[Federal Register Volume 75, Number 27 (Wednesday, February 10, 2010)]
[Rules and Regulations]
[Pages 6539-6553]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2812]
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Rules and Regulations
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Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 /
Rules and Regulations
[[Page 6539]]
DEPARTMENT OF AGRICULTURE
Natural Resources Conservation Service
7 CFR Part 625
RIN 0578-AA52
Healthy Forests Reserve Program
AGENCY: Natural Resources Conservation Service, United States
Department of Agriculture.
ACTION: Final rule.
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SUMMARY: This final rule amends Natural Resources Conservation Service
(NRCS) regulations for the Healthy Forests Reserve Program (HFRP). The
Food, Conservation, and Energy Act of 2008 (the 2008 Act) amended
provisions of HFRP that changed the duration, type, and funding
allocation of program agreements, and NRCS published a proposed rule
for these changes on January 14, 2009. This final rule responds to the
comments received on the proposed rule and amends NRCS regulations for
HFRP to incorporate changes associated with enactment of the 2008 Act.
DATES: Effective Date: This rule is effective February 10, 2010.
FOR FURTHER INFORMATION CONTACT: John Glover, Branch Chief, Easement
Programs Branch, Department of Agriculture, Natural Resources
Conservation Service, 1400 Independence Avenue, SW., Room 6811 South
Building, Washington, DC 20250; Telephone: (202) 720-5477; Fax: (202)
720-9689. Persons with disabilities who require alternative means for
communication (Braille, large print, audiotape, etc.) should contact
the USDA Target Center at (202) 720-2600 (voice and TDD).
SUPPLEMENTARY INFORMATION:
Regulatory Certifications
Executive Order 12866
The Office of Management and Budget (OMB) determined that this
final rule is not a significant regulatory action and a benefit cost
assessment has not been undertaken.
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), the Department of Agriculture (USDA) classified
this rule as non-major. Therefore, a risk analysis was not conducted.
Regulatory Flexibility Act
NRCS has determined that the Regulatory Flexibility Act is not
applicable to this final rule because NRCS is not required by 5 U.S.C.
553, or any other provision of law, to publish a notice of proposed
rulemaking with respect to the subject matter of this rule.
Small Business Regulatory Enforcement Fairness Act of 1996
This final rule is not a major rule as defined by section 804 of
the Small Business Regulatory Enforcement Fairness Act of 1996. This
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.
Environmental Analysis
The final rule for the HFRP amends the current regulation to
include congressionally required statutory changes to the program as a
result of the 2008 Act, Public Law 110-246. The 2008 Act changes the
use of 30-year tribal contracts, allows NRCS to acquire permanent
easements, and establishes limitations on the use of funds for cost-
share agreements and easements. The final rule also amends the
regulation in response to comments received by the agency on the
proposed rule.
After review of the previous Environmental Assessment (EA) prepared
in April 2006, it has been determined that the changes are minor and do
not present significant new circumstances or new information relative
to environmental issues from those analyzed in the 2006 EA.
Accordingly, NRCS has determined and reaffirms that the previous EA and
Finding of No Significant Impact have sufficiently analyzed the
program's potential environmental impacts and are inclusive of the
final rule.
Copies of the EA and the Finding of No Significant Impact may be
obtained from the Healthy Forests Reserve Program Manager, Easements
Programs Division, Department of Agriculture, Natural Resources
Conservation Service, 1400 Independence Avenue, SW., Room 6813 South
Building, Washington, DC 20250; or electronically on the Internet
through the NRCS homepage at: http://www.nrcs.usda.gov, and by
selecting ``Programs,'' then ``Healthy Forests Reserve Program.''
Paperwork Reduction Act
The forms that will be utilized to implement this regulation have
previously been approved for use and OMB assigned the control number
0578-0013. NRCS estimates that HFRP results in the following changes to
the current package:
Type of Request: New Information Collection Package/form/etc.
Increase of 26,020 respondents.
Increase of 23,926.3 responses.
Increase burden hours by 27,768.12.
Increase in the average time to execute a form in the
collection: 0.229 hours or 14.03 minutes.
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, to provide the public the option of submitting
information or transacting business electronically to the maximum
extent possible.
Civil Rights Impact Analysis
NRCS has determined through a Civil Rights Impact Analysis that
this final rule discloses no disproportionately adverse impacts for
minorities, women, or persons with disabilities. The data presented
indicates producers who are members of the protected groups have
participated in NRCS conservation programs at parity with other
producers. Extrapolating from historical participation data, it is
reasonable to
[[Page 6540]]
conclude that NRCS programs, including the HFRP, will continue to be
administered in a non-discriminatory manner. Outreach and communication
strategies are in place to ensure all producers will be provided the
same information to allow them to make informed compliance decisions
regarding the use of their lands that will affect their participation
in USDA programs. The HFRP applies to all persons equally. Therefore,
this final rule portends no adverse civil rights implications for
women, minorities, and persons with disabilities.
Copies of the Civil Rights Impact Analysis are available, and may
be obtained from John Glover, Branch Chief, Easement Programs Branch,
Natural Resources Conservation Service, 1400 Independence Avenue, SW.,
Room 6819 South Building, Washington, DC 20250, or electronically at:
http://www.nrcs.usda.gov/programs/HFRP.
Civil Justice Reform
This final rule has been reviewed in accordance with Executive
Order 12988, Civil Justice Reform. The rule is not retroactive and
preempts State and local laws to the extent that such laws are
inconsistent with this rule. Before an action may be brought in a
Federal court of competent jurisdiction, the administrative appeal
rights afforded persons at 7 CFR parts 614 and 11 must be exhausted.
Executive Order 13132
This final rule has been reviewed in accordance with the
requirements of Executive Order 13132, Federalism. NRCS has determined
that this 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, NRCS concludes that this final rule does not
have Federalism implications. Moreover, Sec. 625.5 of this final rule
shows sensitivity to Federalism concerns by providing an option for the
responsible official (State Conservationist) to obtain input from other
agencies in proposal development.
Unfunded Mandates Reform Act of 1995
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), NRCS assessed the effects of this rulemaking action
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 governments or anyone in the private sector;
therefore, a statement under section 202 of the Unfunded Mandates
Reform Act of 1995 is not required.
Executive Order 13175, Consultation and Coordination With Indian Tribal
Governments
NRCS has assessed the impact of this final rule on Indian tribal
governments and has concluded that this rule will not negatively affect
communities of Indian tribal governments. The statutory changes to the
HFRP as a result of the 2008 Act created an option of offering 30-year
contracts to encourage Indian tribal participation in the program.
Section 625.12 of this final rule outlines the procedures for enrolling
land in the program through the 30-year contract option. The rule will
neither impose substantial direct compliance costs on tribal
governments, nor preempt tribal law.
Background
America's forests provide a wide range of environmental, economic,
and social benefits including timber, wilderness, minerals, recreation
opportunities, and wildlife habitat. In addition, a healthy forest
ecosystem provides habitat for endangered and threatened species,
sustains biodiversity, protects watersheds, sequesters carbon, and
helps purify the air. However, some forest ecosystems have had their
ecological functions diminished by a number of factors including
fragmentation, reduction in periodic fires, lack of proper management,
or invasive species. Habitat loss has been severe enough in some
circumstances to cause dramatic population declines such as in the case
of the Ivory-billed Woodpecker. As a result of the pressures on forest
ecosystems, many forests need active management and protection from
development in order to sustain biodiversity and restore habitat for
species that have suffered significant population declines. Active
management and protection of forest ecosystems can also increase carbon
sequestration and improve air quality.
Many forest ecosystems are located on private lands and provide
habitat for species that have been listed as endangered or threatened
under section 4 of the Endangered Species Act (ESA), 16 U.S.C. 1533
(listed species). Congress enacted the HFRP, Title V of the Healthy
Forest Restoration Act of 2003 (Pub. L. 108-148, 16 U.S.C. 6571-6578)
to provide financial assistance to private landowners to undertake
projects that restore and enhance forest ecosystems to help promote the
recovery of listed species, improve biodiversity, and enhance carbon
sequestration.
The Secretary of Agriculture has delegated authority to implement
HFRP to the NRCS Chief. In addition, technical support associated with
forest management practices may also be provided by the U.S. Forest
Service. Section 501 of Title V of the Healthy Forests Restoration Act
of 2003 (Pub. L. 108-148) provides that the program will be carried out
in coordination with the Secretary of Interior and the Secretary of
Commerce. NRCS works closely with the U.S. Fish and Wildlife Service
(FWS) and the National Marine Fisheries Service (NMFS) to further the
species recovery objectives of the HFRP and to help make available to
HFRP participants safe harbor or similar assurances and protection
under ESA section 7(b)(4) or section 10(a)(1), 16 U.S.C. 1536(b)(4),
1539(a)(1).
Response to Comments and Changes to the Regulation
On January 14, 2009, NRCS published in the Federal Register a
proposed rule for the HFRP with a 30-day public comment period that
ended on February 13, 2009 (74 FR 1954). On February 18, 2009, the
agency reopened the public comment period for the HFRP proposed rule
for an additional 30 days, which ended on March 20, 2009 (74 FR 7563).
NRCS received 13 responses to the proposed rule, encompassing
approximately 68 comments. The respondents included individuals
representing eight different agricultural or environmental
organizations, three private citizens, a Federal agency respondent, and
an Indian tribe. This section discusses all of the relevant comments
except for those that expressed agreement with provisions of the
proposed rule.
Purpose and Eligibility
The statutory provisions at 16 U.S.C. 6571 state that the purpose
of HFRP is to restore and enhance forest ecosystems in order to: (1)
Promote the recovery of threatened and endangered species, (2) improve
biodiversity, and (3) enhance carbon sequestration. Under 16 U.S.C.
6572(b), to be eligible for enrollment, land must be:
(1) Private land, the enrollment of which will restore, enhance, or
otherwise measurably increase the likelihood of recovery of a species
listed as endangered or threatened under 16 U.S.C. 1533; and
(2) Private land, the enrollment of which will restore, enhance, or
[[Page 6541]]
otherwise measurably improve the well-being of species that--
(a) Are not listed as endangered or threatened under 16 U.S.C.
1533; but
(b) Are candidates for such listing, State-listed species, or
special concern species.
The authorizing statute further provides at 16 U.S.C. 6572(c) that
the Secretary of Agriculture will give additional consideration to
enrollment of eligible land that will improve biological diversity and
increase carbon sequestration.
Comment: Three respondents recommended that the term native be used
throughout the rule prior to the term forest ecosystem to focus
attention on native forest ecosystems.
Response: No changes were made to the regulation based on these
comments. As stated above, the statutory language does not restrict
HFRP to native forest ecosystems. There are situations in which the
native habitat has been destroyed, and threatened and endangered
species have adapted to using non-native habitats as their primary
habitat. The insertion of native would create a barrier for
participation in those situations. Additionally, the FWS and NMFS are
part of the consultation process and can provide guidance and
assistance on a case-by-case basis.
Comment: One respondent recommended changing the definition of
biodiversity to require organisms to be native to the ecological sub-
region and ecological complex.
Response: NRCS made no changes to the regulation based on this
comment. The definition of biodiversity in the proposed rule is
consistent with the definitions used in other NRCS programs.
Comment: One respondent asserted that NRCS should clarify the
extent of the access required in the rule to distinguish between public
access and agency access.
Response: The regulation does not require HFRP participants to
provide general public access. Based on the comment, NRCS inserted
language at Sec. 625.11 (b)(1) and Sec. 625.12 (b)(1) to clarify that
the right of access to the easement area is access for NRCS personnel
or agency representatives.
Priority for Enrollment
The statutory provisions at 16 U.S.C. 6572(f) provides the
following regarding enrollment priority:
(1) Species--The Secretary of Agriculture will give priority to the
enrollment of land that provides the greatest conservation benefit to--
(a) Primarily, species listed as endangered or threatened under 16
U.S.C. 1533; and
(b) Secondarily, species that--
(i) Are not listed as endangered or threatened under 16 U.S.C.
1533; but
(ii) Are candidates for such listing, State-listed species, or
special concern species.
(2) Cost-effectiveness--The Secretary of Agriculture will also
consider the cost-effectiveness of each agreement or easement and
associated restoration plans, so as to maximize the environmental
benefits per dollar expended.
Comment: Two respondents requested additional clarity regarding the
priority that will be given to enrolling projects that benefit wildlife
species not listed under the ESA. They suggested defining State-listed
species in the regulation.
Response: Based on the comments, the agency added a definition of
State-listed species under Sec. 625.2. NRCS has defined State-listed
species as ``a species listed as threatened or endangered under State
endangered species laws, a candidate for such listing, or a species
listed in a State Wildlife Action Plan as a species of greatest
conservation need.''
Comment: Two respondents recommended that only native species be
identified by the Chief for special consideration for funding.
Response: No changes were made to the regulation based on these
comments. While the rule allows the Chief to designate species of
special concern, restricting this designation to only native species
unnecessarily curtails the Chief's discretion and could serve as a
barrier, preventing protection in areas where it is needed.
Comment: One respondent suggested that a dedicated amount of funds
be set aside for family forest lands.
Response: No changes were made to the regulations based on this
comment because NRCS determined there is no statutory basis supporting
a set-aside for family forest lands. A separate set-aside for family
forest lands creates a special priority category. As noted above, 16
U.S.C. 6572(f) sets forth the criteria for enrollment priority and no
statutory authority exists to give priority to family forest lands
eligible for participation in HFRP.
Comment: Two respondents suggested that priority be given to
projects based on the priority forest areas identified in the State
Forest Resource Assessment and Strategy required by section 8002 of the
2008 Act. Another respondent suggested that attention to forest
resources should be immediate and not wait for the completion of the
state-wide assessment.
Response: No changes were made to the regulation based on these
comments. NRCS agrees that the concept of using the priority forest
areas established by the report is a good concept. However, the report
is currently underway and will not be complete until the end of fiscal
year 2010. NRCS will incorporate guidance in policy on utilizing the
information provided by the report once it is complete.
Comment: One respondent suggested that significant weight should be
given to projects that increase carbon sequestration.
Response: No changes were made to the regulations based on this
comment. Enhancing carbon sequestration is one of the purposes of the
program which is detailed in the statute (16 U.S.C. 6571 and 6572).
Under Sec. 625.6 of the final rule, one of the ranking criteria is the
extent to which projects have the potential for increased capability of
carbon sequestration.
Comment: Two respondents asserted that the rule does not clearly
articulate how cost-effectiveness will be estimated. Both suggested
that the cost-effectiveness of the restoration cost-share agreement,
contract, or easement and associated HFRP restoration plans be
calculated by dividing the total expected environmental benefits by the
total expected cost of the project.
Response: No changes were made to the regulation based on these
comments. NRCS will address this issue in policy to provide the maximum
flexibility. The State Conservationist needs the flexibility to
determine how cost-effectiveness will be estimated due to the wide
variability of environmental benefits and diverse habitats of land
enrolled in the program.
Comment: One respondent suggested that NRCS use separate ranking
pools to evaluate fairly the cost-effectiveness of short-term and long-
term agreements. Another respondent suggested NRCS compare projects
with other projects of similar ownership and size. The respondent was
concerned that smaller projects are disadvantaged when compared with
larger projects that appear more cost-effective.
Response: No changes were made to the regulation based on these
comments. By policy, State Conservationists have the authority to
create separate ranking pools for different types of agreements to
ensure fair evaluation of projects.
Comment: Several respondents recommended that NRCS require State
Conservationists to work with other agencies and organizations when
developing proposals. One respondent suggested the requirement include
State Foresters, State Technical Committees,
[[Page 6542]]
and State Forest Stewardship Committees; three respondents suggested
the requirement include all local, State, and Federal agencies; and one
respondent suggested the requirement include the appropriate State fish
and wildlife agency.
Response: No changes were made to the regulation based on these
comments. NRCS cannot require that the State Technical Committee be
consulted because HFRP is not a program in the Conservation Title. The
rule provides flexibility to the State Conservationists to determine
with whom it is appropriate to work when developing proposals and
implementing the program. The suggested changes would require
consultation and limit the discretion and flexibility of the State
Conservationist.
Comment: Two respondents suggested that the ranking considerations
be developed with State fish and wildlife agencies and be separated
into primary and secondary ranking considerations, similar to the
statutory language. Another respondent suggested that all ranking
considerations should be required to be considered.
Response: No changes were made to the regulation based on these
comments. The required ranking considerations are found in the final
rule at Sec. 625.6. The associated weighting of the ranking
considerations is the responsibility of the State Conservationist. The
State Conservationist works with cooperating agencies, which may
include the State fish and wildlife agencies, to obtain input and
advice on weighting and applying the ranking factors. The ranking
structure proposed by the respondents would require specific ranking
criteria to be considered regardless of the local conditions. The
current structure of the regulation allows State Conservationists to
ensure that local conditions are considered in applying the ranking
criteria.
Term of Enrollment
Statutory provisions at 16 U.S.C. 6572(e)(1) provide that land may
be enrolled in the HFRP in accordance with:
A 10-year cost-share agreement,
A 30-year easement, or
A permanent easement or an easement for the maximum
duration allowed under State law.
Under the provisions of 16 U.S.C. 6572(e)(3), the statute allows
acreage owned by Indian tribes to be enrolled into the program through
the use of 30-year contracts or 10-year cost-share agreements, or a
combination of the two.
Comment: NRCS specifically requested comments on the definition of
``acreage owned by Indian tribes'' and the accompanying requirements
for 30-year contracts at Sec. 625.12. In response, NRCS received one
comment. The respondent suggested that NRCS revise the definition of
``acreage owned by Indian tribes'' to allow Indian lands held in trust
to be eligible for the program.
Response: No changes were made to the regulation based on this
comment. As stated in the preamble to the proposed rule, ``The
statement of managers (Conference Report H.R. 110-627 for H.R. 2419,
pages 202 and 203, May 13, 2008) provided additional clarification of
congressional intent by stating that ``the managers intend that tribal
land enrolled in the program should be land held in private ownership
by a tribe or an individual tribal member. Tribal lands held in trust
or reserved by the United States Government or restricted fee lands
should not be enrolled in the program regardless of ownership.'' The
managers' report language can be used to elucidate the meaning of the
statute. Based on this language, NRCS interpreted the meaning of
``acreage owned by Indian tribes'' as including only land to which the
title is held by individual Indians and Indian tribes, including Alaska
Native Corporations. Lands held in Trust by the United States or
allotted lands which contain restraints against alienation are not
eligible under the definition of ``acreage owned by Indian tribes.''
For purposes of clarity, NRCS removed the word ``private'' from this
definition in the final rule because the inclusion of the word
``private'' was redundant and could create confusion when implemented.
The definition of ``private land'' includes land that meets the
definition of ``acreage owned by Indian tribes.'' NRCS also revised the
definition of ``30-year contract'' to include the term ``acreage owned
by Indian tribes'' and to remove the reference to land held in private
ownership and the reference to ``individual tribal members'' for the
reasons listed above. Additionally, NRCS removed the phrase ``including
Alaska Native Corporations'' from the definition because it was
repetitive.
Comment: Two respondents suggested that NRCS require that direct
benefits to the target species be realized during the contract period.
Response: No changes were made to the regulation based on these
comments. Section 625.4 applies to all eligible land, including
permanent easements. The change suggested by the respondents to include
``within the contract period'' would be confusing because this section
addresses all enrollment options, and this phrase is not applicable to
easements. Additionally, there are circumstances in which the desired
benefits may not occur within the contract period, though such benefits
will likely be obtained as a result of HFRP financial and technical
assistance. For example, HFRP assistance through a 30-year easement may
facilitate the establishment of a mature hardwood forest, though the
trees planted with HFRP assistance will not have reached full maturity
at the end of the 30-year easement period. The respondents proposed
change would render such land ineligible for the program.
Comment: Two respondents asserted that NRCS should spend no less
than 60 percent of HFRP funds on permanent easements. Another
respondent suggested that NRCS favor shorter term easements and
restoration cost-share agreements over permanent easements.
Response: No changes were made to the regulation based on these
comments because the statutory requirements determine the allocation of
funds. The original HFRP statutory language required that ``the extent
to which each enrollment method is used will be based on the
approximate proportion of owner interest expressed in that method in
comparison to the other methods.'' However, the 2008 Act amended the
HFRP statute to include language specifying that 40 percent of program
expenditures in any fiscal year be for restoration cost-share agreement
enrollment and 60 percent of program expenditures in any fiscal year be
for easement enrollment. The 2008 Act allows re-allocation if funds are
not obligated by April 1 of the fiscal year in which the funds were
made available.
Comment: One respondent asserted that NRCS should allow States the
flexibility to allocate funds according to local needs under the re-
pooling provision.
Response: No changes were made to the regulation based on this
comment. The preamble of the proposed rule stated that ``NRCS proposes
to manage this process at the national level to ensure that the
allocation of funds meets the statutory requirements.'' The agency will
manage the re-pooling of funds at National Headquarters to ensure that
the statutory requirements are met.
Comment: Two respondents suggested that NRCS limit the allocation
of program resources to States that have developed proposals likely to
result in the most significant and cost-effective benefits to the
forest ecosystems and species.
Response: No changes were made to the regulation based on these
comments. The respondents' suggestion limits HFRP enrollment to a
select number of
[[Page 6543]]
States. NRCS does not believe Congress intended to limit the
implementation of the program in this manner. The sign-up process,
detailed in Sec. 625.5(a), is designed to target funding to the most
significant and cost-effective proposals.
Restoration Plans
As a condition of HFRP participation, a landowner must agree to the
implementation of a HFRP restoration plan. The purpose of the
restoration plan is to restore, protect, enhance, maintain, and manage
the habitat conditions necessary to increase the likelihood of recovery
of listed species under the ESA, or measurably improve the well-being
of species that are not listed but are candidates for such listing,
State-listed species, or species identified by the Chief for special
consideration for funding.
Under the provisions of 16 U.S.C. 6572, NRCS is to carry out the
HFRP in coordination with FWS and NMFS. The provisions of Sec.
625.13(c), which concern the HFRP restoration plan development, specify
that NRCS, in coordination with the FWS, will determine the
conservation practices and measures for the restoration plan.
Comment: Two respondents suggested including other agencies in the
development of the restoration plan.
Response: No changes were made to the regulation based on these
comments. The rule allows the State Conservationists to confer with FWS
and NMFS in developing the restoration plan. The State Conservationists
have the authority to consult with other agencies in the development of
the restoration plan as necessary.
Comment: Three respondents suggested that NRCS reword Sec.
625.13(c) to require that carbon sequestration management promote
diverse and high quality native forest ecosystems to accomplish the
goals of the restoration plan.
Response: Based on the comments, NRCS inserted the language
suggested by the respondents in Sec. 625.13(c). NRCS agrees with the
respondents and is concerned that the most effective plants for
sequestering carbon may be non-native species that may not be
appropriate for maintaining habitat. NRCS agrees that for carbon
sequestration purposes, the plants should be required to be native to
the environment in which they are being planted.
Comment: One respondent recommended that restoration plans be
tailored to help landowners adapt their management strategies in a
changing climate.
Response: No changes were made to the regulation based on this
comment. The planning process includes selecting plants that are widely
adapted to tolerate changes in climate. The restoration plan may be
modified by the parties to address changing circumstances, including
changes to facilitate climate adaptation.
Comment: Two respondents suggested that the language in Sec.
625.14 is inconsistent because the first sentence of the section says
that modifications may be approved if they do not modify or void
provisions of the easement, and later in the section the regulation
says that modifications may require execution of an amended easement.
Response: Section 625.14 discusses modifications to the HFRP
restoration plan; it is not discussing modification to an HFRP
easement. There is no statutory authority for HFRP easements to be
modified. In order for a restoration plan to be modified, the
modification must meet HFRP program objectives and must result in equal
or greater wildlife benefits and ecological and economic values to the
United States. In order to avoid confusion regarding the modification
of an HFRP restoration plan, NRCS has inserted the phrase ``to the
restoration plan'' and removed the word ``easement'' from Sec. 625.14.
Comment: One respondent suggested that any modification to an HFRP
restoration plan should require agreement from the landowner, FWS,
NMFS, or the State fish and wildlife agency.
Response: No changes were made to the regulation based on this
comment. The final rule at Sec. 625.14 affirms that NRCS will
coordinate with the landowner, FWS, and NMFS to determine if a
modification to the restoration plan is justified.
Cost-Share Payments
Comment: One respondent asserted that NRCS should use actual costs
rather than average costs for determining cost-share assistance
reimbursement rates. The HFRP statutory language allows for NRCS to
reimburse a percentage of either the actual cost or the average cost of
approved practices. The respondent asserted that average costs may be
far lower than the actual cost and therefore, make full program
implementation less likely where landowners do not receive
reimbursement for their full expenses.
Response: No changes were made to the regulation based on this
comment. Calculating actual costs would significantly increase the
administrative workload and reduce the amount of financial assistance
available to HFRP participants. Average costs, as determined on a
regional basis, will be used to ensure that the average costs are close
to actual costs in that area.
However, for purposes of clarity, NRCS revised Sec. 625.3(d) and
Sec. 625.13(c) to establish that the State Conservationist will
develop the list of eligible restoration practices, payment rates, and
cost-share percentages. The State Conservationist will not determine
the rates of compensation for an easement or 30-year contract because
those rates will be established through the process outlined in Sec.
625.8.
NRCS also revised Sec. 625.10(g) to clarify that payments will not
be made on components of a conservation practice or measure. This
change was made to ensure consistency with other NRCS programs.
Compensation
The statutory provisions at 16 U.S.C. 6574 establish the
requirements for easement compensation rates. Subsection (a) provides
that the Secretary of Agriculture will pay a landowner for a permanent
easement not less than 75 percent, nor more than 100 percent of the
fair market value of the land enrolled during the period the land is
subject to the easement, less the fair market value of the land
encumbered by the easement (as determined by the Secretary). The
statute provides that the Secretary will pay the same rate for
easements that are for the maximum duration allowed under State law.
As stated in the preamble to the proposed rule, Federal agencies
generally follow the Uniform Relocation Assistance and Real Property
Acquisition Policies for Federal and Federally Assisted Programs (the
Uniform Relocation Act), the Uniform Relocation Act's implementing
regulations at 49 CFR part 24, and the Uniform Appraisal Standards for
Federal Land Acquisitions (the Yellow Book). The Yellow Book requires
that compensation be based upon the impact that the easement
encumbrance will have on the value of the larger parcel, which includes
all land owned by the landowner that may be impacted by the easement,
as determined by the appraiser.
However, where agencies have statutory authority to waive general
appraisal procedures, Federal agencies can develop alternative
appraisal and valuation methodologies. Under the SAFE-TEA-LU Act, NRCS
is exempt from the requirements of 49 CFR part 24. The HFRP language
for permanent and maximum duration easements requires that compensation
be based on the impact to the value of only the land
[[Page 6544]]
enrolled and encumbered by the easement. Thus, the Yellow Book
requirement of appraising the larger parcel does not apply for
permanent easements, or those of the maximum duration required by State
law.
Comment: NRCS specifically requested comments on the language
regarding the establishment of easement compensation rates at Sec.
625.8. In response, NRCS received three comments. All respondents were
in agreement that NRCS should not use the Yellow Book appraisal
process.
Response: No changes were made to the regulation based on these
comments. NRCS will use the Uniform Standards for Professional
Appraisal Practice to determine easement compensation values under
HFRP. NRCS will use the same methodology to determine compensation
values for all HFRP easements, both permanent and 30-year, to reduce
confusion and maintain consistency.
Comment: One respondent suggested that HFRP use the same appraisal
process as the Wetlands Reserve Program (WRP).
Response: No changes were made to the regulation based on this
comment. HFRP has different statutory requirements than the WRP. The
statutory requirements of HFRP do not allow for the program to use the
same method of compensation as the WRP.
Comment: NRCS also specifically requested comments on the language
regarding ownership of ecosystem services credits at Sec. 625.8(f). In
response, the agency received three comments. All three respondents
supported the ecosystem services credits language.
Response: No changes were made to the regulation as a result of
these comments. However, minor changes were made to the language in
Sec. 625.8 to ensure consistency across all NRCS programs.
Landowner Protections and Safe Harbor Agreements
The 2006 HFRP interim final rule (71 FR 28557) included a
definition of Landowner Protections as part of Sec. 625.2 and the
preamble to that rule described those protections and how program
participants obtain them (71 FR 28548-28550). Landowner Protections
were defined in the 2006 interim final rule as:
``* * * protections and assurances made available to HFRP
participants whose voluntary conservation activities result in a net
conservation benefit for listed, candidate, or other species.
Landowner Protections made available by the Secretary of Agriculture
to HFRP participants may be provided under section 7(b)(4) or
section 10(a)(1) of the Endangered Species Act of 1973 (ESA; 16
U.S.C. 1536(b)(4), 1539(a)(1)). These Landowner Protections may be
provided by NRCS in conjunction with meeting its responsibilities
under section 7 of the ESA, or by FWS or NFMS through section 10 of
the ESA. These Landowner Protections include a permit providing
coverage for incidental take of species listed under the ESA.
Landowner Protections also include assurances related to potential
modifications of HFRP restoration plans and assurances related to
the potential (unlikely) termination of Landowner Protections and
any 10-year cost share agreement.''
Landowner Protections are contingent upon the HFRP restoration plan
and associated cost-share agreement or easement being properly
implemented. There is no requirement that HFRP participants obtain any
Landowner Protections. Generally, the three elements of Landowner
Protections are: (1) Authorization for the take of endangered or
threatened species when conducting management activities under a HFRP
restoration plan and when returning to the baseline conditions at the
end of the cost-share agreement or easement period (whichever is
longer), (2) assurance that the landowner will not be required to
undertake additional or different management activities without the
consent of the landowner, and (3) limitations on the possibility of
termination of a HFRP restoration plan that is being properly
implemented by the landowner.
The definition of Landowner Protections in the interim final rule
(and text in the preamble) included a description of two approaches
that the Secretary of Agriculture may use to make Land Protections
available to HFRP participants. The regulation at Sec. 625.13(d)
specifies the two ways that NRCS can make Landowner Protections
available to HFRP participants upon request. The first approach
involves NRCS and the HFRP participant, and does not require the HFRP
participant to have direct involvement with FWS or NMFS. Under this
approach, NRCS will extend to participants the incidental take
authorization received by NRCS from FWS or NMFS through biological
opinions issued as part of the interagency consultation process under
section 7(a)(2) of the ESA.
Under the second approach for Landowner Protections, NRCS will
provide technical assistance to help participants design and use their
HFRP restoration plan for the dual purposes of qualifying for HFRP
financial assistance, and as a basis for entering into a Safe Harbor
Agreement (SHA) or Candidate Conservation Agreement with Assurances
(CCAA) with the FWS or NMFS under section 10(a)(1)A of the ESA. SHAs
are voluntary arrangements between either the FWS or NMFS and
cooperating participants who agree to adopt practices and measures, or
refrain from certain activities in order to achieve net conservation
benefits, i.e., a contribution to the recovery of listed species.
A CCAA is a voluntary agreement between the FWS or NMFS and
cooperating participants whereby landowners who voluntarily agree to
manage their lands or waters to remove threats to species at risk of
becoming listed under the ESA as threatened or endangered receive
assurances that their conservation efforts will not result in future
regulatory obligations in excess of those they agree to at the time
they enter into the Agreement. CCAAs are intended to help conserve
proposed and candidate species, and species likely to become candidates
by giving private, non-Federal landowners incentives to implement
conservation measures for declining species. The primary incentive for
CCAAs is an assurance that no further additional land, water, or
resource use restrictions would be imposed should the species later
become listed under the ESA.
There is no requirement that HFRP participants enter into a SHA or
a CCAA. All SHAs are subject to the SHA policy jointly adopted by FWS
and NMFS (Announcement of Final Policy, 64 FR 32717, June 17, 1999),
and SHAs with the FWS also are subject to regulations at 50 CFR part
17, and specifically 50 CFR 17.22(c) for endangered species or 17.32(c)
for threatened species. All CCAAs are subject to the CCAA policy
jointly adopted by FWS and NMFS (Announcement of Final Policy, 64 FR
32726, June 17, 1999), and CCAAs with the FWS are also subject to
regulations at 50 CFR part 17, and specifically 50 CFR 17.22(d) for
endangered species or 17.32(d) for threatened species.
Comment: One Federal agency respondent suggested that the
regulation clarify the landowner protection section to include a return
to baseline conditions at the end of the easement, contract, or
agreement. The respondent suggested that NRCS do this in one of two
ways, either in the definition of landowner protection or in the
landowner protections section of the regulation.
Response: NRCS has decided that this clarification is needed, and
that the issue will be better clarified in the landowner protections
section of the regulation. Based on this comment, NRCS added Sec.
625.13(d)(1)(iii) to the Incidental Take section and
[[Page 6545]]
Sec. 625.13(d)(2)(iv) to the SHA or CCAA section to include a return
to baseline conditions at the end of the applicable period.
Comment: Two respondents recommended that NRCS modify Sec.
625.13(d) to clarify that the Landowner Protections discussed in that
section are intended to apply to HFRP participants.
Response: Based on these comments, NRCS corrected Sec. 625.13(d)
by inserting a comma after ``species,'' removing the words ``a
participant,'' and removing the period at the end of the sentence.
These changes help clarify that Landowner Protections are available to
HFRP participants.
Comment: One respondent suggested that NRCS provide landowners with
an assurance that they will not be found in violation of the ESA or
other environmental laws.
Response: No changes were made to the regulation based on this
comment. NRCS cannot offer this type of assurance to landowners. A
landowner may be in violation of the ESA if they are acting outside of
the SHA/CCAA agreement. It is the responsibility of the landowner to
ensure that actions outside of the landowner protections provided by
NRCS are consistent with all applicable Federal and State laws. NRCS
does not have the authority to provide any assurances regarding
compliance with other applicable environmental laws.
Compatible Use Authorizations
Comment: Two respondents suggested that it may be more important to
address the issue of compatible uses in the context of 10-year
agreements than in the context of easements. The respondents felt that
compatible use agreements should not be needed for properties subject
to easements since the easement specifically prohibits certain uses and
allows all others.
Response: No changes were made to the regulation based on these
comments. The purpose of a compatible use agreement is to allow a
landowner to conduct a prohibited activity on the easement if it will
benefit the functions and values of the easement. A compatible use
agreement is necessary in the context of an easement, particularly a
permanent easement, which is a recorded property right and cannot be
changed. However, a compatible use agreement is not necessary for a 10-
year restoration cost-share agreement because the agreement itself can
be altered to permit the activity that will benefit the land.
Comment: Two respondents recommended that NRCS include a definition
of the term ``compatible use'' in the rule.
Response: NRCS did not make any changes to the regulation based on
these comments. Although the term is used in the rule, the types of
activities that may be considered compatible may change depending on
the circumstances. In order to allow for flexibility, NRCS will define
the term compatible use in the policy consistent with other NRCS
programs that allow compatible use authorizations.
Comment: Three respondents asserted that NRCS does not have the
authority to regulate hunting and fishing as compatible uses because
they are a reserved right of the landowner.
Response: Although undeveloped recreational hunting and fishing is
identified in the deed as a reserved right to the landowner, any
activity above and beyond undeveloped recreational use may only be
authorized by NRCS through the compatible use process. The HFRP deed
does not reserve to the landowner an unfettered right to hunt and fish
as suggested by the respondents. In order to clarify this issue, the
agency removed language from Sec. 625.11(b)(2) which gave examples of
what types of activities may be granted a compatible use agreement.
NRCS removed the compatible use paragraph from Sec. 625.11(b)(2) and
combined it with Sec. 625.11(b)(3). The new combined paragraph at
Sec. 625.11(b)(2) now allows NRCS the right to determine and permit
compatible uses on the easement area and specify the amount, timing,
method, intensity, and duration of the compatible use, if such use is
consistent with the long-term protection and enhancement of the
purposes for which the easement was established. This new paragraph
avoids confusion over what activities may be granted a compatible use,
and instead focuses on the standard an activity must meet in order for
a compatible use to be granted.
Comment: Three respondents suggested that NRCS should add
prescribed fire, grazing, and silviculture practices as compatible uses
which are consistent with the long-term protection and enhancement of
the purposes for which the easement was established.
Response: No changes were made to the regulation as a result of
these comments. As mentioned above, whether or not these activities
will be considered compatible uses will depend on site-specific
circumstances. In addition, the change made in response to the comments
regarding hunting and fishing at Sec. 625.11(b)(2) will provide
additional clarity on this issue. The HFRP deed allows landowners to
conduct routine forestry operations and management practices as long as
such activities are consistent with the terms of the deed and the
restoration plan. If the activity is allowed by the deed and consistent
with the terms of the deed and the restoration plan, no compatible use
authorization is required.
Termination of Landowner Protections
As provided for in this final rule in the definition of Landowner
Protections in Sec. 625.2 and the associated provision at Sec.
625.13(d), all appropriate options will be pursued with the participant
to avoid termination of the landowner protections in the case of
landowner non-compliance or changed conditions. If the participant has
entered into a SHA or CCAA with the FWS or NMFS (the Services) based on
a HFRP restoration plan, NRCS will work with the participant and the
Services to seek appropriate means of avoiding revocation of a permit
issued under section 10(a)(1) of the ESA by FWS or NMFS to implement
the SHA or CCAA. However, in the event of a termination, any requested
assurances from NRCS will be voided, and the landowner will be
responsible to FWS or NMFS for any violations of the ESA.
The SHA policy regarding revocation of a permit issued in
association with a SHA is: ``The Services are prepared as a last resort
to revoke a permit implementing a Safe Harbor Agreement where
continuation of the permitted activity would be likely to result in
jeopardy to a species covered by the permit. Prior to taking such a
step, however, the Services would first have to exercise all possible
means to remedy such a situation'' (64 FR 32724). Regulations
pertaining to SHA permits issued by FWS have a similar provision (50
CFR 17.22(c)(7) and 17.32(c)(7)) for endangered and threatened
wildlife.
Comment: One respondent suggested that NRCS require the landowner
to coordinate with all parties to the agreement if there is termination
or transfer of a SHA or a CCAA.
Response: The proposed rule at Sec. 625.13(d)(2)(iv) required
landowners to notify and coordinate with FWS and NMFS, as appropriate,
in the event of a termination of the agreement. NRCS agrees that the
landowner should be responsible for coordinating with any party to the
specific SHA or CCAA, as applicable, such as State fish and wildlife
agencies. Based on this comment, NRCS inserted language at Sec.
625.13(d)(2)(v) to require landowners to notify and coordinate with any
relevant party to the specific SHA or CCAA.
[[Page 6546]]
Tribal Consultation
Comment: One respondent suggested that the regulations should
require consultation with Indian tribes to discuss impacts and evaluate
the effectiveness of the program over time.
Response: No changes were made to the regulation based on this
comment. Participation in HFRP is voluntary, and the proposed rule did
not meet the threshold for requiring consultation as specified by
Executive Order 13175. However, NRCS remains committed to seeking
advice, guidance, and counsel from Indian tribes in regard to natural
resource concerns and issues. Indian tribes interested in providing
input regarding HFRP policies may submit their request directly to the
Chief.
Miscellaneous Changes for Clarification and Improved Program
Administration
NRCS removed the definition of ``contract or agreement'' for
clarity because each of the possible contracts or agreements under HFRP
are defined specifically so a general definition is not necessary and
may create confusion.
NRCS removed the term ``option agreement to purchase'' throughout
the document and replaced the term with ``agreement to purchase'' to
reflect more accurately the way the document is used and to allow for
consistency with other easement programs.
NRCS made other non-substantive changes for the purpose of clarity
and consistency with other NRCS programs. These changes are set forth
in the text portion of this document.
List of Subjects in 7 CFR Part 625
Administrative practice and procedure, Agriculture, Soil
conservation, and Forestry.
0
For the reasons stated in the preamble, NRCS revises 7 CFR part 625 to
read as follows:
PART 625--HEALTHY FORESTS RESERVE PROGRAM
Sec.
625.1 Purpose and scope.
625.2 Definitions.
625.3 Administration.
625.4 Program requirements.
625.5 Application procedures.
625.6 Establishing priority for enrollment in HFRP.
625.7 Enrollment of easements, contracts, and agreements.
625.8 Compensation for easements and 30-year contracts.
625.9 10-year restoration cost-share agreements.
625.10 Cost-share payments.
625.11 Easement participation requirements.
625.12 30-year contracts.
625.13 The HFRP restoration plan development and Landowner
Protections.
625.14 Modification of the HFRP restoration plan.
625.15 Transfer of land.
625.16 Violations and remedies.
625.17 Payments not subject to claims.
625.18 Assignments.
625.19 Appeals.
625.20 Scheme and device.
Authority: 16 U.S.C. 6571-6578.
Sec. 625.1 Purpose and scope.
(a) The purpose of the Healthy Forests Reserve Program (HFRP) is to
assist landowners, on a voluntary basis, in restoring, enhancing, and
protecting forestland resources on private lands through easements, 30-
year contracts, and 10-year cost-share agreements.
(b) The objectives of HFRP are to:
(1) Promote the recovery of endangered and threatened species under
the Endangered Species Act of 1973 (ESA);
(2) Improve plant and animal biodiversity; and
(3) Enhance carbon sequestration.
(c) The regulations in this part set forth the policies,
procedures, and requirements for the HFRP as administered by the
Natural Resources Conservation Service (NRCS) for program
implementation and processing applications for enrollment.
(d) The Chief may implement HFRP in any of the 50 States, District
of Columbia, Commonwealth of Puerto Rico, Guam, Virgin Islands,
American Samoa, and the Commonwealth of the Northern Mariana Islands.
Sec. 625.2 Definitions.
The following definitions will be applicable to this part:
30-year Contract means a contract that is limited to acreage owned
by Indian tribes. The 30-year contract is not eligible for use on
tribal lands held in trust or subject to Federal restrictions against
alienation.
Acreage Owned by Indian Tribes means lands to which the title is
held by individual Indians and Indian tribes. This term does not
include land held in trust by the United States or lands where the fee
title contains restraints against alienation.
Biodiversity (Biological Diversity) means the variety and
variability among living organisms and the ecological complexes in
which they live.
Candidate Conservation Agreement with Assurances (CCAA) means a
voluntary arrangement between the U.S. Fish and Wildlife Service (FWS)
or the National Marine Fisheries Service (NMFS), and cooperating non-
Federal landowners under the authority of section 10(a)(1) of the
Endangered Species Act of 1973, 16 U.S.C. 1539(a)(1). Under the CCAA
and an associated enhancement of survival permit, the non-Federal
landowner implements actions that are consistent with the conditions of
the permit. CCAA with FWS are also subject to regulations at 50 CFR
17.22(d) for endangered species or 50 CFR 17.32(d) for threatened
species, or applicable subsequent regulations.
Carbon sequestration means the long-term storage of carbon in soil
(as soil organic matter) or in plant material (such as in trees).
Chief means the Chief of the Department of Agriculture (USDA) NRCS,
or designee.
Confer means to discuss for the purpose of providing information;
to offer an opinion for consideration; or to meet for discussion, while
reserving final decision-making authority with NRCS.
Conservation practice means one or more conservation improvements
and activities, including structural practices, land management
practices, vegetative practices, forest management, and other
improvements that benefit the eligible land and optimize environmental
benefits, planned and applied according to NRCS standards and
specifications.
Conservation treatment means any and all conservation practices,
measures, activities, and works of improvement that have the purpose of
alleviating resource concerns, solving or reducing the severity of
natural resource use problems, or taking advantage of resource
opportunities, including the restoration, enhancement, maintenance, or
management of habitat conditions for HFRP purposes.
Coordination means to obtain input and involvement from others
while reserving final decision-making authority with NRCS.
Cost-share agreement means a legal document that specifies the
rights and obligations of any participant accepted into the program. A
HFRP cost-share agreement is a binding agreement for the transfer of
assistance from USDA to the participant to share in the costs of
applying conservation. A cost-share agreement under HFRP has a duration
of 10-years.
Cost-share payment means the payment made by NRCS to a program
participant or vendor to achieve the restoration, enhancement, and
protection goals of enrolled land in accordance with the HFRP
restoration plan.
Easement means a conservation easement, which is an interest in
land defined and delineated in a deed
[[Page 6547]]
whereby the landowner conveys certain rights, title, and interests in a
property to the United States for the purpose of protecting the forest
ecosystem and the conservation values of the property.
Easement area means the land encumbered by an easement.
Easement payment means the consideration paid to a landowner for an
easement conveyed to the United States under the HFRP.
Fish and Wildlife Service is an agency of the Department of
Interior.
Forest Service is an agency of USDA.
Forest ecosystem means a dynamic set of living organisms, including
plants, animals, and microorganisms interacting among themselves and
with the environment in which they live. A forest ecosystem is
characterized by predominance of trees, and by the fauna, flora, and
ecological cycles (energy, water, carbon, and nutrients).
HFRP restoration plan means the document that identifies the
conservation treatments that are scheduled for application to land
enrolled in HFRP in accordance with NRCS standards and specifications.
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 (85 Stat. 688, 43 U.S.C.
1601 et seq.), which is recognized as eligible for the special programs
and services provided by the United States to Indians because of their
status as Indians.
Landowner means an individual or entity having legal ownership of
land. The term landowner may also include all forms of collective
ownership including joint tenants, tenants in common, and life tenants.
Landowner protections means protections and assurances made
available by NRCS to HFRP participants, when requested, and whose
voluntary conservation activities result in a net conservation benefit
for listed, candidate, or other species and meet other requirements of
the program. These Landowner Protections are subject to a HFRP
restoration plan and associated cost-share agreement, 30-year contract,
or easement being properly implemented. Landowner protections made
available by the Secretary of Agriculture to HFRP participants may
include an incidental take authorization received by NRCS from FWS or
NMFS, or may be provided by a Safe Harbor Agreement (SHA) or CCAA
directly between the HFRP participant and FWS or NMFS, as appropriate.
Liquidated damages means a sum of money stipulated in the HFRP
restoration agreement that the participant agrees to pay NRCS if the
participant fails to adequately complete the terms of the restoration
agreement. The sum represents an estimate of the expenses incurred by
NRCS to service the restoration agreement, and reflects the
difficulties of proof of loss and the inconvenience or non-feasibility
of otherwise obtaining an adequate remedy.
Maintenance means work performed to keep the applied conservation
practice functioning for the intended purpose during its life span.
Maintenance includes work to prevent deterioration of the practice,
repairing damage, or replacement of the practice to its original
condition if one or more components fail.
Measure means one or more specific actions that is not a
conservation practice, but has the effect of alleviating problems or
improving the treatment of the resources.
National Marine Fisheries Service is an agency of the United States
Department of Commerce.
Natural Resources Conservation Service is an agency of USDA which
has the responsibility for administering HFRP.
Participant means a person, entity, or Indian tribe who is a party
to a 10-year cost share agreement, 30-year contract, or an agreement to
purchase an easement.
Private land means land that is not owned by a local, State, or
Federal governmental entity, and includes land that meets the
definition of ``acreage owned by Indian tribes.''
Restoration means implementing any conservation practice
(vegetative, management, or structural) or measure that improves forest
ecosystem values and functions (native and natural plant communities).
Restoration agreement means a cost-share agreement between the
program participant and NRCS to restore, enhance, and protect the
functions and values of a forest ecosystem for the purposes of HFRP
under either an easement, 30-year contract, or a 10-year cost-share
agreement enrollment option.
Safe Harbor Agreement means a voluntary arrangement between FWS or
NMFS and cooperating non-Federal landowners under the authority of
section 10(a)(1) of the Endangered Species Act of 1973, 16 U.S.C.
1539(a)(1). Under the SHA and an associated enhancement of survival
permit, the private property owner implements actions that are
consistent with the conditions of the permit. SHAs with FWS are also
subject to regulations at 50 CFR 17.22(c) for endangered species or 50
CFR 17.32(c) for threatened species, or applicable subsequent
regulations.
State-listed species means a species listed as threatened or
endangered under State endangered species laws, a candidate for such
listing, or a species listed in a State Wildlife Action Plan as a
Species of Greatest Conservation Need.
Sign-up notice means the public notification document that NRCS
provides to describe the particular requirements for a specific HFRP
sign-up.
State Conservationist means the NRCS employee authorized to
implement HFRP and direct and supervise NRCS activities in a State,
Caribbean Area, or Pacific Islands Area.
Technical service provider means an individual, private-sector
entity, or public agency certified by NRCS to provide technical
services to program participants in lieu of or on behalf of NRCS.
Sec. 625.3 Administration.
(a) The regulations in this part will be administered under the
general supervision and direction of the Chief.
(b) The Chief may modify or waive a provision of this part if the
Chief determines that the application of such provision to a particular
limited situation is inappropriate and inconsistent with the goals of
the program. This authority cannot be further delegated. The Chief may
not modify or waive any provision of this part which is required by
applicable law.
(c) No delegation in this part to lower organizational levels will
preclude the Chief from determining any issue arising under this part
or from reversing or modifying any determination arising from this
part.
(d) The State Conservationist will develop a list of eligible
restoration practices, payment rates and cost-share percentages, a
priority ranking process, and any related technical matters.
(e) NRCS will coordinate with FWS and NMFS in the implementation of
the program and in establishing program policies. In carrying out this
program, NRCS may confer with private forest landowners, including
Indian tribes, the Forest Service and other Federal agencies, State
fish and wildlife agencies, State forestry agencies, State
environmental quality agencies, other State conservation agencies, and
nonprofit conservation organizations. No determination by the FWS,
NMFS, Forest Service, any Federal, State, or
[[Page 6548]]
tribal agency, conservation district, or other organization will compel
NRCS to take any action which NRCS determines will not serve the
purposes of the program established by this part.
Sec. 625.4 Program requirements.
(a) General. Under the HFRP, NRCS will purchase conservation
easements from, or enter into 30-year contracts or 10-year cost-share
agreements with, eligible landowners who voluntarily cooperate in the
restoration and protection of forestlands and associated lands. To
participate in HFRP, a landowner will agree to the implementation of a
HFRP restoration plan, the effect of which is to restore, protect,
enhance, maintain, and manage the habitat conditions necessary to
increase the likelihood of recovery of listed species under the ESA, or
measurably improve the well-being of species that are not listed as
endangered or threatened under the ESA but are candidates for such
listing, State-listed species, or species identified by the Chief for
special consideration for funding. NRCS may provide cost-share
assistance for the activities that promote the restoration, protection,
enhancement, maintenance, and management of forest ecosystem functions
and values. Specific restoration, protection, enhancement, maintenance,
and management activities may be undertaken by the landowner or other
NRCS designee.
(1) Of the total amount of funds expended under the program for a
fiscal year to acquire easements and enter into 10-year cost-share
agreements, not more than 40 percent will be used for cost-share
agreements, and not more than 60 percent will be used for easements.
(2) The Chief may use any funds that are not obligated by April 1
of the fiscal year for which the funds are made available to carry out
a different method of enrollment during that fiscal year.
(b) Landowner eligibility. To be eligible to enroll an easement in
the HFRP, an individual or entity must:
(1) Be the landowner of eligible land for which enrollment is
sought; and
(2) Agree to provide such information to NRCS, as the agency deems
necessary or desirable, to assist in its determination of eligibility
for program benefits and for other program implementation purposes.
(c) Eligible land.
(1) NRCS, in coordination with FWS or NMFS, will determine whether
land is eligible for enrollment and whether once found eligible, the
lands may be included in the program based on the likelihood of
successful restoration, enhancement, and protection of forest ecosystem
functions and values when considering the cost of acquiring the
easement, 30-year contract, or 10-year cost share agreement, and the
restoration, protection, enhancement, maintenance, and management
costs.
(2) Land will be considered eligible for enrollment in the HFRP
only if NRCS determines that:
(i) Such private land will contribute to the restoration or
enhancement of the habitat or otherwise measurably increase the
likelihood of recovery for a selected species listed under section 4 of
the ESA; and
(ii) Such private land will contribute to the restoration or
enhancement of the habitat or otherwise measurably improve the well-
being of a selected species not listed under section 4 of the ESA but
is a candidate for such listing, or the selected species is a State-
listed species, or is a species identified by the Chief for special
consideration for funding.
(3) NRCS may also enroll land adjacent to eligible land if the
enrollment of such adjacent land would contribute significantly to the
practical administration of the easement area, but not more than it
determines is necessary for such contribution.
(4) To be enrolled in the program, eligible land must be configured
in a size and with boundaries that allow for the efficient management
of the area for easement purposes and otherwise promote and enhance
program objectives.
(5) In the case of acreage owned by an Indian tribe, NRCS may
enroll acreage into the HFRP which is privately owned by either the
tribe or an individual.
(d) Ineligible land. The following land is not eligible for
enrollment in the HFRP:
(1) Land owned by the United States, States, or units of local
government;
(2) Land subject to an easement or deed restriction that already
provides for the protection of fish and wildlife habitat or that would
interfere with HFRP purposes, as determined by NRCS; and
(3) Land that would not be eligible for HFRP under paragraphs
(c)(1) through (c)(5).
Sec. 625.5 Application procedures.
(a) Sign-up process. As funds are available, the Chief will solicit
project proposals from the State Conservationist. The State
Conservationist may consult with other agencies at the State, Federal,
and local levels to develop proposals. The State Conservationist will
submit the proposal(s) to the Chief for funding selection. Upon
selection for funding, the State Conservationist will issue a public
sign-up notice which will announce and explain the rationale for
decisions based on the following information:
(1) The geographic scope of the sign-up;
(2) Any additional program eligibility criteria that are not
specifically listed in this part;
(3) Any additional requirements that participants must include in
their HFRP applications that are not specifically identified in this
part;
(4) Information on the priority order of enrollment for funding;
(5) An estimate of the total funds NRCS expects to obligate during
a given sign-up; and
(6) The schedule for the sign-up process, including the deadline(s)
for applying.
(b) Application for participation. To apply for enrollment through
an easement, 30-year contract, or 10-year cost-share agreement, a
landowner must submit an application for participation in the HFRP
during an announced period for such sign-up.
(c) Preliminary agency actions. By filing an application for
participation, the applicant consents to an NRCS representative
entering upon the land for purposes of determining land eligibility,
and for other activities that are necessary or desirable for NRCS to
make offers of enrollment. The applicant is entitled to accompany an
NRCS representative on any site visits.
(d) Voluntary reduction in compensation. In order to enhance the
probability of enrollment in HFRP, an applicant may voluntarily offer
to accept a lesser payment than is being offered by NRCS. Such offer
and subsequent payments may not be less than those rates set forth in
Sec. 625.8 and Sec. 625.10 of this part.
Sec. 625.6 Establishing priority for enrollment in HFRP.
(a) Ranking considerations. Based on the specific criteria set
forth in a sign-up announcement and the applications for participation,
NRCS, in coordination FWS and NMFS, may consider the following factors
to rank properties:
(1) Estimated conservation benefit to habitat required by
threatened or endangered species listed under section 4 of the ESA;
(2) Estimated conservation benefit to habitat required by species
not listed as endangered or threatened under section 4 of the ESA but
that are candidates for such listing, State-listed species, or species
identified by the Chief for special consideration for funding;
(3) Estimated improvement of biological diversity, if enrolled;
[[Page 6549]]
(4) Potential for increased capability of carbon sequestration, if
enrolled;
(5) Availability of contribution of non-Federal funds;
(6) Significance of forest ecosystem functions and values;
(7) Estimated cost-effectiveness of the particular restoration
cost-share agreement, contract, or easement, and associated HFRP
restoration plan; and
(8) Other factors identified in a HFRP sign-up notice.
(b) NRCS may place higher priority on certain forest ecosystems
based regions of the State or multi-State area where restoration of
forestland may better achieve NRCS programmatic and sign-up goals and
objectives.
(c) Notwithstanding any limitation of this part, NRCS may enroll
eligible lands at any time in order to encompass project areas subject
to multiple land ownership or otherwise to achieve program objectives.
Similarly, NRCS may, at any time, exclude otherwise eligible lands if
the participation of the adjacent landowners is essential to the
successful restoration of the forest ecosystem and those adjacent
landowners are unwilling to participate.
(d) 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, NRCS may select a lower
ranked application that can be fully funded. In cases where HFRP funds
are not sufficient to cover the costs of an application selected for
funding, the applicant may lower the cost of the application by
changing the duration of the easement or agreement or reducing the
acreage offered, unless these changes result in a reduction of the
application ranking score below that of the score of the next available
application on the ranking list.
Sec. 625.7 Enrollment of easements, contracts, and agreements.
(a) Offers of enrollment. Based on the priority ranking, NRCS will
notify an affected landowner of tentative acceptance into the program.
This notice of tentative acceptance into the program does not bind NRCS
or the United States to enroll the proposed project in HFRP, nor does
it bind the landowner to convey an easement, or to contract or agree to
HFRP activities. The letter notifies the landowner that NRCS intends to
continue the enrollment process on their land unless otherwise notified
by the landowner.
(b) Acceptance of offer of enrollment. An agreement to purchase or
a restoration cost-share agreement or contract will be presented by
NRCS to the landowner which will describe the easement, agreement, or
contract area; the easement, agreement, or contract terms and
conditions; and other terms and conditions for participation that may
be required by NRCS.
(c) Effect of the acceptance of the offer. After the agreement to
purchase or restoration cost-share agreement or contract is executed by
NRCS and the landowner, the land will be considered enrolled in the
HFRP. For easements, NRCS will proceed with various easement
acquisition activities, which may include conducting a survey of the
easement area, securing necessary subordination agreements, procuring
title insurance, and conducting other activities necessary to record
the easement or implement the HFRP, as appropriate for the enrollment
option being considered. For restoration cost-share agreements and
contracts, the landowner will proceed to implement the restoration plan
with technical assistance and cost-share from NRCS.
(d) Withdrawal of offers. Prior to execution of an agreement to
purchase, a restoration cost-share agreement, or contract between the
United States and the landowner, NRCS may withdraw the land from
enrollment at any time due to lack of availability of funds, inability
to clear title, or other reasons. An agreement to purchase will be
void, and the offer withdrawn, if not executed by the landowner within
the time specified.
Sec. 625.8 Compensation for easements and 30-year contracts.
(a) Determination of easement payment rates.
(1) NRCS will offer to pay not less than 75 percent, nor more than
100 percent of the fair market value of the enrolled land during the
period the land is subject to the easement, less the fair market value
of the land encumbered by the easement for permanent easements or
easements for the maximum duration allowed under State law.
(2) NRCS will offer to pay not more than 75 percent of the fair
market value of the enrolled land, less the fair market value of the
land encumbered by the easement for 30-year easements or 30-year
contracts.
(b) Acceptance and use of contributions. NRCS may accept and use
contributions of non-Federal funds to make payments under this section.
(c) Acceptance of offered easement or 30-year contract
compensation.
(1) NRCS will not acquire any easement or 30-year contract unless
the landowner accepts the amount of the payment that is offered by
NRCS. The payment may or may not equal the fair market value of the
interests and rights to be conveyed by the landowner under the easement
or 30-year contract. By voluntarily participating in the program, a
landowner waives any claim to additional compensation based on fair
market value.
(2) Payments may be made in a single payment or no more than 10
annual payments of equal or unequal size, as agreed to between NRCS and
the landowner.
(d) If a landowner believes they may be eligible for a bargain sale
tax deduction that is the difference between the fair market value of
the easement conveyed to the United States and the easement payment
made to the landowner, it is the landowner's responsibility to discuss
those matters with the Internal Revenue Service. NRCS disclaims any
representations concerning the tax implications of any easement or
cost-share transaction.
(e) Per acre payments. If easement payments are calculated on a per
acre basis, adjustment to stated easement payment will be made based on
final determination of acreage.
(f) Ecosystem Services Credits for Conservation Improvements. USDA
recognizes that environmental benefits will be achieved by implementing
conservation practices and activities funded through HFRP, and that
environmental credits may be gained as a result of implementing
activities compatible with the purposes of a HFRP easement, 30-year
contract, or restoration cost-share agreement. NRCS asserts no direct
or indirect interest in these credits. However, NRCS retains the
authority to ensure the requirements of a HFRP easement, contract,
cost-share agreement, or restoration plan are met consistent with
Sec. Sec. 625.9 through 625.13 of this part. Where activities required
under an environmental credit agreement may affect land covered under a
HFRP easement, restoration cost-share agreement, or 30-year contract,
participants are highly encouraged to request a compatibility
assessment from NRCS prior to entering into such agreements.
Sec. 625.9 10-year restoration cost-share agreements.
(a) The restoration plan developed under Sec. 625.13 forms the
basis for the 10-year cost-share agreement and its terms are
incorporated therein.
(b) A 10-year cost-share agreement will:
(1) Incorporate all portions of a restoration plan;
(2) Be for a period of 10 years;
(3) Include all provisions as required by law or statute;
[[Page 6550]]
(4) Specify the requirements for operation and maintenance of
applied conservation practices;
(5) Include any participant reporting and recordkeeping
requirements to determine compliance with the agreement and HFRP;
(6) Be signed by the participant;
(7) Identify the amount and extent of cost-share assistance that
NRCS will provide for the adoption or implementation of the approved
conservation treatment identified in the restoration plan; and
(8) Include any other provision determined necessary or appropriate
by the NRCS representative.
(c) Once the participant and NRCS have signed a 10-year cost-share
agreement, the land will be considered enrolled in HFRP.
(d) The State Conservationist may, by mutual agreement with the
parties to the 10-year cost-share agreement, consent to the termination
of the restoration agreement where:
(1) The parties to the 10-year cost-share agreement are unable to
comply with the terms of the restoration agreement as the result of
conditions beyond their control;
(2) Compliance with the terms of the 10-year cost-share agreement
would work a severe hardship on the parties to the agreement; or
(3) Termination of the 10-year cost-share agreement would, as
determined by the State Conservationist, be in the public interest.
(e) If a 10-year cost-share agreement is terminated in accordance
with the provisions of this section, the State Conservationist may
allow the participants to retain any cost-share payments received under
the 10-year cost-share agreement where forces beyond the participant's
control prevented compliance with the agreement.
Sec. 625.10 Cost-share payments.
(a) NRCS may share the cost with landowners of restoring land
enrolled in HFRP as provided in the HFRP restoration plan. The HFRP
restoration plan may include periodic manipulation to maximize fish and
wildlife habitat and preserve forest ecosystem functions and values,
and measures that are needed to provide the Landowner Protections under
section 7(b)(4) or section 10(a)(1) of the ESA, including the cost of
any permit.
(b) Landowner Protections may be made available to landowners
enrolled in the HFRP who agree, for a specified period, to restore,
protect, enhance, maintain, and manage the habitat conditions on their
land in a manner that is reasonably expected to result in a net
conservation benefit that contributes to the recovery of listed species
under the ESA, candidate, or other species covered by this regulation.
These protections operate with lands enrolled in the HFRP and are valid
for as long as the landowner is in compliance with the terms and
conditions of such assurances, any associated permit, the easement,
contract, or the restoration agreement.
(c) If the Landowner Protections, or any associated permit, require
the adoption of a conservation practice or measure in addition to the
conservation practices and measures identified in the applicable HFRP
restoration plan, NRCS and the landowner will incorporate the
conservation practice or measure into the HFRP restoration plan as an
item eligible for cost-share assistance.
(d) Failure to perform planned management activities can result in
violation of the easement, 10-year cost-share agreement, or the
agreement under which Landowner Protections have been provided. NRCS
will work with landowners to plan appropriate management activities.
(e) The amount and terms and conditions of the cost-share
assistance will be subject to the following restrictions on the costs
of establishing or installing NRCS approved conservation practices or
implementing measures specified in the HFRP restoration plan:
(1) On enrolled land subject to a permanent easement or an easement
for the maximum duration allowed under State law, NRCS will offer to
pay not less than 75 percent nor more than 100 percent of the average
cost, and;
(2) On enrolled land subject to a 30-year easement or 30-year
contract, NRCS will offer to pay not more than 75 percent of the
average cost.
(f) On enrolled land subject to a 10-year cost-share agreement
without an associated easement, NRCS will offer to pay not more than 50
percent of the average costs.
(g) Cost-share payments may be made only upon a determination by
NRCS that an eligible conservation practice or measure has been
established in compliance with appropriate standards and
specifications. Identified conservation practices and measures may be
implemented by the landowner or other designee.
(h) Cost-share payments may be made for the establishment and
installation of additional eligible conservation practices and
measures, or the maintenance or replacement of an eligible conservation
practice or measure, but only if NRCS determines the practice or
measure is needed to meet the objectives of HFRP, and the failure of
the original conservation practices or measures was due to reasons
beyond the control of the landowner.
Sec. 625.11 Easement participation requirements.
(a) To enroll land in HFRP through a permanent easement, an
easement for the maximum duration allowed under State law, or 30-year
enrollment option, a landowner will grant an easement to the United
States. The easement deed will require that the easement area be
maintained in accordance with HFRP goals and objectives for the
duration of the term of the easement, including the restoration,
protection, enhancement, maintenance, and management of habitat and
forest ecosystem functions and values.
(b) For the duration of its term, the easement will require, at a
minimum, that the landowner and the landowner's heirs, successors, and
assignees, will cooperate in the restoration, protection, enhancement,
maintenance, and management of the land in accordance with the easement
and with the terms of the HFRP restoration plan. In addition, the
easement will grant to the United States, through NRCS:
(1) A right of access to the easement area by NRCS or its
representative;
(2) The right to determine and permit compatible uses on the
easement area and specify the amount, method, timing, intensity, and
duration of the compatible use, if such use is consistent with the
long-term protection and enhancement of the purposes for which the
easement was established;
(3) The rights, title, and interest to the easement area as
specified in the conservation easement deed; and
(4) The right to perform restoration, protection, enhancement,
maintenance, and management activities on the easement area.
(c) The landowner will convey title to the easement which is
acceptable to NRCS. The landowner will warrant that the easement
granted to the United States is superior to the rights of all others,
except for exceptions to the title which are deemed acceptable by NRCS.
(d) The landowner will:
(1) Comply with the terms of the easement;
(2) Comply with all terms and conditions of any associated
agreement or contract;
(3) Agree to the long-term restoration, protection, enhancement,
maintenance, and management of the easement in accordance with the
terms of the easement and related agreements;
[[Page 6551]]
(4) Have the option to enter into an agreement with governmental or
private organizations to assist in carrying out any landowner
responsibilities on the easement area; and
(5) Agree that each person who is subject to the easement will be
jointly and severally responsible for compliance with the easement and
the provisions of this part, and for any refunds or payment adjustment
which may be required for violation of any terms or conditions of the
easement or the provisions of this part.
Sec. 625.12 30-year contracts.
(a) To enroll land in HFRP through the 30-year contract option, a
landowner will sign a 30-year contract with NRCS. The contract will
require that the contract area be maintained in accordance with HFRP
goals and objectives for the duration of the term of the contract,
including the restoration, protection, enhancement, maintenance, and
management of habitat and forest ecosystem functions and values.
(b) For the duration of its term, the 30-year contract will
require, at a minimum, that the landowner and the landowner's
assignees, will cooperate in the restoration, protection, enhancement,
maintenance, and management of the land in accordance with the contract
and with the terms of the HFRP restoration plan. In addition, the
contract will grant to the United States through NRCS:
(1) A right of access to the contract area by NRCS or its
representative;
(2) The right to allow such activities by the landowner as hunting
and fishing, managed timber harvest, or periodic haying or grazing, if
such use is consistent with the long-term protection and enhancement of
the purposes for which the contract was established;
(3) The right to specify the amount, method, timing, intensity, and
duration of the activities listed in paragraph (b)(2) of this section,
as incorporated into the terms of the contract; and
(4) The right to perform restoration, protection, enhancement,
maintenance, and management activities on the contract area.
(c) The landowner will:
(1) Comply with the terms of the contract;
(2) Comply with all terms and conditions of any associated
agreement or contract; and
(3) Agree to the long-term restoration, protection, enhancement,
maintenance, and management of the contract area in accordance with the
terms of the contract and related agreements.
(d) A 30-year contract will:
(1) Be signed by the participant;
(2) Identify the amount and extent of cost-share assistance that
NRCS will provide for the adoption or implementation of the approved
conservation treatment identified in the restoration plan; and
(3) Include any other provision determined necessary or appropriate
by the NRCS representative.
(e) Once the landowner and NRCS have signed a 30-year contract, the
land will be considered enrolled in HFRP.
Sec. 625.13 The HFRP restoration plan development and Landowner
Protections.
(a) The development of the HFRP restoration plan will be made
through an NRCS representative, who will confer with the program
participant and with the FWS and NMFS, as appropriate.
(b) The HFRP restoration plan will specify the manner in which the
enrolled land under easement, 30-year contract, or 10-year cost-share
agreement will be restored, protected, enhanced, maintained, and
managed to accomplish the goals of the program.
(c) Eligible restoration practices and measures may include land
management, vegetative, and structural practices and measures that will
restore and enhance habitat conditions for listed species, candidate,
State-listed, and other species identified by the Chief for special
funding consideration. To the extent practicable, eligible practices
and measures will improve biodiversity and optimize the sequestration
of carbon through management that maintains diverse and high quality
native forests to accomplish the goals of the restoration plan. NRCS,
in coordination with FWS and NMFS, will determine the conservation
practices and measures. The State Conservationist will develop and make
available to the public a list of eligible practices, and will
determine payment rates and cost-share percentages within statutory
limits.
(d) Landowner Protections. An HFRP participant who enrolls land in
HFRP and whose conservation treatment results in a net conservation
benefit for listed, candidate, or other species, may request such
Landowner Protections as follows:
(1) Incidental Take Authorization.
(i) NRCS will extend to participants the incidental take
authorization received by NRCS from FWS or NMFS through biological
opinions issued as part of the interagency cooperation process under
section 7(a)(2) of the ESA;
(ii) NRCS will provide assurances, as a provision of the
restoration plan, that when a participant is provided authorization for
incidental take of a listed species, NRCS will not require management
activities related to that species to be undertaken in addition to or
different from those specified in the restoration plan without the
participant's consent;
(iii) The program participant will be covered by the authorization
to NRCS for incidental take associated with restoration actions or
management activities. The incidental take may include a return to
baseline conditions at the end of the applicable period, if the
landowner so desires.
(iv) Provided the landowner has acted in good faith and without
intent to violate the terms of the HFRP restoration plan, NRCS will
pursue all appropriate options with the participant to avoid
termination in the event of the need to terminate an HFRP restoration
plan that is being properly implemented; and
(v) If the 30-year contract or 10-year restoration cost-share
agreement is terminated, any requested assurances, including an
incidental take authorization under this section, provided by NRCS will
be voided. As such, the landowner will be responsible to FWS or NMFS
for any violations of the ESA.
(2) SHA or CCAA.
(i) NRCS will provide technical assistance to help participants
design and use their HFRP restoration plan for the dual purposes of
qualifying for HFRP financial assistance and as a basis for entering
into a SHA or CCAA with FWS or NMFS and receiving an associated permit
under section 10(a)(1)(a) of the ESA.
(ii) In exchange for a commitment to undertake conservation
measures, the landowner may receive a permit under section 10 of the
ESA from FWS or NMFS authorizing incidental take of species covered by
the SHA or CCAA that may occur as a result of restoration actions,
management activities, and for a listed species covered by a SHA, a
return to baseline conditions at the end of the applicable period.
(iii) All SHAs and associated permits issued by FWS or NMFS are
subject to the Safe Harbor Policy jointly adopted by FWS and NMFS
according to the regulations at 64 FR 32717 or applicable subsequently
adopted policy, and SHAs with FWS also are subject to regulations at 50
CFR 17.22(c) for endangered species or 50 CFR 17.32(c) for threatened
species, or applicable subsequent regulations.
(iv) All CCAAs and associated permits issued by FWS or NMFS are
subject to the CCAAs policy jointly adopted by FWS and NMFS according
to the
[[Page 6552]]
regulations at 64 FR 32706 or applicable subsequently adopted policy,
and CCAAs with FWS also are subject to regulations at 50 CFR 17.22(d)
for endangered species or 50 CFR 17.32(d) for threatened species, or
applicable subsequent regulations.
(v) If the 30-year contract or 10-year restoration cost-share
agreement is terminated, the landowner will be responsible to notify
and coordinate with FWS and NMFS or any other relevant party to the
specific SHA or CCAA, as appropriate, for any modifications related to
the SHA or CCAA.
Sec. 625.14 Modification of the HFRP restoration plan.
The State Conservationist may approve modifications to the HFRP
restoration plan that do not modify or void provisions of the easement,
contract, restoration agreement, or Landowner Protections, and are
consistent with applicable law. NRCS may obtain and receive input from
the landowner and coordinate with FWS and NMFS to determine whether a
modification to the restoration plan is justified. Any HFRP restoration
plan modification must meet HFRP program objectives, and must result in
equal or greater wildlife benefits and ecological and economic values
to the United States. Modifications to the HFRP restoration plan which
are substantial and affect provisions of the contract, restoration
cost-share agreement, or Landowner Protections will require agreement
from the landowner, any relevant party to a specific SHA or CCAA, FWS,
or NMFS, as appropriate, and may require execution of an amended
contract or 10-year restoration cost-share agreement and modification
to the Landowner Protection provisions.
Sec. 625.15 Transfer of land.
(a) Offers voided prior to enrollment. Any transfer of the property
prior to the applicant's acceptance into the program will void the
offer of enrollment. At the option of the State Conservationist, an
offer can be extended to the new landowner if the new landowner agrees
to the same or more restrictive easement, agreement, and contract terms
and conditions.
(b) Actions following transfer of land.
(1) For easements or 30-year contracts with multiple annual
payments, any remaining payments will be made to the original landowner
unless NRCS receives an assignment of proceeds.
(2) Eligible cost-share payments will be made to the new landowner
upon presentation of an assignment of rights or other evidence that
title has passed.
(3) Landowner protections will be available to the new landowner,
and the new landowner will be held responsible for assuring completion
of all measures and conservation practices required by the contract,
deed, and incidental take permit.
(4) If a SHA or CCAA is involved, the previous and new landowner
may coordinate with FWS or NMFS, as appropriate, to transfer the
agreement and associated permits and assurances.
(5) The landowner and NRCS may agree to transfer a 30-year
contract. The transferee must be determined by NRCS to be eligible to
participate in HFRP and must assume full responsibility under the
contract, including operation and maintenance of all conservation
practices and measures required by the contract.
(c) Claims to payments. With respect to any and all payments owed
to a person, the United States will bear no responsibility for any full
payments or partial distributions of funds between the original
landowner and the landowner's successor. In the event of a dispute or
claim on the distribution of cost-share payments, NRCS may withhold
payments without the accrual of interest pending an agreement or
adjudication on the rights to the funds.
Sec. 625.16 Violations and remedies.
(a) Easement Violations.
(1) In the event of a violation of the easement or any associated
agreement involving a landowner, the landowner will be given reasonable
notice and an opportunity to voluntarily correct the violation within
30 days of the date of the notice, or such additional time as the State
Conservationist determines is necessary to correct the violation.
(2) Notwithstanding paragraph (a)(1) of this section, NRCS reserves
the right to enter upon the easement area at any time to remedy
deficiencies or easement violations. Such entry may be made at the
discretion of NRCS when such actions are deemed necessary to protect
important listed species, candidate species, and forest ecosystem
functions and values or other rights of the United States under the
easement. The landowner will be liable for any costs incurred by the
United States as a result of the landowner's negligence or failure to
comply with easement or contractual obligations.
(3) In addition to any and all legal and equitable remedies as may
be available to the United States under applicable law, NRCS may
withhold any easement and cost-share payments owed to landowners at any
time there is a material breach of the easement covenants, associated
restoration agreement, or any associated 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.
(4) The United States will be entitled to recover any and all
administrative and legal costs, including attorney's fees or expenses,
associated with any enforcement or remedial action.
(b) 30-year Contract and 10-year Cost-Share Agreement Violations.
(1) If NRCS determines that a participant is in violation of the
terms of a 30-year contract, or 10-year cost-share agreement, or
documents incorporated by reference into the 30-year contract or 10-
year cost-share agreement, the landowner will be given reasonable
notice and an opportunity to voluntarily correct the violation within
30 days of the date of the notice, or such additional time as the State
Conservationist determines is necessary to correct the violation. If
the violation continues, the State Conservationist may terminate the
30-year contract or 10-year cost-share agreement.
(2) Notwithstanding the provisions of paragraph (b)(1) of this
section, a 10-year cost-share agreement or 30-year contract termination
is effective immediately upon a determination by the State
Conservationist that the participant has: submitted false information;
filed a false claim; engaged in any act for which a finding of
ineligibility for payments is permitted under this part; or taken
actions NRCS deems to be sufficiently purposeful or negligent to
warrant a termination without delay.
(3) If NRCS terminates a 10-year cost-share agreement or 30-year
contract, the participant will forfeit all rights for future payments
under the 10-year cost-share agreement or 30-year contract, and must
refund all or part of the payments received, plus interest, and
liquidated damages.
(4) When making any 30-year contract or 10-year cost-share
agreement termination decisions, the State Conservationist may provide
equitable relief in accordance with 7 CFR part 635.
Sec. 625.17 Payments not subject to claims.
Any cost-share, contract, or easement payment or portion thereof
due any person under this part will be allowed without regard to any
claim or lien in favor of any creditor, except agencies of the United
States Government.
Sec. 625.18 Assignments.
Any person entitled to any cash payment under this program may
assign
[[Page 6553]]
the right to receive such cash payments in whole or in part.
Sec. 625.19 Appeals.
(a) A person participating in the HFRP may obtain a review of any
administrative determination concerning eligibility for participation
utilizing the administrative appeal regulations provided in 7 CFR parts
11 and 614.
(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 purposes of judicial
review, no decision will be a final agency action except a decision of
the Chief 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 will 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. 625.20 Scheme and device.
(a) If it is determined by NRCS that a person has employed a scheme
or device to defeat the purposes of this part, any part of any program
payment otherwise due or paid to such person during the applicable
period may be withheld or be required to be refunded with interest
thereon, as determined appropriate by NRCS.
(b) A scheme or device includes, but is not limited to, coercion,
fraud, misrepresentation, depriving any other person of payments for
10-year cost-share agreements, contracts, or easements for the purpose
of obtaining a payment to which a person would otherwise not be
entitled.
(c) A person who succeeds to the responsibilities under this part
will report in writing to NRCS 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 4th day of February, 2010, in Washington, DC.
Dave White,
Chief, Natural Resources Conservation Service.
[FR Doc. 2010-2812 Filed 2-9-10; 8:45 am]
BILLING CODE 3410-16-P