Federal Register: January 14, 2009 (Volume 74, Number 9)

DOCID: fr14ja09-18 FR Doc E9-506

DEPARTMENT OF AGRICULTURE

Natural Resources Conservation Service

CFR Citation: 7 CFR Part 625

RIN ID: RIN 0578-AA52

NOTICE: PROPOSED RULES

DOCID: fr14ja09-18

DOCUMENT ACTION: Proposed rule; request for comment.

SUBJECT CATEGORY:

Healthy Forests Reserve Program

DATES: Comments must be received on or before February 13, 2009. Comments will be made available to the public or posted publicly in their entirety.

DOCUMENT SUMMARY:

On May 17, 2006, NRCS published an interim final rule for the Healthy Forests Reserve Program (HFRP) and received 11 comment letters. NRCS proposes to amend this rule to incorporate changes associated with enactment of the Food, Conservation, and Energy Act of 2008 (the 2008 Act). The 2008 Act authorizes $9,750,000 for each of the fiscal years 2009 through 2012 to carry out the program. As a result of the 2008 Act, NRCS will allow land enrollment through permanent easements, or easements for a maximum duration allowed under state law and continue to allow enrollment through 10year costshare agreements; and allow enrollment of land owned by tribes or members of tribes in 30year contracts or 10year costshare agreements, or any combination of both. Forty percent of program expenditures in any fiscal year will be used for restoration costshare agreement enrollment and 60 percent of program expenditures in any fiscal year will be for easement enrollment.

In addition to changes associated with the 2008 Act, NRCS is addressing comments received on the interim final rule and proposing additional changes that improve program implementation based on the experience gained from the HRFP implementation under the interim final rule.

SUMMARY:

Healthy Forests Reserve Program

SUPPLEMENTAL INFORMATION

Regulatory Certifications

Executive Order 12866

The Office of Management and Budget (OMB) determined that this proposed 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. 103354), USDA classified this rule as nonmajor. Therefore, a risk analysis was not conducted.

Regulatory Flexibility Act

Pursuant to 5 U.S.C. 605(c) of the Regulatory Flexibility Act, this proposed rule will not have a significant economic impact on a substantial number of small entities as defined by that Act. Therefore, a regulatory flexibility analysis is not required for this proposed rule. This proposed rule would amend the HFRP, which involves the voluntary acquisition of interests in property by NRCS.

Small Business Regulatory Enforcement Fairness Act of 1996

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

The 30day comment period associated with this rulemaking will provide the public the opportunity to comment on the changes to this regulation. To ensure that NRCS has the regulatory framework in place to implement the Food, Conservation, and Energy Act of 2008 (the 2008 Act), Public Law 110246, for a fiscal year 2009 signup, NRCS has determined that a 30 day comment period is necessary.

Environmental Analysis

The proposed rule for the Healthy Forests Reserve Program amends the current regulation to include congressionally required statutory changes to the program as a result of the Food, Conservation, and Energy Act of 2008 (the 2008 Act), Public Law 110246. The 2008 Act changes the enrollment options for acreage owned by Indian tribes. In addition to using 10year costshare agreements, Indian Tribes may now enroll lands under a 30year contracts option. The 2008 Act also allows the Natural Resources Conservation Service (NRCS) to acquire permanent easements, and establish limitations on the use of funds for costshare agreements and easements. The proposed rule also amends the regulation in response to comments received by the Agency as a result of a public comment period in 2006; these changes would include language to clarify the Landowner Protections and Safe Harbor Agreements provisions. In addition, the proposed rule makes a number of minor changes to clarify the regulations for the public; such changes include clarifying the enrollment process, providing clear guidance on methods of determination of compensation, providing guidance on the Agency's treatment of ecosystem service credits, and clarifying language on Agency appeals.

After review of the previous Environmental Assessment (EA) prepared in April 2006, it has been determined that the proposed 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 (FONSI) have sufficiently analyzed the program's potential environmental impacts and are inclusive of the proposed rule. Copies of the EA and FONSI impact may be obtained from the National Environmental Coordinator, Natural Resources Conservation Service, Ecological Sciences Division, 1400 Independence Ave., SW., Washington, DC 20250; the Healthy Forests Reserve Program Manager, Easements Programs Division, NRCS, P.O. Box 2890, Room 6813S, Washington, DC 20013; or electronically on the Internet through the NRCS homepage, at http://www.nrcs.usda.gov/ programs/HFRP/ProgInfo/Index.html

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 05780013. 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 hours
  • 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 EFile Act, which require government agencies in general, and NRCS in particular, to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.

    Civil Rights Impact Analysis

    USDA has determined through a Civil Rights Impact Analysis that the issuance of this rule would disclose no disproportionately adverse impacts for minorities, women, or persons with disabilities. Copies of the Civil Rights Impact Analysis are available, and may be obtained from the Director, Easement Programs Division, Natural Resources Conservation Service, P.O. Box 2890, Washington, DC 200132890, or electronically at http://www.nrcs.usda.gov/programs/HFRP. Civil Justice Reform

    This proposed 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, Federalism

    This proposed rule has been reviewed in accordance with the requirements of Executive Order 13132, Federalism. NRCS has determined that this proposed 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 [[Page 1956]]
    the States, or on the distribution of power and responsibilities on the various levels of government. Therefore, NRCS concludes that this proposed rule does not have Federalism implications. Moreover, Sec. 625.5 of this proposed 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. 15311538), NRCS assessed the effects of this proposed rule on State, local, and Tribal governments, and the public. This proposed rule does not compel the expenditure of $100 million or more by any State, local, Tribal governments, or anyone in the private sector; therefore, a statement under section 202 of the Unfunded Mandates Reform Act is not required.
    Executive Order 13175, Consultation and Coordination With Indian Tribal Governments

    NRCS has assessed the impact of this proposed rule on Indian tribes and concluded that this proposed rule will not have a substantial direct effect on one or more Indian tribes. Given the legal complexity of acquiring easements on acreage owned by Indian Tribes, the 2008 Act added an enrollment option, in addition to the 10year costshare agreement option, of offering 30year contracts. This change encourages Indian Tribal participation in the program. The proposed rule at Sec. 625.12, will outline the procedures for enrolling land in the program through the 30year contract option. The rule will neither impose compliance costs on Tribal governments, nor preempt Tribal law. Discussion of Program

    America's forests provide a wide range of environmental, economic, and social benefits including timber, wilderness, minerals, recreation opportunities, and fish 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 ivorybilled 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 Healthy Forests Reserve Program (HFRP), Title V of the Healthy Forest Restoration Act of 2003 (Pub. L. 108148, 16 U.S.C. 65716578, to provide financial assistance to private landowners to undertake projects that restore and enhance forest ecosystems to help promote the recovery of threatened and endangered species, improve biodiversity, and enhance carbon sequestration.

    The Secretary of Agriculture has delegated authority to implement HFRP to the NRCS Chief (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. 108148) provides that the program will be carried out in coordination with the Secretary of the Interior and the Secretary of Commerce. NRCS works closely with the FWS and the 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).
    Proposed Changes to the Regulations Based on the Prior Comment Period

    NRCS published an interim final rule that established the regulations captioned ``Healthy Forests Reserve Program'' in the Federal Register on May 17, 2006 (71 FR 28547). The Agency provided a 90day comment period that ended on August 15, 2006. NRCS received comments from 11 commenters who raised a number of issues. This section discusses all of the relevant comments except for those that expressed agreement with provisions of the interim final rule. Based on the reasons set forth in the interim final rule and this document, NRCS proposes the changes discussed below.

    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 otherwise measurably improve the wellbeing of species that
    (a) are not listed as endangered or threatened under 16 U.S.C. 1533; but
    (b) are candidates for such listing, Statelisted species, or special concern species.

    The authorizing statute further provides at 16 U.S.C. 6572(c) that the Secretary of Agriculture shall give additional consideration to enrollment of eligible land that will improve biological diversity and increase carbon sequestration.

    One Federal agency commenter questioned whether land had to meet both criteria in order to be eligible. While the language of 16 U.S.C. 6572(b) uses ``and'' between both criteria, it has been determined that both categories of land are individually eligible. The interpretation that eligible land must meet both criteria is overly restrictive and is likely to occur rarely. The NRCS interpretation is intended to avoid negatively impacting its ability to achieve the program purposes. This is clarified in 7 CFR 625.4.

    One commenter asserted that eligibility for the HFRP should be limited to nonindustrial private forest lands. No changes were made to the regulations based on this comment because the Agency does not see any basis in the statute for limiting enrollment to nonindustrial private forest lands. As noted above, 16 U.S.C. 6572 provides that any private land (including industrial private forest land) that meets the specified conditions is eligible.

    Commenters asserted that HFRP places too much emphasis on protecting endangered species and too little emphasis on protecting the forest ecosystem. To help change the emphasis, commenters asserted that professional foresters should be heavily involved in ranking proposed sites for the HFRP. No changes were made to the regulations based on this comment. The emphasis on endangered species reflects the purpose of the program detailed in the statute: to promote the recovery of [[Page 1957]]
    threatened and endangered species, to improve biodiversity, and to enhance carbon sequestration. See 16 U.S.C. 6571 and 6572.

    Two commenters questioned why clearcutting was singled out as incompatible with HFRP and asserted that HFRP should allow for clear cutting when it would enhance the longterm forest and wildlife health. No changes were made to the regulations based on these comments. It appears that the commenters referred to an example concerning clear cutting in the preamble of the interim final rule, which indicated that clearcutting may not be a compatible use for enrollment under the HFRP if the purpose was to achieve economic gain at the expense of the forest ecosystem or essential fish and wildlife habitat (71 FR 28551). The discussion was just an example and was not intended to cover all circumstances. Clearcutting may be allowed under HFRP if such activity were designed to help accomplish the purposes of the program.

    A number of commenters made reference to nonforest lands as part of a forest ecosystem. No changes were made to the regulations because nonforest land is eligible to be included if it is part of an eligible forest ecosystem.

    Two commenters asserted that ``forest ecosystems'' eligible for HFRP should not be limited to lands with trees on them, but should include rangelands and other lands that are integral parts of a forest ecosystem and vital to the habitat of species or the enhancement of biodiversity and carbon sequestration. No changes were made to the regulations based on these comments. ``Rangelands and other lands'' described by the commenter are not prohibited from inclusion in HFRP. The statutory provisions at 16 U.S.C. 6572, state that 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 otherwise measurably improve the wellbeing of species that
    (a) Are not listed as endangered or threatened under 16 U.S.C. 1533; but
    (b) are candidates for such listing, Statelisted species, or special concern species.

    With respect to the statutory eligibility for enrollment of private land which would restore, enhance, or otherwise measurably improve the wellbeing of Statelisted species, one commenter asserted that for States that do not have State lists, enrollment eligibility should include lands that provide habitat for G1G2 species recognized by NatureServe and requests made by applicants. No changes were made to the regulations based on this comment. As noted above, the statutory provisions allow for eligibility for enrollment of private land the enrollment of which would restore, enhance, or otherwise measurably improve the wellbeing of ``special concern species.'' This provides a basis for enrolling lands in those States that do not have State lists.

    One commenter asserted that the interim final rule should be changed by adding a definition of ``forestland.'' This comment appears to have been made to help clarify land eligibility. No changes were made to the regulations based on this comment. As noted above, private land that meets the eligibility criteria specified above is eligible for HFRP; the statute does not include a term ``forestland''.

    One commenter asserted that rangelands and other lands that are integral parts of a forest ecosystem and vital to the habitat of species or the enhancement of biodiversity and carbon sequestration, should be eligible for inclusion in the HFRP to the extent that areas covered by trees might be eligible. One commenter asserted that riparian corridors that would protect aquatic species, such as salmon, should be eligible land for HFRP. NRCS did not make any changes to the regulations based on these comments. HFRP does not limit eligible lands to a particular type of private lands. Except as described in Sec. 625.4(d), any type of private land may be eligible for inclusion in HFRP.

    One commenter asserted that NRCS should remove the requirement that eligible property must have access from a public road. No changes were made to the regulations based on this comment. Although the 2006 interim final rule preamble indicated that there must be access to the property from a public road (71 FR 28551 and 28553), the interim final rule text at Sec. 625.11(b)(1) provides merely that the easement shall grant the United States a right of access to the easement area. The Agency affirms the regulatory language that direct access from a public road is not required, if access to the easement area is conveyed to the United States through an acceptable rightofway easement.

    Priority for Enrollment

    The statutory provisions at 16 U.S.C. 6572 set forth priority criteria for enrollment in HFRP. Subsection (f) provides the following regarding enrollment priority:
    (1) SpeciesThe Secretary of Agriculture shall 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, Statelisted species, or special concern species.
    (2) CosteffectivenessThe Secretary of Agriculture shall also consider the costeffectiveness of each agreement or easement, and associated restoration plans, so as to maximize the environmental benefits per dollar expended.

    One commenter asserted that the HFRP should place emphasis on pollinatorrelated enhancements. Another commenter suggested that the HFRP should change the emphasis for enrollment under the HFRP from ``promoting'' the recovery of listed species, ``improving'' biodiversity, and ``enhancing'' carbon sequestration to ``does not detract from'' the recovery of listed species, ``does not detract from biodiversity,'' and ``does not detract from'' carbon sequestration. No changes were made to the regulations based on these comments. The Agency does not have statutory authority to change the emphasis of the HFRP as requested by commenters. However, issues regarding the forest ecosystem and pollinatorrelated enhancements would be considered for purposes of eligibility as set forth above.

    One commenter recommended inclusion of the hardwoods of the Mississippi River and its tributaries and the mesic hardwoods forests of the Appalachian region (including the Cumberland plateau) as a regional forest ecosystem to be included as HFRP focus areas. No changes were made to the regulations based on this comment. Under the provisions of 16 U.S.C. 6572(f), any eligible lands, including those described by the commenter, may be considered if they meet the requirements for enrollment priority.

    One commenter asserted that eligible nonprofit conservation organizations should receive higher priority in application selection. No changes were made to the regulations based on this comment. 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 non profit conservation organizations eligible for participation in HFRP. [[Page 1958]]

    One commenter suggested that affected State Conservationists develop a uniform set of ranking criteria for a particular regional enrollment. No changes were made to the regulations based on this comment because the statute does not give NRCS the discretion to use priorities other than those set forth in 16 U.S.C. 6572. The required ranking considerations are found in the interim final rule at Sec. 625.6. As a matter of policy, the NRCS State Conservationists will 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 10year costshare agreement,
  • A 30year 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 30year contracts or 10year costshare agreements or a combination of the two.

    Two commenters asserted that NRCS should not adopt informal quotas for the three enrollment types. The original HFRP statutory language required that ``the extent to which each enrollment method is used shall be based on the approximate proportion of owner interest expressed in that method in comparison to the other methods.'' No changes were made to the regulations based on these comments. However, the 2008 Act included language specifying that 40 percent of program expenditures in any FY be for restoration costshare agreement enrollment and 60 percent of program expenditures in any FY be for easement enrollment. The 2008 Act allows reallocation if funds are not obligated by April 1st of the FY in which the funds were made available.

    One commenter asserted that HFRP should allow a continuous enrollment process. Although NRCS recognizes that continuous enrollment may be more convenient for some landowners, no changes were made to the regulation based on this comment. Given the limited funding for HFRP, continuous enrollment would increase the administrative costs of implementing the program without providing additional beneficial effects.

    Restoration Plans

    The interim final rule provided that 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 wellbeing of species that are not listed but are candidates for such listing, Statelisted species, or species identified by the Chief for special consideration for funding.

    One commenter asserted that the HFRP should allow existing plans prepared for other forestry and conservation programs to be used to satisfy the requirement for a HFRP restoration plan. No changes were made to the regulations based on this comment because no other plans prepared for other forestry and conservation programs meet the criteria for participation in the HFRP. Further, 16 U.S.C. 6573 requires that the HFRP restoration plan be developed ``jointly, by the landowner and the Secretary of Agriculture, in coordination with the Secretary of the Interior.''

    One commenter asserted that the HFRP should compensate applicants for the use of consulting services for preparing applications. No changes were made to the regulations based on this comment. Under the provisions of 16 U.S.C. 6575, NRCS is responsible for providing, including obtaining from third parties, any needed assistance in preparing the HFRP restoration plan.

    With respect to reviewing and approving restoration plans, three commenters suggested that NRCS use the word ``confer'' instead of ``consult with'' based on the assertion that ``consult with'' could be misinterpreted to have a more formal meaning than intended. The interim final rule defined ``consultation'' or ``consult with'' to mean ``to talk things over for the purpose of providing information; to offer an opinion for consideration; and/or to meet for discussion or to confer, while reserving final decisionmaking authority with NRCS.'' Accordingly, ``consultation'' or ``consult with'' does not refer to a formal process. To avoid confusion, the Agency has eliminated the terms ``consultation'' and ``consult with'' and, instead, without a change in meaning, is using the term ``confer'' as suggested by the commenters. CostShare Payments

    Two commenters asserted that NRCS should use actual costs, including maximum caps, rather than average costs for determining cost share assistance reimbursement rates as allowed under 16 U.S.C. 6574. They assert that the average may be far lower than the actual costs and thereby make full program implementation less likely in those places if landowners are not repaid for their full expenses. No changes were made to the regulation based on these comments. Calculating actual costs would require extensive reviews of each applicant's situation, including review of every relevant receipt. This would significantly increase the administrative workload and reduce the 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.

    Easements

    One commenter asserted that the HFRP should provide for permanent easements. NRCS did not make any changes to the regulations based on this comment. The statute sets forth the methods through which land can be enrolled into the program. The 2008 Act amended the statutory language to allow for the enrollment of permanent easements. This change is discussed along with other statutory changes in a separate section which follows.

    The Agency proposed to use a standard conservation easement deed, termed a negative restricted deed. The Agency specifically requested comments on whether the standard conservation easement deed or the reserved interest deed should be used in HFRP (71 FR 28551). The standard conservation easement deed, termed a negative restricted easement deed, represents an interest in land where the holder of the easement has the right to require the owner of the encumbered land (i.e., the easement area) to take, or not take, specific actions with respect to that land. On the other hand, the reserved interest deed acquires all rights in the property not specifically reserved to the landowner. In response, NRCS received two comments, asserting that the HFRP should use the standard conservation easement deed for HFRP. No changes were made to the regulations based on these comments because the Agency has been using the standard conservation easement deed in HFRP and will continue to do so. Standard conservation easement deeds work best on working lands in programs such as HFRP where the landowner will continue to conduct various activities on the easement area and few activities need to be prohibited in order to meet program purposes. Cooperation and Technical Assistance

    Under the provisions of 16 U.S.C. 6572, NRCS is to carry out the HFRP in
    [[Page 1959]]
    coordination with the FWS and the NMFS. The provisions of Sec. 625.13(c), which concern the HFRP restoration plan development, state that NRCS, in coordination with FWS, will determine the conservation practices and measures for the restoration plan.

    One commenter asserted that the reference to coordination with FWS should also include cooperation with NMFS. The language of 16 U.S.C. 6573 says that NRCS, the landowner, and FWS will develop the HFRP restoration plan. However, given that 16 U.S.C. 6572 states that NRCS is to carry out HFRP in coordination with FWS and NMFS, NRCS is changing the regulation text to refer to coordination with both FWS and NMFS as appropriate, in light of the species or habitat involved, in developing the HFRP conservation plan.

    Landowner Protections and Safe Harbor Agreements

    The 2006 interim final rule (71 FR 28557), included a definition of Landowner Protections as part of Sec. 625.2 and the preamble described those protections and how program participants obtain them (71 FR 2854828550). Landowner Protections were defined in the 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 10year cost share agreement.''

    Commenters asserted that NRCS should establish specific provisions in agreements or in the regulations regarding how NRCS will cooperate with FWS and NMFS concerning the preparation of restoration plans and other activities under the HFRP. NRCS should include how it will cooperate with FWS and NMFS to make Landowner Protections available to participating landowners.

    Under the statutory provisions at 16 U.S.C. 6573, NRCS is responsible for preparing restoration plans. NRCS develops the restoration plans jointly with the program participant in coordination with the FWS or NMFS, as appropriate. Further, NRCS will work with FWS and NMFS to establish memorandums of understanding to enhance the coordination process. In response to the commenters' request for more procedural details, NRCS clarified the definition of Landowner Protections in Sec. 625.2 and added a new section in the regulations at Sec. 625.13(d) to indicate how NRCS will help program participants obtain Landowner Protections.

    NRCS has also added a definition for Candidate Conservation Agreement with Assurances (CCAA) and clarified the definitions of Landowner Protections and Safe Harbor Agreement (SHA) in Sec. 625.2 of this rule to more fully describe the two types of Landowner Protections. These Landowner Protections are conditioned on to the HFRP restoration plan and associated costshare 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 costshare 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 Landowner Protections available to HFRP participants. Based on the suggestions from commenters and to help ensure clarity, NRCS clarified the description in the definition in section Sec. 625.2 and added Sec. 625.13(d) to specify 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 direct involvement by FWS or NMFS with the participant. 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 SHA or CCAA with 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 FWS or NMFS and cooperating landowners, who voluntarily agree to manage their lands or waters to remove threats to species at risk of becoming 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, nonFederal landowners incentives to implement conservation measures for declining species. The primary incentive for a CCAA 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.

    The provisions of 16 U.S.C. 6575 require that the Secretary of Agriculture offer landowners with technical assistance to assist the landowners ``in complying'' with the terms of restoration plans (as included in agreements or easements) under the
    [[Page 1960]]
    HFRP. One commenter requested that NRCS indicate how this will be carried out. No changes were made to the regulation based on this comment because NRCS works with the landowner when developing the restoration plan. As part of the planning process, NRCS ensures that the landowner understands the plan requirements. The existing regulations at Sec. 625.16 provide guidance as to how NRCS would work with those found to have deficiencies or committed violations. Electric Transmission Facilities

    One commenter asserted that the HFRP should not be implemented in a way that would be contrary to the use of electric transmission facilities. The commenter stated:

  • NRCS should consider electronic transmission facilities to be compatible with HFRP and allow such facilities to be located on lands covered by NRCS easements without the need to modify each individual easement.
  • NRCS should provide public notice of and the opportunity for comments on all pending NRCS projects, including easements in the HFRP.
  • NRCS should have an uptodate system at the regional level for obtaining information about existing and planned easements rather than an annual system so that utilities could easily identify where the easements may be located.
  • After a utility has filed a formal application for construction of facilities, NRCS should stay any further action on proposed easements within the identified utility routes until final action is taken on the application by State and Federal agencies.

    No changes were made to the regulations based on these comments. The Agency understands the importance of electric transmission facilities that provide electricity to homes and businesses across America. However, NRCS is purchasing conservation easements for the protection of certain conservation values: promoting the recovery of threatened and endangered species, improving biodiversity, and enhancing carbon sequestration. The protection of those conservation values will dictate the terms of any conservation easement deed. Most conservation easement deeds limit the development of structures and utilities. Whether an electric transmission facility would be allowed on an easement property is determined on a casebycase basis and depends on whether the electronic transmission facilities would be compatible with the purposes of HFRP and the easement at issue. Regarding the comment about public notice and comment, NRCS is not required by law to provide public notice and an opportunity to comment on easements under HFRP. The last two comments are related to potential conflicts between the placement of an easement and the placement of utilities. NRCS policy requires that State Conservationists take into account utilities that are being planned for installation when making project funding decisions and seek to avoid conflicts with infrastructure projects when feasible.

    Termination of Landowner Protection

    The preamble of the 2006 interim final rule states that ``In easement circumstances, where a change of conditions requires the FWS and the NMFS to terminate a Landowner Protection, NRCS will work to address the changed conditions in the HFRP restoration plan in coordination with the landowner'' (71 FR 28549). One commenter questioned whether this referred to landowner noncompliance or changed environmental or ecological conditions. NRCS will work to address the changed conditions in coordination with the landowner regardless of the cause of the change. As provided for in this proposed rule in the clarified definition of Landowner Protections in Sec. 625.2 and the associated provision at Sec. 625.13(d), provided that the contract holder has acted in good faith and without the intent to violate the terms of the HFRP restoration plan, all appropriate options will be pursued with the participant to avoid termination in the case of landowner noncompliance or changed conditions. If the participant has entered into a SHA or CCAA with 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, as clarified in this proposed rule at Sec. 625.13(d). 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.'' (Fish and Wildlife Service and National Fisheries Marine Service, Safe Harbor Agreements and Candidate Conservation Agreements with Assurances, Final Rule and Notices, 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.
    Proposed Changes Resulting From Passage of the Food, Conservation, and Energy Act of 2008

    NRCS proposes to amend the current regulation to include statutory changes included in Section 8205 of the 2008 Act (Pub. L. 110246) as follows:

  • Section 8205 amended the methods of enrollment by replacing the 99year enrollment method with enrollment of permanent easements or the maximum duration allowed by state law. NRCS proposes to amend Sec. 625.8(b), Sec. 625.10(e)(1) and Sec. 625.11(a) by removing reference to 99 year easements and inserting in its place the words ``permanent easement''.
  • Section 8205 also expanded the enrollment methods to include the use of 30year contracts or 10year cost share agreements, or any combination of both, for acreage owned by Indian tribes. The statement of managers (Conference Report H.R. 110627 for HR 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 U.S. government or restricted fee lands should not be enrolled in the program regardless of ownership.'' NRCS proposes to add the definition of ``acreage owned by Indian Tribes'' in Sec. 625.3 to read as follows: ``acreage owned by Indian Tribes means private lands to which the title is held by individual Indians and Indian tribes, including Alaska Native Corporations. This term does not include land held in trust by the United States or lands the title to which is held subject to Federal restrictions against alienation.''

    NRCS also proposes to amend the following sections to incorporate reference to 30year contracts: Sec. 625.1(a); Sec. 625.2; Sec. 625.3 in the definition of ``restoration agreement;'' Sec. 625.4(a); Sec. 625.5(b); Sec. 625.8(b)(2); Sec. 625.8(d); Sec. 625.15(b)(5); Sec. 625.16(b); and Sec. 625.20(b); NRCS proposes to add the term ``contract'' in reference to 30year contracts in Sec. 625.6(a)(7); Sec. 625.7(a) and (b); Sec. 625.14; Sec. 625.17; and Sec. 625.16(a)(3); and NRCS proposes to
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    add a new Sec. 625.12, 30year contracts, to include the provisions related to this new enrollment method. Consistent with the statutory requirement, NRCS must treat 30year contracts like easements to the extent possible. In particular, statutory language in 16 U.S.C. 6572 requires that the value of a 30year contract for Tribal lands shall be equivalent to the value of a 30year easement. Although there are limitations to handling 30year contacts like 30year easements because of the fundamental differences between contract law and real property law related to easements, NRCS has structured 30year contract requirements in Sec. 625.12 to be as comparable as possible to the easements requirements in Sec. 625.11.

    Section 8205 of the 2008 Act establishes requirements regarding the use of funds for costshare agreements and easements. Specifically, this section directs that of the total amount of funds expended under the program for a fiscal year to acquire easements and enter into cost share agreements, not more than 40 percent shall be used for 10year costshare agreements and not more than 60 percent shall be used for easements. Funds not obligated by April 1st of the fiscal year may be used to carryout either enrollment method. Costshare agreements and easements under the Tribal lands option do not count toward the 60/40 calculation. NRCS proposes to incorporate this statutory requirement in Sec. 625.4(a).
    Other Proposed Minor Changes for Clarification or Improved Program Administration

    NRCS proposes to make other changes to clarify the regulations for the public; such changes include clarifying the enrollment process, providing clear language about determining easement, contract, and agreement compensation, providing guidance on the Agency's treatment of ecosystem service credits, and clarifying language on Agency appeals. The proposed changes include:

    Section 625.1 Purpose and Scope

    Section 625.1(b)(1) identifies one objective of the program as being to ``Promote the recovery of endangered and threatened species under the ESA.'' NRCS proposes to amend Sec. 625.1(b)(1) to clarify that ESA is an abbreviation for the Endangered Species Act. Section 625.2 Definitions

    In addition to the definition of ``Acreage owned by Indian Tribes,'' which NRCS proposes to add as a result of statutory changes described in the previous section, NRCS proposes to add definitions for ``Candidate Conservation Agreement with Assurances,'' ``Conservation practice'' and ``Forest ecosystem''.

    NRCS proposes to add a definition for the term ``Candidate Conservation Agreement with Assurances'' to ensure the public has clear understanding of the Landowner Protections provided through HFRP. NRCS proposes the definition to read as follows: ``Candidate Conservation Agreement with Assurances (CCAA) means a voluntary arrangement between FWS or NMFS, and cooperating nonFederal landowners under the authority of Section 10(a)(1) of the Endangered Species Act of 1973 (the Act), 16 U.S.C. 1539(a)(1). Under the CCAA and an associated enhancement of survival permit, the nonFederal landowner implements actions that are consistent with the conditions of the permit. Candidate Conservation Agreements with Assurances 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.''

    NRCS proposes to add the term ``Conservation practice'' to replace the definition of ``practice.'' The definition of ``conservation practice'' describes a broader array of activities than the definition of the term ``practice.'' NRCS proposes to incorporate the following language as the definition of ``conservation practice.'' ``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.''

    The purpose of HFRP is to restore and enhance forest ecosystems. NRCS proposes to add the term ``forest ecosystem'' to clarify the program's purpose.

    NRCS proposes amendments to other definitions as follows:

    The definition of ``Activity'' is removed because statutory authority is only provided for ``Practices'' and ``Measures.''

    The definition of ``Biodiversity'' is changed to clarify that ``biodiversity'' is the shortened term for biological diversity.

    The definition of ``Contract'' is changed to be consistent with other programs administered by NRCS. NRCS proposes amending the definition to read as follows:
    ``Contract/agreement means the legal document that specifies the obligations and rights of any applicant who has been accepted to participate in the program. A contract/agreement is a binding agreement for the transfer of assistance from USDA to the participant for conducting the prescribed program implementation actions.''

    The term ``30year contract'' is added to incorporate the 30year contract option.

    The Agency is removing the definition of ``Indian Trust Lands,'' ``Practice,'' and ``Consultation or consult.'' The definition of ``Indian Trust Lands'' is removed and replaced by the definition of ``Acreage owned by Indian Tribes'' to be consistent with the statutory language. The definition of ``Practice'' is removed and replaced with the more specific term ``Conservation practice.'' The definition of ``Consultation or consult'' is removed and revised to change the term to confer for the reasons described in the public comment section above.

    The definition of ``landowner'' is revised to remove the term ``remaindermen'' as a category of ownership. NRCS proposes removing this term because it unnecessarily complicates the definition.

    The definition of ``Landowner Protections'' is changed as a result of the public comments received. The explanation for this proposal is provided under ``Proposed changes based on public comment.''

    The definition of ``Liquidated damages'' is amended to read: ``Liquidated damages'' is defined as ``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 nonfeasibility of otherwise obtaining an adequate remedy.'' This is consistent with how the term is defined in other programs administered by NRCS.

    The definition of ``Participant'' is amended to incorporate non substantive changes to make the definition consistent with the definition of ``Participant'' in other conservation programs and to address the addition of the 30year contract option provided in the 2008 Act for Tribal lands. Specifically, a ``Participant'' is an applicant who is party to a 10year cost share agreement, 30year contract, or an option agreement to purchase an easement. The Agency is also taking the opportunity to note in this regulation, consistent with the appeal regulations at
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    7 CFR Part 614 and Federal real property law, that once a conservation easement is conveyed, the landowner is no longer a ``Participant'' for easement enforcement and management matters and, therefore, may not file an administrative appeal on those matters.

    The definition of ``Private land'' is changed to read: ``Private land means land that is not owned by a governmental entity, and includes land meeting the definition of ``acreage owned by Indian Tribes.'' This proposed change ensures the public recognizes that the term ``Private land,'' as used in this regulation, includes acreage owned by Indian Tribes. The previous definition included the term ``Indian Trust Lands.''

    The definition of ``Safe harbor agreement'' is changed as described in the public comment section above.

    The definition of ``State Conservationist'' is changed to clarify that the former State Conservationist of Hawaii position has become the director of the Pacific Islands.

    Section 625.4 Program Requirements

    NRCS proposes to revise Sec. 625.4(a) to incorporate the statutory limitation on the use of funds for costshare agreements and easements. As described in the statutory change section above, Section 8205 of the 2008 Act requires an allocation of no more than 40 percent of program expenditures toward enrollment of restoration costshare agreements and no more than 60 percent of program expenditures toward enrollment of easements. Any contracts on acreage owned by Indian Tribes are not included in this calculation. The 2008 Act allows the Secretary to use any funds that are not obligated by April 1st of the fiscal year to be used for either agreements or easements during that fiscal year. Any funds not obligated by April 1 or later will be redistributed to projects with agreements or easements ready to obligate funding. NRCS proposes to manage this process at the national level to ensure that the allocation of funds meets the statutory requirements.

    NRCS proposes to amend Sec. 625.4(b) to clarify that an individual or entity can enroll in HFRP by replacing the term ``person'' with the words ``individual or entity.'' The current language refers to a ``person.'' This term is inaccurate due to participation of entities and Indian tribes.

    NRCS proposes, for clarity purposes, to change Sec. 625.4(d) to clarify that any land not eligible under the categories listed in Sec. 625.4(c) is ineligible land. Section 625.4(c) identifies eligible land. Section 625.5 Application Procedures

    NRCS proposes revising Sec. 625.5(a) to clarify the signup process. Specifically, the State Conservationists will develop proposals for the State to receive funds and may seek input from other agencies in doing so. The State Conservationists will submit proposals to the Chief for funding consideration. The Chief will evaluate and select proposals for funding and provide the State Conservationist with a funding allocation. Upon a State's selection for funding, the State Conservationists will issue a public signup notice to obtain applications from eligible landowners. The State Conservationists may consult with organizations or units of government with appropriate technical expertise in developing ranking criteria to be used in selecting applications best suited to achieving the project purpose. The applications will be ranked based on these criteria. The highest ranking applications are funded by the State Conservationists. Due to the limited funding provided for this program, continuous enrollment would likely increase the administrative burden of implementing the program. This signup process will ensure that the limited HFRP funding will be used for the best projects nationally, and help maximize the expected benefits related to habitat restoration and protection that address the recovery of endangered species, improvement in biodiversity, and enhanced carbon sequestration. In short, national competition will result in the optimal use of funds.

    NRCS proposes to amend Sec. 625.5(d) to clarify that any voluntary reduction in compensation must not be below the lowest rate allowed by the statute.

    Section 625.6 Establishing Priority for Enrollment in HFRP

    NRCS proposes to amend Sec. 625.6(a) to reflect the change in the definition of biological diversity discussed above at Sec. 625.2 Section 625.7 Enrollment of Easements, Contracts, and Agreements

    NRCS proposes to amend Sec. 625.7 to reflect a change in the NRCS business process that is designed to reduce the potential for de obligating funds. NRCS has experienced difficulty in other easement programs where funds are obligated to projects whose enrollment is subsequently terminated due to irresolvable title issues and hazardous materials concerns. NRCS will no longer use commitment accounting, but will use the option agreement to purchase as the point of obligation. Also, additional evaluation that was formerly performed after the signing of the option agreement to purchase will now be performed prior to the obligation.

    Section 625.7(a) is changed to clarify that the obligation of HFRP funds occurs when the landowner signs the option agreement to purchase, costshare agreement, or 30year contract. This policy helps ensures that HFRP funds are used to the greatest extent possible by reducing the potential for deobligation.

    Section 625.7(c) is changed to clarify the point at which land is considered enrolled into the program to be consistent with other easement programs administered by NRCS.

    Section 625.7(d) is amended to clarify the conditions and procedures for withdrawing an offer after the land is considered enrolled in the program.
    Section 625.8 Compensation for Easements and 30Year Contracts

    NRCS proposes to amend Sec. 625.8(c) to clarify the Agency's existing authority to accept and use nonFederal contributions.

    NRCS proposes to amend Sec. 625.8(d) to identify that payments for 30year contracts will be treated the same as 30year easement payments. The statutory language in 16 U.S.C. 6572 instructs that the value of a 30year contract shall be equivalent to the value of a 30 year easement.

    Additionally, the following information about the appraisal methodology will be used for the valuation of HFRP offers: For permanent easements (or easements for the maximum duration allowed under State law), the HFRP statute states that the Secretary of Agriculture shall pay the landowner not less than 75 percent, nor more than 100 percent of (as determined by the Secretary) the fair market value of the land enrolled unencumbered by the easement, less the fair market value of such land encumbered by the easement. The term ``encumbered'' refers to the period of time when the easement becomes effective. The appraisal process established by NRCS is aimed at determining the difference between the value of the enrolled land prior to and after easement encumbrance.

    When acquiring real property, Federal agencies generally follow the Uniform Relocation Assistance and Real Property Acquisition Policies for Federal and federally Assisted Programs (``the Uniform Relocation Act'') found in regulations at Part 24 of Title 49 of the Code of Federal Regulations. Section 24.103 of that title establishes that ``appraisals are to be prepared according to these requirements, which are
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    intended to be consistent with the Uniform Standards of Professional Appraisal Practice (USPAP). The Agency may have appraisal requirements that supplement these requirements, including, to the extent appropriate, the Uniform Appraisal Standards for Federal Land Acquisition (UASFLA).'' [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 is all land owned by the landowner that may be impacted by the easement, as determined by the appraiser.

    The HFRP language for permanent and maximum duration easements requires that compensation be based on the impact to value of only the land enrolled and encumbered by the easement. Thus, the Yellow Book requirement of appraising the larger parcel conflicts with the HFRP statutory requirement related to determining easement value for permanent easements, or those of the maximum duration required by state law. Therefore, the Agency proposes to use Uniform Standards for Professional Appraisal Practice (USPAP) for those easements, which is consistent with 49CFR24. Even though the HFRP statute states the approach for valuing permanent and 30year easements in slightly different language, there is no actual distinction since both result in basing value on the enrolled land encumbered by the easement. Correspondingly, the Agency is maintaining consistency in the approach to determining easement compensation values for 30year and permanent easements.

    NRCS proposes to add language in Sec. 625.8(h) that clarifies USDA policy regarding environmental credits such as carbon, water quality, biodiversity, or wetlands preservation, on land enrolled in HFRP. USDA considers these credits the property of the farmer, the landowner, or the person who applied the conservation practices on the land, regardless of the Federal funds invested.

    Section 625.9 10Year Restoration CostShare Agreements

    NRCS proposes to amend Sec. 625.9 (a) to reflect a change in section numbering caused by the addition of the 30year contract section. Amendments to this section reflect the change from the term ``practice'' to ``conservation practice.''

    NRCS proposes to amend Sec. 625.9 (d) to clarify the meaning of the sentence and to clarify that termination of the restoration cost share agreement can occur when the terms of Sec. 625.9(d) 1, 2, or 3 are met.

    Section 625.10 CostShare Payments

    NRCS proposes to amend Sec. 625.10(b) to clarify the addition of the term ``candidate species,'' as well as listed species, through a Candidate Conservation Agreement with Assurances.

    Section 625.10(c) and Sec. 625.10(g) and (h) are amended to reflect the change in the definition from ``practice'' to the more specific term ``conservation practice'' as discussed above at Sec. 625.2. Section 625.10(e) is also amended for the same reason and to clarify that the conservation practice would need to meet NRCS standards and specifications.

    Section 625.11 Easement Participation Requirements

    NRCS proposes to amend Sec. 625.11(a) to clarify the sentence to include not only listed species but to allow for other types of management that support forest ecosystem functions and values, such as activities to protect candidate species.

    Section 625.12 30Year Contracts

    A new section is added to incorporate the statutory provision for 30year contracts for acreage owned by Indian Tribes. The section describes enrollment and minimum requirements of the contract. Terms of the 30year contract are kept as consistent as possible with terms of a 30year easement, considering the differences in the legal instruments. Section 625.13 The HFRP Restoration Plan Development and Landowner Protections

    NRCS proposes to amend Sec. 625.13(a), Sec. 625.13(c) and Sec. 625.13(d) to reflect the changes discussed above as a result of public comments. Section 625.13(a), was amended to replace the term ``consult'' with ``confer.'' In Sec. 625.13(c) ``The National Marine Fisheries Service'' was added as an agency that would assist in determining eligible practices. Section 625.13(d) was amended to clarify Landowner Protections.

    Section 625.14 Modification of the HFRP Restoration Plan

    NRCS proposes to amend Sec. 625.14 to make nonsubstantive changes to the sentence structure.

    Section 625.15 Transfer of Land

    NRCS proposes the following changes: Amend Sec. 625.15(a) to clarify that this section refers to offers voided prior to enrollment in the program. This section would also be amended to clarify that this section applies to easements, agreements, and contracts.

    In addition, amend Sec. 625.15(b) to clarify that this section refers to actions following transfer of land. These changes clarify that costshare payments can be transferred to the new owner upon presentation of an assignment of rights. Landowner Protections can be transferred to the new landowner, and if a SHA or CCAA is involved, the landowners need to coordinate with FWS or NMFS to transfer the agreement and assurances to the new landowner.

    Section 625.16 Violations and Remedies

    NRCS proposes to make the following amendments to this section: Amend Sec. 625.16 (a) to clarify that extensions to correct violations beyond 30 days, under this section, should be made based on the State Conservationists determination of how much time is necessary to correct the violation.

    Section 625.16(b) is amended to clarify that extensions to correct violations beyond 30 days should be based on the State Conservationists determination of how much time is necessary to correct the violation. NRCS is also removing the last sentence of paragraph (b)(3), all of paragraph (b)(4), and paragraph (b)(6). The last sentence of (b)(3) is removed because it is administratively burdensome to continue to monitor and enforce the operation and maintenance of practices for which the Agency no longer has a contract. Due to limited resources and funding, the Agency has determined that to administer the program more effectively after an agreement is terminated, that the Agency will recover the appropriate amount and will not continue to monitor the installed practices or measures. Paragraph (b)(4) is removed because it has been incorporated into (b)(3). Paragraph (b)(6) is removed because the Agency has determined that it is not in the interests of the program to allow participants to unilaterally terminate a contract without penalty or repayment, even when participants ar

    FOR FURTHER INFORMATION CONTACT

    Robin Heard, Director, Easement Programs Division, NRCS, P.O. Box 2890, Washington, DC 200132890; Phone: (202) 7201854; Fax: (202) 7204265; or email:
    HFRP@wdc.usda.gov.