department believes that there is an
easement or rental agreement violation, in order to ensure protection
of the resource.
Industrial Windmills
16 U.S.C. 3838o provides that an easement or rental agreement shall
prohibit activities, other than common grazing and cultural practices,
including those necessary to restore or maintain grasslands, which
would disturb the surface of the land covered by the easement or rental
agreement. Based on this authority, in the interim final rule, USDA
prohibited the installation of industrial windmills for commercial
energy use on GRP enrolled lands. Eight entities opposed this action
while six entities supported it. The entities in opposition questioned
why GRP policy was different than CRP regarding the installation of
windmills, while the entities in support asserted the prohibition was
necessary to protect grassland-dependent bird populations.
USDA adopted a different policy in GRP than CRP, because the CRP
statute specifically authorized the installation of industrial-like
windmills under particular circumstances while the GRP statute does not
provide for such authority. Without explicit authority similar to CRP,
and given the general prohibition against disturbing the soil surface,
USDA has determined that the installation of industrial windmills on
lands enrolled in GRP should be prohibited. Consequently, USDA made no
changes in this rule to allow the installation of industrial windmills.
Hay, Mow, or Harvest for Seed
The interim final regulations at Sec. 1415.4(h)(2) provided for
the State Conservationist to establish certain restrictions on haying,
mowing, or harvesting for seed production as necessary to protect
nesting habitat for grassland-dependent bird populations that are in
significant decline or are conserved in accordance with Federal or
State law. Commenters asserted that the State Conservationist should
consult with local work groups and appropriate State and Federal
agencies when establishing such restrictions. We made no changes to the
final rule based on these comments because this type of expertise is
already being provided to the State Conservationist through
consultation with the State technical committees.
New Livestock Facilities
16 U.S.C. 3838o(b) provides that an easement or rental agreement
shall permit common grazing practices, including necessary cultural
practices, but prohibit activities, other than those necessary to
restore or maintain
[[Page 11141]]
grasslands, that would disturb the surface of the land covered by the
easement or rental agreement. Based on its original interpretation of
this authority, USDA prohibited the installation of new livestock
facilities on GRP enrolled land under the interim final rule at Sec.
1415.4(i). Commenters asserted that the installation of new facilities
may often be essential for conducting necessary livestock operations.
In promulgating this final rule, USDA has reconsidered its
interpretation of the statute and agrees with commenters that new
livestock facilities, including corrals, watering troughs and tanks,
barns or other minor infrastructure necessary to conduct common grazing
practices and operations, may be authorized. Specifically, the common
meaning given to the word ``cultural'' includes fostering animal
growth, and production of forage and seed. In order to foster animal
growth such as cattle and the related production of forage and seed,
the infrastructure related to feeding, watering, shelter, and storage
of hay, seed, and feed is necessary. As previously indicated, USDA
believes that conditions must be placed on their installation to ensure
that the facilities are ``consistent with maintaining the viability of
grassland, forb, and shrub species common to that locality'' as
required by 16 U.S.C. 3838o(b)(1), and to minimize adverse impacts to
biodiversity and other conservation values associated with the
conservation easement or rental agreement. Accordingly, USDA has
modified Sec. Sec. 1415.4(h) and (i) of this final rule to incorporate
this new, limited flexibility for the installation of corrals and other
new livestock facilities. As a related matter, the Department has
included in the final rule definitions of both common grazing practices
and cultural practices in order to clarify the USDA's policy on
permitted infrastructure.
Establishing Priority for Enrollment of Properties
The interim final rule at Sec. 1415.8, provided that USDA at the
State-level, with advice from the State technical committee,
establishes criteria to evaluate and rank applications for easement and
rental agreements based upon, among other things, threat of conversion
to non-grassland uses. When developing ranking criteria for
prioritizing applications, commenters asserted that State-level
decision makers should also consider additional factors which emphasize
enrollment of grasslands that:
Are located outside urban areas,
Contain (or will be restored to) native plant communities,
Provide the greatest support for plant and animal
biodiversity,
Are most subject to conversion to cropland--especially
lands classified as prime farmland,
Are threatened by encroachment from invasive species,
Will be protected for the longest duration,
Are the ``most-likely to be converted'' from any source,
and
Are recognized as having high potential for conversion to
industrial wind mills.
USDA at the State-level may include, but is not limited to,
consideration of all these factors when developing State ranking
criteria for GRP. Accordingly, USDA did not make any changes from the
interim final rule to this section.
Native Versus Natural Grasses
With respect to establishing ranking criteria to be used for
funding priorities, 16 U.S.C. 3838o(c)(2) states that USDA ``shall
emphasize support for (A) Grazing operations; (B) plant and animal
biodiversity; and (C) grassland, land that contains forbs, and
shrubland under the greatest threat of conversion.'' Consistent with
this authority, the regulations at Sec. 1415.8 state that ranking
criteria will emphasize support, among other things, for ``native and
natural grassland'' and activities that will ``maintain and improve
plant and animal diversity.''
USDA received comments asserting that only native grasslands and
lands to be restored to native species should be eligible for
enrollment, or require that lands containing native species receive
priority enrollment over lands with non-natives species, consistent
with the Conservation Reserve Program. Commenters also asserted that
USDA should require funds to be used first for protection of rare and
declining native plant communities.
The provisions of 16 U.S.C. 3838n(c)(1) allow for the enrollment of
improved rangeland and pastureland. The State-level ranking criteria
may prioritize enrollment of native grassland over non-native
grassland. However, the recommendation for establishing funding
priorities based solely for protection of rare and declining native
plant communities would be inconsistent with the statutory direction
for program emphasis.
USDA made no changes to this rule based on these comments.
Calculation of Easement Values
16 U.S.C. 3838p requires that an easement payment for a permanent
easement will be an amount equal to the fair market value of the land,
less the grazing value of the land encumbered by the easement. USDA
implemented this statutory formula in the interim final rule at Sec.
1415.10 by using the term ``grassland value'' instead of ``grazing
value.'' However, in the final rule, USDA has changed the term
``grassland value'' to ``grazing value'' to more accurately state the
statutory formula. As used in the context of determining easement
value, ``grazing value'' is ascertained through the appraisal process.
This is different from the usage of the term ``grazing value'' in the
rental context as discussed below.
USDA received comments from entities who responded to the provision
regarding easement compensation rates. These commenters expressed
concern that the current appraisal procedures for calculating grazing
values result in not adequately compensating landowners for
restrictions placed upon their exercise of ranching and recreational
activities. These commenters asserted that, unless compensation was
provided for the restrictions placed on these activities, landowners in
rural areas where the fair market value is typically comprised largely
of grazing and recreational values, would be discouraged from
participating in the easement option.
First, the USDA notes that those non-developed recreational
activities that are consistent with maintaining the conservation values
are still permitted on GRP enrolled lands and that the statutory method
of computing compensation essentially results in the purchasing of
development rights. To the extent a property is not under development
pressure, the rights purchased will not result in nearly as high a
compensation amount as those rights purchased on property that is in an
area that is impacted by sprawl or that is urbanizing. Even so, USDA
reviews its GRP appraisal instructions to ensure that the Department
provides adequate compensation when it purchases conservation
easements, consistent with the GRP statutory formula.
The interim final rule at Sec. 1415.10(e) stated that ``For
easements, to minimize expenditures on individual appraisals and
expedite program delivery, USDA may complete a programmatic appraisal
to establish regional average market values and grazing values.''
Paragraph (e) further stated that ``The programmatic appraisals would
remove the need to conduct appraisals on each parcel selected for
funding.'' Commenters asserted that programmatic appraisals should not
be utilized
[[Page 11142]]
because they might result in lower compensation rates. USDA made no
changes based on these comments. USDA will only use the programmatic
appraisals in those instances where the grazing value would not vary
significantly from one parcel to the next, and therefore, would result
in an accurate appraisal of each parcel. In any event, the Department
believes that use of this alternative appraisal methodology will be
limited.
Rental Agreement Rates
16 U.S.C. 3838p(b)(2) requires that annual payments under a rental
agreement be not more than 75 percent of the grazing value of the land
covered by the rental agreement. This is also reflected in the
regulations at Sec. 1415.10. For the purpose of determining rental
agreement rates only, USDA determines grazing values administratively
based on compensation rates for the Conservation Reserve Program
(authorized at 7 CFR part 1410) for each county. In fiscal years 2003,
2004, and 2005, USDA utilized a 75 percent grazing value for rental
agreements of all durations.
USDA received comments regarding the utilization of grazing values
for rental agreements. These commenters recommended that rental
agreements with longer duration should receive higher payment rates
than those with shorter-term duration. For example, a 30-year rental
agreement would receive 75 percent of the grazing value in an annual
payment while perhaps a 10-year rental agreement would receive only 50
percent of the grazing value in an annual payment.
USDA agrees with the commenters and believes that it should have
flexibility to adjust rental agreement rates, not to exceed the
statutory limits, to provide an incentive for longer-term protection of
grassland resources. Grasslands protected for longer durations of time
typically provide for significantly greater gains in biodiversity.
Therefore, USDA has modified Sec. 1415.10(b) to allow USDA to adjust
rental agreement rates based on duration of agreement.
Commenters also recommended that USDA increase the rental rates for
irrigated lands compared to non-irrigated lands and increase the rental
rates as appropriate because of restrictions on haying and grazing
land. USDA will endeavor to make the rental agreement rates reflect
local prevailing rates based on consideration of all relevant factors
that could affect the rate.
Title to GRP Easements
16 U.S.C. 3838q provides that the Secretary may allow a private
conservation or land trust organization to ``hold and enforce an
easement'' entered into under GRP. Commenters argued that USDA
incorrectly interpreted this statutory provision in Sec. 1415.17 of
the interim final rule, because the Department interpreted the statute
as only permitting third parties to manage and enforce, but not hold
title to, GRP easements. The commenters interpreted the statute to
provide that third parties could actually take title to GRP easements
and that landowners would be more receptive to participation if land
trusts could assume legal ownership.
Since the interim final rule was published, section 797 of the
Consolidated Appropriations Act of 2005, Pub. L. 108-447, was passed
which amended section 3838q (a) and (d) of the GRP statute to clearly
provide for the Secretary to ``transfer title of ownership'' of
easements to third parties. In addition, the new statutory language
provided that if entities holding such easements dissolve or fail to
enforce the terms of the easement, the easement shall revert to the
Secretary. Accordingly, USDA has modified Sec. 1415.17 in this final
rule to provide for qualified third parties to own title of easements
and to remove the provisions providing for easement management that was
set forth in the interim final rule. This change effectively addresses
the commenters' concerns.
Commenters also asserted that third parties should be compensated
for holding easements based on the conclusion that third parties would
have no incentive to hold and administer easements without
compensation. USDA has determined that there is no authority for paying
compensation to third parties for voluntarily administering such
easements. USDA has also determined that there is no authority for
compensation where USDA transfers title of easement ownership to third
parties. Therefore, USDA made no changes in response to these comments.
Statutory Matters
Commenters asserted that information provided by applicants and
program participants should be held confidential. USDA made no changes
based on these comments because information submitted to USDA
concerning the GRP program is already subject to the confidentiality
provisions of 16 U.S.C. 3844.
Commenters stated that State-owned land should be eligible for GRP.
USDA made no changes based on these comments. The provisions of 16
U.S.C. 3838n(c) clearly limit GRP to private lands.
Commenters asserted that improved pastureland should not be
eligible for GRP. We made no changes based on these comments. The
provisions of 16 U.S.C. 3838n(c) specifically state that improved
pastureland is eligible for GRP.
Commenters asserted that 99-year easements should be treated as
permanent easements and compensated similarly. USDA made no changes
based on these comments because the clear meaning of the statutory
provisions in 16 U.S.C. 3838p makes a distinction between permanent
easements and term easements.
Commenters asserted that the 40-acre minimum for GRP should be
changed to a 10-acre minimum. USDA made no changes based on these
comments because the statute at 16 U.S.C. 3838n already addresses this
matter by providing that 40 contiguous acres is the minimum enrollment
size unless the Secretary grants a waiver.
Commenters also asserted that the regulations should delete or
limit the ability of USDA to waive the 40-acre minimum for eligibility
in GRP. Because this waiver process is provided by statute at 16 U.S.C.
Sec. 3838n., USDA does not have the authority to waive or delete such
a provision.
Conservation Easement Deed
Water Rights
Comments were received on the deed arguing that the prohibitions in
the deed regarding the transfer of water rights might usurp State water
law. Although a conservation easement might encumber the ability of a
landowner to sell the water rights associated with the property, the
provisions of the easement deed are not contrary to State water laws.
However, USDA recognizes that retention of all water rights associated
with a particular property may not be necessary to protect the
conservation purposes for which it acquired the easement. Therefore,
USDA changed the easement deed to provide greater flexibility for
landowners relating to water rights where appropriate.
Hay, Mow, or Harvest for Seed
The easement deed provided that the landowner shall not hay, mow,
or harvest for seed during certain nesting seasons for birds whose
populations that USDA determines are in significant decline. Commenters
asserted that these
[[Page 11143]]
provisions were too onerous. USDA made no changes to the conservation
easement deed based on these comments. The provisions in the deed
merely reflect statutory requirements at 16 U.S.C. Sec. 3838o.
Routine Activities
Commenters asserted that certain prohibitions in the conservation
easement deed placed onerous restrictions on a landowner's rights to
conduct routine activities, such as the installation of new underground
utilities and other activities that result in minimal disturbances to
the surface of the land. Based upon these comments, USDA has
reconsidered its interpretation of the provision in the statute
prohibiting disturbing of the soil surface, and has determined that
this provision was not meant to impede the practical administration of
enrolled lands where no significant harm would result to the grassland
values. Accordingly, USDA has modified the deed and final rule (see
Sec. 1415.4(i)(3)) to allow for certain activities that disturb the
surface of the land when such disturbances are only temporary in
nature, and USDA determines that the manner, number, intensity,
location, operation, and other features associated with the activity
will not adversely affect the grassland resources protected under an
easement or rental agreement. By ``temporary in nature,'' the
Department means a limited extent of time, typically not to exceed a
short-term period, ordinarily necessary to complete a specific
activity, as determined by USDA. In addition, the nature of the
disturbance must be such that the area affected is limited in scope and
impact and is capable of being (and is) completely restored to its
requisite grassland functions and values, as determined by NRCS.
Section by Section Description of Changes
Changes to the sections from the interim final rule are as follows:
Section 1415.1 Purpose
This section sets forth the purpose and objectives of the program.
In the interim final rule, USDA used the term ``natural'' grasslands to
include grasslands that are dominated by introduced, desirable forage
species that are ecologically adapted to the site and can sustain
itself in the vegetative community without frequent cultural treatment.
Without changing the meaning, USDA has changed this term to
``naturalized'' to avoid confusion with the term ``native.''
Section 1415.2 Administration
This section includes language on general program administration
and policy that relates to the role of the State technical committee in
the development of criteria for ranking and selecting applications and
addressing related technical and policy matters in the implementation
of the program. USDA amended this section from the interim final rule
to remove the demand factor, as described earlier in the preamble. USDA
also amended this section to clarify that USDA is responsible for
approving the conservation practices that are eligible for cost-share.
USDA also added the term ``unfunded'' to paragraph (i) of this section
to clarify the applications that would remain on file until funding
became available.
Section 1415.3 Definitions
This section defines terms used throughout the rule. Without
changing the substance of this regulation, USDA replaced the term
``natural'' with ``naturalized.'' USDA also substituted the term
``naturalized'' for the term ``natural'' wherever it appeared in the
interim final rule.
Section 1415.4 Program Requirements
In this section, USDA identifies the requirements for participation
in GRP. USDA modified paragraphs (h) and (i) of this section to
clarify, among other things, that facilities and land use activities
that are common grazing practices, including maintenance and necessary
cultural practices, are permissible.
Section 1415.5 Land Eligibility
The language in this section identifies eligible land as defined in
the GRP statute. USDA made editorial changes to clarify the language in
paragraph (b).
Section 1415.6 Participant Eligibility
This section sets forth the eligibility for participation in GRP.
USDA made no changes to this provision from the interim final rule.
Section 1415.7 Application Procedures
This section provides general information about the application
process. USDA made no changes to this provision from the interim final
rule.
Section 1415.8 Establishing Priority for Enrollment of Properties
This section sets forth policy for developing the ranking and
evaluation criteria. USDA made no changes to this provision from the
interim final rule.
Section 1415.9 Enrollment of Easements and Rental Agreements
This section describes the process for enrollment in GRP and makes
reference to a number of documents. USDA clarified the language in
paragraphs (d), (e), and (f) to ensure that the reader would not
confuse one of these documents for another.
Section 1415.10 Compensation for Easements and Rental Agreements
This section sets forth the methodology for determining
compensation for both easements and rental agreements. As discussed
above under the heading ``compensation for easements,'' USDA changed
the term ``grassland value'' to ``grazing value'' in paragraph (a) to
more accurately state the statutory formula for determining easement
values. As discussed above under the heading ``Rental Agreement
Rates,'' USDA changed paragraph (c) to allow the adjustment of the
rental agreement rates based on the duration of the agreements.
Section 1415.11 Restoration Agreements
This section sets forth the terms and conditions under which USDA
will enter into a restoration agreement. USDA modified paragraphs (b),
(c), and (d) to clarify that only those practices and measures that it
has determined eligible and approved for cost share will be eligible to
receive reimbursement under GRP.
Section 1415.12 Modifications
This section describes when easements and rental agreements may be
modified. USDA did not make any changes to this section from the
interim final rule.
Section 1415.13 Transfer of Land
This section discusses the impact of transferring ownership or
control of land enrolled in GRP. USDA modified paragraph (f) by adding
the adjective ``GRP conservation'' to the term easement to clarify
which easement would be binding upon a landowner and any person
claiming under the landowner.
Sections 1415.14 Through 1415.20
These sections contain standard administrative policy associated
with contract violations and remedies, payments not subject to claims,
assignment of payments, and appeals. Section 1415.17 contained the
provision regarding transferring easement title to third parties. USDA
made changes to Sec. 1415.17 to comport with the amendments to the GRP
authorizing
[[Page 11144]]
statute, which provide authority for USDA to transfer title to GRP
easements to qualified third parties. USDA did not make any substantive
changes to these sections from the interim final rule, except for those
required by statute.
Executive Order 12866
The Office of Management and Budget (OMB) determined that this
final rule is significant and must be reviewed by the Office of
Management and Budget under Executive Order 12866. USDA conducted a
cost-benefit analysis of the potential impacts associated with this
final rule. Copies of the analysis may be obtained from Skip Hyberg,
Agricultural Economist, Economic Analysis Staff, Farm Service Agency,
Room 2745, Mail Stop 0519, 1400 Independence Ave., SW., Washington, DC
20250-0519; telephone: (202) 720-9222; fax: (202) 720-4265; e-mail:
skip.hyberg@usda.gov, Attention: Grassland Reserve Program. The
analysis is also available at the following Internet address: http://www.nrcs.usda.gov/programs/GRP
.
Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994
Pursuant to section 304 of the Federal Crop Insurance Reform Act of
1994 (Pub. L. 103-354), USDA classified this rule as non-major.
Therefore, a risk analysis was not conducted.
Regulatory Flexibility Act
The Regulatory Flexibility Act is not applicable to this final rule
because the Commodity Credit Corporation (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
An Environmental Assessment (EA) has been prepared to assist in
determining whether this final rule would have a significant impact on
the quality of the human environment such that an Environmental Impact
Statement (EIS) should be prepared. Based on the results of the EA,
USDA is issuing a Finding of No Significant Impact (FONSI). Copies of
the EA and FONSI may be obtained from Andree DuVarney, National
Environmental Specialist, Ecological Sciences Division, Natural
Resources Conservation Service, P.O. Box 2890, Washington, DC 20013-
2890. The GRP EA and FONSI are also available at the following Internet
address: http://www.nrcs.usda.gov/programs/GRP.
Paperwork Reduction Act
Section 2702 of the Farm Security and Rural Investment Act of 2002
requires that the implementation of this provision be carried out
without regard to the Paperwork Reduction Act, Chapter 35 of title 44,
United States Code. Therefore, USDA is not reporting recordkeeping or
estimated paperwork burden associated with this final rule.
Government Paperwork Elimination Act
CCC is committed to compliance with the Government Paperwork
Elimination Act (GPEA) and the Freedom to E-File Act, which require
government agencies to provide, to the maximum extent possible, the
public with the option of submitting information or transacting
business electronically.
Civil Rights Impact Analysis
USDA has determined through a Civil Rights Impact Analysis that the
issuance of this rule will not result in adverse impacts for
minorities, women, or persons with disabilities. Copies of the Civil
Rights Impact Analysis may be obtained from Floyd Wood, National
Program Manager, Easement Programs Division, Natural Resources
Conservation Service, P.O. Box 2890, Washington, DC 20013-2890, and
electronically at http://www.nrcs.usda.gov/programs/GRP.
Executive Order 12988, Civil Justice Reform
This final rule has been reviewed in accordance with Executive
Order 12988, Civil Justice Reform. The rule is not retroactive. To the
extent State and local laws are inconsistent with this rule, this rule
preempts such provisions. Before an action may be brought in a Federal
court of competent jurisdiction, the administrative appeal rights
afforded persons at 7 CFR parts 614, 780, and 11 must be exhausted.
Executive Order 13132, Federalism
This final rule has been reviewed in accordance with the
requirements of Executive Order 13132, Federalism. USDA has determined
that the rule conforms to the federalism principles set forth in the
Executive Order; would not impose any compliance cost 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.
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 rulemaking action
of 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 Act is not required.
List of Subjects in 7 CFR Part 1415
Administrative practice and procedure, Agriculture, Soil
conservation, Grassland, Grassland protection, Grazing land protection.
0
For the reason stated in the preamble, Chapter XIV of 7 CFR is amended
by revising part 1415 to read as follows:
PART 1415--GRASSLAND RESERVE PROGRAM
Sec.
1415.1 Purpose.
1415.2 Administration.
1415.3 Definitions.
1415.4 Program requirements.
1415.5 Land eligibility.
1415.6 Participant eligibility.
1415.7 Application procedures.
1415.8 Establishing priority for enrollment of properties.
1415.9 Enrollment of easements and rental agreements.
1415.10 Compensation for easements and rental agreements.
1415.11 Restoration agreements.
1415.12 Modifications to easements and rental agreements.
1415.13 Transfer of land.
1415.14 Misrepresentations and violations.
1415.15 Payments not subject to claims.
1415.16 Assignments.
1415.17 Easement transfer to third parties.
1415.18 Appeals.
1415.19 Scheme or device.
1415.20 Confidentiality.
Authority: 16 U.S.C. 3838n-3838q.
Sec. 1415.1 Purpose.
(a) The purpose of the Grassland Reserve Program (GRP) is to assist
landowners in protecting, conserving, and restoring grassland resources
on private lands through short and long-term rental agreements and
easements.
(b) The objectives of GRP are to:
(1) Emphasize preservation of native and naturalized grasslands and
shrublands;
(2) Protect grasslands and shrublands from the threat of
conversion;
(3) Support grazing operations; and
(4) Maintain and improve plant and animal biodiversity.
[[Page 11145]]
Sec. 1415.2 Administration.
(a) The regulations in this part set forth policies, procedures,
and requirements for program implementation of GRP, as administered by
the Natural Resources Conservation Service (NRCS) and the Farm Service
Agency (FSA). The regulations in this part are administered under the
general supervision and direction of the NRCS Chief and the FSA
Administrator. These two agency leaders:
(1) Concur in the establishment of program policy and direction;
development of the State allocation formula, and development of broad
national ranking criteria.
(2) Use a national allocation formula to provide GRP funds to USDA
State offices that emphasizes support for biodiversity of plants and
animals, grasslands under the greatest threat of conversion, and
grazing operations. The national allocation formula may also include
additional factors related to improving program implementation, as
determined by the NRCS Chief and the FSA Administrator. The allocation
formula may be modified periodically to change the emphasis of any
factor(s) in order to address a particular natural resource concern,
such as the precipitous decline of a population(s) of a grassland-
dependent bird(s) or animal(s).
(3) Ensure the National, State, and local level information
regarding program implementation is made available to the public.
(4) Consult with USDA leaders at the State level and other Federal
agencies with the appropriate expertise and information when evaluating
program policies and direction.
(5) Authorize NRCS State Conservationists and FSA State Executive
Directors to determine how funds will be used and how the program will
be implemented at the State level.
(b) At the State level, the NRCS State Conservationist and the FSA
State Executive Director are jointly responsible for:
(1) Identifying State priorities for project selection, based on
input from the State technical committee;
(2) Identifying USDA employees at the field level responsible for
implementing the program by considering the nature and extent of
natural resource concerns throughout the State and the availability of
human resources to assist with activities related to program
enrollment.
(3) Developing program outreach materials at the State and local
level to help ensure landowners, operators, and tenants of eligible
land are aware and informed that they may be eligible for the program.
(4) Approving conservation practices eligible for cost-share and
cost-share rates.
(5) Developing conservation plans and restoration agreements.
(6) Administering and enforcing the terms of easements and rental
agreements unless this responsibility is transferred to a third party
as provided in Sec. 1415.17.
(7) With advice from the State technical committee, developing
criteria for ranking eligible land, consistent with national criteria
and program objectives and State priorities. USDA, at the State level,
has the authority to accept or reject the State technical committee
recommendations; however, USDA will give consideration to the State
technical committee's recommendations.
(c) The funds, facilities, and authorities of the Commodity Credit
Corporation are available to NRCS and FSA to implement GRP.
(d) Subject to funding availability, the program may be implemented
in any of the 50 States, the District of Columbia, the Commonwealth of
Puerto Rico, Guam, the Virgin Islands of the United States, American
Samoa, and the Commonwealth of the Northern Mariana Islands.
(e) The Secretary may modify or waive a provision of this part if
he or she deems the application of that provision to a particular
limited situation to be inappropriate and inconsistent with the
conservation purposes and sound administration of GRP. This authority
cannot be further delegated. No provision of this part which is
required by law may be waived.
(f) No delegation in this part to lower organizational levels shall
preclude the Chief, NRCS, or the Administrator, FSA, from determining
any issue arising under this part or from reversing or modifying any
determination arising from this part.
(g) The USDA Forest Service may hold GRP easements on properties
adjacent to USDA Forest Service land, with the consent of the
landowner.
(h) Program participation is voluntary.
(i) Applications for participation will be accepted on a continual
basis at local USDA Service Centers. NRCS and FSA at the State level
will establish cut-off periods to rank and select applications. These
cut-off periods will be available in program outreach material provided
by the local USDA Service Center. Once funding levels have been
exhausted, unfunded, eligible applications will remain on file until
additional funding becomes available or the applicant chooses to be
removed from consideration.
(j) The services of other third parties as provided for in 7 CFR
part 652 may be used to provide technical services to participants.
Sec. 1415.3 Definitions.
Administrator means the Administrator of the Farm Service Agency
(FSA) or the person delegated authority to act for the Administrator.
Chief means the Chief of the Natural Resources Conservation Service
(NRCS) or the person delegated authority to act for the Chief.
Commodity Credit Corporation (CCC) is a Government-owned and
operated entity that was created to stabilize, support, and protect
farm income and prices. CCC is managed by a Board of Directors, subject
to the general supervision and direction of the Secretary of
Agriculture, who is an ex-officio director and chairperson of the
Board. The Chief and Administrator are Vice Presidents of CCC. CCC
provides the funding for GRP, and FSA and NRCS administer the GRP on
its behalf.
Common grazing practices means those grazing practices, including
those related to forage and seed production common to the area of the
subject ranching or farming operation, and the application of routine
management activities necessary to maintain the viability of forage
resources, that are common to the locale of the subject ranching or
farming operation.
Conservation District means any district or unit of State, tribal,
or local government formed under State, tribal, or territorial law for
the express purpose of developing and carrying out a local soil and
water conservation program. Such district or unit of government may be
referred to as a ``conservation district,'' ``soil conservation
district,'' ``resource conservation district,'' ``land conservation
committee,'' or similar name.
Conservation plan means a record of the GRP participants' decisions
and supporting information for protection and treatment of a land unit
or water as a result of the planning process, that meets NRCS Field
Office Technical Guide criteria for each natural resource concern
(soil, water, air, plants, and animals) and takes into account economic
and social considerations. The plan describes the conservation values
of the grassland and schedule of operations and activities required to
solve identified natural resource problems and take advantage of
opportunities at a conservation management system level. The needs of
the participant, the resources, Federal,
[[Page 11146]]
State, and local requirements will be met by carrying out the plan.
Conservation practice means a specified treatment, such as a
structural or land management practice, that is planned and applied
according to NRCS standards and specifications.
Conservation values means those natural resource attributes
identified by USDA as having significant importance to maintaining the
natural functions and values of the grassland area, including but not
limited to, habitat for declining species of grassland-dependent birds
and animals.
Cultural practice means those practices such as the installation of
fences, watering, feeding, and sheltering facilities necessary for the
raising of livestock, including related forage and seed production.
Department means United States Department of Agriculture.
Easement means a conservation easement, which is an interest in
land defined and delineated in a deed whereby the landowner conveys
certain rights, title, and interests in a property to the United States
for the purpose of protecting the grassland and other conservation
values of the property. Under GRP, the property rights are conveyed in
a ``conservation easement deed.''
Easement area means the land encumbered by an easement.
Easement payment means the consideration paid to a landowner for an
easement conveyed to the United States under GRP.
Enhancement means to increase or improve the viability of grassland
resources, including habitat for declining species of grassland-
dependent birds and animals.
Field Office Technical Guide means the official local NRCS source
of resource information and interpretations of guidelines, criteria,
and standards for planning and applying conservation treatments and
conservation management systems. It contains detailed information for
the conservation of soil, water, air, plant, and animal resources
applicable to the local area for which it is prepared.
Forb means any herbaceous plant other than those in the grass
family.
Grantor is the term used for the landowner who is transferring land
rights to the United States through an easement.
Grassland means land on which the vegetation is dominated by
grasses, grass-like plants, shrubs, and forbs. The definition of
grassland as used in the context of this rule includes shrubland, land
that contains forbs, pastureland, and rangeland.
Grazing value is a term used in the calculation of compensation for
both rental agreements and easements. For easements, this value is
determined through an appraisal process. For rental agreements, USDA
determines the grazing value based upon an administrative process.
Improved grassland, pasture, or rangeland means grazing land
permanently producing naturalized forage species that receives varying
degrees of periodic cultural treatment to enhance forage quality and
yields and is primarily harvested by grazing animals.
Landowner means a person or persons holding fee title to the land.
Native means a species that is a part of the original fauna or
flora of the area.
Naturalized means an introduced, desirable forage species that is
ecologically adapted to the site and can perpetuate itself in the
community without cultural treatment. For the purposes of this
regulation, the term ``naturalized'' does not include noxious weeds.
Participant means a landowner, operator, or tenant who is a party
to a GRP agreement. The term ``agreement'' in this context refers to
GRP rental agreements and option agreements to purchase easements.
Landowners of land subject to a GRP easement are also considered
participants regardless of whether such landowner conveyed the easement
to the Federal Government.
Pastureland means a land cover/use category of land managed
primarily for the production of desirable, introduced, perennial forage
plants for grazing animals. Pastureland cover may consist of a single
species in a pure stand, a grass mixture, or a grass-legume mixture.
Management usually consists of cultural treatments: fertilization, weed
control, renovation, and control of grazing.
Permanent easement means an easement that lasts in perpetuity.
Private land means land that is not owned by a governmental entity.
Rangeland means a land cover/use category on which the climax or
potential plant cover is composed principally of native grasses, grass-
like plants, forbs, or shrubs suitable for grazing and browsing, and
introduced forage species that are managed like rangeland. Rangeland
includes lands re-vegetated naturally or artificially when routine
management of that vegetation is accomplished mainly through
manipulation of grazing. This term would include areas where introduced
hardy and persistent grasses, such as crested wheatgrass, are planted
and such practices as deferred grazing, burning, chaining, and
rotational grazing are used, with little or no chemicals or fertilizer
being applied. Grasslands, savannas, many wetlands, some deserts, and
tundra are considered to be rangeland. Certain communities of low forbs
and shrubs, such as mesquite, chaparral, mountain shrub, and pinyon-
juniper, are also included as rangeland.
Rental agreement means an agreement where the participant will be
paid annual rental payments for the length of the agreement to maintain
and/or restore grassland functions and values under the Grassland
Reserve Program.
Restoration means implementing any conservation practice
(vegetative, management, or structural) that restores functions and
values of grassland and shrubland (native and naturalized plant
communities).
Restoration agreement means an agreement between the program
participant and the United States Department of Agriculture to restore
or improve the functions and values of grassland and shrubland.
Restored grassland means land that is reestablished through
vegetative, management, or structural practices, to grassland and
shrubland, according to criteria in the NRCS Field Office Technical
Guide.
Secretary means the Secretary of Agriculture.
Shrubland means land that the dominant plant species is shrubs,
which are plants that are persistent, have woody stems, a relatively
low growth habitat, and generally produces several basal shoots instead
of a single bole.
Significant decline means a decrease of a species population to
such an extent that it merits direct intervention to halt further
decline, as determined by the NRCS State Conservationist in
consultation with the State Technical Committee.
Similar function and value means plants that are alike in growth
habitat, environmental requirements, and provide substantially the same
ecological benefits.
State technical committee means a committee established by the
Secretary of the United States Department of Agriculture in a State
pursuant to 16 U.S.C. Sec. 3861.
USDA means the Chief, NRCS, and the Administrator, FSA.
Sec. 1415.4 Program requirements.
(a) Only landowners may submit applications for easements. For
rental agreements, the prospective participant must provide evidence of
control of the property for the duration of the rental agreement.
(b) The easement and rental agreement will require that the area be
[[Page 11147]]
maintained in accordance with GRP goals and objectives for the duration
of the term of the easement or rental agreement, including the
conservation, protection, enhancement, and, if necessary, restoration
of the grassland functions and values.
(c) All participants in GRP are required to implement a
conservation plan approved by USDA to conserve, protect, enhance, and,
if necessary, restore the viability of the grassland enrolled into the
program. The conservation plan documents the conservation values,
characteristics, current and future use of the land, and practices that
need to be applied along with a schedule for application.
(d) The easement and rental agreement must grant USDA or its
representatives a right of ingress and egress to the easement and
rental agreement area. For easements, this access is legally described
by the conservation easement deed. Access to rental agreement areas is
identified in the GRP conservation plan.
(e) Easement participants are required to convey title that is
acceptable to the United States and provide consent or subordination
agreements from each holder of a security or other interest in the
land. The landowner must warrant that the easement granted the United
States is superior to the rights of all others, except for exceptions
to the title that are deemed acceptable by the USDA.
(f) Easement participants are required to use a standard GRP
conservation easement deed developed by USDA. The easement grants
development rights, title, and interest in the easement area in order
to protect grassland and other conservation values.
(g) The program participant must comply with the terms of the
easement or rental agreement and comply with all terms and conditions
of the conservation plan and any associated restoration agreement.
(h) Easements and rental agreements allow the following activities:
(1) Common grazing practices, including maintenance and cultural
practices on the land in a manner that is consistent with maintaining
the viability of native and naturalized grass and shrub species;
(2) Haying, mowing, or harvesting for seed production, except that
such uses shall have certain restrictions as determined by the NRCS
State Conservationist, in consultation with the State technical
committee, in order to protect, during the nesting season, birds in the
local area that are in significant decline or are conserved in
accordance with Federal or State law; and
(3) Fire rehabilitation and construction of firebreaks, fences,
corrals, watering facilities, seedbed preparation and seeding, and any
other related facilitating practices, as determined by USDA, needed to
protect and restore the grassland functions and values.
(i) Any activity that would disturb the surface of the land covered
by the easement is prohibited except for:
(1) Common grazing management practices which are carried out in a
manner consistent with maintaining the functions and values of
grassland common to the local area, including fire rehabilitation and
construction of firebreaks, construction of fences, and restoration
practices,
(2) Maintenance and necessary cultural practices associated with
common grazing practices, and
(3) Other activities that result in only a temporary disturbance to
the surface of the land where USDA determines that the manner, number,
intensity, location, operation, and other features associated with the
activity will not adversely affect the grassland resources protected
under an easement or rental agreement. Such a temporary disturbance,
being of a short duration and, not to exceed the extent of time
ordinarily necessary for completing an activity, as determined by USDA.
(j) Rental agreement contracts may be terminated by USDA without
penalty or refund if the original participant dies, becomes
incompetent, or is otherwise unavailable during the contract period.
(k) Participants, with the agreement of USDA, may convert rental
agreements to an easement, provided that the easement is for a longer
duration than the rental agreement, funds are available, and the
project meets conditions established by the USDA. Land cannot be
enrolled in both a rental agreement option and an easement enrollment
option at the same time. The rental agreement shall be deemed
terminated the date the easement is recorded in the local land records
office.
Sec. 1415.5 Land eligibility.
(a) GRP is available on privately owned lands, which include
private and Tribal land. Publicly-owned land is not eligible.
(b) Land is eligible for funding consideration if the NRCS State
Conservationist determines that the land is:
(1) Grassland, land that contains forbs, or shrubs (including
native and naturalized rangeland and pastureland); or
(2) The land is located in an area that has been historically
dominated by grassland, forbs, or shrubs, and the State
Conservationist, with advice from the State technical committee,
determines that it has potential to provide habitat for animal or plant
populations of significant ecological value, if the land is--
(i) Retained in the current use of the land; or
(ii) Restored to a native or naturalized grassland conditions.
(c) Incidental lands, in conjunction with eligible land, may also
be considered for enrollment to allow for the efficient administration
of an easement or rental agreement.
(d) Forty contiguous acres is the minimum acreage eligible for
enrollment in GRP. However, less than 40 acres may be accepted if the
USDA, with advice from the State technical committee, determines that
the enrollment of acreage meets the purposes of the program and grants
a waiver. USDA, at the State level, may also establish a higher minimum
acreage level. USDA will review any minimum acreage requirement other
than the statutory baseline level of 40 acres to ensure, to the extent
permitted by law, that this requirement does not unfairly discriminate
against small farmers.
(e) Land will not be enrolled if the functions and values of the
grassland are already protected under an existing contract or easement.
This land becomes eligible for enrollment in GRP when the existing
contract expires or is terminated and the grassland values and
functions are no longer protected.
(f) Land on which gas, oil, earth, or other mineral rights
exploration has been leased or is owned by someone other than the
prospective GRP participant may be offered for participation in the
program. However, if an applicant submits an offer for an easement
project, USDA will assess the potential impact that the third party
rights may have upon the grassland resources. USDA reserves the right
to deny funding for any application where there are exceptions to clear
title on any property.
Sec. 1415.6 Participant eligibility.
To be eligible to participate in GRP an applicant:
(a) Must be a landowner for easement participation or be a
landowner or have general control of the eligible acreage being offered
for rental agreement participation;
(b) Agree to provide such information to USDA that the Department
deems necessary or desirable to assist in its determination of
eligibility for program
[[Page 11148]]
benefits and for other program implementation purposes;
(c) Meet the Adjusted Gross Income requirements in 7 CFR part 1400;
and
(d) Meet the conservation compliance requirements found in 7 CFR
part 12.
Sec. 1415.7 Application procedures.
(a) Any owner or operator or tenant of eligible land that meets the
criteria set forth in Sec. 1415.6 of this part may submit an
application through a USDA Service Center for participation in the GRP.
Applications are accepted throughout the year.
(b) By filing an Application for Participation, the applicant
consents to a USDA representative entering upon the land offered for
enrollment for purposes of assessing the grassland functions and values
and for other activities that are necessary for the USDA to make an
offer of enrollment. Generally, the applicant will be notified prior to
a USDA representative entering upon their property.
(c) Applicants submit applications that identify the duration of
the easement or rental agreement for which they seek to enroll their
land. Rental agreements may be for 10-years, 15-years, 20-years, or 30-
years; easements may be for 30-years, permanent, or for the maximum
duration authorized by State law.
Sec. 1415.8 Establishing priority for enrollment of properties.
(a) USDA, at the national level, will provide to USDA offices at
the State level, broad national guidelines for establishing State
specific project selection criteria.
(b) USDA, at the State level, with advice from the State technical
committee, establishes criteria to evaluate and rank applications for
easement and rental agreement enrollment following the guidance
established in paragraph (a) of this section.
(c) Ranking criteria will emphasize support for:
(1) Native and naturalized grassland;
(2) Protection of grassland from the threat of conversion;
(3) Support for grazing operations; and
(4) Maintenance and improvement of plant and animal biodiversity.
(d) When funding is available, USDA, at the State level, will
periodically select for funding the highest ranked applications based
on applicant and land eligibility and the State-developed ranking
criteria.
(e) States may utilize one or more ranking pools, including a pool
for special project consideration such as establishing a pool for
projects that receive restoration funding from non-USDA sources.
(f) The USDA, with advice from the State technical committee, may
emphasize enrollment of unique grasslands or specific geographic areas
of the State.
(g) The FSA State Executive Director and NRCS State
Conservationist, with advice from the State technical committee, will
select applications for funding.
(h) If available funds are insufficient to accept the highest
ranked application, and the applicant is not interested in reducing the
acres offered to match available funding, USDA may select a lower
ranked application that can be fully funded. Applicants may choose to
change the duration of the easement or agreement or reduce acreage
amount offered if the application ranking score is not reduced below
that of the score of the next available application on the ranking
list.
Sec. 1415.9 Enrollment of easements and rental agreements.
(a) Based on the priority ranking, USDA will notify applicants in
writing of their tentative acceptance into the program for either
rental agreement or conservation easement options. The participant has
15 calendar days from the date of notification to sign and submit a
letter of intent to continue. A letter of intent to continue from the
applicant authorizes USDA to proceed with the enrollment process and
evidences a good faith intent on the part of the applicant to
participate in the program.
(b) An offer of tentative acceptance into the program does not bind
the USDA to acquire an easement or enter into a rental agreement, nor
does it bind the participant to convey an easement, enter into a rental
agreement, or agree to restoration activities.
(c) For easement projects, land is considered enrolled after the
landowner signs the intent to continue. For rental agreements, land is
considered enrolled after a GRP contract is approved by USDA and signed
by the participant.
(d) USDA provides the applicant with a description of the easement
or rental area; the easement terms or rental terms and conditions; and
other terms and conditions for participation that may be required by
CCC.
(e) For easements, after the land is enrolled, USDA will proceed
with the development of the conservation plan and obtain an appraisal.
If the landowner accepts the appraisal offer from USDA, the landowner
signs an option agreement to purchase for the appraisal amount. USDA
will then proceed with other easement acquisition activities, which
include a survey of the easement, securing necessary subordination
agreements, procuring title insurance, developing a baseline data
report, and conducting other activities necessary to record the
easement.
(f) Prior to execution by USDA and the participant of the rental
agreement or easement, USDA may withdraw its offer anytime due to lack
of available funds, title concerns for easements, or other reasons. For
easements, the appraisal offer to the participant shall be void if the
easement is not executed by the participant within the time specified
in the option agreement to purchase.
Sec. 1415.10 Compensation for easements and rental agreements.
(a) Compensation for easements will be based upon:
(1) The fair market value of the land, less the grazing value
encumbered by the easement as determined by an appraisal for permanent
easements; and
(2) Thirty percent of the value determined in paragraph (a)(1) of
this section for 30-year easements or for an easement for the maximum
duration permitted under State law.
(b) For 10-, 15-, 20-, and 30-year rental agreements, the
participant will receive not more than 75 percent of the grazing value
in an annual payment for the length of the agreement, as determined by
USDA. USDA may adjust rental agreement rates, not to exceed the
statutory limits, based on duration of agreement, inflation, and other
economic considerations associated with grazing lands.
(c) In order to provide for better uniformity among States, the FSA
Administrator and the NRCS Chief may review and adjust, as appropriate,
State or other geographically based payment rates for rental
agreements.
(d) For easements, to minimize expenditures on individual
appraisals and to expedite program implementation, USDA may complete a
programmatic appraisal to establish regional average market values and
grazing values if acceptable under federally recognized real property
valuation standards.
(e) Easement or rental agreement payments received by participant
shall be in addition to, and not affect, the total amount of payments
that the participant is otherwise eligible to receive under other USDA
programs.
Sec. 1415.11 Restoration agreements.
(a) Restoration agreements are only authorized to be used in
conjunction
[[Page 11149]]
with easements and rental agreements. NRCS, in consultation with the
program participant, determines if the grassland resources are adequate
to meet the participant's objectives and the purposes of the program,
or if a restoration agreement is needed. Such a determination is also
subject to the availability of funding. USDA may condition
participation in the program upon the execution of a restoration
agreement depending on the condition of the grassland resources. When
the functions and values of the grassland are determined adequate by
NRCS, a restoration agreement is not required. However, if a
restoration agreement is required, NRCS will set the terms of the
restoration agreement. The restoration agreement identifies
conservation practices and measures necessary to restore or improve the
functions and values of the grassland. If the functions and values of
the grassland decline while the land is subject to a GRP easement or
rental agreement through no fault of the participant, the participant
may enter into a restoration agreement at that time to improve the
functions and values with USDA approval and when funds are available.
(b) Restoration practices are those land management, vegetative,
and structural conservation practices and measures that will restore or
improve the grassland ecological functions and values on native and
naturalized plant communities. The NRCS State Conservationist, with
advice from the State technical committee and in consultation with FSA,
determines the conservation practices, measures, payment rates, and
cost-share percentages, not to exceed statutory limits, available under
GRP. A list of restoration practices approved for cost-share assistance
under GRP restoration plans is available to the public through the
local USDA Service Center. NRCS, working through the local conservation
district with the program participant, determines the terms of the
restoration agreement. The conservation district may assist NRCS with
determining eligible restoration practices and approving restoration
agreements. Restoration agreements do not extend past the date of a GRP
rental agreement or easement.
(c) Only NRCS approved restoration practices and measures are
eligible for cost sharing. Payments under GRP restoration agreements
may be made to the participant of not more than 90 percent for the cost
of carrying out conservation practices and measures on grassland and
shrubland that has never been cultivated, and not more than 75 percent
on restored grassland and shrubland on land that at one time was
cultivated.
(d) Restoration plans are entered into for restoring either native
or naturalized plant communities. When seeding is determined necessary
for restoration, USDA gives priority to using native seed. However,
when native seed is not available, or returning the land to native
conditions is determined impractical by USDA, plant propagation using
species that provide similar functions and values may be utilized.
(e) Cost shared practices must be maintained by the participant for
the life of the practice, as identified in the restoration agreement.
The life of the practice must be consistent with other USDA cost shared
or easement programs. Failure to maintain the practice is dealt with
under the terms of the restoration agreement and may involve repayment
of the Federal cost share plus interest.
(f) All conservation practices must be implemented in accordance
with the NRCS Field Office Technical Guide.
(g) Technical assistance is provided by NRCS, or an approved third
party.
(h) If the participant is receiving cost share for the same
practice from State or local government, NRCS will adjust the GRP cost
share rate so that the combined cost share received by the participant
does not exceed 100 percent of the total actual cost of the
restoration. In addition, the participant cannot receive cost-share
from more than one USDA cost-share program for the same conservation
practice.
(i) Cost share payments may be made only upon a determination by a
qualified individual approved by the NRCS State Conservationist that an
eligible restoration practice has been established in compliance with
appropriate standards and specifications.
(j) Restoration practices identified in the restoration plan may be
implemented by the participant or other designee. Cost-share payments
will not be made for practices applied prior to submitting an
application to participate in the program.
(k) Cost share payments will not be made for practices implemented
or initiated prior to the approval of a rental agreement or easement
acquisition unless a written waiver is granted by USDA at the State
level prior to installation of the practice.
Sec. 1415.12 Modifications to easements and rental agreements.
(a) After an easement has been recorded, no modification will be
made to the easement except by mutual agreement by the Chief, NRCS, and
the landowner.
(b) Easement modifications may only be made by the Chief, NRCS,
after consulting with the Office of the General Counsel. Minor
modifications may be made by the NRCS State Conservationist in
consultation with Office of the General Counsel. Minor modifications
are those that do not affect the substance of the conservation easement
deed. Such modifications include, typographical errors, minor changes
in legal descriptions as a result of survey or mapping errors, and
address changes.
(c) Approved modifications will be made only in an amendment to an
easement which is duly prepared and recorded in conformity with
standard real estate practices, including requirements for title
approval, subordination of liens, and recordation.
(d) The Chief, NRCS, may approve modifications on easements to
facilitate the practical administration and management of the enrolled
area so long as the modification will not adversely affect the
grassland functions and values for which the land was acquired or other
terms of the easement.
(e) NRCS State Conservationists may approve modifications for
restoration agreements and conservation plans as long as the
modifications do not affect the provisions of the easement or rental
agreement and meets GRP program objectives.
(f) USDA may approve modifications on rental agreements to
facilitate the practical administration and management of the enrolled
area so long as the modification will not adversely affect the
grassland functions and values for which the land was enrolled.
Sec. 1415.13 Transfer of land.
(a) Any transfer of the property prior to the participant's
acceptance into the program shall void the offer of enrollment, unless
at the option of USDA at the State level, an offer is extended to the
new participant and the new participant agrees to the same easement or
rental agreement terms and conditions.
(b) After acreage is accepted in the program, for easements with
multiple payments, any remaining easement payments will be made to the
original landowner unless USDA receives an assignment of proceeds.
(c) Future annual rental payments will be made to the successor
participant.
(d) The new landowner or contract successor is responsible for
complying with the terms of the recorded easement or rental agreement
and for assuring
[[Page 11150]]
completion of all measures and practices required by the associated
restoration agreement. Eligible cost share payments will be made to the
new participant upon presentation that the successor assumed the costs
of establishing the practices.
(e) With respect to any and all payments owed to landowners, the
United States bears no responsibility for any full payments or partial
distributions of funds between the original landowner and the
landowner's successor. In the event of a dispute or claim on the
distribution of cost share payments, USDA may withhold payments without
the accrual of interest pending an agreement or adjudication on the
rights to the funds.
(f) The rights granted to the United States in an easement shall
apply to any of its agents or assigns. All obligations of the landowner
under the GRP conservation easement deed also binds the landowner's
heirs, successors, agents, assigns, lessees, and any other person
claiming under them.
(g) Rental agreements may be transferred to another landowner,
operator or tenant that acquires an interest in the land enrolled in
GRP. The successor must be determined by USDA to be eligible to
participate in GRP and must assume full responsibility under the
agreement. USDA may require a participant to refund all or a portion of
any financial assistance awarded under GRP, plus interest, if the
participant sells or loses control of the land under a GRP rental
agreement, and the new owner or controller is not eligible to
participate in the program or declines to assume responsibility under
the agreement.
Sec. 1415.14 Misrepresentation and violations.
(a) Contract violations:
(1) Contract violations, determinations, and appeals are handled in
accordance with the terms of the program contract or agreement and
attachments thereto.
(2) A participant who is determined to have erroneously represented
any fact affecting a program determination made in accordance with this
part is not entitled to contract payments and must refund to CCC all
payments, plus interest in accordance with 7 CFR part 1403.
(3) In the event of a violation of a rental agreement, the
participant will be given notice and an opportunity to voluntarily
correct the violation within 30-days of the date of the notice, or such
additional time as CCC may allow. Failure to correct the violation may
result in termination of the rental agreement.
(b) Easement violations: Easement violations are handled under the
terms of the easement. Upon notification of the participant, USDA has
the right to enter upon the easement area at any time to monitor
compliance with the terms of the GRP conservation easement or remedy
deficiencies or violations. When USDA believes there may be a violation
of the terms of the GRP conservation easement, USDA may enter the
property without prior notice. The participant shall be liable for any
costs incurred by the United States as a result of the participant's
negligence or failure to comply with easement.
(c) USDA may require the participant to refund all or part of any
payments received by the participant or pay liquidated damages as may
be required under the program contract or agreement.
(d) In addition to any and all legal and equitable remedies
available to the United States under applicable law, USDA may withhold
any easement payment, rental payment, or cost-share payments owing to
the participant at any time there is a material breach of the easement
covenants, rental agreement, or any contract. Such withheld funds may
be used to offset costs incurred by the United States in any remedial
actions or retained as damages pursuant to court order or settlement
agreement.
(e) Under a GRP conservation easement, the United States shall be
entitled to recover any and all administrative and legal costs,
including attorney's fees or expenses, associated with any enforcement
or remedial action.
Sec. 1415.15 Payments not subject to claims.
Any cost-share, rental payment, or easement payment or portion
thereof due any person under this part shall be allowed without regard
to any claim or lien in favor of any creditor, except agencies of the
United States Government.
Sec. 1415.16 Assignments.
(a) Any person entitled to any cash payment under this program may
assign the right to receive such cash payments, in whole or in part.
(b) If a participant that is entitled to a payment dies, becomes
incompetent, or is otherwise unable to receive the payment, or is
succeeded by another person who renders or completes the required
performance, such a participant may be eligible to receive payment in
such a manner as USDA determines is fair and reasonable in light of all
the circumstances.
Sec. 1415.17 Easement transfer to third parties.
(a) USDA may transfer title of ownership to an easement to an
approved private conservation or land trust organization or State
agency with the consent or written request of the landowner and upon a
determination by the Secretary, or his or her designee, that granting
permission will promote protection of grassland. Such entities must be
a qualified organization under 16 U.S.C. Sec. 3838q that the Secretary
determines has the appropriate authority, expertise, and resources
necessary to assume title ownership of the easement. Rental agreements
will not be transferred.
(b) USDA has the right to conduct periodic inspections and enforce
the easement and associated restoration agreement for any easements
transferred pursuant to this section.
(c) The private organization, State, or other Federal agency must
assume the costs incurred in administering and enforcing the easement,
including the costs of restoration or rehabilitation of the land to the
extent that such restoration or rehabilitation is above and beyond that
required by the GRP conservation plan and restoration agreement. Any
additional restoration must be consistent with the purposes of the
easement.
(d) A private organization or State agency that seeks to hold title
to a GRP easement must apply to the NRCS State Conservationist for
approval. The State Conservationist shall consult with FSA State
Executive Director prior to rendering its determination.
(e) For a private organization to be qualified to be an easement
holder, the private organization must be organized as required by 28
U.S.C. Sec. 501(c)(3) of the Internal Revenue Code of 1986 or be
controlled by an organization described in section 28 U.S.C. Sec.
509(a)(2). In addition, the private organization must provide evidence
to USDA that it has:
(1) Relevant experience necessary to administer grassland and
shrubland easements;
(2) A charter that describes the commitment of the private
organization to conserving ranchland, agricultural land, or grassland
for grazing and conservation purposes;
(3) The human and financial resources necessary, as determined by
the Chief, NRCS, to effectuate the purposes of the charter; and
(4) Sufficient financial resources to carry out easement
administrative and enforcement activities.
[[Page 11151]]
(f) In the event that the easement holder fails to enforce the
terms of the easement, as determined in the discretion of the
Secretary, the Secretary, his or her successors and assigns, shall have
the right to enforce the terms of this easement through any and all
authorities available under Federal or State law or, at the option of
the Secretary, to have all right, title, or interest in this easement
revert to the United States of America. Further, in the event the
easement holder dissolves or attempts to terminate the easement, then
all right, title, and interest shall revert to the United States of
America.
(g) Should this easement be transferred pursuant to this section,
all warranties and indemnifications provided for in this Deed shall
continue to apply to the United States. Subsequent to the transfer of
this easement, the easement holder shall be responsible for
conservation planning and implementation and will adhere to the NRCS
Field Office Technical Guide for maintaining the viability of grassland
and other conservation values.
(h) Due to the Federal interest in the GRP easement, the easement
interest cannot be condemned.
Sec. 1415.18 Appeals.
(a) Applicants or participants may appeal decisions regarding this
program in accordance with part 7 CFR part 614, 11, and 780 of this
Title.
(b) Before a person may seek judicial review of any action taken
under this part, the person must exhaust all administrative appeal
procedures set forth in paragraph (a) of this section.
Sec. 1415.19 Scheme or device.
(a) If it is determined by the Department that a participant has
employed a scheme or device to defeat the purposes of this part, any
part of any program payment otherwise due or paid such participant
during the applicable period may be withheld or be required to be
refunded with interest thereon, as determined appropriate by the
Department.
(b) A scheme or device includes, but is not limited to, coercion,
fraud, misrepresentation, depriving any other person of payments for
cost-share practices or easements for the purpose of obtaining a
payment to which a person would otherwise not be entitled.
(c) A participant who succeeds to the responsibilities under this
part shall report in writing to the Department any interest of any kind
in enrolled land that is held by a predecessor or any lender. A failure
of full disclosure will be considered a scheme or device under this
section.
Sec. 1415.20 Confidentiality.
The release of appraisal information shall be disclosed at the
discretion of USDA in accordance with applicable law.
Signed in Washington, DC on February 21, 2006.
Bruce I. Knight,
Vice President, Commodity Credit Corporation, and Chief, Natural
Resources Conservation Service.
Teresa C. Lasseter,
Executive Vice President, Commodity Credit Corporation, and
Administrator, Farm Service Agency.
[FR Doc. 06-2091 Filed 3-3-06; 8:45 am]
BILLING CODE 3410-16-P