1954 Federal Register / Vol. 74, No. 9 / Wednesday, January 14, 2009 / Proposed Rules 

Douglas 

Edmunds 

Faulk 

Grant 

Gregory 

Haakon 

Hamlin 

Hand 

Hanson 

Hughes 

Hutchinson 

Hyde 

Jerauld 

Jones 

Kingsbury 

Lake 

Lincoln 

Lyman 

McCook 

McPherson 

Marshall 

Mellette 

Miner 

Moody 

Potter 

Roberts 

Sanborn 

Spink 

Stanley 

Sully 

Todd 

Tripp 

Turner 

Walworth 

Washabaugh 

Yankton 

Ziebach 

Iowa: 

Dickinson 

Emmet 

Lyon 

Osceola 

Minnesota: 

Jackson 

Lincoln 

Lyon 

Murray 

Nobles 

Pipestone 

Rock 

* * * * * 

VIRGINIA 

* * * * * 

Richmond 

Survey Area 

Virginia (cities): 

Colonial Heights 

Hopewell 

Petersburg 

Richmond 

Virginia (counties): 

Charles City 

Chesterfield 

Dinwiddie 

Goochland 

Hanover 

Henrico 

New Kent 

Powhatan 

Prince George 

Area of Application. Survey Area Plus 

Virginia (cities): 

Charlottesville 

Emporia 

Virginia (counties): 

Albemarle 

Amelia 

Brunswick 

Buckingham 

Caroline 

Charlotte 

Cumberland 

Essex 

Fluvanna 

Greensville 

King and Queen 

King William 

Lancaster 

Louisa 

Lunenberg 

Mecklenburg 

Middlesex 

Northumberland 

Nottoway 

Orange 

Prince Edward 

Richmond 

Sussex 

Westmoreland 

* * * * * 

WISCONSIN 

* * * * * 

Milwaukee 

Survey Area 

Wisconsin: 

Milwaukee 

Ozaukee 

Washington 

Waukesha 

Area of Application. Survey Area Plus 

Wisconsin: 

Brown 

Calumet 

Door 

Fond du Lac 

Kewaunee 

Manitowoc 

Outagamie 

Racine 

Sheboygan 

Walworth 

Winnebago 

[FR Doc. E9–528 Filed 1–13–09; 8:45 am] 

BILLING CODE 6325–39–P 

DEPARTMENT OF AGRICULTURE 

Natural Resources Conservation 

Service 

7 CFR Part 625 

RIN 0578–AA52 

Healthy Forests Reserve Program 

AGENCY: Natural Resources 

Conservation Service (NRCS), United 

States Department of Agriculture 

(USDA). 

ACTION: Proposed rule; request for 

comment. 

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 10-year costshare agreements; and allow enrollment 

of land owned by tribes or members of 

tribes in 30-year contracts or 10-year 

cost-share agreements, or any 

combination of both. Forty percent of 

program expenditures in any fiscal year 

will be used for restoration cost-share 

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. 

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. 

ADDRESSES: You may send comments 

using any of the following methods: 

Government-wide rulemaking Web 

site: Go to http://www.regulations.gov 

and follow the instructions for sending 

comments electronically. 

NRCS Web site: Go to http:// 

www.nrcs.usda.gov and follow the 

instructions for sending comments 

electronically. 

Mail: Easements Programs Division, 

Natural Resources Conservation Service, 

Healthy Forests Reserve Program 

Comments, P.O. 2890, Room 6819–S, 

Washington, DC 20013. 

Fax: 1–202–720–4265 

Hand Delivery: Room 6819–S of the 

USDA South Office Building, 1400 

Independence Avenue, SW., 

Washington, DC 20250, between 9 a.m. 

and 4 p.m., Monday through Friday, 

except Federal Holidays. Please ask the 

guard at the entrance to the South Office 

Building to call 202–720–4527 in order 

to be escorted into the building. 

This proposed rule may be accessed 

via Internet. Users can access the NRCS 

homepage at http:// 

www.nrcs.usda.gov/; select Farm Bill 


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link from the menu; select the Proposed 

Rule link from beneath the Rules Index 

title. 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). 

FOR FURTHER INFORMATION CONTACT: 

Robin Heard, Director, Easement 

Programs Division, NRCS, P.O. Box 

2890, Washington, DC 20013–2890; 

Phone: (202) 720–1854; Fax: (202) 720– 

4265; or e-mail: HFRP@wdc.usda.gov. 

SUPPLEMENTARY 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. 103–354), USDA classified this 

rule as non-major. 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 30-day 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 110–246, for a fiscal year 

2009 sign-up, 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 110– 

246. The 2008 Act changes the 

enrollment options for acreage owned 

by Indian tribes. In addition to using 10- 

year cost-share agreements, Indian 

Tribes may now enroll lands under a 30- 

year 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 

6813-S, 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 

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 

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 

E-File Act, which require government 

agencies in general, and NRCS in 

particular, to provide the public the 

option of submitting information or 

transacting business electronically to 

the maximum extent possible. 

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 20013–2890, 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 


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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, § 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. 

1531–1538), 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 10-year cost-share 

agreement option, of offering 30-year 

contracts. This change encourages 

Indian Tribal participation in the 

program. The proposed rule at § 625.12, 

will outline the procedures for enrolling 

land in the program through the 30-year 

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 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 Healthy Forests 

Reserve Program (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 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. 

108–148) 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 90-day 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, 

State-listed 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 non-industrial 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 non-industrial 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 


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threatened and endangered species, to 

improve biodiversity, and to enhance 

carbon sequestration. See 16 U.S.C. 

6571 and 6572. 

Two commenters questioned why 

clear-cutting was singled out as 

incompatible with HFRP and asserted 

that HFRP should allow for clear-cutting 

when it would enhance the long-term 

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 clear-cutting 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. 

Clear-cutting 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 non-forest 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, 

State-listed 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 State-listed species, one 

commenter asserted that for States that 

do not have State lists, enrollment 

eligibility should include lands that 

provide habitat for G1–G2 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 well-being 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 § 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 § 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 right-of-way 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) Species—The 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, 

State-listed species, or special concern 

species. 

(2) Cost-effectiveness—The Secretary 

of Agriculture shall also consider the 

cost-effectiveness 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 

pollinator-related 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 

non-profit 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 nonprofit conservation organizations 

eligible for participation in HFRP. 


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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 

§ 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 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. 

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 cost-share 

agreement enrollment and 60 percent of 

program expenditures in any FY be for 

easement enrollment. The 2008 Act 

allows re-allocation 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 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. 

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 decision-making 

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. 

Cost-Share 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 


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coordination with the FWS and the 

NMFS. The provisions of § 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 § 625.2 

and the preamble described those 

protections and how program 

participants obtain them (71 FR 28548– 

28550). 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 10-year 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 § 625.2 and added a new section in 

the regulations at § 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 

§ 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 

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 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 

§ 625.2 and added § 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, non-Federal 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 


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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 § 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 up-to-date 

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 case-bycase 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 non-compliance 

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 

§ 625.2 and the associated provision at 

§ 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 

non-compliance 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 § 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. 110–246) as follows: 

• Section 8205 amended the methods 

of enrollment by replacing the 99-year 

enrollment method with enrollment of 

permanent easements or the maximum 

duration allowed by state law. NRCS 

proposes to amend § 625.8(b), 

§ 625.10(e)(1) and § 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 30-year contracts or 10-year cost 

share agreements, or any combination of 

both, for acreage owned by Indian 

tribes. The statement of managers 

(Conference Report H.R. 110–627 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 

§ 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 30-year contracts: 

§ 625.1(a); § 625.2; § 625.3 in the 

definition of ‘‘restoration agreement;’’ 

§ 625.4(a); § 625.5(b); § 625.8(b)(2); 

§ 625.8(d); § 625.15(b)(5); § 625.16(b); 

and § 625.20(b); NRCS proposes to add 

the term ‘‘contract’’ in reference to 30- 

year contracts in § 625.6(a)(7); § 625.7(a) 

and (b); § 625.14; § 625.17; and 

§ 625.16(a)(3); and NRCS proposes to 


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add a new § 625.12, 30-year contracts, to 

include the provisions related to this 

new enrollment method. Consistent 

with the statutory requirement, NRCS 

must treat 30-year contracts like 

easements to the extent possible. In 

particular, statutory language in 16 

U.S.C. 6572 requires that the value of a 

30-year contract for Tribal lands shall be 

equivalent to the value of a 30-year 

easement. Although there are 

limitations to handling 30-year contacts 

like 30-year easements because of the 

fundamental differences between 

contract law and real property law 

related to easements, NRCS has 

structured 30-year contract 

requirements in § 625.12 to be as 

comparable as possible to the easements 

requirements in § 625.11. 

Section 8205 of the 2008 Act 

establishes requirements regarding the 

use of funds for cost-share 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 10-year 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. Cost-share 

agreements and easements under the 

Tribal lands option do not count toward 

the 60/40 calculation. NRCS proposes to 

incorporate this statutory requirement 

in § 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 § 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 non-Federal 

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 non-Federal 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 ‘‘30-year contract’’ is added 

to incorporate the 30-year 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 non-feasibility 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 30-year contract option provided in 

the 2008 Act for Tribal lands. 

Specifically, a ‘‘Participant’’ is an 

applicant who is party to a 10-year cost 

share agreement, 30-year 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 § 625.4(a) to 

incorporate the statutory limitation on 

the use of funds for cost-share 

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 cost-share 

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 re-distributed 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 § 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 § 625.4(d) to clarify that any 

land not eligible under the categories 

listed in § 625.4(c) is ineligible land. 

Section 625.4(c) identifies eligible land. 

Section 625.5 Application Procedures 

NRCS proposes revising § 625.5(a) to 

clarify the sign-up 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 sign-up 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 sign-up 

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 § 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 § 625.6(a) to 

reflect the change in the definition of 

biological diversity discussed above at 

§ 625.2 

Section 625.7 Enrollment of 

Easements, Contracts, and Agreements 

NRCS proposes to amend § 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, cost-share 

agreement, or 30-year 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 30-Year Contracts 

NRCS proposes to amend § 625.8(c) to 

clarify the Agency’s existing authority to 

accept and use non-Federal 

contributions. 

NRCS proposes to amend § 625.8(d) to 

identify that payments for 30-year 

contracts will be treated the same as 30- 

year easement payments. The statutory 

language in 16 U.S.C. 6572 instructs that 

the value of a 30-year 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 30-year 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 30-year and 

permanent easements. 

NRCS proposes to add language in 

§ 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 10-Year Restoration 

Cost-Share Agreements 

NRCS proposes to amend § 625.9 (a) 

to reflect a change in section numbering 

caused by the addition of the 30-year 

contract section. Amendments to this 

section reflect the change from the term 

‘‘practice’’ to ‘‘conservation practice.’’ 

NRCS proposes to amend § 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 § 625.9(d) 1, 2, 

or 3 are met. 

Section 625.10 Cost-Share Payments 

NRCS proposes to amend § 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 § 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 § 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 § 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 30-Year Contracts 

A new section is added to incorporate 

the statutory provision for 30-year 

contracts for acreage owned by Indian 

Tribes. The section describes enrollment 

and minimum requirements of the 

contract. Terms of the 30-year contract 

are kept as consistent as possible with 

terms of a 30-year easement, considering 

the differences in the legal instruments. 

Section 625.13 The HFRP Restoration 

Plan Development and Landowner 

Protections 

NRCS proposes to amend § 625.13(a), 

§ 625.13(c) and § 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 § 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 § 625.14 to 

make non-substantive changes to the 

sentence structure. 

Section 625.15 Transfer of Land 

NRCS proposes the following 

changes: Amend § 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 § 625.15(b) to 

clarify that this section refers to actions 

following transfer of land. These 

changes clarify that cost-share 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 

§ 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 are in compliance with all 

conditions. The Agency is interested in 

ensuring practices are continued for the 

original duration of the contract and 

maintaining a high level of 

environmental benefits. 

Section 625.18 Assignments 

The text of Section § 625.18 is not 

amended. The only change to this 

section is the section heading which has 

been changed to reflect the insertion of 

the 30-year contract section above at 

§ 625.12. 


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Section 625.19 Appeals 

NRCS proposes to amend § 625.19(b) 

to clarify that appeals procedures apply 

to administrative actions and not for 

other purposes such as enforcement 

actions. 

Section 625.19(d) is added to further 

clarify that enforcement actions taken 

by NRCS are not subject to review under 

administrative appeal regulations. This 

language is consistent with the appeal 

regulations at 7 CFR Part 614 and 

Federal real property law. 

Specific Request for Public Comment 

The Agency is particularly interested 

in receiving public input regarding the 

following topics: (1) The definition of 

acreage owned by Indian Tribes and the 

accompanying requirements for 30-year 

contracts at § 625.12; (2) the language 

regarding ownership of ecosystem 

services credits; and (3) the language 

regarding the establishment of easement 

compensation rates. 

List of Subjects in 7 CFR Part 625 

Administrative practice and 

procedure, Agriculture, Soil 

conservation, Forestry. 

Text of Rule Amendments 

For the reasons stated in the 

preamble, the Natural Resources 

Conservation Service proposes to revise 

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. 

§ 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 and enhancing forest 

ecosystems 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 

(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 of NRCS may 

implement HFRP in any of the 50 States, 

the District of Columbia, the 

Commonwealth of Puerto Rico, Guam, 

the Virgin Islands of the United States, 

American Samoa, and the 

Commonwealth of the Northern 

Marianna Islands. 

§ 625.2 Definitions 

The following additions shall be 

applicable to this part: 

30-year Contract means a contract that 

is limited to acreage held in private 

ownership by Indian Tribes or 

individual tribal members. 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 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 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 U.S. 

FWS or NMFS, and cooperating nonFederal 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. 

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. 

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 NRCS, 

United States Department of Agriculture 

(USDA), 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. 

Contract or 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 or agreement is a 

binding agreement for the transfer of 

assistance, including financial or 

technical assistance, from USDA to the 

participant for conducting the 

prescribed program implementation 

actions. 

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. 


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Easement means a conservation 

easement, which is an interest in land 

defined and delineated in a deed 

whereby the landowner conveys certain 

rights, title, and interests in a property 

to the United States 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 (FWS) is an 

agency of the United States Department 

of the Interior. 

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 a 

predominance of trees, and by the 

fauna, flora, and ecological cycles 

(energy, water, carbon, and nutrients) 

Forest Service is an agency of the 

USDA. 

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, 

including those who may be buying 

land under a purchase agreement. 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 an 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 or Candidate Conservation 

Agreement with Assurances 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 

(NMFS) is an agency of the United 

States Department of Commerce. 

Natural Resources Conservation 

Service (NRCS) is an agency of the 

USDA, which has the responsibility for 

administering HFRP. 

Participant means a person or entity 

who is a party to a 10-year cost share 

agreement, 30-year contract, or an 

option agreement to purchase an 

easement. 

Private land means land that is not 

owned by a 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 costshare 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 (the Act), 16 U.S.C. 

1539(a)(1). Under the Safe Harbor 

Agreement and an associated 

enhancement of survival permit, the 

private property owner implements 

actions that are consistent with the 

conditions of the permit. Safe Harbor 

Agreements 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. 

Sign-up notice means the public 

notification document that NRCS 

provides to describe the particular 

requirements for a specific HFRP signup. 

State Conservationist means the 

NRCS employee authorized to 

implement HFRP and direct and 

supervise NRCS activities in a State, the 

Caribbean Area, or the Pacific Island 

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. 

§ 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 shall 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 the rates of compensation for an 

easement and 30-year contract, a 

priority ranking process, and any related 

technical matters. 

(e) The NRCS shall 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 FWS, NMFS, the 


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Forest Service, any Federal or State 

agency, conservation district, or other 

organization shall compel the NRCS to 

take any action which the NRCS 

determines will not serve the purposes 

of the program established by this part. 

§ 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 shall be used for costshare agreements and not more than 60 

percent shall be used for easements. 

(2) The Chief may use any funds that 

are not obligated by April 1st 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) The NRCS, in coordination with 

FWS or NMFS, shall 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 shall be considered eligible 

for enrollment in the HFRP only if the 

NRCS determines that: 

(i) Such private land is capable of 

supporting habitat for a selected species 

listed under Section 4 of the ESA; or 

(ii) Such private land is capable of 

supporting habitat for a selected species 

not listed under Section 4 of the ESA 

but is candidate for such listing, or the 

selected species is 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, the 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) Lands 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 which would interfere with 

HFRP purposes, as determined by 

NRCS; and 

(3) Lands that would not be eligible 

for HFRP under paragraphs (c) (1) 

through (c) (5). 

§ 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 signup; 

(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 the 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 amount than is 

being offered by NRCS. Such offer and 

subsequent payments may not be less 

than those rates set forth in 625.8 and 

625.10 of this part. 

§ 625.6 Establishing priority for enrollment 

in HFRP. 

(a) Ranking considerations. Based on 

the specific criteria set forth in a signup 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 

biodiversity, if enrolled; 

(4) Potential for increased capability 

of carbon sequestration, if enrolled; 


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(5) Availability of contribution of nonfederal 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 an 

HFRP sign-up notice. 

(b) The 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. 

§ 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 option 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 

(enrollment). After the option 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 costshare 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 option agreement to 

purchase, a restoration cost-share 

agreement, and/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 option to purchase shall be 

void, and the offer withdrawn, if not 

executed by the landowner within the 

time specified. 

§ 625.8 Compensation for easements and 

30-year contracts. 

(a) Determination of easement 

payment rates. 

(1) NRCS shall 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 shall 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) Environmental Services Credits for 

Conservation Improvements. USDA 

recognizes that environmental benefits 

will be achieved by implementing 

conservation practices, measures, and 

activities funded through HFRP, and 

that environmental credits may be 

gained as a result of implementing 

activities compatible with the purposes 

of an HFRP easement, contract, or 

restoration agreement. NRCS asserts no 

direct or indirect interest on these 

credits. However, NRCS retains the 

authority to ensure the requirements of 

an HFRP easement, contract, cost-share 

agreement, or restoration plan are met 

consistent with §§ 625.9 through 625.13 

of this part. Where activities required 

under an environmental credit 

agreement may affect land covered 

under an HFRP easement, restoration 

cost-share agreement, or contract, an 

amendment to the restoration agreement 

or contract, or a compatible use 

approval under an easement, may be 

required and participants are highly 

encouraged to request a compatibility 

assessment from NRCS prior to entering 

into such environmental credit 

agreements. 

§ 625.9 10-year restoration cost-share 

agreements 

(a) The restoration plan developed 

under § 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; 


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(3) Include all provisions as required 

by law or statute; 

(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 shall 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 costshare 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 

cause a severe hardship on the parties 

to the agreement; or 

(3) Termination of the 10-year costshare 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 in a proportion 

appropriate to the effort the participant 

has made to comply with the restoration 

agreement, or, in cases of hardship, 

where forces beyond the participant’s 

control prevented compliance with the 

agreement. 

§ 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 over time 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 costshare 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 

shall 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 shall 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 

shall 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 shall 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, or an identifiable component 

of the conservation practice 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 conservation 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. 

§ 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 shall grant an easement to 

the United States. The easement deed 

shall 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 shall require, at a minimum, 

that the landowner, and the landowner’s 

heirs, successors and assignees, shall 

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 shall grant to the United 

States, through the NRCS: 

(1) A right of access to the easement 

area; 

(2) The right to permit compatible 

uses by the landowner of the easement 

area, which may include such activities 

as hunting and fishing, managed timber 

harvest, or periodic haying or grazing, if 

such use is consistent with the longterm protection and enhancement of the 

purposes for which the easement was 

established; 

(3) The right to determine compatible 

uses on the easement area and specify 

the amount, method, timing, intensity, 

and duration of the compatible use; 

(4) The rights, title, and interest to the 

easement area as specified in the 

conservation easement deed; and 

(5) The right to perform restoration, 

protection, enhancement, maintenance, 

and management activities on the 

easement area. 

(c) The landowner shall convey title 

to the easement which is acceptable to 

the NRCS. The landowner shall warrant 

that the easement granted to the United 

States is superior to the rights of all 

others, except for exceptions to the title 


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which are deemed acceptable by the 

NRCS. 

(d) The landowner shall: 

(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; 

(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 shall be jointly 

and severally responsible for 

compliance with the easement and the 

provisions of this part and for any 

refunds or payment adjustment that may 

be required for violation of any terms or 

conditions of the easement or the 

provisions of this part. 

§ 625.12 30-year contracts. 

(a) To enroll land in HFRP through 

the 30-year contract option, a landowner 

shall sign a 30-year contract with NRCS. 

The contract shall 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 shall require, at a 

minimum, that the landowner, and the 

landowner’s assignees, shall 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 shall grant to the United 

States, through the NRCS: 

(1) A right of access to the contract 

area; 

(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 shall: 

(1) Comply with the terms of the 

contract; 

(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 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 

shall be considered enrolled in HFRP. 

§ 625.13 The HFRP restoration plan 

development and landowner protections. 

(a) The development of the HFRP 

restoration plan shall be made through 

an NRCS representative, who shall 

confer with the program participant and 

with the FWS and NMFS, as 

appropriate. 

(b) The HFRP restoration plan shall 

specify the manner in which the 

enrolled land under easement, 30-year 

contract, or 10-year cost-share 

agreement shall 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 NRCS 

for special funding consideration. To 

the extent practicable, eligible practices 

and measures will improve biodiversity 

and increase the sequestration of 

carbon. NRCS, in coordination with 

FWS and NMFS, will determine the 

conservation practices and measures. 

NRCS will determine payment rates and 

cost-share percentages within statutory 

limits that will be available for 

restoration. A list of eligible practices 

will be available to the public. 

(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. A 

participant 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) 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 

(iv) 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) 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. 

(iii) 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 regulations at 64 FR 32706 or 

applicable subsequently adopted policy, 

and Candidate Conservation 

Agreements with Assurances 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. 


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(iv) 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, as appropriate, 

for any modifications related to the SHA 

or CCAA. 

§ 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 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 easement, contract, 

restoration cost-share agreement, or 

Landowner Protections will require 

agreement from the landowner, FWS or 

NMFS, as appropriate, and may require 

execution of an amended easement, 

contract, and 10-year restoration costshare agreement and modification to the 

protections afforded by the safe harbor 

assurances. 

§ 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 

shall 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 shall 

be made to the new landowner upon 

presentation of an assignment of rights 

or other evidence that title has passed. 

(3) Landowner protections shall be 

available to the new landowner and the 

new landowner shall 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 landowners 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 shall 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. 

§ 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 

shall 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 shall 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 shall be entitled 

to recover any and all administrative 

and legal costs, including attorney’s fees 

or expenses, associated with any 

enforcement or remedial action. 

(b) 30-year Contract and 10-year CostShare Agreement Violations. 

(1) If the NRCS determines that a 

participant is in violation of the terms 

of a 30-year contract, or 10-year costshare agreement, or documents 

incorporated by reference into the 30- 

year contract or 10-year cost-share 

agreement, the landowner shall 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 costshare agreement or 30-year contract, the 

participant will forfeit all rights for 

future payments under the 10-year costshare 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. 

§ 625.17 Payments not subject to claims. 

Any cost-share, contract, or easement 

payment or portion thereof due any 

person under this part shall be allowed 

without regard to any claim or lien in 

favor of any creditor, except agencies of 

the United States Government. 

§ 625.18 Assignments. 

Any person entitled to any cash 

payment under this program may assign 

the right to receive such cash payments, 

in whole or in part. 

§ 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 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 74, No. 9 / Wednesday, January 14, 2009 / Proposed Rules 1971 

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 shall 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 shall only be disclosed 

as determined at the sole discretion of 

NRCS in accordance with applicable 

law. 

(d) Enforcement actions undertaken 

by NRCS in furtherance of its federally 

held property rights are under the 

jurisdiction of the Federal District Court 

and are not subject to review under 

administrative appeal regulations. 

§ 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 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 shall 

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. 

Arlen L. Lancaster, 

Vice President, Commodity Credit 

Corporation and Chief, Natural Resources 

Conservation Service. 

[FR Doc. E9–506 Filed 1–13–09; 8:45 am] 

BILLING CODE 3410–16–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 985 

[Docket Nos. AMS–FV–08–0104; FV09–985– 

1 PR] 

Marketing Order Regulating the 

Handling of Spearmint Oil Produced in 

the Far West; Salable Quantities and 

Allotment Percentages for the 2009– 

2010 Marketing Year 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule. 

SUMMARY: This rule would establish the 

quantity of spearmint oil produced in 

the Far West, by class that handlers may 

purchase from, or handle for, producers 

during the 2009–2010 marketing year, 

which begins on June 1, 2009. This rule 

invites comments on the establishment 

of salable quantities and allotment 

percentages for Class 1 (Scotch) 

spearmint oil of 842,171 pounds and 42 

percent, respectively, and for Class 3 

(Native) spearmint oil of 1,196,109 

pounds and 53 percent, respectively. 

The Spearmint Oil Administrative 

Committee (Committee), the agency 

responsible for local administration of 

the marketing order for spearmint oil 

produced in the Far West, 

recommended these limitations for the 

purpose of avoiding extreme 

fluctuations in supplies and prices to 

help maintain stability in the spearmint 

oil market. 

DATES: Comments must be received by 

March 16, 2009. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this proposal. Comments 

must be sent to the Docket Clerk, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., STOP 0237, Washington, 

DC 20250–0237; Fax: (202) 720–8938; or 

Internet: http://www.regulations.gov. All 

comments should reference the docket 

number and the date and page number 

of this issue of the Federal Register and 

will be made available for public 

inspection in the Office of the Docket 

Clerk during regular business hours, or 

can be viewed at: http:// 

www.regulations.gov. All comments 

submitted in response to this rule will 

be included in the record and will be 

made available to the public. Please be 

advised that the identity of the 

individuals or entities submitting the 

comments will be made public on the 

Internet at the address provided above. 

FOR FURTHER INFORMATION CONTACT: 

Susan M. Coleman, Marketing Specialist 

or Gary D. Olson, Regional Manager, 

Northwest Marketing Field Office, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA; Telephone: (503) 326– 

2724; Fax: (503) 326–7440; or E-mail: 

Sue.Coleman@usda.gov or 

GaryD.Olson@usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Jay Guerber, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., STOP 0237, Washington, 

DC 20250–0237; Telephone: (202) 720– 

2491, Fax: (202) 720–8938, or E-mail: 

Jay.Guerber@usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Order No. 

985 (7 CFR Part 985), as amended, 

regulating the handling of spearmint oil 

produced in the Far West (Washington, 

Idaho, Oregon, and designated parts of 

Nevada and Utah), hereinafter referred 

to as the ‘‘order.’’ This order is effective 

under the Agricultural Marketing 

Agreement Act of 1937, as amended (7 

U.S.C. 601–674), hereinafter referred to 

as the ‘‘Act.’’ 

The Department of Agriculture 

(USDA) is issuing this rule in 

conformance with Executive Order 

12866. 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. Under the marketing order now 

in effect, salable quantities and 

allotment percentages may be 

established for classes of spearmint oil 

produced in the Far West. This 

proposed rule would establish the 

quantity of spearmint oil produced in 

the Far West, by class, which may be 

purchased from or handled for 

producers by handlers during the 2009– 

2010 marketing year, which begins on 

June 1, 2009. This rule will not preempt 

any State or local laws, regulations, or 

policies, unless they present an 

irreconcilable conflict with this rule. 

The Act provides that administrative 

proceedings must be exhausted before 

parties may file suit in court. Under 

section 608c(15)(A) of the Act, any 

handler subject to an order may file 

with USDA a petition stating that the 

order, any provision of the order, or any 

obligation imposed in connection with 

the order is not in accordance with law 

and request a modification of the order 

or to be exempted therefrom. A handler 

is afforded the opportunity for a hearing 

on the petition. After the hearing, USDA 

would rule on the petition. The Act 

provides that the district court of the 


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