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



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Part IV





Department of Agriculture





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Commodity Credit Corporation



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7 CFR Part 1415



Grassland Reserve Program; Final Rule

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

[[Page 3856]]


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DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1415

RIN 0578-AA38


Grassland Reserve Program

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

ACTION: Interim final rule with request for comments.

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

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

ADDRESSES: You may send comments using any of the following methods:
     Government-wide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending comments 
electronically.
     Mail: Easements Programs Division, Natural Resources 
Conservation Service, Grassland Reserve Program Comments, P.O. 2890, 
Room 6819-S, Washington, DC 20013.
     E-mail: [email protected].
     Fax: 1-202-720-9689.
     Hand Delivery: Room 6819-S of the USDA South Office 
Building, 1400 Independence Avenue, SW., Washington, DC 20250, between 
9 a.m. and 4 p.m., Monday through Friday, except Federal Holidays. 
Please ask the guard at the entrance to the South Office Building to 
call 202-720-4527 in order to be escorted into the building.
     This interim final rule may be accessed via Internet. 
Users can access the NRCS homepage at http://www.nrcs.usda.gov/; select 
the Farm Bill link from the menu; select the Interim final link from 
beneath the Final and Interim Final Rules Index title. Persons with 
disabilities who require alternative means for communication (Braille, 
large print, audio tape, etc.) should contact the USDA TARGET Center 
at: (202) 720-2600 (voice and TDD).

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

SUPPLEMENTARY INFORMATION: 

Regulatory Certifications

Executive Order 12866

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

Regulatory Flexibility Act

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

Environmental Analysis

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

Civil Rights Impact Analysis

    USDA has determined through a Civil Rights Impact Analysis that the 
issuance of this interim final rule discloses no disproportionately 
adverse impacts for minorities, women, or persons with disabilities. 
Copies of the Civil Rights Impact Analysis are available, and may be 
obtained from the Director, Easement Programs Division, Natural 
Resources Conservation Service, P.O. Box 2890, Washington, DC 20013-
2890, or electronically at http://www.nrcs.usda.gov/programs/GRP.

Paperwork Reduction Act

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

Government Paperwork Elimination Act

    NRCS is committed to compliance with the Government Paperwork 
Elimination Act and the Freedom to E-File Act, which require government 
agencies in general and NRCS in particular, to provide the public the 
option of submitting information or transacting business electronically 
to the maximum extent possible.

Executive Order 12988

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

Federal Crop Insurance Reform and Department of Agriculture 
Reorganization Act of 1994

    Pursuant to section 304 of the Federal Crop Insurance Reform Act of 
1994

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

Unfunded Mandates Reform Act of 1995

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

Small Business Regulatory Enforcement Fairness Act of 1996

    This interim final rule is not a major rule as defined by section 
804 of the Small Business Regulatory Enforcement Fairness Act of 1996. 
This interim final rule will not result in an annual effect on the 
economy of $100 million or more, a major increase in costs or prices, 
or significant adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of U.S.-based companies to 
compete in domestic and export markets.

Executive Order 13132

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

Executive Order 13175

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

Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)

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

Economic Analysis--Executive Summary

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

Administrative Requirements for Conservation Programs

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

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

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

Background

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

Summary of 2008 Act Changes

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

Description of Changes to the Regulations

Section 1415.1 Purpose

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

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

Section 1415.2 Administration

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

Section 1415.3 Definitions

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

[[Page 3861]]

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

[[Page 3862]]

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

[[Page 3863]]

and its Agencies and Offices, as applicable.

Section 1415.4 Program Requirements

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

[[Page 3864]]

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

Section 1415.5 Land Eligibility

    Section 1415.5(b) describes land eligible for funding 
consideration. Paragraph (b)(1) removes ``native and naturalized'' and 
replaces with ``improved,'' and ``for which grazing is the predominant 
use'' is added to the end of the sentence. This revision is a 
reflection of the change in purpose instituted by the 2008 Act, and is 
discussed in greater detail in the description of changes to Sec.  
1415.1 of this regulation. Paragraph (b)(2) removes language describing 
the State Conservationist consulting with the State Technical Committee 
on habitat. This language is unnecessary and was removed for 
simplification and clarity. Paragraph (b)(2)(i) is amended to be 
consistent with the statute and to simplify the eligible land 
description. Paragraph (b)(2)(ii) is replaced with ``contains 
historical or archeological resources.'' This addition addresses the 
2008 Act's requirement that land containing historical or archeological 
resources and located in an area that has been historically dominated 
by grassland, forbs or shrublands is eligible for GRP. Paragraph 
(b)(2)(iii) is added to address issues raised by State, regional, and 
national conservation priorities. Such priorities could include, for 
example: The North American Waterfowl Management Plan, the National 
Fish Habitat Action Plan, the Greater Sage Grouse Conservation Society, 
the State Comprehensive Wildlife Conservation Strategies (also referred 
to as the State Wildlife Action Plans), the Northern Bobwhite 
Conservation Initiative, the Gulf of Hypoxia Action Plan 2008 (and 
associated annual operating plans), and State forest resource 
strategies.
    Section 1415.5(c) clarifies how the enrollment of incidental land 
may improve the efficient administration of an easement or rental 
contract by reducing irregular boundaries.
    Section 1415.5(d) of the 2006 GRP final rule required 40 contiguous 
acres as the minimum acreage eligible for enrollment in GRP. This 
paragraph is removed in its entirety and subsequent paragraphs are 
redesignated. The 40-acre minimum enrollment requirement was removed in 
the 2008 Act.
    Section 1415.5(e) prohibits land that is already protected through 
other means from enrolling in GRP. Language is added after ``existing 
contract or easement'' to include ``deed restriction, or of the land 
already is in ownership by an entity whose purpose is to protect and 
conserve grassland and related conservation values.'' This addition 
seeks to clarify further that land already in fee ownership by an 
organization, whose purpose is to protect and conserve grassland and 
related conservation values, is not eligible for GRP.
    Section 1415.5(e), as re-designated, replaces the term 
``prospective GRP participant'' with the defined term ``applicant.''

Section 1415.6 Participant Eligibility

    Section 1415.6 describes participant eligibility. Section 1415.6 is 
modified to add ``except as otherwise described in Sec.  1415.17'' to 
the introductory paragraph. This addition reflects the 2008 Act's 
addition of allowing cooperative agreements with eligible entities. 
Section 1415.6(b) is being amended to remove the phrase ``the 
Department deems'' because it is redundant of the previous reference to 
USDA. Section 1415.6(c) is amended to incorporate the exemption from 
AGI requirements for Indian Tribes as described under part 1400 of this 
title.

Section 1415.7 Application Procedures

    Section 1415.7(a) describes where and when an application may be 
submitted. This rulemaking removes the description of an owner or 
operator and adds ``applicant, except as otherwise described under 
Sec.  1415.17''. This change incorporates the 2008 Act change allowing 
cooperative agreements with eligible entities for the purposes of 
purchasing, holding, and enforcing easements as described under Sec.  
1415.17.
    Minor grammatical changes were made to Sec.  1415.7(b).
    Section 1415.7(c) is removing the term ``30-years'' to comport with 
the 2008 Act change removing the 30-year rental contract and 30-year 
easement enrollment options.

Section 1415.8 Establishing Priority for Enrollment of Properties

    Section 1415.8(a) describes that national guidelines will be issued 
for establishing state-specific project selection criteria. The phrase 
``USDA offices at the state level'' is replaced with ``the NRCS State 
Conservationist and FSA State Executive Director'' to clarify 
responsibilities under this section. Other minor changes are made to 
this paragraph for clarification.
    Section 1415.8(b) is being modified to add applications from 
``eligible entities

[[Page 3865]]

under Sec.  1415.17'' as an application to be evaluated and ranked 
under established state level criteria and ``NRCS State Conservationist 
and FSA State Executive Director'' to specify the role of the State 
Conservationist and State Executive Director in establishing State 
ranking criteria. This addition incorporates the 2008 Act change 
allowing cooperative agreements with eligible entities for the purchase 
of conservation easements.
    Section 1415.8(c) describes the factors emphasized by the ranking 
criteria. This paragraph is amended to clarify the ranking criteria and 
restructure the criteria to ensure consistency with changes made in the 
2008 Act. Specifically, paragraph (c)(1) removes the emphasis on 
preservation of native and naturalized grasslands and shrublands and 
adds ``grazing operations.'' This change is explained under the 
description of changes to Sec.  1415.1(b). Paragraph (c)(2) is revised 
to add ``land that contains forbs, and shrubland at the greatest risk 
from the threat of conversion to use other than grazing.'' This change 
mirrors the language in the 2008 Act. Paragraph (c)(3) is amended by 
removing ``support for grazing operations'' and replace it with ``Plant 
and animal biodiversity'' to more accurately reflect the ranking 
criteria set forth in the 2008 Act. Paragraph (c)(4) is added to 
provide that ranking parcels offered under cooperative agreements with 
eligible entities shall consider the leveraging of non-Federal funds 
and entity contributions of more than 50 percent of the purchase price, 
respectively.
    Section 1415.8(d) is amended to add ``including applications from 
entities under Sec.  1415.17'' as an application that may be selected 
for funding. This addition incorporates the 2008 Act change allowing 
cooperative agreements with eligible entities. ``NRCS State 
Conservationist and FSA State Executive Director'' is also added to 
specify the proper authority at the state level.
    Section 1415.8(e) establishes that States may utilize ranking 
pools. This paragraph is revised to clarify that the NRCS State 
Conservationist and FSA State Executive Director have the discretion to 
establish separate ranking pools to address issues raised by State, 
regional, and national conservation priorities. This implements the 
2008 Act changes to the definition of ``eligible land'' which allows 
private lands that address these priority issues to be considered for 
enrollment.
    Minor grammatical changes were made to paragraphs (f) and (g) of 
Sec.  1415.8. Paragraph (f) is revised by capitalizing ``technical'' 
and ``committee'' and replacing ``USDA'' with ``NRCS State 
Conservationist and FSA State Executive Director'' to clarify 
responsibility at the State level. Paragraph (g) is revised by 
capitalizing ``technical'' and ``committee.''
    Section 1415.8(h) allows USDA to fund a lower ranked application 
when funds are insufficient. This section is revised to clarify that 
USDA may select a lower-ranked application that can be fully funded if 
the applicant with the higher-ranked application is unwilling to reduce 
the acres offered to match the available amount of funding. The term 
``USDA'' is replaced with ``NRCS State Conservationist and FSA State 
Executive Director.'' The last sentence of this section is removed 
because the provision is not related to a landowner's willingness to 
change their offer.
    Section 1415.8(i) is added to give priority enrollment to expiring 
CRP acres. The 2008 Act requires the Secretary to give priority for GRP 
enrollment to land previously enrolled in CRP if the land is eligible 
land, is of high ecological value, and is under significant threat of 
conversion to uses other than grazing. USDA will provide CRP 
participants with eligible expiring CRP acres an opportunity to enroll 
in GRP for up to 12 months before the CRP contract expiration date. CRP 
priority enrollment is limited to enrollment in easements and 20-year 
rental contracts. This enrollment requirement is intended to provide 
lasting protection for grasslands that are of high ecological value and 
under significant threat of conversion. By statute, CRP priority 
enrollment cannot exceed 10 percent of the total acres accepted for 
enrollment in GRP in any year. Participants with CRP lands accepted for 
enrollment in GRP will have their GRP enrollment begin upon expiration 
of the CRP contract.
    Section 1415.8(j) is added to clarify that USDA shall use, to the 
maximum extent practicable, 40 percent of program funding for rental 
contracts, and 60 percent for easements. The 2008 Act added flexibility 
to this existing requirement by allowing the limitation to be met ``to 
the maximum extent practicable.''

Section 1415.9 Enrollment of Easements and Rental Contracts

    Section 1415.9 describes how USDA will enroll easements and rental 
contracts. The section is amended to reflect changes made in the NRCS 
acquisition business process to expedite the closing process and to 
reduce the potential of de-obligating funds due to irresolvable issues, 
such as title issues and hazardous materials problems. The first change 
to the business process is the elimination of the use of the letter of 
intent as the point of enrollment and the establishment of the signing 
of the option agreement to purchase an easement as the point of 
obligation and enrollment. The second change is the movement of some 
activities that previously took place after the signing of the option 
agreement to purchase an easement to occur before the signing of the 
option agreement. This section applies to acquisitions by NRCS; the 
process for easements acquired by eligible entities under a cooperative 
agreement is described in Sec.  1415.17.
    Section 1415.9(a) outlines how NRCS and FSA will notify applicants 
of their tentative acceptance into GRP. The last two sentences in this 
section relating to the use of the letter of intent as the point of 
enrollment are removed as part of streamlining NRCS' business process. 
The addition of cooperative agreements reflects a change made by the 
2008 Act allowing cooperative agreements with eligible entities. The 
term ``USDA'' is replaced with ``NRCS and FSA, as appropriate.''
    Section 1415.9(b) is changed to include minor editorial changes.
    Section 1415.9(c) describes how enrollment offers are made for 
rental contracts and easements. Paragraph (c)(1) is new and sets forth 
that the offer of enrollment for an easement is an NRCS option 
agreement to purchase that has been executed by the owner. An owner 
signed option is a firm offer. Paragraph (c)(2) is new and describes 
the offer of enrollment for a rental contract is the rental contract 
itself and is presented to the applicant by FSA. These new paragraphs 
are added to provide clarity between easements and rental contracts. 
The offer of enrollment for both easements and rental contracts will 
describe the area to be enrolled and the applicable terms and 
conditions.
    Section 1415.9(d) is revised to clarify that for rental contracts, 
land is considered enrolled in the program after FSA approves the GRP 
rental contract. This section also clarifies when and under what 
conditions an offer may be withdrawn.
    Section 1415.9(e) describes what actions NRCS will take once the 
land is enrolled. The paragraph is revised to clarify when land is 
enrolled in the program and when funds are obligated. Land is enrolled, 
and funds are obligated, in GRP under the easement option when both the 
landowner and NRCS execute the option, and NRCS' acceptance has been 
relayed to the landowner.

[[Page 3866]]

    Section 1415.9(f) is revised to describe when and under what 
circumstances NRCS may withdraw the land from enrollment under the 
easement option, such as lack of funds or title concerns.

Section 1415.10 Compensation for Easements and Rental Contracts 
Acquired by the Secretary.

    Section 1415.10 is re-titled ``Compensation for easements and 
rental contracts acquired by the Secretary'' to clarify that the 
provision applies only to such exchanges involving USDA directly. 
Compensation for easements purchased through an eligible entity are 
addressed under Sec.  1415.17.
    Section 1415.10(a) sets forth the compensation methodology for 
easements. This paragraph is amended to reflect the changes made by the 
2008 Act regarding easement payments and methods for determination of 
compensation for easements. A new paragraph (b) is added that specifies 
the methods through which the fair market value of the land will be 
determined, as determined by the changes to the 2008 Act. Subsequent 
paragraphs are redesignated.
    Section 1415.10(c), formerly Sec.  1415.10(b), outlines the 
compensation limitations for rental contracts and is revised as 
described below. This section is being revised to replace ``USDA'' with 
``FSA'' to clarify that it is FSA that administers rental contracts 
under the program. The reference to adjustment of rental contract rates 
in the existing regulation is removed by this rulemaking because it 
does not reflect actual FSA practice. The annual payment limit of 
$50,000 per year for rental contracts is added as required by statute 
and according to regulations found in 7 CFR part 1400.
    Section 1415.10(c) of the 2006 GRP final rule has been redesignated 
as Sec.  1415.10(d).
    The former Sec.  1415.10(d) allows USDA to complete a programmatic 
appraisal. The paragraph is removed in its entirety. The reference to a 
``programmatic appraisal'' is a similar requirement (market survey) 
that is already included in Sec.  1415.10(b)(1)(ii) as part of the 
method of determination of compensation.
    Section 1415.10(f) is a new section added by this rulemaking to 
clarify that payments will be made as single payments instead of 
installment payments, unless otherwise requested by the landowner. This 
method is less burdensome for the landowner and the agency and reduces 
the long-term unexpended obligations for the agency.
    Section 1415.10(g) is a new section implementing USDA's new 
statutory authority under the 2008 Act to accept and use contributions 
of non-Federal funds to support the purposes of the program. The 
statutory language provides that these funds are available to the 
Secretary without further appropriation and until expended to carry out 
the program.
    Section 1415.10(h) is a new section that establishes that the USDA 
makes no claim to environmental credits, regardless of the Federal 
funds invested. Activities performed to obtain environmental credits 
must align with GRP requirements, the easement deed or rental contract 
terms, the grazing management plan, and any associated conservation or 
restoration plan.

Section 1415.11 Restoration Agreements

    This section sets forth when a restoration agreement will be 
required and explains the restoration plan component of the restoration 
agreement, which is designed to meet the natural resource and 
participant objectives for the enrolled land. The term ``measures'' is 
replaced with ``activities'' consistent with the definition revisions 
made under Sec.  1415.3.
    Section 1415.11(b) describes restoration practices and the 
restoration plan and provides that the restoration plan component of 
the restoration agreement is designed to meet both USDA and the 
participant's objectives. This paragraph is revised slightly from the 
2006 GRP final rule to provide flexibility in working with local 
conservation districts to determine the terms of the restoration plan. 
The last sentence prohibiting the restoration agreement to extend past 
the date of a GRP rental contract or easement is removed. Easements are 
permanent and, therefore, a restoration agreement cannot extend past 
the date of the easement. The term ``restoration practices'' is 
replaced with the terms ``conservation practices and activities.'' This 
modification is consistent with the modifications made in definitions 
in Sec.  1415.3.
    Section 1415.11(c) establishes cost-share payment limits on 
restoration practices. Paragraph (c) is revised to lower the cost-share 
limit from ``not more than 90 percent'' to ``not more than 50 
percent,'' and adds a limit of $50,000 per year (aggregate) for 
payments made under one or more restoration agreements to a person or 
legal entity, directly or indirectly. This revision incorporates 
changes made by the 2008 Act to payment limits for restoration 
agreements and cost-share rates. The differential payment for 
cultivated and non-cultivated land is removed because it is 
inconsistent with the statute. The term ``restoration practices'' is 
replaced with the terms ``conservation practices and activities,'' 
consistent with the modifications made in definitions in Sec.  1415.3.
    Section 1415.11(d) limited restoration plans to restoring native or 
naturalized plant communities. The amendments made to the program by 
the 2008 Act do not constrain USDA assistance to preserving native and 
naturalized grassland and shrublands. Consequently, the text of Sec.  
1415(d) has been deleted and the subsections renumbered, accordingly. 
The statutory change, upon which this revision is based, is discussed 
in detail under the description of changes to Sec.  1415.1(b) as well 
as under the changes to the definition of the term ``restoration.''
    Section 1415.11(e) describes the maintenance of cost-shared 
practices. This paragraph is now redesignated as paragraph (d) and 
revised to state that the participant is responsible for the operation 
and maintenance of conservation practices in accordance with the 
restoration agreement. This paragraph also removes language describing 
the lifespan of the practice and penalties for maintenance failure. 
This is duplicative of what is described in the terms of a restoration 
agreement.
    Existing Sec. Sec.  1415.11(f) and (g) are redesignated as (e) and 
(f).
    Section 1415.11(g), as re-designated, allows USDA to adjust cost-
share payments if the participant is receiving cost-share for the same 
practice so the total payment does not exceed 100 percent of the cost. 
This paragraph is revised from receiving cost-share for the same 
practice from ``state and local governments'' to ``another conservation 
program.'' This change is intended to broaden the inclusion to all 
conservation programs making payments on the same practice rather than 
payments received from just State and local governments. The term 
``practice'' is replaced with ``conservation practices or activities,'' 
consistent with the modifications made in definitions in Sec.  1415.3.
    Section 1415.11(i) of the 2006 GRP final rule is redesignated as 
Sec.  1415.11(h).
    Section 1415.11(i), as re-designated, identifies that cost-share 
payments will not be made for conservation practices or activities 
implemented before approval of the rental contract or easement 
acquisition unless a waiver is granted. The term ``restoration 
practices'' is replaced with the terms ``conservation practices and 
activities,''

[[Page 3867]]

consistent with the modifications made in definitions in Sec.  1415.3.
    Section 1415.11(k) of the 2006 GRP final rule is redesignated as 
Sec.  1415.11(j) and the term ``restoration practices'' is replaced 
with ``conservation practices and activities.'' This modification is 
made for clarity and is consistent with the modifications made in 
definitions in Sec.  1415.3. The phrase ``USDA at the State level'' is 
replaced with ``State Conservationist or State Executive Director, as 
appropriate'' to specify the responsible USDA State level 
representative.
    The text of Sec.  1415.11(k) is new and is added to clarify that 
the responsibility for the cost of restoration when an easement with a 
restoration agreement is transferred to an eligible entity rests with 
that entity. This provision implements the requirements of the 2008 Act 
regarding requirements for transfer or title ownership.
    Section 1415.11(l) is a new paragraph added to set forth the 
responsibility for the cost of restoration rests with the eligible 
entity when an easement with a restoration agreement is acquired under 
a cooperative agreement with an eligible entity. This paragraph 
reflects the requirements for cooperative agreements under the 2008 
Act.

Section 1415.12 Modifications to Easements and Rental Contracts

    Section 1415.12 sets forth how a GRP easement may be modified. The 
exception statement in paragraph (a) and paragraphs (b) through (d) are 
removed and subsequent paragraphs are redesignated. This change 
reflects that there is no statutory authority to modify GRP easements.
    Section 1415.12(e) of the 2006 GRP final rule outlined how a 
restoration agreement and conservation plan may be modified. This 
rulemaking redesignates this paragraph as paragraph (b), amends the 
provision to include grazing management plans as required by the 2008 
Act, and removes reference to rental agreements because the paragraph 
is referring only to easements.
    Section 1415.12(c), as re-designated, allows USDA to approve 
modifications on rental contracts. The paragraph is clarified to 
indicate that modifications to the rental contract could create 
corresponding changes to the grazing management plans, conservation 
plans, and restoration plans. The requirement had not been articulated 
in the 2006 GRP final rule.

Section 1415.13 Transfer of Land

    The section is revised to remove ``landowner'' and add the terms 
``applicant'' or ``participant'' throughout the section, where 
appropriate. This change reflects the addition in the 2008 Act allowing 
cooperative agreements with eligible entities. The term ``USDA'' is 
replaced throughout the section with ``the State Conservationist or 
State Executive Director, as appropriate'' to provide clarity. 
Editorial changes are made to paragraph (d) for clarity. In paragraph 
(g), ``USDA'' is changed to ``FSA'' to appropriately identify that FSA 
is the responsible agency for the identified task.

Section 1415.14 Misrepresentation and Violations

    Section 1415.14(a) is changed to refer to ``rental contract'' 
rather than ``contract'' to provide clarity. Section 1415.14(b) is 
being revised to add ``deed'' following ``easement'' throughout the 
paragraph to add precision to the language. The term ``USDA'' is being 
replaced with ``NRCS'' since it is the agency with responsibility for 
administering easements under the program.
    Section 1415.14(c) requires the participant may be required to 
refund payments or pay liquidated damages if found to be in violation. 
This paragraph is being amended to remove the language relating to 
liquidated damages because there is no clear authority to collect 
liquidated damages. In addition, technical assistance costs, which have 
traditionally been used in the determination of liquidated damages, are 
often difficult to consistently quantify.

Section 1415.15 Payments Not Subject to Claims

    A minor editorial change was made to Sec.  1415.15.

Section 1415.16 Assignments

    Section 1415.16(b) describes what happens when a participant dies, 
becomes incompetent or is unable to receive payments. The phrase ``is 
declared legally'' is added before the word ``incompetent'' to add an 
accepted standard of determining mental competency.

Section 1415.17 Cooperative Agreements

    A new Sec.  1415.17 regarding cooperative agreements is added and 
the existing Sec.  1415.17 addressing easements transferred to third 
parties is redesignated as Sec.  1415.18. The new text of Sec.  1415.17 
includes a paragraph for the enrollment and holding of easements by 
eligible entities, through cooperative agreements with NRCS. Section 
2403 of the 2008 Act added authority for the Secretary to enter into 
cooperative agreements with eligible entities to own, write, and 
enforce easements. Cooperative agreements are entered into by NRCS on 
behalf of the CCC under the authorities of the Commodity Credit Charter 
Act, 15 U.S.C. 714. NRCS has modeled this section, to the extent 
possible, after the Farm and Ranch Land Protection Program (FRPP), with 
which it has extensive experience. The requirements for GRP entity 
eligibility are patterned after the requirements in the FRPP, to the 
extent allowed by statutory differences between the programs; this 
provides consistency in administration for eligible entities and the 
NRCS. A requirement is added to the GRP eligibility that a non-
governmental organization provide evidence of a dedicated account to 
ensure the long-term, management, monitoring, and enforcement of GRP 
easements. This requirement is intended as an indicator of an 
eligibility entity's capacity to acquire, manage, and enforce easements 
and, therefore, protect the public investment in perpetuity.
    This section includes a description of the minimum requirements of 
a GRP cooperative agreement between NRCS and the eligible entity, 
including requirements required by statute such as the entity's 
responsibility for administrative and enforcement costs. This 
rulemaking clarifies ``administrative costs,'' includes costs 
associated with acquisition such as appraisals, land surveys, legal 
fees, and title insurance.
    This section also describes how the Secretary cost-shares with 
entities on easements, whether or not there is a landowner 
contribution. USDA has used its discretion to define ``purchase price'' 
to mean the fair market value of the easement (as defined in the 
statute and in Sec.  1415.10(b)) minus the landowner contribution in 
order to encourage the leveraging of non-Federal funds and achieve the 
best value for the public dollar spent. The result of this definition 
is that the Federal share will be no more than 50 percent of the cash 
purchase price, because, as specified in the statute, the entity shall 
be required to provide a share of the purchase price at least 
equivalent to the share provided by NRCS.
    This new section also sets forth NRCS's approval process for 
partnering entities' use of their own deed. NRCS approval of a template 
deed is required to ensure the entities' deeds meet the long-term 
objectives of the program and to provide assurances of the long-term 
commitment to managing and enforcing easements. Once a template deed is 
approved, the entity will use that template when acquiring conservation

[[Page 3868]]

easements with cost-share assistance from the NRCS. Substantive changes 
to the template deed must be approved by NRCS prior to use by the 
eligible entity.
    This section also describes other deed requirements. For example, 
under GRP when the title is held by an eligible entity, the Food 
Security Act of 1985, at Section 1238Q, requires the Secretary to 
ensure the deed includes a ``contingent right of enforcement'' for the 
Department. Because this right is new in the 2008 Act and is not a 
standard real property term, NRCS has carefully considered its meaning 
when promulgating this interim final rule. Specifically, NRCS 
interpreted the plain meaning of the statutory language, considered the 
legislative history, and consulted with the Office of the General 
Counsel for the Department.
    The purpose of the right is to ensure that the easement is enforced 
and that the Federal investment is protected. The caption at Section 
1238Q(e) requiring the contingent right of enforcement is entitled 
``Protection of the Federal Investment.'' The GRP statute requires that 
the easement deed include a contingent right of enforcement. Given this 
requirement, the Agency has determined that it is Congress's intent 
that such a right run with the land for the duration of the easement. 
Further, such an interest that runs with the land constitutes a real 
property right. The agency has considered other theories, including 
contractual and constitutional authority under the Spending Clause, but 
none provide a sufficient legal justification for the Secretary to 
enforce the terms of the easement for its duration against subsequent 
landowners. Consequently, NRCS has determined that the contingent right 
of enforcement as used in GRP means a vested real property right, which 
provides the Secretary, on behalf of the United States, the right to 
enforce the terms of the easement for the duration of the easement. In 
addition, because the United States has a real property interest in GRP 
by virtue of this right of enforcement, the easement cannot be 
condemned, thereby providing further protection of the conservation 
easement.
    Finally, NRCS is interpreting the term ``contingent'' in 
``contingent right of enforcement'' to mean that the Secretary 
exercises that right under certain circumstances, not that the right 
itself is contingent. Consequently, to prevent confusion over the scope 
of the right, NRCS is referring to its enforcement right as a ``right 
of enforcement.'' The definition of the ``right of enforcement'' set 
forth at Sec.  1415.3 clarifies that the right is only exercised under 
certain circumstances.

Section 1415.18 Easement Transfer to Eligible Entities

    The numbering of the existing Sec.  1415.17 is redesignated to 
Sec.  1415.18 to accommodate the insertion of the new Sec.  1415.17, 
Cooperative Agreements, as explained above. This section is being re-
titled ``Easement transfer to eligible entities'' to avoid confusion 
with the use of the term ``third parties'' elsewhere in the regulation 
in referring to the provision of technical assistance. The term 
``NRCS'' is replacing ``USDA'' throughout the section, reflecting that 
NRCS is the USDA agency delegated responsibility for administering 
easements under the program.
    Section 1415.18 outlines the transfer of easements to eligible 
entities. Paragraph (a) describes who USDA may transfer title of 
ownership to for an easement. This rulemaking revises this paragraph by 
adding ``eligible entity to hold and enforce an easement if:'' 
following who USDA may transfer the title of ownership to. The 
remainder of the paragraph is removed and subparagraphs are added to 
describe under what circumstances USDA may transfer the easement. This 
change implements amendments made by the 2008 Act as well as to improve 
readability.
    Paragraph (b) specifies NRCS's continued right to conduct 
inspection and enforce the easement if transferred. The terms ``grazing 
management plan'' and ``conservation plan'' are being added to this 
paragraph to clarify that the requirements of any applicable plans are 
enforceable under the terms of transferred GRP easement. The reference 
to rental agreements is removed because the section only addresses 
easement transfers to third parties. These changes provide clarity and 
reflect changes made by the 2008 Act.
    Paragraph (c) describes the assumption of costs by an eligible 
entity. This paragraph is being removed because it is redundant of the 
requirements set forth in Sec.  1415.17(c)(10) and subsequent 
paragraphs are redesignated.
    Paragraph (c), as redesignated, sets forth where an eligible entity 
applies to hold a GRP easement.
    Section 1415.18(e) is redesignated as (d) and is amended to outline 
the requirements of an eligible entity. These amendments regarding the 
conditions under which the NRCS may approve an application and transfer 
of the easement are intended to provide clarity and reflect the 
requirements for eligible entities to accept an easement transfer, 
including the requirement for a dedicated fund for non-governmental 
organizations as discussed under the description of changes to Sec.  
1415.17.
    Section 1415.18(f) of the 2006 GRP final rule described actions 
USDA could take if the easement holder fails to enforce the terms of 
the easement. This paragraph is redesignated as (e) by this rulemaking. 
New paragraph (e) removes language regarding the Secretary's authority 
to take back title in the name of the United States if the easement 
holder dissolves or attempts to terminate the easement and adds 
language to give the Secretary the ability to inspect the easement for 
violations and enforce the terms of the easement. This amendment 
implements changes in the 2008 Act relating to the federal right in GRP 
funded easement.
    Paragraph (g), as re-designated, describes the required actions if 
a transfer occurs under this section. This paragraph is amended to 
comply with the requirements set forth in Sec.  1415.17 as well as the 
addition of a grazing management plan. These changes create consistency 
with changes to other sections and reflect changes made in the 2008 
Act. The reference to the NRCS Field Office Technical Guide is also 
removed because it is already implied by definition in the reference to 
the grazing management and conservation plan.
    Paragraph (h) of the 2006 GRP final rule is redesignated as (g) by 
this rulemaking.

Section 1415.19 Appeals

    The numbering of the existing Sec.  1415.18 is changed to Sec.  
1415.19 to accommodate the insertion of the new Sec.  1415.17, 
Cooperative Agreements.
    Section 1415.19(a) describes how applicants may appeal decisions 
regarding GRP. The paragraph is being amended to clarify that appeals 
procedures apply to administrative actions such as eligibility 
determinations and to correct the citation for the applicable 
administrative appeal regulations.
    Section 1415.19(b) requires that a person must exhaust all 
administrative appeals procedures before seeking judicial review. The 
paragraph is revised to clarify that appeals procedures apply to 
administrative actions and not for other purposes such as easement 
enforcement actions. This section is also revised to clarify that a 
decision of the FSA Administrator or a decision of the NRCS Chief 
constitutes a final agency action under the administrative appeal 
procedures.
    Section 1415.19(c) is added to clarify that appraisals, market 
analyses, and related information is considered confidential and will 
not be disclosed.

[[Page 3869]]

This new paragraph incorporates language previously located in 
Confidentiality, Sec.  1415.20 of the 2006 GRP final rule. Section 
1415.20, Confidentiality, is removed in its entirety.
    This rulemaking is adding a new paragraph (d) to clarify further 
that enforcement actions taken by NRCS are not subject to review under 
administrative appeal regulations. This language is consistent with 7 
CFR part 614 and Federal real property law.

Section 1415.20 Scheme and Device

    The numbering on the original Sec.  1415.19 is redesignated to 
Sec.  1415.20 to accommodate the insertion of the new Sec.  1415.17, 
Cooperative Agreements. The term ``Department'' is replaced with 
``USDA'' consistent with the modifications made in definitions under 
1415.3. The term ``rental contract'' was added to (b).

Section 1415.21 Confidentiality

    This section is removed in its entirety and the language is 
incorporated in section 1415.19(c), because the issue is more 
appropriately included under section on appeals.

Administrative Requirements for Conservation Programs

    Section 2708, ``Compliance and Performance'', of the 2008 Act added 
a paragraph to Section 1244(g) of the 1985 Act entitled, 
``Administrative Requirements for Conservation Programs,'' which states 
the following:
    ``(g) Compliance and performance.--For each conservation program 
under Subtitle D, the Secretary shall develop procedures--
    ``(1) To monitor compliance with program requirements;
    ``(2) To measure program performance;
    ``(3) To demonstrate whether long-term conservation benefits of the 
program are being achieved;
    ``(4) To track participation by crop and livestock type; and
    ``(5) To coordinate activities described in this subsection with 
the national conservation program authorized under section 5 of the 
Soil and Water Resources Conservation Act of 1977 (16 U.S.C. 2004).''
    This new provision presents in one place the accountability 
requirements placed on the Agency as it implements conservation 
programs and reports on program results. The requirements apply to all 
programs under subtitle D, including the Wetlands Reserve program, the 
Conservation Security Program, the Conservation Stewardship Program, 
the Farm and Ranch Lands Protection Program, the Grassland Reserve 
Program, the Environmental Quality Incentives Program (including the 
Agricultural Water Enhancement Program), the Wildlife Habitat Incentive 
Program, and the Chesapeake Bay Watershed initiative. These 
requirements are not directly incorporated into these regulations, 
which set out requirements for program participants. However, certain 
provisions within these regulations relate to elements of section 
1244(g) of the 1985 Act and the Agency's accountability 
responsibilities regarding program performance. NRCS is taking this 
opportunity to describe existing procedures that relate to meeting the 
requirements of section 1244(g) of the 1985 Act, and Agency 
expectations for improving its ability to report on each program's 
performance and achievement of long-term conservation benefits. Also 
included is reference to the sections of these regulations that apply 
to program participants and that relate to the Agency accountability 
requirements as outlined in section 1244(g) of the 1985 Act.
    Monitor compliance with program requirements. NRCS has established 
application procedures to ensure that participants and eligible 
entities meet eligibility requirements, and follow-up procedures to 
ensure that participants and eligible entities are complying with the 
terms and conditions of their contractual arrangement with the 
government and that the installed conservation measures are operating 
as intended. These and related program compliance evaluation policies 
will be set forth in Agency guidance.
    The program requirements applicable to participants and eligible 
entities that relate to compliance are set forth in these regulations 
in Sec.  1415.4, ``Program requirements,'' Sec.  1415.11, ``Restoration 
agreements,'' and Sec.  1415.17, ``Cooperative agreements.'' These 
sections make clear the general program requirements, as well as 
participant and entity obligations.
    Measure program performance. Pursuant to the requirements of the 
Government Performance and Results Act of 1993 (Pub. L. 103-62, sec. 
1116) and guidance provided by OMB Circular A-11, NRCS has established 
performance measures for its conservation programs. Program-funded 
conservation activity is captured through automated field-level 
business tools and the information is made publicly available at: 
http://ias.sc.egov.usda.gov/PRSHOME/. Program performance also is 
reported annually to Congress and the public through the annual 
performance budget, annual accomplishments report, and the USDA 
Performance Accountability Report. Related performance measurement and 
reporting policies are set forth in Agency guidance (GM--340--401 and 
GM--340--403 (http://directives.sc.egov.usda.gov/)).
    The conservation actions undertaken by participants are the basis 
for measuring program performance--specific actions are tracked and 
reported annually, while the effects of those actions relate to whether 
the long-term benefits of the program are being achieved. The program 
requirements applicable to participants that relate to undertaking 
conservation actions are set forth in these regulations in Sec.  
1415.4, ``Program requirements,'' Sec.  1415.11, ``Restoration 
agreements,'' and Sec.  1415.17, ``Cooperative agreements.'' These 
sections make clear participant and eligible entity obligations for 
implementing, operating, and maintaining GRP-funded conservation 
improvements, which in aggregate result in the program performance that 
is reflected in Agency performance reports.
    Demonstrate whether long-term conservation benefits of the program 
are being achieved. Demonstrating the long-term natural resource 
benefits achieved through conservation programs is subject to the 
availability of needed data, the capacity and capability of modeling 
approaches, and the external influences that affect actual natural 
resource condition. While NRCS captures many measures of ``output'' 
data, such as acres of conservation practices, it is still in the 
process of developing methods to quantify the contribution of those 
outputs to environmental outcomes.
    NRCS currently uses a mix of approaches to evaluate whether long-
term conservation benefits are being achieved through its programs. 
Since 1982, NRCS has reported on certain natural resource status and 
trends through the National Resources Inventory (NRI), which provides 
statistically reliable, nationally consistent land cover/use and 
related natural resource data. However, lacking has been a connection 
between these data and specific conservation programs. In the future, 
the interagency Conservation Effects Assessment Project (CEAP), which 
has been underway since 2003, will provide nationally consistent 
estimates of environmental effects resulting from conservation 
practices and systems applied. CEAP results will be used in conjunction 
with performance data gathered through Agency field-level business 
tools to help produce estimates of environmental

[[Page 3870]]

effects accomplished through Agency programs, such as GRP. In 2006 a 
Blue Ribbon panel evaluation of CEAP strongly endorsed the project's 
purpose, but concluded ``CEAP must change direction'' to achieve its 
purposes. In response, CEAP has focused on priorities identified by the 
Panel and clarified that its purpose is to quantify the effects of 
conservation practices applied on the landscape. Information regarding 
CEAP, including reviews and current status is available at http://www.nrcs.usda.gov/technical/NRI/ceap/. Since 2004 and the initial 
establishment of long-term performance measures by program, NRCS has 
been estimating and reporting progress toward long-term program goals. 
Natural resource inventory and assessment, and performance measurement 
and reporting policies set forth in Agency guidance (GM--290--400; GM--
340--401; GM--340--403) (http://directives.sc.egov.usda.gov/).
    Demonstrating the long-term conservation benefits of conservation 
programs is an Agency responsibility. Through CEAP, NRCS is in the 
process of evaluating how these long-term benefits can be achieved 
through the conservation practices and systems applied by participants 
under the program. The program requirements applicable to participants 
that relate to producing long-term conservation benefits are described 
previously under ``measuring program performance.''
    Track participation by crop and livestock type. NRCS' automated 
field-level business tools capture participant, land, and operation 
information. This information is aggregated in the National 
Conservation Planning database and is used in a variety of program 
reports. Additional reports will be developed to provide more detailed 
information on program participation to meet congressional needs. These 
and related program management procedures supporting program 
implementation will be set forth in Agency guidance.
    The program requirements applicable to participants that relate to 
tracking participation by crop and livestock type are put forth in 
these regulations in Sec.  1415.4, ``Program Requirements,'' which 
makes clear program eligibility requirements, including the requirement 
to provide NRCS the information necessary to implement GRP. Coordinate 
these actions with the national conservation program authorized under 
the Soil and Water Resources Conservation Act (RCA). The 2008 Act 
reauthorized and expanded on a number of elements of the RCA related to 
evaluating program performance and conservation benefits. Specifically, 
the 2008 Farm Bill added a provision stating, ``Appraisal and inventory 
of resources, assessment and inventory of conservation needs, 
evaluation of the effects of conservation practices, and analyses of 
alternative approaches to existing conservation programs are basic to 
effective soil, water, and related natural resources conservation.''
    The program, performance, and natural resource and effects data 
described previously will serve as a foundation for the next RCA, which 
will also identify and fill, to the extent possible, data and 
information gaps. Policy and procedures related to the RCA are set 
forth in Agency guidance (GM--290--400; M--440--525; GM--130--402) 
(http://directives.sc.egov.usda.gov/).
    The coordination of the previously described components with the 
RCA is an Agency responsibility and is not reflected in these 
regulations. However, it is likely that results from the RCA process 
will result in modifications to the program and performance data 
collected, to the systems used to acquire data and information, and 
potentially to the program itself. Thus, as the Secretary proceeds to 
implement the RCA in accordance with the statute, the approaches and 
processes developed will improve existing program performance 
measurement and outcome reporting capability and provide the foundation 
for improved implementation of the program performance requirements of 
section 1244(g) of the 1985 Act.

List of Subjects in 7 CFR 1415

    Administrative practice and procedure, Agriculture, Soil 
conservation, Grassland, Grassland protection, Grazing land protection.


0
For the reasons stated in the preamble, the Commodity Credit 
Corporation revises part 1415 of title 7 of the Code of Federal 
Regulations as follows:

PART 1415--GRASSLANDS 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 contracts.
1415.10 Compensation for easements and rental contracts acquired by 
the Secretary.
1415.11 Restoration agreements.
1415.12 Modifications to easements and rental contracts.
1415.13 Transfer of land.
1415.14 Misrepresentation and violations.
1415.15 Payments not subject to claims.
1415.16 Assignments.
1415.17 Cooperative agreements.
1415.18 Easement transfer to eligible entities.
1415.19 Appeals.
1415.20 Scheme or device.

    Authority: 16 U.S.C. 3838n-3838q.


Sec.  1415.1  Purpose.

    (a) The purpose of the Grassland Reserve Program (GRP) is to assist 
landowners and operators to protect grazing uses and related 
conservation values by conserving and restoring grassland resources on 
eligible private lands through rental contracts, easements, and 
restoration agreements.
    (b) GRP emphasizes:
    (1) Supporting grazing operations;
    (2) Maintaining and improving plant and animal biodiversity; and
    (3) Protecting grasslands and shrublands from the threat of 
conversion to uses other than grazing.


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 National allocation formula, and development of 
broad national ranking criteria.
    (2) Use a national allocation formula to provide GRP funds to NRCS 
State Conservationists and FSA State Executive Directors that 
emphasizes support for grazing operations, biodiversity of plants and 
animals, and grasslands under the greatest threat of conversion to uses 
other than grazing. 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 of a grassland-
dependent bird(s) or animal(s).
    (3) Ensure the National, State, and local level information 
regarding

[[Page 3871]]

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) Determining how funds will be used and how the program will be 
implemented at the State level to achieve the program purposes;
    (2) Identifying State priorities for project selection, based on 
input from the State Technical Committee;
    (3) 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;
    (4) 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;
    (5) Approving conservation practices eligible for cost-share and 
cost-share rates;
    (6) Developing grazing management plans and restoration agreements;
    (7) Administering and enforcing the terms of easements and rental 
contracts unless this responsibility is transferred to an eligible 
entity as provided in Sec.  1415.17 and Sec.  1415.18;
    (8) With advice from the State Technical Committee, developing 
criteria for ranking eligible land, consistent with national criteria 
and program objectives and State priorities.
    (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 Chief, NRCS, or the Administrator, FSA 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. Eligible entities wishing to enter 
into a cooperative agreement under Sec.  1415.17 in order to purchase, 
own, write, and hold easements may apply on a continuous basis to the 
NRCS State Conservationist. The State Conservationist and State 
Executive Director will establish cut-off periods to rank and select 
applications for participation. 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 they are funded or the applicant chooses to 
be removed from consideration.
    (j) The services of third parties as provided for in part 652 of 
this title may be used to provide technical services to participants.


Sec.  1415.3  Definitions.

    Activity means an action other than a conservation practice that is 
included as a part of a grazing management or conservation plan that 
has the effect of alleviating problems or improving treatment of the 
resources, including ensuring proper management or maintenance of the 
functions and values restored, protected, or enhanced through an 
easement or rental contract.
    Administrator means the Administrator of the Farm Service Agency 
(FSA) or the person delegated authority to act for the Administrator.
    Applicant means a person, legal entity, joint operator, or Indian 
Tribe who applies to participate in the program.
    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. Included are routine management 
activities necessary to maintain the viability of forage or browse 
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,'' ``soil and water conservation district,'' ``resource 
conservation district,'' ``natural resource district,'' ``land 
conservation committee,'' or similar name.
    Conservation plan means a record of the GRP participants' decisions 
and supporting information that will be developed in cases where 
ranking points are assigned and land is enrolled on the basis of 
resource concerns in addition to grazing land uses. The conservation 
plan will include the schedule of operations for the implementation and 
maintenance of practices directly related to the additional land 
eligibility criteria under which the land is enrolled.
    Conservation practice means a specified treatment, such as a 
vegetative, structural, or land management practice, that is planned 
and applied according to NRCS Field Office Technical Guide standards 
and specifications.
    Conservation values means those natural resource attributes that 
provide ecosystem functions and values of the grassland area, including 
but not limited to, habitat for grassland- and shrubland-dependent 
plants and animals, soil erosion control, and air and water quality 
protection.
    Cost-share payment means the payment made by USDA to a program 
participant or vendor to achieve the restoration, enhancement, and 
protection goals in accordance with the GRP restoration plan component 
of the restoration agreement.

[[Page 3872]]

    Dedicated account means a dedicated fund held in a separate account 
for the management, monitoring, and enforcement of conservation 
easements and that cannot be used for other purposes.
    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, an eligible entity, or both for the purpose of protecting the 
grassland and other conservation values of the property. Under GRP, the 
property rights are conveyed by 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, an eligible entity, or both 
under GRP.
    Eligible entity for the purposes of entering into a cooperative 
agreement under 16 U.S.C. 3838q(d) means an agency of State or local 
government, an Indian Tribe, or a non-governmental organization that 
has the relevant experience necessary, as appropriate for the 
application, to administer an easement on grassland, land that contains 
forbs, or shrubland; has a charter that describes a commitment to 
conserving ranchland, agricultural land, or grassland for grazing and 
conservation purposes; and has the resources necessary to effectuate 
the purposes of the charter.
    Enhancement means to increase or improve the viability of grassland 
resources, including habitat for declining species of grassland-
dependent birds and animals.
    Farm Service Agency (FSA) is an agency of the United States 
Department of Agriculture.
    FSA State Executive Director means the FSA employee authorized to 
implement the Grasslands Reserve Program and direct and supervise FSA 
activities in a State, Caribbean Area, or the Pacific Islands Area.
    Field Office Technical Guide means the official local NRCS source 
of resource information and interpretations of guidelines, criteria, 
and requirements for planning and applying conservation practices and 
conservation management systems. It contains detailed information on 
the conservation of soil, water, air, plant, and animal resources 
applicable to the local area for which it is prepared.
    Fire pre-suppression means activities as outlined in a grazing 
management plan such as the establishment and maintenance of firebreaks 
and prescribed burning to prevent or limit the spread of fires.
    Forb means any herbaceous plant other than those in the grass 
family.
    Functions and values of grasslands and shrublands means ecosystem 
services provided, including: Domestic animal productivity, biological 
productivity, plant and animal richness and diversity, and abundance, 
fish and wildlife habitat (including habitat for pollinators and native 
insects), water quality and quantity benefits, aesthetics, open space, 
and recreation.
    Grantor means the landowner who is transferring land rights to the 
United States or an eligible entity, or both through an easement.
    Grassland means land on which the vegetation is dominated by 
grasses, grass-like plants, shrubs, or forbs, including shrubland, land 
that contains forbs, pasture, and rangeland, and improved pasture and 
rangeland.
    Grazing management plan means the document developed by NRCS that 
describes the implementation of the grazing management system 
consistent with the prescribed grazing standard contained in the Field 
Office Technical Guide (FOTG). The grazing management plan will include 
a description of the grazing management system, permissible and 
prohibited activities, any associated restoration plan or conservation 
plan if applicable, and a description of USDA's right of ingress and 
egress.
    Grazing value means the financial worth of the land as used for 
grazing or forage production. The term is used in the calculation of 
compensation for rental contracts and easements. For easements, this 
value is determined through an appraisal process or a market survey 
process. For rental contracts, FSA determines the grazing value based 
upon an administrative process.
    Historical and archeological resources means a resource that is: 
(1) Listed in the National Register of Historic Places (established 
under the National Historic Preservation Act (NHPA), 16U.S.C. 470, et 
seq.); (2) Formally determined eligible for listing the National 
Register of Historic Places by the State Historic Preservation Officer 
(SHPO) or Tribal Historic Preservation Officer (THPO) and Keeper of the 
National Register in accordance with Section 106 or the NHPA); (3) 
Formally listed in the State or Tribal Register of Historic Places of 
the SHPO (designated under section 101 (b) (1) (B) of the NHPA) or the 
Tribal Register of Historic Places (designated under section 101 (d) 
(1) (C) of the NHPA); or (4) Included in the SPHO or THPO inventory 
with written justification as to why it meets National Register of 
Historic Places criteria.
    Improved rangeland or pastureland 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.
    Indian Tribe means any Indian Tribe, band, nation, or other 
organized group or community, including any Alaska Native village or 
regional or village corporation as defined in or established pursuant 
to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.) 
that is eligible for the special programs and services provided by the 
United States to Indians because of their status as Indians (25 U. S. 
C. 450b(e)).
    Landowner means a person, legal entity, or Indian Tribe having 
legal ownership of land. Landowner may include all forms of collective 
ownership including joint tenants, tenants-in-common, and life tenants. 
The term landowner includes Indian Tribes. State governments, local 
governments, and non-governmental organizations that qualify as 
eligible entities are not eligible to participate as eligible 
landowners.
    Legal entity means an entity that is created under Federal or State 
law and that:
    (1) Owns land or an agricultural commodity, product, or livestock; 
or
    (2) Produces an agricultural commodity, product, or livestock.
    Maintenance means work performed to keep the applied conservation 
practice functioning for the intended purpose during its life span. 
Maintenance includes work to, manage, and prevent deterioration, repair 
damage, or replace the practice to its original condition if one or 
more components fail.
    Native means a species that is indigenous and is a part of the 
original fauna or flora of the area.
    Natural Resources Conservation Service (NRCS) is an agency of the 
United States Department of Agriculture.
    NRCS State Conservationist means the NRCS employee authorized to 
implement the Grasslands Reserve Programs and direct and supervise NRCS 
activities in a State, Caribbean Area, or the Pacific Islands 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. The term ``naturalized'' does not 
include noxious weeds.

[[Page 3873]]

    Nesting season means the time of year that animals (birds and 
others) build or otherwise find a place of refuge for purposes of 
reproduction or dormancy.
    Non-governmental organization means any organization that:
    (1) Is organized for, and at all times since the formation of the 
organization, has been operated principally for one or more of the 
conservation purposes specified in clause (i), (ii), (iii), or (iv) of 
section 170(h)(4)(A) of the Internal Revenue Code of 1986;
    (2) Is an organization described in section 501(c)(3) of that Code 
that is exempt from taxation under 501(a) of that Code; and
    (3) Is described--
    (i) in Section 509(a)(1) or 509(a)(2) of that Code; or
    (ii) in Section 509(a)(3) of that Code and is controlled by an 
organization described in Section 509(a)(2) of that Code.
    Participant means a person, legal entity, joint operation, or 
Indian Tribe, who is accepted to participate in GRP through a rental 
contract or option agreement to purchase an easement.
    Pastureland means grazing lands comprised of introduced or 
domesticated native forage species that are used primarily for the 
production of livestock. These lands receive periodic renovation and/or 
cultural treatments, such as tillage, aeration, fertilization, mowing, 
weed control, and may be irrigated. This term does not include lands 
that are in rotation with crops.
    Permanent easement means an easement that lasts in perpetuity or 
for the maximum duration allowed under the law of a State.
    Plant and animal biodiversity means the existence of a wide variety 
of plant and animal species in their natural environments, providing 
for ecological functions and genetic variations.
    Private land means land that is not owned by a governmental entity 
and includes Tribal Lands.
    Purchase price means the amount paid to acquire an easement under a 
cooperative agreement between NRCS and an eligible entity. It is the 
fair market value of the easement minus the landowner donation.
    Rangeland means a land cover or use category with a climax or 
potential plant cover 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 includes areas where introduced 
hardy and persistent grasses 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 contract means the legal document that specifies the 
obligations and rights of a participant in GRP, including the annual 
rental payments to be provided to the participant for the length of the 
contract to maintain or restore grassland functions and values under 
the GRP.
    Restoration means implementing any conservation practice, system of 
practices or activities to restore functions and values of grasslands 
and shrublands. The restoration may re-establish grassland functions 
and values on degraded land, or on land that has been converted to 
another use.
    Restoration agreement means an agreement between the program 
participant and the USDA or eligible entity to carry out activities and 
conservation practices necessary to restore or improve the functions 
and values of that land. A restoration agreement will include a 
restoration plan.
    Restoration plan is the portion of the restoration agreement that 
includes the schedule and conservation practices and activities to 
restore the functions and values of grasslands and shrublands, 
including protection of associated streams, ponds, and wetlands. The 
restoration plan incorporates the requirement that program participants 
will maintain GRP-funded conservation practices and activities for 
their expected lifespan as described in the plan.
    Right of enforcement means an interest in the easement that the 
United States Government may exercise under specific circumstances in 
order to enforce the terms of the conservation easement.
    Secretary means the Secretary of the U.S. Department of 
Agriculture, or his or her designee.
    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 conservation priority, as determined by 
the NRCS State Conservationist in consultation with the State Technical 
Committee.
    State Technical Committee means a committee established by the 
Secretary in a State pursuant to 16 U.S.C. 3861.
    Tribal lands means any lands owned by Indian Tribes, which are 
defined consistent with Section 4(e) of the Indian Self-Determination 
and Education Assistance Act (25 U. S. C. 450b(e)).
    USDA means the U.S. Department of Agriculture, and its Agencies and 
Offices, as applicable.


Sec.  1415.4  Program requirements.

    (a) Except as provided for under Sec.  1415.17, only landowners may 
submit applications for easements. For rental contracts, applicants 
must own or provide written evidence of control of the property for the 
duration of the rental contract.
    (b) The easement or rental contract will require that the area be 
maintained in accordance with GRP goals and objectives for the term of 
the easement or rental contract, 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 grazing 
management plan approved by NRCS. In cases where a participant receives 
ranking points on the basis of resource concerns other than grazing 
land concerns, all such resource concerns will be addressed in an 
applicable conservation plan.
    (d) The easement or rental contract must grant USDA or its 
representatives a right of ingress and egress to the easement or rental 
contract area. For easements, this access is legally described by the 
conservation easement deed and the GRP grazing management plan. Access 
to rental contract areas is identified in the GRP grazing management 
plan.
    (e) Easement participants are required to convey unencumbered 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 or eligible entity is superior to the rights 
of all others, except for exceptions to the title that are deemed 
acceptable by the USDA.
    (f) Landowners are required to use a standard GRP conservation 
easement deed developed by USDA or developed by an eligible entity and 
approved by USDA under Sec.  1415.17 of this part. The easement grants 
development rights, title, and interest in the easement area

[[Page 3874]]

in order to protect grassland and other conservation values.
    (g) The program participant must comply with the terms of the 
easement or rental contract and comply with all terms and conditions of 
the grazing management plan and any associated conservation plan or 
restoration agreement.
    (h) Easements and rental contracts allow, consistent with their 
terms and the program purposes, the following activities as outlined in 
the grazing management plan:
    (1) Common grazing practices, including maintenance and necessary 
conservation practices and activities (e.g., prescribed grazing; upland 
wildlife habitat management; prescribed burning; fencing, watering, and 
feeding necessary for the raising of livestock; related forage and seed 
production) on the land in a manner that is consistent with maintaining 
the viability of grassland, forb, and shrub species common to the 
locality;
    (2) Haying, mowing, or harvesting for seed production subject to 
appropriate restrictions, as determined by the State Conservationist, 
during the nesting season for birds in the local area that are in 
significant decline, or are conserved in accordance with Federal or 
State law;
    (3) Fire pre-suppression, rehabilitation, and construction of 
firebreaks;
    (4) Grazing related activities, such as fencing and livestock 
watering facilities;
    (5) Wind power facilities for on-farm use power generation; and
    (6) Other activities that USDA determines the manner, number, 
intensity, location, operation, and other features associated with the 
activity will not adversely affect the grassland resources or related 
conservation values protected under an easement or rental contract. 
This includes infrastructure development along existing rights-of-way, 
where the easement deed allows the landowner to grant rights-of-way 
when it is determined by NRCS that granting of such rights-of-way are 
in the public interest and that grassland resources and related 
conservation values will not be adversely impacted, and the landowner 
agrees to a restoration plan for the disturbed area as developed by 
NRCS, but at no cost to NRCS.
    (i) Easement and rental contracts prohibit the following 
activities:
    (1) The production of crops (other than hay), fruit trees, 
vineyards, or other agricultural commodity that is inconsistent with 
maintaining grazing land.
    (2) Except as permitted under a restoration plan, the conduct of 
any other activity that would be inconsistent with maintaining grazing 
uses and related conservation values protected under an easement or 
rental contract.
    (3) Wind power facilities for off-farm power generation.
    (j) Rental contracts may be terminated by USDA without penalty or 
refund if the original participant dies, is declared legally 
incompetent, or is otherwise unavailable during the contract period.
    (k) Participants, with the agreement of USDA, may convert a rental 
contract to an easement, provided that funds are available and the 
project meets conditions established by the USDA. Land cannot be 
enrolled in both a rental contract option and an easement enrollment 
option at the same time. The rental contract shall be terminated prior 
to the date the easement is recorded in the local land records office.
    (l) Rental contract participants are required to suspend any 
existing cropland base and allotment history for the land under another 
program administered by the Secretary.
    (m) Easement participants are required to eliminate any existing 
cropland base and allotment history for the land under another program 
administered by the Secretary.


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 shrubland (including 
improved rangeland and pastureland) for which grazing is the 
predominant use; or
    (2) Located in an area that has been historically dominated by 
grassland, forbs, or shrubland, and the State Conservationist, with 
advice from the State Technical Committee, determines that it is 
compatible with grazing uses and related conservation values, and--
    (i) Could provide habitat for animal or plant populations of 
significant ecological value if the land is retained in its current use 
or is restored to a natural condition;
    (ii) Contains historical or archeological resources; or
    (iii) Would address issues raised by State, regional, and national 
conservation priorities.
    (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 contract. Incidental lands may include 
relatively small areas that do not specifically meet the eligibility 
requirements, but as a part of the land unit, may contribute to 
grassland functions and values and related conservation values, or its 
inclusion may increase efficiencies in land surveying, easement 
management, and monitoring by reducing irregular boundaries.
    (d) Land will not be enrolled if the functions and values of the 
grassland are already protected under an existing contract, easement, 
or deed restriction, or if the land already is in ownership by an 
entity whose purpose is to protect and conserve grassland and related 
conservation values. This land becomes eligible for enrollment in the 
GRP if the existing contract, easement, or deed restriction expires or 
is terminated and the grassland values and functions are no longer 
protected.
    (e) Land on which gas, oil, earth, or other mineral rights 
exploration has been leased or is owned by someone other than the 
applicant 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 the property.


Sec.  1415.6  Participant eligibility.

    To be eligible to participate in GRP, an applicant, except as 
otherwise described in Sec.  1415.17:
    (a) Must be a landowner for easement participation or be a 
landowner or have control of the eligible acreage being offered for 
rental contract participation;
    (b) Agree to provide such information to USDA that is necessary or 
desirable to assist in its determination of eligibility for program 
benefits and for other program implementation purposes;
    (c) Meet the Adjusted Gross Income requirements in 7 CFR part 1400 
of this title, unless exempted under part 1400 of this title; and
    (d) Meet the conservation compliance requirements found in part 12 
of this title.


Sec.  1415.7  Application procedures.

    (a) Applicants, except as otherwise described under Sec.  1415.17, 
may submit an application through a USDA Service Center for 
participation in the GRP. Applications may be submitted 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

[[Page 3875]]

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 contract for which they seek to enroll their 
land. Rental contracts may be for a duration of 10-years, 15-years, or 
20-years; easements may be permanent in duration 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 NRCS State 
Conservationists and FSA State Executive Directors, national guidelines 
for establishing State specific ranking criteria, for selection of 
applications for funding.
    (b) NRCS State Conservationists and FSA State Executive Directors, 
with advice from the State Technical Committee, establish criteria to 
evaluate and rank applications for easement and rental contract 
enrollment, including applications from eligible entities under Sec.  
1415.17, following the guidance established in paragraph (a) of this 
section.
    (c) Ranking criteria shall emphasize support for:
    (1) Grazing operations;
    (2) Protection of grassland, land that contains forbs, and 
shrubland at the greatest risk from the threat of conversion to uses 
other than grazing;
    (3) Plant and animal biodiversity; and
    (4) In ranking parcels offered by eligible entities--
    (i) Leveraging of non-Federal funds, and
    (ii) Entity contributions in excess of 50 percent of the purchase 
price, as defined in Sec.  1415.3.
    (d) When funding is available, NRCS State Conservationists and FSA 
State Executive Directors, will periodically select for funding the 
highest ranked applications, including applications from entities under 
Sec.  1415.17, based on applicant and land eligibility and the State-
developed ranking criteria.
    (e) NRCS State Conservationists and FSA State Executive Directors 
may establish separate ranking pools to address, for example, specific 
conservation issues raised by State, regional, and national 
conservation priorities.
    (f) The NRCS State Conservationist and FSA State Executive 
Director, 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, the State Conservationist or 
State Executive Director may select a lower ranked application that can 
be fully funded.
    (i) Land enrolled in a Conservation Reserve Program (CRP) contract 
that is within one year of the scheduled expiration date shall receive 
a priority for enrollment. To receive this priority, the following 
criteria must be met:
    (1) The land must be eligible as defined in Sec.  1415.5;
    (2) USDA must determine it is of high ecological value and under 
significant threat of conversion to uses other than grazing;
    (3) The land must be offered for easement or 20-year rental 
contract enrollment;
    (4) Expired CRP land enrolled under this priority shall not exceed 
10 percent of the total number of acres accepted for enrollment in GRP 
in any year; and
    (5) This priority applies only up to 12 months before the scheduled 
expiration of the CRP contract.
    (j) USDA will manage the program nationally to ensure that, to the 
extent practicable, no more than 60 percent of funds are used for the 
purchase of easements, either directly or through cooperative 
agreements with eligible entities as set forth in Sec.  1415.17, and no 
more than 40 percent of funds are used for rental contracts.


Sec.  1415.9  Enrollment of easements and rental contracts.

    (a) Based on the priority ranking, NRCS or FSA, as appropriate, 
will notify applicants in writing of their tentative acceptance into 
the program for either rental contract or conservation easement 
options. Enrollment under cooperative agreements is described under 
Sec.  1415.17. The letter notifies the applicant of the intent to 
continue the enrollment process unless otherwise notified by the 
applicant.
    (b) An offer of tentative acceptance into the program neither binds 
USDA to acquire an easement or enter into a rental contract, nor binds 
the applicant to convey an easement, enter into a rental contract, or 
agree to restoration activities.
    (c) Offer of enrollment will be through either:
    (1) An option agreement to purchase an easement presented by NRCS 
to the applicant, which will describe the easement; the easement terms 
and conditions; and other terms and conditions that may be required by 
NRCS; or
    (2) A rental contract will be presented by FSA to the applicant, 
which will describe the contract area; the contract terms and 
conditions, and other terms and conditions that may be required by FSA.
    (d) For rental contracts, land shall be considered to be enrolled 
in GRP once an FSA representative approves the GRP rental contract. FSA 
may withdraw the offer before approval of the contract due to lack of 
available funds or other reasons.
    (e) For easements, after the option agreement to purchase an 
easement is executed by NRCS and the participant, the land will be 
considered enrolled in the GRP. NRCS will proceed with the development 
of the grazing management plan, or conservation or restoration plans if 
applicable, and various easement acquisition activities, which may 
include conducting a legal survey of the easement area, securing 
necessary subordination agreements, procuring title insurance, and 
conducting other activities necessary to record the easement or 
implement the GRP.
    (f) Prior to closing an easement, NRCS may withdraw the land from 
enrollment at any time due to lack of available funds, title concerns, 
or other reasons.


Sec.  1415.10  Compensation for easements and rental contracts acquired 
by the Secretary.

    (a) The Chief shall not pay more than the fair market value of the 
land, less the grazing value of the land encumbered by the easement.
    (b) To determine this amount, the Chief shall pay as compensation 
the lowest of:
    (1) The fair market value of the land encumbered by the easement as 
determined by the Chief using--
    (i) The Uniform Standards of Professional Appraisal Practice; or
    (ii) An area-wide market analysis or market survey.
    (2) The amount corresponding to a geographical cap, as determined 
by the State Conservationist with advice from the State Technical 
Committee; or
    (3) An offer made by the landowner.
    (c) For 10-, 15-, and 20-year rental contracts, the participant 
will receive not more than 75 percent of the grazing value in an annual 
payment for the length of the contract, as determined by FSA. As 
provided by the regulations at part 1400 of this title, payments made

[[Page 3876]]

under one or more rental contracts to a person or legal entity, 
directly or indirectly, may not exceed, in the aggregate, $50,000 per 
year.
    (d) 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 contracts.
    (e) Easement or rental contract payments received by a 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.
    (f) Easement payments will be made in a single payment to the 
landowner unless otherwise requested by the landowner.
    (g) USDA may accept and use contributions of non-Federal funds to 
support the purposes of the program. These funds are available to USDA 
without further appropriation and until expended, to carry out the 
program.
    (h) USDA asserts no direct or indirect interest on environmental 
credits that may result from GRP-funded conservation practices and 
activities through a GRP rental contract, easement, or restoration 
agreement, except:
    (1) In the event the participant sells or trades credits arising 
from GRP funded activities, USDA retains the authority to ensure that 
the requirements for GRP rental contracts, easements, or restoration 
agreements are met and maintained consistent with this part; and
    (2) If activities required under an environmental credit agreement 
may affect land covered under a GRP rental contract, easement, or 
restoration agreement, participants are highly encouraged to request a 
compatibility assessment from USDA prior to entering into such 
agreements.


Sec.  1415.11  Restoration agreements.

    (a) Restoration agreements are only authorized to be used in 
conjunction with easements and rental contracts. 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 plan component of the 
restoration agreement identifies conservation practices and activities 
necessary to restore or improve the functions and values of the 
grassland to meet both USDA and the participant's objective and the 
purposes of the program. If the functions and values of the grassland 
decline while the land is subject to a GRP easement or rental contract 
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) The NRCS State Conservationist, with advice from the State 
Technical Committee and in consultation with FSA, determines the 
conservation practices and activities, and cost-share percentages, not 
to exceed statutory limits, available under the GRP. A list of 
conservation practices and activities approved for cost-share 
assistance under GRP restoration plans is available to the public 
through the local USDA Service Center. NRCS may work through the local 
conservation district with the program participant to determine the 
terms of the restoration plan. The conservation district may assist 
NRCS with determining eligible conservation practices and activities 
and approving restoration agreements.
    (c) Only approved conservation practices and activities are 
eligible for cost-sharing. Payments under the GRP restoration 
agreements may be made to the participant of not more than 50 percent 
for the cost of carrying out the conservation practices or activities. 
As provided by the regulations at part 1400 of this chapter, payments 
made under one or more restoration agreements to a person or legal 
entity, directly or indirectly, may not exceed, in the aggregate, 
$50,000 per year.
    (d) The participant is responsible for the operation and 
maintenance of conservation practices in accordance with the 
restoration agreement.
    (e) All conservation practices must be implemented in accordance 
with the NRCS Field Office Technical Guide.
    (f) Technical assistance is provided by NRCS, or an approved third 
party.
    (g) If the participant is receiving cost-share for the same 
conservation practice or activity from another conservation program, 
USDA will adjust the GRP cost-share rate proportionately so that the 
amount received by the participant does not exceed 100 percent of the 
costs of restoration. The participant cannot receive cost-share from 
more than one USDA cost-share program for the same conservation 
practice or activity on the same land.
    (h) 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.
    (i) Conservation practices and activities identified in the 
restoration plan may be implemented by the participant or other 
designee.
    (j) Cost-share payments will not be made for conservation practices 
or activities implemented or initiated prior to the approval of a 
rental contract or easement acquisition unless a written waiver is 
granted by the State Conservationist or State Executive Director, as 
appropriate, prior to installation of the practice.
    (k) Upon transfer of an easement with a restoration agreement to an 
eligible entity as described in Sec.  1415.18, the entity shall be 
responsible for administration of the agreement, and providing funds 
for payment of any costs associated with the completion of the 
restoration agreement. The eligible entity may, with participant 
consent, revise an existing restoration agreement or develop a new 
restoration agreement. Restoration plans must be consistent with the 
grazing management plan or any associated conservation plan as 
described in Sec.  1415.4.
    (l) Cooperating entities under Sec.  1415.17 shall be responsible 
for development, administration, and implementation costs of 
restoration plans. Restoration plans must be consistent with the 
grazing management plan or any associated conservation plan as 
described in Sec.  1415.4.


Sec.  1415.12  Modifications to easements and rental contracts.

    (a) After an easement has been recorded, no substantive 
modification will be made to the easement.
    (b) State Conservationists may approve modifications for 
restoration agreements and grazing management plans, or conservation 
plans where applicable, as long as the modifications do not affect the 
provisions of the easement and meet program objectives.
    (c) USDA may approve modifications to rental contracts, including 
corresponding changes to conservation plans, grazing management plans, 
and restoration plans, 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.

[[Page 3877]]

Sec.  1415.13  Transfer of land.

    (a) Any transfer of the property prior to an applicant's acceptance 
into the program shall void the offer of enrollment, unless at the 
option of the State Conservationist or State Executive Director, as 
appropriate, an offer is extended to the new landowner and the new 
landowner agrees to the same easement or rental contract 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 participant unless NRCS receives an assignment of proceeds.
    (c) Future annual rental payments will be made to the successor 
participant.
    (d) The new landowner is responsible for complying with the terms 
of the recorded easement and the contract successor is responsible for 
complying with the terms of the rental contract and for assuring 
completion of all activities and practices required by any 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 participants, the 
United States bears no responsibility for any full payments or partial 
distributions of funds between the original participant and the 
participant'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 
participant under the GRP conservation easement deed also bind the 
participant's heirs, successors, agents, assigns, lessees, and any 
other person claiming under them.
    (g) Rental contracts 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 FSA to be eligible to 
participate in GRP and must assume full responsibility under the 
contract. FSA 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 
contract, and the new landowner, operator, or tenant is not eligible to 
participate in the program or declines to assume responsibility under 
the contract.


Sec.  1415.14  Misrepresentation and violations.

    (a) The following provisions apply to violations of rental 
contracts:
    (1) Rental contract violations, determinations, and appeals are 
handled in accordance with the terms of the rental contract.
    (2) A participant who is determined to have erroneously represented 
any fact affecting a program determination made in accordance with this 
part may not be entitled to rental contract payments and must refund to 
CCC all payments, plus interest in accordance with part 1403 of this 
title.
    (3) In the event of a violation of a rental contract, 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 contract.
    (b) The following provisions apply to violations of easement deeds:
    (1) Easement violations are handled under the terms of the easement 
deed.
    (2) Upon notification of the participant, NRCS has the right to 
enter upon the easement area at any time to monitor compliance with the 
terms of the GRP conservation easement deed or remedy deficiencies or 
violations.
    (3) When NRCS believes there may be a violation of the terms of the 
GRP conservation easement deed, NRCS may enter the property without 
prior notice.
    (4) The participant will be liable for any costs incurred by the 
United States as a result of the participant's negligence or failure to 
comply with the easement terms and conditions.
    (c) USDA may require the participant to refund all or part of any 
payments received by the participant 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 contract, 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, 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, is 
declared legally 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  Cooperative agreements.

    (a) NRCS may enter into cooperative agreements which establish 
terms and conditions under which an eligible entity shall use funds 
provided by NRCS to own, write, and enforce a grassland protection 
easement.
    (b) To be eligible to receive GRP funding, an eligible entity must 
demonstrate:
    (1) A commitment to long-term conservation of agricultural lands, 
ranchland, or grassland for grazing and conservation purposes;
    (2) A capability to acquire, manage, and enforce easements;
    (3) Sufficient number of staff dedicated to monitoring and easement 
stewardship;
    (4) The availability of funds; and
    (5) For non-governmental organizations, the existence of a 
dedicated account for the purposes of easement management, monitoring, 
and enforcement of each easement held by the eligible entity.
    (c) NRCS enters into a cooperative agreement with those eligible 
entities selected for funding. Once a proposal is selected by the State 
Conservationist, the eligible entity must work with the appropriate 
State Conservationist to finalize and sign the cooperative agreement, 
incorporating all necessary GRP requirements. The cooperative agreement 
addresses:
    (1) The interests in land to be acquired, including the form of the 
easement deeds to be used and terms and conditions.
    (2) The management and enforcement of the interests acquired.
    (3) The responsibilities of NRCS.
    (4) The responsibilities of the eligible entity on lands acquired 
with the assistance of GRP.

[[Page 3878]]

    (5) An attachment listing the parcels accepted by the State 
Conservationist, landowners' names, addresses, location map(s), and 
other relevant information.
    (6) The allowance of parcel substitution upon mutual agreement of 
the parties.
    (7) The manner in which violations are addressed.
    (8) The right of the Secretary to conduct periodic inspections to 
verify the eligible entity's enforcement of the easements.
    (9) The manner in which the eligible entity will evaluate and 
report the use of funds to the Secretary.
    (10) The eligible entity's agreement to assume the costs incurred 
in administering and enforcing the easement, including the costs of 
restoration and rehabilitation of the land as specified by the owner 
and eligible entity. The entity will also assume the responsibility for 
enforcing the grazing management plan, or conservation plan, as 
applicable. The eligible entity must incorporate any required plan into 
the conservation easement deed by reference or otherwise.
    (11) If applicable, the ability of an eligible entity to include a 
charitable donation or qualified conservation contribution (as defined 
by Section 170(h) of the Internal Revenue Code of 1986) from the 
landowner as part of the entity's share of the cost to purchase the 
easement.
    (12) The schedule of payments to an eligible entity, as agreed to 
by NRCS and the eligible entity.
    (13) That GRP funds may not be used for expenditures such as 
appraisals, surveys, title insurance, legal fees, costs of easement 
monitoring, and other related administrative and transaction costs 
incurred by the entity.
    (14) That NRCS may provide a share of the purchase price of an 
easement under the program, and that the eligible entity shall be 
required to provide a share of the purchase price at least equivalent 
to that provided by NRCS. The Federal share will be no more than 50 
percent of the purchase price, as defined in Sec.  1415.3.
    (15) The eligible entity's succession plan that describes its 
successors or assigns to hold, manage, and enforce the interests in 
land acquired in the event that the eligible entity is no longer able 
to fulfill its obligations under the cooperative agreement entered into 
with NRCS.
    (16) Other requirements deemed necessary by NRCS to protect the 
interests of the United States.
    (d) Under the cooperative agreement option, a landowner grants an 
easement to an eligible entity with which NRCS has entered into a GRP 
cooperative agreement. The easement shall require that the easement 
area be maintained in accordance with GRP goals and objectives for the 
term of the easement. Easements are acquired in perpetuity, except 
where State law prohibits a permanent easement.
    (e) The entity may use its own terms and conditions in the 
conservation easement deed, but a conservation easement deed template 
used by the eligible entity shall be submitted to the Chief within 30 
days of the signing of the cooperative agreement. The conservation 
easement deed templates shall be reviewed and approved by the Chief. 
NRCS reserves the right to require additional specific language or to 
remove language in the conservation easement deed to protect the 
interests of the United States.
    (1) Because title to the easement is held by an entity other than 
the United States, the conveyance document must contain a ``right of 
enforcement.'' 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. This right is a vested 
interest in real property and cannot be condemned or terminated by 
State or local government.
    (2) The eligible entity shall acquire, hold, manage and enforce the 
easement. The eligible entity may have the option to enter into an 
agreement with governmental or private organizations to carry out 
easement stewardship responsibilities if approved by NRCS.
    (3) Prior to closing, NRCS must sign an acceptance of the 
conservation easement, concurring with the terms of the conservation 
easement and accepting its interest in the conservation easement deed.
    (4) All conservation easement deeds acquired with GRP funds must be 
recorded in the appropriate land records. Proof of recordation shall be 
provided to NRCS by the eligible entity.
    (5) The conservation easement deed must include an indemnification 
clause requiring the participant (grantor) to indemnify and hold 
harmless the United States from any liability arising from or related 
to the property enrolled in GRP.


Sec.  1415.18  Easement transfer to eligible entities.

    (a) NRCS may transfer title of ownership to an easement to an 
eligible entity to hold and enforce an easement if:
    (1) The Chief determines that transfer will promote protection of 
grassland, land that contains forbs, or shrubland;
    (2) The owner authorizes the eligible entity to hold and enforce 
the easement; and
    (3) The eligible entity agrees to assume the costs incurred in 
administering and enforcing the easement, including the costs of 
restoration or rehabilitation of the land as specified by the owner and 
the eligible entity, and the entity assumes responsibility for 
enforcing the grazing management plan, or conservation plan as 
applicable, as approved by NRCS.
    (b) NRCS has the right to conduct periodic inspections and enforce 
the easement, which includes the terms and requirements set forth in 
the grazing management plan, and any associated restoration or 
conservation plan, for any easements transferred pursuant to this 
section.
    (c) An eligible entity that seeks to hold and enforce an easement 
shall apply to the NRCS State Conservationist for approval.
    (d) The Chief may approve an application if the eligible entity:
    (1) Has relevant experience necessary, as appropriate for the 
application, to administer an easement on grassland, land that contains 
forbs, or shrublands;
    (2) Has a charter that describes the commitment of the eligible 
entity to conserving ranchland, agricultural land, or grassland for 
grazing and conservation purposes;
    (3) Possesses the human and financial resources necessary, as 
determined by the Chief, NRCS, to effectuate the purposes of the 
charter;
    (4) Has sufficient financial resources to carry out easement 
administrative and enforcement activities;
    (5) Presents proof of a dedicated fund for enforcement as described 
in Sec.  1415.17(b)(5), if the entity is a non-governmental 
organization; and
    (6) Presents documentation that the landowner has concurred in the 
transfer.
    (e) The Chief, his or her successors and assigns, shall retain a 
``right of enforcement'' in any transferred GRP funded easement, which 
provides the Secretary the right to inspect the easement for violations 
and enforce the terms of this easement through any and all authorities 
available under Federal or State law, in the event that the eligible 
entity fails to enforce the terms of the easement, as determined by 
NRCS.
    (f) Should an easement be transferred pursuant to this section, all 
warranties and indemnifications provided for in the deed shall continue 
to apply to the

[[Page 3879]]

United States. Upon transfer of the easement, the easement holder shall 
be responsible for enforcement of the grazing management plan, as 
approved by NRCS, and implementation of any associated conservation or 
restoration plans and costs of such restoration, as agreed to by the 
landowner and entity.
    (g) Due to the Federal interest in the GRP easement, transferred 
GRP funded easements cannot be condemned.


Sec.  1415.19  Appeals.

    (a) Applicants or participants may obtain a review of any 
administrative determination concerning eligibility for participation 
utilizing the administrative appeal regulations provided in parts 614 
and 780 of this title.
    (b) Before a person may seek judicial review of any administrative 
action concerning eligibility for program participation under this 
part, the person must exhaust all administrative appeal procedures set 
forth in paragraph (a) of this section, and for the purposes of 
judicial review, no decision shall be a final agency action except a 
decision of the Chief, NRCS or the FSA Administrator, as applicable, 
under these procedures.
    (c) Any appraisals, market analysis, or supporting documentation 
that may be used by NRCS in determining property value are considered 
confidential information, and shall only be disclosed as determined at 
the sole discretion of NRCS in accordance with applicable law.
    (d) Enforcement actions undertaken by NRCS in furtherance of its 
Federally-held property rights are under the jurisdiction of the 
Federal District Court and are not subject to review under 
administrative appeal regulations.


Sec.  1415.20  Scheme or device.

    (a) If it is determined by USDA 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 USDA.
    (b) A scheme or device includes, but is not limited to, coercion, 
fraud, misrepresentation, depriving any other person of payments for 
cost-share practices, rental contracts, 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 USDA 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.

    Signed this 14th day of January, 2009, in Washington, DC.
Arlen L. Lancaster,
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. E9-1075 Filed 1-16-09; 8:45 am]
BILLING CODE 3410-16-P