[Federal Register Volume 74, Number 126 (Thursday, July 2, 2009)]
[Rules and Regulations]
[Pages 31578-31581]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15684]


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DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1491

RIN 0578-AA46


Farm and Ranch Lands Protection Program

AGENCY: Natural Resources Conservation Service (NRCS) and the Commodity 
Credit Corporation (CCC), United States Department of Agriculture 
(USDA).

ACTION: Interim final rule; correction with reopening of public comment 
period.

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SUMMARY: The Natural Resources Conservation Service (NRCS) published in 
the Federal Register of January 16, 2009, an interim final rule with 
request for comment amending the program regulations for the Farm and 
Ranch Lands Protection Program (FRPP) to incorporate programmatic 
changes authorized by the Food, Conservation, and Energy Act of 2008 
(2008 Act). The public comment period closed March 17, 2009.
    The January 16, 2009, interim final rule identified the contingent 
right of enforcement as an acquisition of a real property right. This 
correction to the January 16, 2009, interim final rule clarifies that 
the right of enforcement is a condition placed upon the award of 
financial assistance and, therefore, does not constitute an 
acquisition. NRCS is also using the opportunity presented by this 
rulemaking to ask for public input on key programmatic implementation 
questions. Finally, this document reopens the public comment period for 
the January 16, 2009, interim final rule, as amended, upon publication 
until August 3, 2009.

DATES: Effective Date: The rule is effective July 2, 2009.
    Comment date: Submit comments on or before August 3, 2009. The 
comment period for the FRPP interim final rule published on January 16, 
2009 (74 FR 2317), as changed by this rulemaking, is reopened. Comments 
must be received on or before August 3, 2009.

ADDRESSES: You may send comments (identified by Docket Number NRCS-IFR-
08013) using any of the following methods:
     Government-wide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending comments 
electronically.
     Mail: John Glover, Acting Director, Easements Programs 
Division, Department of Agriculture, Natural Resources Conservation 
Service, Farm and Ranch Lands Protection Program Comments, Post Office 
Box 2890, Washington, DC 20013.
     Fax: (202) 720-9689.
     Hand Delivery: USDA South Building, 1400 Independence 
Avenue, SW., Room 6819, Washington, DC 20250, between 9 a.m. and 4 
p.m., Monday through Friday, except Federal Holidays. Please ask the 
guard at the entrance to the South Building to call (202) 720-1854 in 
order to be escorted into the building.
     This interim final rule may be accessed via the 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: John Glover, Acting Director, Easement 
Programs Division, Department of Agriculture, Natural Resources 
Conservation Service, Post Office Box 2890, Washington, DC 20013-2890; 
Phone: (202) 720-1854; Fax: (202) 720-9689; or e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Regulatory Certifications

Executive Order 12866

    The Office of Management and Budget reviewed the January 16, 2009, 
interim final rule and determined that it was a significant regulatory 
action. Pursuant to Executive Order 12866, NRCS conducted a cost-
benefit analysis of the potential impacts associated with the interim 
final rule for FRPP published in the Federal Register on January 16, 
2009. The provisions of this interim final rule do not alter the 
analysis that was originally prepared. The administrative record is 
available for public inspection in the Department of Agriculture, 
Natural Resources Conservation Service, Room 5831 South Building, 1400 
Independence Avenue, SW., Washington, DC. A copy of the analysis is 
available upon request from John Glover, Acting Director, Easement 
Programs Division, Department of Agriculture, Natural Resources 
Conservation Service, Room 6819-S, Washington, DC 20250-2890 or 
electronically at: http://www.nrcs.usda.gov/programs/FRPP/ under the 
Program Information title.

Regulatory Flexibility Act

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

Environmental Analysis

    A programmatic environmental assessment has been prepared in 
association with the interim final rulemaking published on January 16, 
2009. The provisions of this interim final rule do not alter the 
assessment that was originally prepared. The analysis 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 comment period for the 
Environmental (EA) Analysis and Finding of No Significant Impact 
(FONSI) is reopened and hereby extended to August 3, 2009. A copy of 
the EA and FONSI may be obtained from the following Web site: http://www.nrcs.usda.gov/programs/Env_Assess/. A hard copy may also be 
requested from the following address and contact: Matt Harrington, 
National Environmental Coordinator, 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 e-gov Web site 
www.regulations.gov, or (3) written comments to: Matt Harrington, 
National Environmental Coordinator, Ecological Sciences Division, 
Natural Resources Conservation Service, 1400 Independence Ave., SW., 
Washington DC 20250.

[[Page 31579]]

Civil Rights Impact Analysis

    NRCS has determined through a Civil Rights Impact Analysis that the 
issuance of the interim final rule published on January 16, 2009, 
disclosed no disproportionately adverse impacts for minorities, women, 
or persons with disabilities. The provisions of this interim final rule 
do not alter the analysis that was originally prepared. Copies of the 
Civil Rights Impact Analysis are available, and may be obtained from 
John Glover, Acting Director, Easement Programs Division, Natural 
Resources Conservation Service, Post Office Box 2890, Washington, DC 
20013-2890, or electronically at http://www.nrcs.usda.gov/programs/FRPP.

Paperwork Reduction Act

    Section 2904 of the 2008 Act requires that the implementation of 
this provision be carried out without regard to the Paperwork Reduction 
Act, Chapter 35 of title 44, U.S.C. Therefore, NRCS 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, Civil Justice Reform. The provisions of this 
interim final rule are not retroactive and preempt State and local laws 
to the extent that such laws are inconsistent with this interim final 
rule. Before an action may be brought in a Federal court of competent 
jurisdiction, the administrative appeal rights afforded persons at 7 
CFR parts 11, 614, and 780 must be exhausted.

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

    Pursuant to Section 304 of the Federal Crop Insurance Reform Act of 
1994 (Pub. L. 103-354), NRCS 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 rule does 
not compel the expenditure of $100 million or more by any State, local, 
or tribal governments or anyone in the private sector; therefore, a 
statement under Section 202 of the Unfunded Mandates Reform Act is not 
required.

Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)

    The January 16, 2009, interim final rule was not a major rule as 
defined by Section 804 of the Small Business Regulatory Enforcement 
Fairness Act of 1996. This 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 
United States-based companies to compete in domestic and export 
markets. The provisions of this interim final rule do not alter the 
original determination under SBREFA. However, Section 2904(c) of the 
2008 Act requires that the Secretary use the authority in Section 
808(2) of Title 5, U.S.C., which allows an agency to forego SBREFA's 
usual Congressional Review delay of the effective date of a regulation 
if the agency finds that there is a good cause to do so. 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.

Executive Order 13132

    E.O. 13132 requires NRCS to develop a process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
E.O. 13132 defines the term ``Policies that have federalism 
implications'' to include regulations that have ``substantial direct 
effects on the States, on the relationship between the National 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Under E.O. 
13132, NRCS may not issue a regulation that has federalism implication, 
that imposes substantial direct compliance costs, and that is not 
required by statute, unless the Federal Government provides the funds 
necessary to pay the direct compliance costs incurred by State and 
local governments, or NRCS consults with State and local officials 
early in the process of developing the proposed regulation. NRCS shows 
sensitivity to federalism concerns by requiring the State 
Conservationist to meet with and provide opportunities for involvement 
of State and local governments through the State Technical Committee. 
The interim final rule published on January 16, 2009, will not have 
substantial direct effects on the States, on the relationship between 
the National Government and the States, or on the distribution of power 
and responsibilities among the various levels of government as 
specified in E.O. 13132. The provisions of this interim final rule do 
not alter this determination. Thus, the Executive Order does not apply 
to this rule.

Executive Order 13175

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

Discussion of Program

Background

    This document is effective on the date published in the Federal 
Register. The FRPP is a voluntary program to help farmers and ranchers 
preserve their agricultural land. FRPP provides matching funds to 
State, tribal, and local governments, and nongovernmental organizations 
with farmland protection programs to purchase conservation easements.

Contingent Right of Enforcement

    The 2008 Act made several program changes to FRPP. Significantly, 
the 2008 Act modified the nature of FRPP from a program where NRCS 
purchases conservation easements or other interest in land directly to 
a program where NRCS facilitates and provides matching funds to other 
entities to purchase conservation easements. The 2008 Act also required 
NRCS to ``require the inclusion of a contingent right of enforcement 
for the Secretary in the terms of a conservation easement or other 
interest in eligible land that is purchased using cost share assistance 
provided under the program.''
    The January 16, 2009, FRPP interim final rule incorporated the 
changes to the program made by the 2008 Act. Additionally, NRCS 
identified the contingent right of enforcement as a

[[Page 31580]]

Federal acquisition of a real property right.
    In the preamble of the January 16, 2009, interim final rule, NRCS 
explained that it had consulted with the Office of the General Counsel 
and had determined that the contingent right of enforcement, given the 
requirement for the contingent right of enforcement to be a term of the 
deed, was intended to be a right that runs with the land for the 
duration of the easement and, as such, NRCS was acquiring a Federal 
real property right. NRCS concluded that it could not ``accomplish the 
intent of the managers as reflected in the legislative history 
regarding the effect of `contingent right of enforcement' and give 
meaning to the plain statutory language of FRPP. This is because when 
an interest is to run with the land, it constitutes a real property 
right.''
    The programmatic significance of identifying the contingent right 
of enforcement as an acquisition of a real property right is that FRPP 
transactions would remain subject to Federal acquisition title review 
requirements under 40 U.S.C. 3111 and the Department of Justice (DOJ) 
title standards.
    Despite the sound reasoning provided in the preamble, NRCS believes 
that it should reconsider its original interpretation because the 
continued adherence of Federal procedures for land acquisitions to FRPP 
transactions is counter to the express and implied Congressional intent 
gleaned from the FRPP statutory changes, the Manager's Report, and the 
associated legislative history. Therefore, NRCS has examined whether 
additional analysis of the statutory language could reconcile the 
difference with legislative intent.

The 2008 Act Statutory Changes

    The 2008 Act amendments to FRPP changed the nature of FRPP from a 
Federal conservation easement acquisition program to a financial 
assistance program implemented through cooperative agreements. (The 
2008 Act made similar changes to the Grassland Reserve Program by 
establishing a financial assistance option under that statute.) FRPP 
originally provided that: ``The Secretary shall establish and carry out 
a farmland protection program under which the Secretary shall purchase 
conservation easements or other interests in eligible land.'' The 2008 
Act specifically removes the Secretary's authority to purchase 
easements ``or other interests in eligible land'' and substitutes 
language that the Secretary ``shall facilitate and provide funding for 
the purchase of conservation easements or other interests in eligible 
land.'' [Emphasis supplied].
    Thus, unlike other Federal conservation easement programs, FRPP no 
longer provides for the direct acquisition of conservation easement or 
other interest in land by a Federal entity. More particularly, the 2008 
Act amended Section 1238I(c) to specify that: ``The Secretary shall 
provide cost-share assistance to eligible entities for purchasing a 
conservation easement or other interest in eligible land.'' The 2008 
Act also added Section 1238I(g) that provides that the Secretary 
``shall enter into agreements with eligible entities to stipulate the 
terms and conditions under which the eligible entity is permitted to 
use cost-share assistance'' provided under FRPP.
    Therefore, the impact of the 2008 Act amendments was to change the 
nature of FRPP from a Federal real estate acquisition program to a 
program that facilitates and provides financial assistance to non-
Federal entities for their conservation easement acquisition efforts.
    Accordingly, NRCS has reassessed the FRPP provision related to the 
``contingent right of enforcement'' within the overall statutory 
framework for the program. In analyzing a statutory text, NRCS' 
interpretation provided in this amendment is guided:

    ``by the basic principle that a statute should be read as a 
harmonious whole, with its separate parts being interpreted within 
their broader statutory context in a manner that furthers statutory 
purpose. The various canons of interpretation and presumptions as to 
substantive results are usually subordinated to interpretations that 
further a clearly expressed congressional purpose.'' (CRS Report for 
Congress: ``Statutory Interpretation: General Principles and Recent 
Trends,'' Updated August 31, 2008.)

    Section 1238I(f)(2) provides that: ``(2) Contingent Right of 
Enforcement--The Secretary shall require the inclusion of a contingent 
right of enforcement for the Secretary in the terms of a conservation 
easement or other interest in eligible land that is purchased using 
cost-share assistance provided under the program.'' While the text of 
this provision indicates that the contingent right of enforcement is to 
be a term of a conservation easement or other interest in land, the 
text requires ``the inclusion'' of a contingent right of enforcement, 
rather than ``the acquisition'' of such right. Additionally, the text 
specifies that the term ``purchased'' is used in relationship to the 
conservation easement or other interest in land purchased by the non-
Federal entity using FRPP cost-share assistance. The text does not 
state that NRCS is making payment for the purchase of the contingent 
right of enforcement. NRCS believes that the terms chosen, when viewed 
in the context of the overall framework of the program, indicate that 
the contingent right of enforcement is not a Federal acquisition of a 
real property right intended to trigger Federal procedures such as the 
DOJ Title standards.
    Section 3111(a) under Title 40 of the U.S.C., approval of 
sufficiency of title prior to acquisition, provides:

    (a) Approval of Attorney General Required--Public money may not 
be expended to purchase land or any interest in land unless the 
Attorney General gives prior written approval of the sufficiency of 
the title to the land for the purpose for which the Federal 
Government is acquiring the property.

Federal title requirements under Title 40 U.S.C. 3111 are only 
triggered when the Federal Government expends public money to acquire 
an interest in land. As discussed above, the cost-share assistance 
provided under FRPP is not being expended to purchase the contingent 
right of enforcement. Rather, the cost-share assistance is provided to 
assist a non-Federal entity to purchase a conservation easement or 
other interest in land.
    While the right of enforcement, as a term of a conservation 
easement, is a real property right, the conservation easement is 
acquired by the non-Federal entity from the landowner, and the non-
Federal entity includes the right of enforcement as a conservation 
easement term in order to meet the conditions placed upon the grant of 
Federal funding. Therefore, the inclusion of the right of enforcement 
is not an acquisition, and the Federal real property acquisition 
requirements do not apply.
    This statutory interpretation is consistent with the legislative 
history supporting the provision and meets the plain intent of the 
statute to provide the Federal protection of the FRPP funded 
conservation easements. In particular, the Joint Explanatory Statement, 
prepared concurrently with the legislation, stated that, ``The managers 
do not intend this right to be considered to be an acquisition of real 
property, but in the event an easement cannot be enforced by the 
eligible entity that the Federal Government shall ensure the easement 
remains in force.''
    NRCS has concluded that the inclusion of the contingent right of 
enforcement in a conservation easement or other interest of land 
purchased by a non-Federal entity using FRPP funds does not constitute 
a Federal acquisition of real property. However, the inclusion

[[Page 31581]]

of the contingent right of enforcement in the conservation easement 
deed is a vested property right which provides the NRCS Chief, on 
behalf of the United States, the ability to sue to ensure the 
protection of the farmland protection and related conservation values 
identified in the conservation easement deed. NRCS is amending the 
January 16, 2009 interim final rule to clarify this interpretation of 
the nature of the contingent right of enforcement.

Lands Owned by State or Local Government

    In the preamble to the FRPP interim final rule, NRCS explained that 
it was revising the definition for the term ``landowner'' to clarify 
that State and local governments, and non-governmental organizations 
are not considered eligible landowners. There are limited circumstances 
where an eligible entity, in order to prevent farmland in foreclosure 
from being sold at a sheriff's sale for non-agricultural development, 
purchases fee title to land temporarily, and then re-conveys those 
lands to a private landowner. NRCS does not wish to preclude the 
ability of NRCS to help facilitate the placement of a conservation 
easement or other interest in land on such properties. NRCS is 
therefore incorporating into the FRPP interim final rule additional 
flexibility to address these types of limited circumstances.

Request for Public Input

    USDA furthers the Nation's ability to increase renewable energy 
production, conserve energy, mitigate the effects and adapt to climate 
change, and reduce net carbon and greenhouse gas emissions through 
various assistance programs. CCC is using this rulemaking opportunity 
to obtain input from the public on how FRPP can achieve its program 
purposes and further the Nation's efforts with renewable energy 
production, energy conservation, mitigating the effects of climate 
change, facilitating climate change adaptation, or reducing net carbon 
emissions.

List of Subjects in 7 CFR Part 1491

    Administrative practice and procedure, Agriculture, Soil 
conservation, Wetlands, and Wetland protection.

0
For the reasons stated in the preamble, the CCC corrects part 1491 of 
Title 7 of the Code of Federal Regulations as set forth below:

PART 1491--FARM AND RANCH LANDS PROTECTION PROGRAM

0
1. The authority citation for part 1491 continues to read as follows:

    Authority:  6 U.S.C. 3837 et seq.


0
2. Section 1491.3 is amended by revising the definition for the terms 
``landowner'' and ``right of enforcement'' to read as follows:


Sec.  1491.3  Definitions.

* * * * *
    Landowner means a person, legal entity, or Indian tribe having 
legal ownership of land and those who may be buying eligible land under 
a purchase agreement. The term, ``landowner'' may include all forms of 
collective ownership including joint tenants, tenants-in-common, and 
life tenants. State governments, local governments, and non-
governmental organizations that qualify as eligible entities are not 
eligible as landowners, unless otherwise determined by the Chief.
* * * * *
    Right of enforcement means a vested right set forth in the 
conservation easement deed, equal in scope to the right of inspection 
and enforcement granted to the grantee, that the Chief, on behalf of 
the United States, may exercise under specific circumstances in order 
to enforce the terms of the conservation easement when not enforced by 
the holder of the easement.
* * * * *

0
3. Section 1491.4 is amended by revising paragraphs (b) and (f)(6) to 
read as follows:


Sec.  1491.4  Program requirements.

* * * * *
    (b) The term of all easements or other interests in land shall be 
in perpetuity unless prohibited by State law. In States that limit the 
term of the easement or other interest in land, the term of the 
easement or other interest in land must be the maximum allowed by State 
law.
* * * * *
    (f) * * *
    (6) Unless otherwise determined by the Chief, NRCS shall not 
provide FRPP funds for the purchase of an easement or other interest in 
land on land owned in fee title by an agency of the United States, a 
State or local government, or by an entity whose purpose is to protect 
agricultural use and related conservation values, including those 
listed in the statute under eligible land, or land that is already 
subject to an easement or deed restriction that limits the conversion 
of the land to nonagricultural use;
* * * * *


0
4. Section 1491.22 is amended by adding a new sentence to the end of 
paragraph (c), and by revising paragraph (d) to read as follows:


Sec.  1491.22  Conservation easement deeds.

* * * * *
    (c) * * * The Chief may exercise the option to promulgate standard 
minimum conservation deed requirements as a condition for receiving 
FRPP funds.
    (d) The conveyance document must include a ``right of enforcement'' 
clause. NRCS shall specify the terms for the ``right of enforcement'' 
clause to read as set forth in the FRPP cooperative agreement. This 
right is a vested property right and cannot be condemned by State or 
local government.
* * * * *


0
5. Section 1491.30 is amended by revising paragraph (f) to read as 
follows:


Sec.  1491.30  Violations and remedies.

* * * * *
    (f) In the event NRCS determines it must exercise its rights 
identified under a conservation easement or other interest in land, 
NRCS shall provide written notice by certified mail to the grantee at 
the grantee's last known address. The notice will set forth the nature 
of the noncompliance by the grantee and a 60-day period to cure. If the 
grantee fails to cure within the 60-day period, NRCS shall take the 
action specified under the notice. NRCS reserves the right to decline 
to provide a period to cure if NRCS determines that imminent harm may 
result to the conservation values or other interest in land it seeks to 
protect.

    Signed this 26th day of June 2009, in Washington, DC.
Dave White,
Vice President, Commodity Credit Corporation and Chief, Natural 
Resources Conservation Service.
[FR Doc. E9-15684 Filed 7-1-09; 8:45 am]
BILLING CODE 3410-16-P