[Federal Register Volume 74, Number 161 (Friday, August 21, 2009)]
[Rules and Regulations]
[Pages 42170-42174]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20074]


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DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1415

RIN 0578-AA53


Grassland Reserve Program; Amendment

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

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

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SUMMARY: The United States Department of Agriculture (USDA), through 
the Commodity Credit Corporation (CCC), published in the Federal 
Register of January 21, 2009, an interim final rule with request for 
comment amending the program regulations for the Grassland Reserve 
Program (GRP) to incorporate programmatic changes authorized by the 
Food, Conservation, and Energy Act of 2008 (2008 Act) using Regulation 
Identification Number (RIN) 0578-AA38. This amendment to the January 
21, 2009, interim final rule corrects the RIN to read 0578-AA53, 
clarifies the nature of the contingent right of enforcement, expands 
its discussion regarding GRP policy for wind and solar power 
facilities, and requests comment on how GRP can be used to contribute 
to the Nation's efforts on energy, climate change, and carbon 
sequestration. Additionally, USDA seeks public input on the January 21, 
2009, interim final rule, as amended. Therefore, USDA reopens the 
public comment period upon publication of this amendment until 
September 21, 2009.

DATES: Effective Date: The rule is effective August 21, 2009. Comment 
date: Submit comments on or before September 21, 2009. In addition, the 
comment period for the GRP interim final rule published on January 21, 
2009 (74 FR 2317), is reopened. Comments must be received on or before 
September 21, 2009.

ADDRESSES: You may send comments (identified by Docket Number NRCS-IFR-
09005) using any of the following methods:
     Government-wide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending comments 
electronically.
     Mail: John Glover, Acting Director, Easements Programs 
Division, Department of Agriculture, Natural Resources Conservation 
Service, Grasslands Reserve Program Comments, PO Box 2890, Washington, 
DC 20013.
     E-mail: [email protected].
     Fax: (202) 720-9689.
     Hand Delivery: USDA South Building, 1400 Independence 
Avenue, SW., Room 6819, Washington, DC 20250, between 9 a.m. and 4 
p.m., Monday through Friday, except Federal Holidays. Please ask the 
guard at the entrance to the South Building to call (202) 720-4527 in 
order to be escorted into the building.
     This interim final rule may be accessed via Internet. 
Users can access the Natural Resources Conservation Service (NRCS) 
homepage at: http://www.nrcs.usda.gov/; select the Farm Bill link from 
the menu; select the Interim Final Rules link from beneath the Final 
and Interim Final Rules Index title. Persons with disabilities who 
require alternative means for communication (Braille, large print,

[[Page 42171]]

audio tape, etc.) should contact the USDA Target Center at: (202) 720-
2600 (voice and TDD).

FOR FURTHER INFORMATION CONTACT: John Glover, Acting Director, Easement 
Programs Division, Department of Agriculture, Natural Resources 
Conservation Service, 1400 Independence Avenue, SW., Room 6819 South 
Building, Washington, DC 20250; Phone: (202) 720-1854; Fax: (202) 720-
9689; or e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

Regulatory Certifications

Executive Order 12866

    The Office of Management and Budget (OMB) reviewed the January 21, 
2009, interim final rule and determined that it was a significant 
regulatory action. Pursuant to Executive Order 12866, USDA conducted a 
cost-benefit analysis of the potential impacts associated with the 
interim final rule for the GRP published in the Federal Register on 
January 21, 2009. OMB also determined that this amendment is a 
significant regulatory action. USDA evaluated the cost-benefit analysis 
and determined the provisions of the amendment do not alter the 
analysis that was originally prepared for the January 21, 2009, interim 
final rule. The administrative record is available for public 
inspection at the Department of Agriculture, Natural Resources 
Conservation Service, 1400 Independence Avenue, SW., Room 5831 South 
Building, Washington, DC. A copy of the analysis is available upon 
request from John Glover, Acting Director, Easement Programs Division, 
Department of Agriculture, Natural Resources Conservation Service, Room 
6819 South Building, Washington, DC 20250-2890 or electronically at: 
http://www.nrcs.usda.gov/programs/GRP/ under the Program Information 
title.

Regulatory Flexibility Act

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

Environmental Analysis

    A programmatic Environmental Assessment (EA) has been prepared in 
association with the interim final rulemaking published on January 21, 
2009. The provisions of this amendment do not alter the assessment that 
was originally prepared. With the exception for the analysis on how to 
address windmill and other renewable sources of energy, such as solar 
panel arrays, there is nothing in this amendment that impacts the 
program's purpose, the baseline considerations, grassland eligibility, 
or acreage enrollment goals. This amendment was developed to address 
the contingent right of enforcement and where the energy produced from 
windmills authorized to be placed on easement lands can be used. 
Therefore, the analysis has determined that there will not be a 
significant impact to the human environment and, as a result, an 
Environmental Impact Statement (EIS) is not required to be prepared (40 
CFR part 1508.13). The EA and Finding of No Significant Impact (FONSI) 
are available for review and comment as specified in the interim final 
rule published in the Federal Register on January 21, 2009. However, 
the comment period for accepting comments to the EA and FONSI has been 
extended to September 21, 2009. A copy of the EA and FONSI may be 
obtained from the following Web site: http://www.nrcs.usda.gov/programs/Env_Assess. A hard copy may also be requested from the 
following address and contact: Matt Harrington, National Environmental 
Coordinator, Ecological Sciences Division, Department of Agriculture, 
Natural Resources Conservation Service, 1400 Independence Ave., SW., 
Washington, DC 20250. Comments from the public should be specific and 
reference that comments provided are on the EA and FONSI. Public 
comments may be submitted by any of the following means: (1) E-mail 
comments to: [email protected], (2) e-mail to e-gov Web site: 
www.regulations.gov, or (3) written comments to: Matt Harrington, 
National Environmental Coordinator, Ecological Sciences Division, 
Department of Agriculture, Natural Resources Conservation Service, 1400 
Independence Ave., SW., Washington, DC 20250.

Civil Rights Impact Analysis

    USDA has determined through a Civil Rights Impact Analysis that the 
January 21, 2009, interim final rule disclosed no disproportionately 
adverse impacts for minorities, women, or persons with disabilities. 
The provisions of this amendment do not alter the analysis that was 
originally prepared. Copies of the Civil Rights Impact Analysis are 
available from John Glover, Acting Director, Easement Programs 
Division, Department of Agriculture, Natural Resources Conservation 
Service, 1400 Independence Avenue, SW., Washington, DC 20250, or 
electronically at: http://www.nrcs.usda.gov/programs/GRP.

Paperwork Reduction Act

    Section 2904 of the 2008 Act requires that the implementation of 
this provision be carried out without regard to the Paperwork Reduction 
Act, chapter 35 of Title 44, U.S.C. Therefore, USDA is not reporting 
recordkeeping or estimated paperwork burden associated with this 
amendment.

Government Paperwork Elimination Act

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

Executive Order 12988

    This amendment to the January 21, 2009, interim final rule has been 
reviewed in accordance with Executive Order 12988, Civil Justice 
Reform. The provisions of this amendment are not retroactive and 
preempt State and local laws to the extent that such laws are 
inconsistent with this interim final rule. Before an action may be 
brought in a Federal court of competent jurisdiction, the 
administrative appeal rights afforded persons at 7 CFR parts 11, 614, 
and 780 must be exhausted.

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

    Pursuant to section 304 of the Federal Crop Insurance Reform Act of 
1994 (Pub. L. 103-354), USDA classified this rule as non-major. 
Therefore, a risk analysis was not conducted.

Unfunded Mandates Reform Act of 1995

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), USDA assessed the effects of this amendment to the 
January 21, 2009, interim final rule on State, local, and Tribal 
Governments and the public. This rule does not compel the expenditure 
of $100 million or more by any State, local, or Tribal Governments or 
anyone in the private sector; therefore, a statement under Section 202 
of the Unfunded Mandates Reform Act is not required.

Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)

    The January 21, 2009, interim final rule was not a major rule as 
defined by Section 804 of the Small Business Regulatory Enforcement 
Fairness Act of 1996. This amendment to the January 21, 2009, interim 
final rule will not result in an annual effect on the

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economy of $100 million or more, a major increase in costs or prices, 
or significant adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of United States-based 
companies to compete in domestic and export markets. The provisions of 
this amendment to the January 21, 2009, interim final rule do not alter 
the original determination under SBREFA. However, Section 2904(c) of 
the 2008 Act requires that the Secretary use the authority in section 
808(2) of Title 5, U.S.C., which allows an agency to forego SBREFA's 
usual Congressional review delay of the effective date of a regulation 
if the agency finds that there is a good cause to do so. USDA hereby 
determines that it has good cause to do so to meet the Congressional 
intent to have the conservation programs authorized or amended by Title 
II of the 2008 Act in effect as soon as possible. Accordingly, this 
rule is effective upon filing for public inspection by the Office of 
the Federal Register.

Executive Order 13132

    E.O. 13132 requires USDA to develop an accountable process to 
ensure ``meaningful and timely input by State and local officials in 
the development of regulatory policies that have federalism 
implications.'' E.O. 13132 defines the term ``policies that have 
federalism implications'' to include regulations that have 
``substantial direct effects on the States, on the relationship between 
the Federal Government and the States, or on the distribution of power 
and responsibilities among the various levels of government.'' Under 
E.O. 13132, USDA may not issue a regulation that has federalism 
implication, that imposes substantial direct compliance costs, and that 
is not required by statute unless the Federal Government provides the 
funds necessary to pay the direct compliance costs incurred by State 
and local governments, or USDA consults with State and local officials 
early in the process of developing the proposed regulation. USDA shows 
sensitivity to federalism concerns by requiring the State 
Conservationists to meet with, and provide opportunities for 
involvement of State and local governments through the State Technical 
Committee. The interim final rule published on January 21, 2009, will 
not have substantial direct effects on the States, on the relationship 
between the Federal Government and the States, or on the distribution 
of power and responsibilities among the various levels of government as 
specified in E.O. 13132. The provisions of this amendment do not alter 
this determination. Thus, the Executive Order does not apply to this 
rule.

Executive Order 13175

    This amendment to the interim final rule of January 21, 2009, has 
been reviewed in accordance with Executive Order 13175, Consultation 
and Coordination with Indian Tribal Governments. USDA has assessed the 
impact of this interim final rule on Indian Tribal Governments and has 
concluded that this rule will not negatively affect communities of 
Indian Tribal Governments. The rule will neither impose substantial 
direct compliance costs on Indian Tribal Governments, nor preempt 
tribal law.

Discussion of Program

Background

    This amendment is effective on the date published in the Federal 
Register. The GRP is a voluntary program to help farmers and ranchers 
protect grazing uses and related conservation values on their lands. 
GRP offers enrollment through conservation easements and through rental 
contracts.
    The 2008 Act made several program changes to GRP. Among the 
changes, the 2008 Act added the ability of USDA to enter into a 
cooperative agreement with an eligible entity to own, write, and 
enforce easements. Thus, under a cooperative agreement, USDA provides 
matching funds to other entities to purchase conservation easements, 
rather than purchase such easements directly. The 2008 Act also 
requires USDA to ``ensure that the terms of an easement include a 
contingent right of enforcement for the Department'' where title to the 
conservation easement is either held by an entity other than the 
Federal Government or title is transferred from the Federal Government 
to a non-Federal entity.
    The January 21, 2009, GRP interim final rule incorporated the 
changes to the program made by the 2008 Act. Additionally, USDA 
identified the contingent right of enforcement a Federal acquisition of 
a real property right. This identification as a Federal acquisition 
requires USDA to follow Federal land acquisition procedures for all 
easements acquired under GRP.
    In the preamble of the January 21, 2009, interim final rule, USDA 
explained that it had consulted with the Office of the General Counsel 
and had determined that because the contingent right of enforcement 
appears within the terms of a conservation easement deed, it 
constituted an acquisition of a Federal real property right. Despite 
the sound reasoning provided in the preamble, USDA believes that it 
should reconsider its original interpretation. The conclusion that the 
inclusion of the term in a conservation easement deed constitutes as a 
Federal acquisition of real property is not consistent with 
Congressional intent gleaned from the legislative history of how such 
term is used in other parts of the 2008 Act, specifically the Farm and 
Ranch Lands Protection Program (FRPP), and how it is incorporated into 
GRP implementation. Therefore, USDA has examined whether an alternative 
understanding of the nature of the contingent right of enforcement can 
be ascertained. A similar revision is being made to the FRPP interim 
final regulation.
    Under GRP, USDA may enroll easements through three methods of 
enrollment. In particular, USDA has authority to: (1) Purchase 
conservation easements directly; (2) transfer title to those federally-
acquired easements to a third party; or (3) enter into cooperative 
agreements with eligible entities for those entities to purchase, own, 
enforce, and monitor easements ``in lieu of the Secretary.'' Under the 
first two methods of enrollment, the conservation easement is purchased 
directly by the United States, and original title to the conservation 
easement is held by the United States. Therefore, these GRP easements 
are Federal acquisitions of real property rights.
    In contrast, under the third method of enrollment where an eligible 
entity purchases a conservation easement with Federal financial 
assistance, the United States Government is not expending funds to 
acquire title to the conservation easement, but instead receives a 
right of enforcement as a condition of assistance.
    For the third method of enrollment, the GRP statute prescribes the 
use of a cooperative agreement to provide a mechanism for GRP funds to 
assist eligible partners in the purchase of easements. Significantly, 
the GRP statute specifies that the ownership of the easement is in lieu 
of ownership by the Secretary. More particularly, Section 1238Q of the 
GRP statute provides that: ``(e) Protection of Federal Investment--When 
delegating a duty under this section, the Secretary shall ensure that 
the terms of an easement include a contingent right of enforcement for 
the Department.'' This text requires the Secretary to ensure that the 
easement ``includes'' a contingent right of enforcement, rather than 
requiring the Secretary to ``acquire'' such right. When viewed in the 
context of the overall framework of the program to provide alternative 
ownership arrangements of

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GRP easements, USDA interprets that the contingent right of enforcement 
in an easement purchased, owned, and written by a non-Federal entity is 
not a Federal acquisition of a real property right triggering Federal 
procedures such as 40 U.S.C. 3111 and the implementing Department of 
Justice Title standards. Rather, the incorporation of the contingent 
right of enforcement in the terms of the deed is a condition of Federal 
financial assistance.
    This revised interpretation of the contingent right of enforcement 
is more consistent with the revised structure of the GRP easement, 
which now provides for the third party acquisition option using Federal 
financial assistance. At the same time, this interpretation still meets 
the GRP statutory requirement that the NRCS Chief, on behalf of the 
United States, has the ability to protect the Federal investment for 
the duration of the GRP funded easement by interpreting the right of 
enforcement as a real property right which runs with the land. This 
right is obtained as a condition placed upon another entity to obtain 
funding under GRP for its acquisition of a conservation easement. 
Therefore, the inclusion of the right of enforcement in the deed is not 
an acquisition, and the Federal real property acquisition requirements 
do not apply.

Wind and Solar Power Generation Facilities

    In the January 21, 2009, interim final rule, a new paragraph (h)(5) 
was added to Sec.  1415.4 to allow for the inclusion of wind power 
facilities for on-farm use as a potential permitted use for the GRP 
participant's farming or ranching operation pursuant to the Secretary's 
discretionary authority established in the 2008 Act. In particular, 
Section 2403 of the 2008 Act removed the prohibition against soil 
disturbing activities.
    Although USDA expressed support for wind power generation for on-
farm use on GRP lands, USDA explained that the opportunity to place 
generating stations on easement or contract acres is not a guaranteed 
right. Authorization may only be provided after USDA conducts a site-
specific evaluation to determine that there are no negative impacts on 
threatened, endangered or at-risk species, migratory wildlife, or 
related natural resources, cultural resources, or the human 
environment.
    While the January 21, 2009, interim final rule continued the 
prohibition against wind power facilities for off-farm power generation 
on GRP enrolled lands, the interim final rule did not address directly 
other types of renewable power generation facilities, such as solar 
panel arrays. USDA treated facilities differently depending on the 
intended use of the power generated from the wind power facilities, 
i.e. on-farm use versus off-farm use. USDA recognizes that even 
facilities authorized solely for on-farm use may generate some excess 
electricity that is utilized off-farm.
    USDA believes that off-farm wind power generation should not be 
identified specifically as prohibited on lands enrolled in GRP. The 
statute only identifies crop production (other than hay) as 
specifically prohibited to occur on enrolled lands. All other 
activities are evaluated by whether it is ``inconsistent with 
maintaining grazing uses and related conservation values protected 
under an easement or rental contract.'' Therefore, USDA is amending the 
January 21, 2009, GRP interim final rule to remove the blanket 
prohibition upon wind power facilities for off-farm power generation.
    USDA is not replacing the blanket prohibition with a blanket 
authorization of wind power facilities. The scale and scope of wind 
power generation facilities vary greatly. The installation of large-
scale wind power generation facilities constitutes a conversion 
activity to non-grazing uses, inconsistent with program purposes. 
However, a small-scale, appropriately sited facility may provide both 
the electricity needed to power electric livestock fencing on the 
easement while providing local off-farm electricity to a neighbor's 
fencing as well. This variance of scope and scale requires site-
specific evaluation for whether a particular activity will be 
authorized.
    USDA intended the original restriction to ``on-farm'' use to 
provide an inherent limitation upon the scale of facilities being 
considered for authorization. However, this limitation had the 
unintended consequence of requiring USDA to monitor electric usage of a 
landowner, rather than focus upon whether the landowner's activities 
are consistent with the grazing and conservation purposes of the 
enrolled acreage. USDA believes the focus of an activity should remain 
upon its impacts to the grazing and conservation values of the 
enrollment.
    USDA will not authorize any wind power generating facilities (on-
farm or off-farm) on GRP lands unless USDA determines, based on a site-
specific National Environmental Policy Act environmental analysis (EA 
or EIS), that there will be no adverse effect on threatened, endangered 
or other at-risk species, migratory wildlife, or related natural 
resources, cultural resources, or the human environment or when the 
impacts of such facilities can be mitigated to a level of non-
significance. Furthermore, USDA will only authorize power generation 
facilities after evaluating whether a reasonable alternative exists, 
whether there is a compelling public need, whether the purposes for 
which the easement was acquired can be maintained, and the degree to 
which the footprint of the facility and related infrastructure impacts 
the nature of the grazing lands and other conservation values obtained 
through the contract or easement. USDA will not authorize the 
installation of wind power generation facilities in situations where 
reasonable alternatives exist.
    USDA will follow the guidelines being developed by the United 
States Fish and Wildlife Service (FWS) on avoiding and minimizing 
wildlife impacts from wind turbines. Until the guidelines are 
published, USDA will assess potential wildlife impacts in coordination 
with the FWS and the appropriate State fish and wildlife agency before 
authorizing any wind power generation facilities (on-farm or off-farm) 
on GRP lands.
    USDA also revises paragraph (h)(5) to authorize the installation of 
other types of renewable energy sources for power generation, provided 
they are consistent with the grazing uses and other conservation values 
of the program as determined by USDA on a site-specific basis. Just as 
for wind power generation facilities, USDA will not authorize the 
installation of renewable energy power generation facilities, such as 
solar power panel arrays, unless USDA determines through a site-
specific EA or EIS there will be no adverse effect on threatened, 
endangered or other at-risk species, migratory wildlife, or related 
natural resources, cultural resources, or the human environment or when 
the impacts of such activities can be mitigated to a level of non-
significance. USDA will authorize power generation facilities only when 
the footprint of the facility and related infrastructure would have a 
minimal impact on the nature of the grazing lands and other 
conservation values obtained through the contract or easement.
    Again, the opportunity to place any power-generating facilities and 
related infrastructure on easement or contract acres is not a 
guaranteed right. NRCS continues to seek public comment on how it 
should handle requests for renewable power generation facilities on GRP 
lands.

Request for Public Input

    USDA supports the Nation's ability to increase renewable energy 
production,

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

List of Subjects in 7 CFR Part 1415

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

0
For the reasons stated in the preamble, the CCC amends part 1415 of 
Title 7 of the CFR as set forth below:

PART 1415--GRASSLANDS RESERVE PROGRAM

0
1. The authority citation for part 1415 continues to read as follows:

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


0
2. Section 1415.3 is amended by revising the definition for the term 
``Right of enforcement'' to read as follows:


Sec.  1415.3  Definitions.

* * * * *
    ``Right of enforcement'' means a property interest in the easement 
the Chief may exercise on behalf of the United States under specific 
circumstances in order to enforce the terms of the conservation 
easement. The right of enforcement provides that the Chief has the 
right to inspect and enforce the easement if the eligible entity fails 
to uphold the easement or attempts to transfer the easement without 
first securing the consent of the Secretary.
* * * * *
0
3. Section 1415.4 is amended by revising paragraph (h)(5) and removing 
paragraph (i)(3) to read as follows:


Sec.  1415.4  Program requirements.

* * * * *
    (h) * * *
    (5) Facilities for power generation through renewable sources of 
energy production provided the scope and scale of the footprint of the 
facility and associated infrastructure is consistent with program 
purposes as determined by USDA through analysis of the potential site-
specific environmental effects; and
* * * * *
0
4. Section 1415.17 is amended by revising paragraph (e)(1) to read as 
follows:


Sec.  1415.17  Cooperative agreements.

* * * * *
    (e) * * *
    (1) In order to protect the public investment, the conveyance 
document must contain a ``right of enforcement.'' NRCS shall specify 
the terms for the ``right of enforcement'' clause to read as set forth 
in the GRP cooperative agreement. This right is a vested property right 
and cannot be condemned or terminated by State or local government.
* * * * *

    Signed this 14th day of August, 2009, in Washington, DC.
Dave White,
Vice President, Commodity Credit Corporation and Chief, Natural 
Resources Conservation Service.
    Signed this 13th day of August, 2009, in Washington, DC.
Carolyn B. Cooksie,
Acting Administrator, Farm Service Agency.
[FR Doc. E9-20074 Filed 8-20-09; 8:45 am]
BILLING CODE 3410-16-P