[Federal Register Volume 74, Number 161 (Friday, August 21, 2009)]
[Rules and Regulations]
[Pages 42170-42174]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20074]
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DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
7 CFR Part 1415
RIN 0578-AA53
Grassland Reserve Program; Amendment
AGENCY: Commodity Credit Corporation (CCC), United States Department of
Agriculture.
ACTION: Interim final rule; amendment with reopening of comment period.
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SUMMARY: The United States Department of Agriculture (USDA), through
the Commodity Credit Corporation (CCC), published in the Federal
Register of January 21, 2009, an interim final rule with request for
comment amending the program regulations for the Grassland Reserve
Program (GRP) to incorporate programmatic changes authorized by the
Food, Conservation, and Energy Act of 2008 (2008 Act) using Regulation
Identification Number (RIN) 0578-AA38. This amendment to the January
21, 2009, interim final rule corrects the RIN to read 0578-AA53,
clarifies the nature of the contingent right of enforcement, expands
its discussion regarding GRP policy for wind and solar power
facilities, and requests comment on how GRP can be used to contribute
to the Nation's efforts on energy, climate change, and carbon
sequestration. Additionally, USDA seeks public input on the January 21,
2009, interim final rule, as amended. Therefore, USDA reopens the
public comment period upon publication of this amendment until
September 21, 2009.
DATES: Effective Date: The rule is effective August 21, 2009. Comment
date: Submit comments on or before September 21, 2009. In addition, the
comment period for the GRP interim final rule published on January 21,
2009 (74 FR 2317), is reopened. Comments must be received on or before
September 21, 2009.
ADDRESSES: You may send comments (identified by Docket Number NRCS-IFR-
09005) using any of the following methods:
Government-wide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending comments
electronically.
Mail: John Glover, Acting Director, Easements Programs
Division, Department of Agriculture, Natural Resources Conservation
Service, Grasslands Reserve Program Comments, PO Box 2890, Washington,
DC 20013.
E-mail: [email protected].
Fax: (202) 720-9689.
Hand Delivery: USDA South Building, 1400 Independence
Avenue, SW., Room 6819, Washington, DC 20250, between 9 a.m. and 4
p.m., Monday through Friday, except Federal Holidays. Please ask the
guard at the entrance to the South Building to call (202) 720-4527 in
order to be escorted into the building.
This interim final rule may be accessed via Internet.
Users can access the Natural Resources Conservation Service (NRCS)
homepage at: http://www.nrcs.usda.gov/; select the Farm Bill link from
the menu; select the Interim Final Rules link from beneath the Final
and Interim Final Rules Index title. Persons with disabilities who
require alternative means for communication (Braille, large print,
[[Page 42171]]
audio tape, etc.) should contact the USDA Target Center at: (202) 720-
2600 (voice and TDD).
FOR FURTHER INFORMATION CONTACT: John Glover, Acting Director, Easement
Programs Division, Department of Agriculture, Natural Resources
Conservation Service, 1400 Independence Avenue, SW., Room 6819 South
Building, Washington, DC 20250; Phone: (202) 720-1854; Fax: (202) 720-
9689; or e-mail: [email protected].
SUPPLEMENTARY INFORMATION:
Regulatory Certifications
Executive Order 12866
The Office of Management and Budget (OMB) reviewed the January 21,
2009, interim final rule and determined that it was a significant
regulatory action. Pursuant to Executive Order 12866, USDA conducted a
cost-benefit analysis of the potential impacts associated with the
interim final rule for the GRP published in the Federal Register on
January 21, 2009. OMB also determined that this amendment is a
significant regulatory action. USDA evaluated the cost-benefit analysis
and determined the provisions of the amendment do not alter the
analysis that was originally prepared for the January 21, 2009, interim
final rule. The administrative record is available for public
inspection at the Department of Agriculture, Natural Resources
Conservation Service, 1400 Independence Avenue, SW., Room 5831 South
Building, Washington, DC. A copy of the analysis is available upon
request from John Glover, Acting Director, Easement Programs Division,
Department of Agriculture, Natural Resources Conservation Service, Room
6819 South Building, Washington, DC 20250-2890 or electronically at:
http://www.nrcs.usda.gov/programs/GRP/ under the Program Information
title.
Regulatory Flexibility Act
The Regulatory Flexibility Act is not applicable to this interim
final rule because USDA is not required by 5 U.S.C. 553, or by any
other provision of law, to publish a notice of proposed rulemaking with
respect to the subject matter of this rule.
Environmental Analysis
A programmatic Environmental Assessment (EA) has been prepared in
association with the interim final rulemaking published on January 21,
2009. The provisions of this amendment do not alter the assessment that
was originally prepared. With the exception for the analysis on how to
address windmill and other renewable sources of energy, such as solar
panel arrays, there is nothing in this amendment that impacts the
program's purpose, the baseline considerations, grassland eligibility,
or acreage enrollment goals. This amendment was developed to address
the contingent right of enforcement and where the energy produced from
windmills authorized to be placed on easement lands can be used.
Therefore, the analysis has determined that there will not be a
significant impact to the human environment and, as a result, an
Environmental Impact Statement (EIS) is not required to be prepared (40
CFR part 1508.13). The EA and Finding of No Significant Impact (FONSI)
are available for review and comment as specified in the interim final
rule published in the Federal Register on January 21, 2009. However,
the comment period for accepting comments to the EA and FONSI has been
extended to September 21, 2009. A copy of the EA and FONSI may be
obtained from the following Web site: http://www.nrcs.usda.gov/programs/Env_Assess. A hard copy may also be requested from the
following address and contact: Matt Harrington, National Environmental
Coordinator, Ecological Sciences Division, Department of Agriculture,
Natural Resources Conservation Service, 1400 Independence Ave., SW.,
Washington, DC 20250. Comments from the public should be specific and
reference that comments provided are on the EA and FONSI. Public
comments may be submitted by any of the following means: (1) E-mail
comments to: [email protected], (2) e-mail to e-gov Web site:
www.regulations.gov, or (3) written comments to: Matt Harrington,
National Environmental Coordinator, Ecological Sciences Division,
Department of Agriculture, Natural Resources Conservation Service, 1400
Independence Ave., SW., Washington, DC 20250.
Civil Rights Impact Analysis
USDA has determined through a Civil Rights Impact Analysis that the
January 21, 2009, interim final rule disclosed no disproportionately
adverse impacts for minorities, women, or persons with disabilities.
The provisions of this amendment do not alter the analysis that was
originally prepared. Copies of the Civil Rights Impact Analysis are
available from John Glover, Acting Director, Easement Programs
Division, Department of Agriculture, Natural Resources Conservation
Service, 1400 Independence Avenue, SW., Washington, DC 20250, or
electronically at: http://www.nrcs.usda.gov/programs/GRP.
Paperwork Reduction Act
Section 2904 of the 2008 Act requires that the implementation of
this provision be carried out without regard to the Paperwork Reduction
Act, chapter 35 of Title 44, U.S.C. Therefore, USDA is not reporting
recordkeeping or estimated paperwork burden associated with this
amendment.
Government Paperwork Elimination Act
USDA is committed to compliance with the Government Paperwork
Elimination Act and the Freedom to E-File Act, which require government
agencies in general, and CCC in particular, to provide the public the
option of submitting information or transacting business electronically
to the maximum extent possible.
Executive Order 12988
This amendment to the January 21, 2009, interim final rule has been
reviewed in accordance with Executive Order 12988, Civil Justice
Reform. The provisions of this amendment are not retroactive and
preempt State and local laws to the extent that such laws are
inconsistent with this interim final rule. Before an action may be
brought in a Federal court of competent jurisdiction, the
administrative appeal rights afforded persons at 7 CFR parts 11, 614,
and 780 must be exhausted.
Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994
Pursuant to section 304 of the Federal Crop Insurance Reform Act of
1994 (Pub. L. 103-354), USDA classified this rule as non-major.
Therefore, a risk analysis was not conducted.
Unfunded Mandates Reform Act of 1995
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), USDA assessed the effects of this amendment to the
January 21, 2009, interim final rule on State, local, and Tribal
Governments and the public. This rule 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 is not required.
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)
The January 21, 2009, interim final rule was not a major rule as
defined by Section 804 of the Small Business Regulatory Enforcement
Fairness Act of 1996. This amendment to the January 21, 2009, interim
final rule will not result in an annual effect on the
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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. The provisions of
this amendment to the January 21, 2009, interim final rule do not alter
the original determination under SBREFA. However, Section 2904(c) of
the 2008 Act requires that the Secretary use the authority in section
808(2) of Title 5, U.S.C., which allows an agency to forego SBREFA's
usual Congressional review delay of the effective date of a regulation
if the agency finds that there is a good cause to do so. USDA hereby
determines that it has good cause to do so to meet the Congressional
intent to have the conservation programs authorized or amended by Title
II of the 2008 Act in effect as soon as possible. Accordingly, this
rule is effective upon filing for public inspection by the Office of
the Federal Register.
Executive Order 13132
E.O. 13132 requires USDA to develop an accountable process to
ensure ``meaningful and timely input by State and local officials in
the development of regulatory policies that have federalism
implications.'' E.O. 13132 defines the term ``policies that have
federalism implications'' to include regulations that 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 among the various levels of government.'' Under
E.O. 13132, USDA may not issue a regulation that has federalism
implication, that imposes substantial direct compliance costs, and that
is not required by statute unless the Federal Government provides the
funds necessary to pay the direct compliance costs incurred by State
and local governments, or USDA consults with State and local officials
early in the process of developing the proposed regulation. USDA shows
sensitivity to federalism concerns by requiring the State
Conservationists to meet with, and provide opportunities for
involvement of State and local governments through the State Technical
Committee. The interim final rule published on January 21, 2009, will
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 among the various levels of government as
specified in E.O. 13132. The provisions of this amendment do not alter
this determination. Thus, the Executive Order does not apply to this
rule.
Executive Order 13175
This amendment to the interim final rule of January 21, 2009, has
been reviewed in accordance with Executive Order 13175, Consultation
and Coordination with Indian Tribal Governments. USDA has assessed the
impact of this interim final rule on Indian Tribal Governments and has
concluded that this rule will not negatively affect communities of
Indian Tribal Governments. The rule will neither impose substantial
direct compliance costs on Indian Tribal Governments, nor preempt
tribal law.
Discussion of Program
Background
This amendment is effective on the date published in the Federal
Register. The GRP is a voluntary program to help farmers and ranchers
protect grazing uses and related conservation values on their lands.
GRP offers enrollment through conservation easements and through rental
contracts.
The 2008 Act made several program changes to GRP. Among the
changes, the 2008 Act added the ability of USDA to enter into a
cooperative agreement with an eligible entity to own, write, and
enforce easements. Thus, under a cooperative agreement, USDA provides
matching funds to other entities to purchase conservation easements,
rather than purchase such easements directly. The 2008 Act also
requires USDA to ``ensure that the terms of an easement include a
contingent right of enforcement for the Department'' where title to the
conservation easement is either held by an entity other than the
Federal Government or title is transferred from the Federal Government
to a non-Federal entity.
The January 21, 2009, GRP interim final rule incorporated the
changes to the program made by the 2008 Act. Additionally, USDA
identified the contingent right of enforcement a Federal acquisition of
a real property right. This identification as a Federal acquisition
requires USDA to follow Federal land acquisition procedures for all
easements acquired under GRP.
In the preamble of the January 21, 2009, interim final rule, USDA
explained that it had consulted with the Office of the General Counsel
and had determined that because the contingent right of enforcement
appears within the terms of a conservation easement deed, it
constituted an acquisition of a Federal real property right. Despite
the sound reasoning provided in the preamble, USDA believes that it
should reconsider its original interpretation. The conclusion that the
inclusion of the term in a conservation easement deed constitutes as a
Federal acquisition of real property is not consistent with
Congressional intent gleaned from the legislative history of how such
term is used in other parts of the 2008 Act, specifically the Farm and
Ranch Lands Protection Program (FRPP), and how it is incorporated into
GRP implementation. Therefore, USDA has examined whether an alternative
understanding of the nature of the contingent right of enforcement can
be ascertained. A similar revision is being made to the FRPP interim
final regulation.
Under GRP, USDA may enroll easements through three methods of
enrollment. In particular, USDA has authority to: (1) Purchase
conservation easements directly; (2) transfer title to those federally-
acquired easements to a third party; or (3) enter into cooperative
agreements with eligible entities for those entities to purchase, own,
enforce, and monitor easements ``in lieu of the Secretary.'' Under the
first two methods of enrollment, the conservation easement is purchased
directly by the United States, and original title to the conservation
easement is held by the United States. Therefore, these GRP easements
are Federal acquisitions of real property rights.
In contrast, under the third method of enrollment where an eligible
entity purchases a conservation easement with Federal financial
assistance, the United States Government is not expending funds to
acquire title to the conservation easement, but instead receives a
right of enforcement as a condition of assistance.
For the third method of enrollment, the GRP statute prescribes the
use of a cooperative agreement to provide a mechanism for GRP funds to
assist eligible partners in the purchase of easements. Significantly,
the GRP statute specifies that the ownership of the easement is in lieu
of ownership by the Secretary. More particularly, Section 1238Q of the
GRP statute provides that: ``(e) Protection of Federal Investment--When
delegating a duty under this section, the Secretary shall ensure that
the terms of an easement include a contingent right of enforcement for
the Department.'' This text requires the Secretary to ensure that the
easement ``includes'' a contingent right of enforcement, rather than
requiring the Secretary to ``acquire'' such right. When viewed in the
context of the overall framework of the program to provide alternative
ownership arrangements of
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GRP easements, USDA interprets that the contingent right of enforcement
in an easement purchased, owned, and written by a non-Federal entity is
not a Federal acquisition of a real property right triggering Federal
procedures such as 40 U.S.C. 3111 and the implementing Department of
Justice Title standards. Rather, the incorporation of the contingent
right of enforcement in the terms of the deed is a condition of Federal
financial assistance.
This revised interpretation of the contingent right of enforcement
is more consistent with the revised structure of the GRP easement,
which now provides for the third party acquisition option using Federal
financial assistance. At the same time, this interpretation still meets
the GRP statutory requirement that the NRCS Chief, on behalf of the
United States, has the ability to protect the Federal investment for
the duration of the GRP funded easement by interpreting the right of
enforcement as a real property right which runs with the land. This
right is obtained as a condition placed upon another entity to obtain
funding under GRP for its acquisition of a conservation easement.
Therefore, the inclusion of the right of enforcement in the deed is not
an acquisition, and the Federal real property acquisition requirements
do not apply.
Wind and Solar Power Generation Facilities
In the January 21, 2009, interim final rule, a new paragraph (h)(5)
was added to Sec. 1415.4 to allow for the inclusion of wind power
facilities for on-farm use as a potential permitted use for the GRP
participant's farming or ranching operation pursuant to the Secretary's
discretionary authority established in the 2008 Act. In particular,
Section 2403 of the 2008 Act removed the prohibition against soil
disturbing activities.
Although USDA expressed support for wind power generation for on-
farm use on GRP lands, USDA explained that the opportunity to place
generating stations on easement or contract acres is not a guaranteed
right. Authorization may only be provided after USDA conducts a site-
specific evaluation to determine that there are no negative impacts on
threatened, endangered or at-risk species, migratory wildlife, or
related natural resources, cultural resources, or the human
environment.
While the January 21, 2009, interim final rule continued the
prohibition against wind power facilities for off-farm power generation
on GRP enrolled lands, the interim final rule did not address directly
other types of renewable power generation facilities, such as solar
panel arrays. USDA treated facilities differently depending on the
intended use of the power generated from the wind power facilities,
i.e. on-farm use versus off-farm use. USDA recognizes that even
facilities authorized solely for on-farm use may generate some excess
electricity that is utilized off-farm.
USDA believes that off-farm wind power generation should not be
identified specifically as prohibited on lands enrolled in GRP. The
statute only identifies crop production (other than hay) as
specifically prohibited to occur on enrolled lands. All other
activities are evaluated by whether it is ``inconsistent with
maintaining grazing uses and related conservation values protected
under an easement or rental contract.'' Therefore, USDA is amending the
January 21, 2009, GRP interim final rule to remove the blanket
prohibition upon wind power facilities for off-farm power generation.
USDA is not replacing the blanket prohibition with a blanket
authorization of wind power facilities. The scale and scope of wind
power generation facilities vary greatly. The installation of large-
scale wind power generation facilities constitutes a conversion
activity to non-grazing uses, inconsistent with program purposes.
However, a small-scale, appropriately sited facility may provide both
the electricity needed to power electric livestock fencing on the
easement while providing local off-farm electricity to a neighbor's
fencing as well. This variance of scope and scale requires site-
specific evaluation for whether a particular activity will be
authorized.
USDA intended the original restriction to ``on-farm'' use to
provide an inherent limitation upon the scale of facilities being
considered for authorization. However, this limitation had the
unintended consequence of requiring USDA to monitor electric usage of a
landowner, rather than focus upon whether the landowner's activities
are consistent with the grazing and conservation purposes of the
enrolled acreage. USDA believes the focus of an activity should remain
upon its impacts to the grazing and conservation values of the
enrollment.
USDA will not authorize any wind power generating facilities (on-
farm or off-farm) on GRP lands unless USDA determines, based on a site-
specific National Environmental Policy Act environmental analysis (EA
or EIS), that there will be no adverse effect on threatened, endangered
or other at-risk species, migratory wildlife, or related natural
resources, cultural resources, or the human environment or when the
impacts of such facilities can be mitigated to a level of non-
significance. Furthermore, USDA will only authorize power generation
facilities after evaluating whether a reasonable alternative exists,
whether there is a compelling public need, whether the purposes for
which the easement was acquired can be maintained, and the degree to
which the footprint of the facility and related infrastructure impacts
the nature of the grazing lands and other conservation values obtained
through the contract or easement. USDA will not authorize the
installation of wind power generation facilities in situations where
reasonable alternatives exist.
USDA will follow the guidelines being developed by the United
States Fish and Wildlife Service (FWS) on avoiding and minimizing
wildlife impacts from wind turbines. Until the guidelines are
published, USDA will assess potential wildlife impacts in coordination
with the FWS and the appropriate State fish and wildlife agency before
authorizing any wind power generation facilities (on-farm or off-farm)
on GRP lands.
USDA also revises paragraph (h)(5) to authorize the installation of
other types of renewable energy sources for power generation, provided
they are consistent with the grazing uses and other conservation values
of the program as determined by USDA on a site-specific basis. Just as
for wind power generation facilities, USDA will not authorize the
installation of renewable energy power generation facilities, such as
solar power panel arrays, unless USDA determines through a site-
specific EA or EIS there will be no adverse effect on threatened,
endangered or other at-risk species, migratory wildlife, or related
natural resources, cultural resources, or the human environment or when
the impacts of such activities can be mitigated to a level of non-
significance. USDA will authorize power generation facilities only when
the footprint of the facility and related infrastructure would have a
minimal impact on the nature of the grazing lands and other
conservation values obtained through the contract or easement.
Again, the opportunity to place any power-generating facilities and
related infrastructure on easement or contract acres is not a
guaranteed right. NRCS continues to seek public comment on how it
should handle requests for renewable power generation facilities on GRP
lands.
Request for Public Input
USDA supports the Nation's ability to increase renewable energy
production,
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conserve energy, mitigate the effects and adapt to climate change, and
reduce carbon and greenhouse gas emissions through various assistance
programs. USDA is using this rulemaking opportunity to obtain input
from the public on how GRP can achieve its program purposes and
contribute to the Nation's efforts with renewable energy production,
energy conservation, mitigating the effects of climate change,
facilitating climate change adaptation, or reducing carbon emissions.
List of Subjects in 7 CFR Part 1415
Administrative practice and procedure, Agriculture, Soil
conservation, Grasslands, Grassland protection, Grazing land
protection.
0
For the reasons stated in the preamble, the CCC amends part 1415 of
Title 7 of the CFR as set forth below:
PART 1415--GRASSLANDS RESERVE PROGRAM
0
1. The authority citation for part 1415 continues to read as follows:
Authority: 16 U.S.C. 3838n-3838q.
0
2. Section 1415.3 is amended by revising the definition for the term
``Right of enforcement'' to read as follows:
Sec. 1415.3 Definitions.
* * * * *
``Right of enforcement'' means a property interest in the easement
the Chief may exercise on behalf of the United States under specific
circumstances in order to enforce the terms of the conservation
easement. The right of enforcement provides that the Chief has the
right to inspect and enforce the easement if the eligible entity fails
to uphold the easement or attempts to transfer the easement without
first securing the consent of the Secretary.
* * * * *
0
3. Section 1415.4 is amended by revising paragraph (h)(5) and removing
paragraph (i)(3) to read as follows:
Sec. 1415.4 Program requirements.
* * * * *
(h) * * *
(5) Facilities for power generation through renewable sources of
energy production provided the scope and scale of the footprint of the
facility and associated infrastructure is consistent with program
purposes as determined by USDA through analysis of the potential site-
specific environmental effects; and
* * * * *
0
4. Section 1415.17 is amended by revising paragraph (e)(1) to read as
follows:
Sec. 1415.17 Cooperative agreements.
* * * * *
(e) * * *
(1) In order to protect the public investment, the conveyance
document must contain a ``right of enforcement.'' NRCS shall specify
the terms for the ``right of enforcement'' clause to read as set forth
in the GRP cooperative agreement. This right is a vested property right
and cannot be condemned or terminated by State or local government.
* * * * *
Signed this 14th day of August, 2009, in Washington, DC.
Dave White,
Vice President, Commodity Credit Corporation and Chief, Natural
Resources Conservation Service.
Signed this 13th day of August, 2009, in Washington, DC.
Carolyn B. Cooksie,
Acting Administrator, Farm Service Agency.
[FR Doc. E9-20074 Filed 8-20-09; 8:45 am]
BILLING CODE 3410-16-P