Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 2809 

■ The additions and revisions read as 

follows: 

§ 999.1 Regulation governing the 

importation of dates. 

* * * * * 

(c) * * * 

(2) * * * 

(iii) The Customs entry number 

pertaining to the lot or shipment 

covered by the certificate; 

* * * 

(e) Importation. No person may 

import dates into the United States 

unless he or she first files with the 

Collector of Customs at the port at 

which the Customs entry is filed, as a 

condition of each such importation, 

either an inspection certificate or an 

executed Form FV–6—‘Importer’s 

Exempt Commodity Form.’ 

(1) * * * 

(2) Dates for processing and dates 

prepared or preserved—importation. 

Any person may import dates for 

processing and dates prepared or 

preserved exempt from the grade, 

inspection, and certification 

requirements of this section if the 

importer first files as a condition of such 

importation an executed Form FV–6— 

‘Importer’s Exempt Commodity Form.’ 

The importer shall promptly transmit a 

copy of the executed Form FV–6 to the 

Fruit and Vegetable Division. 

(3) Dates for processing—Sale by 

importer. No importer or other person 

may import, sell, or use any dates for 

processing other than for use as set forth 

in paragraph (a)(4) of this section or as 

otherwise permitted by this section. 

Each importer of dates for processing 

shall obtain from each purchaser, no 

later than the time of delivery to such 

purchaser, and file with the Fruit and 

Vegetable Division not later than the 

fifth day of the month following the 

month in which the dates were 

delivered, an executed Form FV–6. 

* * * * * 

■ 8. In § 999.100, amend paragraph 

(c)(2), by redesignating paragraphs 

(c)(2)(iv) and (c)(2)(v) as paragraphs 

(c)(2)(v) and (c)(2)(vi), respectively, and 

adding a new paragraph (c)(2)(iv) to 

read as follows: 

§ 999.100 Regulations governing imports 

of walnuts. 

* * * * * 

(c) * * * 

(2) * * * 

(iv) The Customs entry number 

pertaining to the lot or shipment 

covered by the certificate; 

* * * * * 

§ 999.200 [Amended] 

■ 9. In § 999.200, lift the suspension of 

May 27, 2005, and amend the section as 

follows: 

■ A. Remove the phrase ‘‘Prune Form 

No. 1 ‘Prunes—Section 8e Entry 

Declaration’ ’’ in paragraph (b)(5), and 

add in its place the phrase ‘‘Form FV– 

6—‘Importer’s Exempt Commodity 

Form.’ ’’ 

■ B. Redesignate paragraphs (c)(2)(iii) 

through (c)(2)(v) as paragraphs (c)(2)(iv) 

through (c)(2)(vi) and add a new 

paragraph (c)(2)(iii). 

■ C. Remove the phrase ‘‘ ‘Prunes— 

Section 8e Entry Declaration,’ 

prescribed in paragraph (e)(2) of this 

section as Prune Form No. 1’’ in the 

second sentence of paragraph (e)(1), and 

add the phrase ‘‘Form FV–6— 

‘Importer’s Exempt Commodity Form;’ ’’ 

in its place; 

■ D. Remove the phrase ‘‘ ‘Prunes— 

Section 8e Certification of Processor or 

Reseller,’ prescribed in paragraph (e)(3) 

of this section as Prune Form No. 2’’ in 

the fifth sentence of paragraph (e)(1), 

and add the phrase ‘‘Form FV–6— 

‘Importer’s Exempt Commodity Form’ ’’ 

in its place. 

■ E. Remove paragraphs (e)(2) and 

(e)(3). 

■ F. Redesignate paragraph (e)(4) as 

paragraph (e)(2). 

■ G. Revise newly designated paragraph 

(e)(2). 

■ The additions and revisions read as 

follows: 

§ 999.200 Regulation governing the 

importation of prunes. 

* * * * * 

(c) * * * 

(2) * * * 

(iii) The Customs entry number 

pertaining to the lot or shipment 

covered by the certificate; 

* * * * * 

(e) * * * 

(2) Manufacturing Grade Substandard 

Prune—sale by other than importer. 

Each wholesaler or other reseller of 

manufacturing grade substandard 

prunes should, for his or her protection, 

obtain from each purchaser and hold in 

his or her files an executed Form FV– 

6—‘Importer’s Exempt Commodity 

Form’ covering each sale during the 

calendar year. 

* * * * * 

§ 999.200 [Suspended] 

■ 10. Suspend § 999.200 indefinitely. 

§ 999.300 [Amended] 

■ 11. Amend § 999.300 as follows: 

■ A. Redesignate paragraph (c)(2)(iv) 

through (c)(2)(vi) as paragraphs (c)(2)(v) 

through (c)(2)(vii) and add a new 

paragraph (c)(2)(iv). 

■ B. Remove the phrase ‘‘ ‘Raisins— 

Section 8e Entry Declaration’ prescribed 

in paragraph (e)(2)(i) of this section as 

‘Raisin Form No. 1’ ’’ in the second 

sentence of paragraph (e)(2), and add 

the phrase ‘‘Form FV–6—Importer’s 

Exempt Commodity Form’’ in its place. 

■ C. Remove the phrase ‘‘ ‘Raisins— 

Section 8e Certification of Processor or 

Reseller,’ prescribed in paragraph 

(e)(2)(ii) of this section as ‘Raisin Form 

No. 2’ ’’ in the fifth sentence of 

paragraph (e)(2), and add the phrase 

‘‘Form FV–6’’ in its place. 

■ D. Remove the phrase ‘‘Raisin Form 

No. 2’’ in the seventh sentence of 

paragraph (e)(2), and add the phrase 

‘‘Form FV–6’’ in its place. 

■ E. Remove paragraphs (e)(2)(i) and 

(e)(2)(ii). 

■ The addition reads as follows: 

§ 999.300 Regulation governing 

importation of raisins. 

* * * * * 

(c) * * * 

(2) * * * 

(iv) The Customs entry number 

pertaining to the lot or shipment 

covered by the certificate; 

* * * * * 

■ 12. In § 999.400, amend paragraph 

(c)(3) by redesignating paragraphs 

(c)(3)(iv) through (c)(3)(vi) as paragraphs 

(c)(3)(v) through (c)(3)(vii) and adding a 

new paragraph (c)(3)(iv) to read as 

follows: 

§ 999.400 Regulation governing the 

importation of filberts. 

* * * * * 

(c) * * * 

(3) * * * 

(iv) The Customs entry number 

pertaining to the lot or shipment 

covered by the certificate; 

* * * * * 

Dated: January 13, 2009. 

James E. Link, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. E9–1008 Filed 1–15–09; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Commodity Credit Corporation 

7 CFR Part 1491 

RIN 0578–AA46 

Farm and Ranch Lands Protection 

Program 

AGENCY: Natural Resources 

Conservation Service (NRCS) and the 

Commodity Credit Corporation (CCC), 


sroberts on PROD1PC70 with RULES
2810 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 

United States Department of Agriculture 

(USDA). 

ACTION: Interim final rule with request 

for comments. 

SUMMARY: The Food, Conservation, and 

Energy Act of 2008 (the 2008 Act) 

amended the Farmland Protection 

Program (FPP), established by the 

Federal Agriculture Improvement and 

Reform Act of 1996, and reauthorized by 

the Farm Security and Rural Investment 

Act of 2002. In the implementing 

rulemaking, the program was named the 

Farm and Ranch Lands Protection 

Program (FRPP) to describe best the 

types of land the program seeks to 

protect. Under the FRPP, the Secretary 

of Agriculture, acting through the 

Natural Resources Conservation Service 

(NRCS), an agency of the U.S. 

Department of Agriculture (USDA), is 

authorized, on behalf of the Commodity 

Credit Corporation (CCC) and under its 

authorities, to facilitate and provide 

funding for the purchase of conservation 

easements or other interests in land for 

the purpose of protecting the 

agricultural use and related 

conservation values by limiting 

nonagricultural uses of the land. This 

rulemaking implements changes to 

FRPP made by the 2008 Act and makes 

administrative improvement to the 

program. 

DATES: Effective Date: The rule is 

effective January 16, 2009. 

Comment Date: Submit comments on 

or before March 17, 2009. Comments 

will be made available to the public or 

posted publicly in their entirety. 

ADDRESSES: You may send comments 

(identified by Docket Number NRCS– 

IFR–08006) using any of the following 

methods: 

• Government-wide rulemaking Web 

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

and follow the instructions for sending 

comments electronically. 

• Mail: Easements Programs Division, 

Natural Resources Conservation Service, 

Farm and Ranch Lands Program 

Comments, P.O. 2890, Room 6819–S, 

Washington, DC 20013. 

• E-mail: frpp2008@wdc.usda.gov. 

• Fax: 1–202–720–9689 

• 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 interim final rule may be 

accessed via Internet. Users can access 

the NRCS homepage at http:// 

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

Bill link from the menu; select the 

Interim final link from beneath the Final 

and Interim Final Rules Index title 

under the heading ‘‘2008 NRCS Farm 

Bill Conservation Program Rules’’. 

Select Farm and Ranch Lands 

Protection Program. Persons with 

disabilities who require alternative 

means for communication (Braille, large 

print, audio tape, etc.) should contact 

the USDA TARGET Center at: (202) 

720–2600 (voice and TDD). 

FOR FURTHER INFORMATION CONTACT: 

Director, Easement Programs Division, 

U.S. Department of Agriculture, Natural 

Resources Conservation Service, Room 

6819, P.O. Box 2890, Washington, DC 

20013–2890; fax (202) 720–9689; or email: FRPP2008@wdc.usda.gov. Persons 

with disabilities who require alternative 

means for communication (Braille, large 

print, audiotape, etc.) should contact the 

USDA Target Center at (202) 720–2600 

(voice and TDD). 

SUPPLEMENTARY INFORMATION: 

Regulatory Certifications 

Executive Order 12866 

Pursuant to Executive Order 12866, 

this interim final rule with request for 

comment has been determined to be a 

significant regulatory action. The 

administrative record is available for 

public inspection in Room 5831 South 

Building, USDA, 14th and 

Independence Avenue, SW., 

Washington, DC. In accordance with 

Executive Order 12866, NRCS 

conducted an economic analysis of the 

potential impacts associated with this 

program. A summary of the economic 

analysis can be found at the end of this 

preamble and a copy of the analysis is 

available upon request from the 

Director, Easement Programs Division, 

Natural Resources Conservation Service, 

Room 6819, Washington, DC 20250– 

2890. 

Regulatory Flexibility Act 

The Regulatory Flexibility Act is not 

applicable to this interim final rule 

because the CCC is not required by 5 

U.S.C. 553, or by any other provision of 

law, to publish a notice of proposed 

rulemaking with respect to the subject 

matter of this rule. 

Availability of the Environmental 

Assessment and Finding of No 

Significant Impact 

A programmatic Environmental 

Assessment (EA) has been prepared in 

association with this rulemaking. The 

analysis has determined there will not 

be a significant impact to the human 

environment and as a result an 

Environmental Impact Statement (EIS) 

is not required to be prepared (40 CFR 

part 1508.13) The EA and FONSI are 

available for review and comment for 60 

days from the date of publication of this 

interim final rule in the Federal 

Register. Copies of the EA and FONSI 

may be obtained from the National 

Environmental Coordinator, Natural 

Resources Conservation Service, 

Ecological Sciences Division, 1400 

Independence Ave., SW., Washington, 

DC 20250. The FRPP EA and FONSI 

will also be available at the following 

Internet address: http:// 

www.nrcs.usda.gov/programs/ 

Env_Assess. Written comments on the 

EA and FONSI should be specific and 

reference that comments are regarding 

the EA or FONSI. Public comment may 

be submitted by any of the following 

means: (1) E-mail comments to 

NEPA2008@wdc.usda.gov, (2) e-mail to 

e-gov Web site http:// 

www.regulations.gov, or (3) mail written 

comments to National Environmental 

Coordinator, Natural Resources 

Conservation Service, Ecological 

Sciences Division, 1400 Independence 

Ave., SW., Washington, DC 20205. 

Civil Rights Impact Analysis 

USDA has determined through a Civil 

Rights Impact Analysis that the issuance 

of this rule discloses 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/FRPP. 

Paperwork Reduction Act 

Section 2904 of the Food, 

Conservation and Energy Act of 2008 

requires that the implementation of this 

provision be carried out without regard 

to the Paperwork Reduction Act, 

Chapter 35 of title 44, United States 

Code. Therefore, USDA is not reporting 

recordkeeping or estimated paperwork 

burden associated with this interim 

final rule. 

Government Paperwork Elimination 

Act 

NRCS is committed to compliance 

with the Government Paperwork 

Elimination Act and the Freedom to EFile Act, which require government 

agencies in general and NRCS in 

particular, to provide the public the 

option of submitting information or 

transacting business electronically to 

the maximum extent possible. 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 2811 

Executive Order 12988 

This interim final rule has been 

reviewed in accordance with Executive 

Order 12988, Civil Justice Reform. The 

rule is not retroactive and preempts 

State and local laws to the extent that 

such laws are inconsistent with this 

rule. Before an action may be brought in 

a Federal court of competent 

jurisdiction, the administrative appeal 

rights afforded persons at 7 CFR parts 11 

and 614 must be exhausted. 

Federal Crop Insurance Reform and 

Department of Agriculture 

Reorganization Act of 1994 

Pursuant to section 304 of the Federal 

Crop Insurance Reform Act of 1994 

(Pub. L. 103–354), USDA classified this 

rule as non-major. Therefore, a risk 

analysis was not conducted. 

Unfunded Mandates Reform Act of 

1995 

Pursuant to Title II of the Unfunded 

Mandates Reform Act of 1995, Public 

Law 104–4, USDA assessed the effects 

of this interim final rule on State, local, 

and Tribal governments, and the public. 

This rule does not compel the 

expenditure of $100 million or more by 

any State, local, or Tribal governments 

or anyone in the private sector; 

therefore, a statement under section 202 

of the Unfunded Mandates Reform Act 

is not required. 

Executive Order 13132 

This interim final rule has been 

reviewed in accordance with the 

requirements of Executive Order 13132, 

Federalism. USDA has determined that 

this interim final rule conforms with the 

Federalism principles set forth in the 

Executive Order; would not impose any 

compliance costs on the States; and 

would not have substantial direct effects 

on the States, on the relationship 

between the Federal Government and 

the States, or on the distribution of 

power and responsibilities on the 

various levels of government. Therefore, 

USDA concludes that this interim final 

rule does not have Federalism 

implications. 

Executive Order 13175 

This interim final rule has been 

reviewed in accordance with the 

requirements of Executive Order 13175, 

Consultation and Coordination with 

Indian Tribal Governments. USDA has 

assessed the impact of this interim final 

rule on Indian Tribal Governments and 

has concluded that this proposed rule 

will not negatively affect communities 

of Indian Tribal governments. The rule 

will neither impose substantial direct 

compliance costs on tribal governments, 

nor preempt tribal law. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 (SBREFA) 

Section 2904(c) of the Food, 

Conservation, and Energy Act of 2008 

requires that the Secretary use the 

authority in section 808(2) of title 5, 

United States Code, which allows an 

agency to forgo SBREFA’s usual 

Congressional Review delay of the 

effective date of a regulation if the 

agency finds that there is a good cause 

to do so. NRCS hereby determines that 

it has good cause to do so in order to 

meet the Congressional intent to have 

the conservation programs authorized or 

amended by Title II in effect as soon as 

possible. Accordingly, this rule is 

effective upon filing for public 

inspection by the Office of the Federal 

Register. 

Background 

FRPP is a voluntary program to help 

farmers and ranchers preserve their 

agricultural land. The program provides 

matching funds to State, Tribal, and 

local governments, and 

nongovernmental organizations with 

farmland protection programs to 

purchase conservation easements. The 

Federal Agriculture Improvement and 

Reform Act of 1996 (1996 Farm Bill), 

Public Law 104–387, established the 

Farmland Protection Program (FPP). The 

Farm Security and Rural Investment Act 

of 2002 (2002 Farm Bill), Public Law 

107–171, repealed the FPP and created 

a new farmland protection program. 

USDA promulgated a proposed rule on 

October 29, 2002 (67 FR 65907), and a 

final rule on May 16, 2003 (68 FR 

26474) implementing the FPP statutory 

authority and naming the program the 

Farm and Ranch Lands Protection 

Program (FRPP). On July 27, 2006, 

NRCS amended the final rule by 

promulgating an interim final rule. The 

interim final rule was prepared to 

clarify the following policies and legal 

requirements: Fair market value 

definition; the eligibility of forest lands; 

the nature of the United States’ real 

property rights and how the United 

States will exercise those rights; 

compliance with Department of Justice 

(DOJ) Title Standards; the 

implementation of Federal appraisal 

requirements required by the Uniform 

Relocation Assistance and Real Property 

Acquisitions Policies Act of 1970; 

impervious surface limitations on the 

easement area; and indemnification 

requirements. NRCS viewed these issues 

to be matters of public interest and thus 

sought public comment on associated 

agency policy. Section 2401 of the Food, 

Conservation, and Energy Act of 2008 

(2008 Act), Public Law 110–246, 

reauthorized FRPP and made several 

amendments. 

The Farm and Ranch Lands Protection 

Program has enrolled 533,068 acres on 

2,764 farms and ranches since 1996. 

That area has included 386,444 acres of 

prime, unique, and important farmland 

soil or about 72 percent of the total 

acreage enrolled. The program has also 

enrolled 50,007 acres of upland forest, 

13,287 acres of forested wetlands, and 

29,174 acres of non-forested wetlands. 

The Federal contribution to those 

enrolled parcels was $536 million, the 

eligible entity contribution was $857 

million, the landowner donation was 

$215 million, and the total estimated 

value of those easements was $1.6 

billion. The average Federal 

contribution was 33 percent of the total 

estimated value, the eligible entity 

contribution was 53 percent, and the 

landowner donation was 13 percent. 

Summary of 2008 Act Changes 

The 2008 Act revised the Farm and 

Ranch Lands Protection Program to: 

• Expand the program purpose to 

protecting agricultural lands by limiting 

nonagricultural uses. 

• Shift the program focus from 

purchasing conservation easements to 

facilitating the purchase of conservation 

easements by eligible entities. 

• Require the Secretary to enter into 

agreements with eligible entities to 

stipulate the terms and conditions 

under which the entity is authorized to 

use FRPP funds to acquire easements. 

• Authorize an eligible entity to use 

its own conservation easement deed 

terms and conditions, as approved by 

the Secretary, so long as such terms and 

conditions are consistent with the 

purposes of the program, permit 

effective enforcement of the 

conservation easement deed or other 

interest and include, among other terms, 

a limit on the impervious surfaces to be 

allowed that is consistent with the 

agricultural activities to be conducted. 

• Require the establishment of a 

certification process by which the 

Secretary will directly qualify certain 

eligible entities as certified entities. 

• Require that to be certified, an 

eligible entity must have a plan for 

administering easements consistent 

with FRPP purposes, the capacity and 

resources to monitor and enforce 

conservation easements, policies and 

procedures to ensure long-term integrity 

of conservation easements, timely 

completion of acquisitions, and timely 

reporting of use of funds. 

• Require that the fair market value of 

the conservation easement or other 


sroberts on PROD1PC70 with RULES
2812 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 

interest in eligible land is determined 

on the basis of an appraisal using an 

industry-approved method, selected by 

the eligible entity and approved by the 

Secretary. 

• Require that entities provide a share 

of the cost of purchasing a conservation 

easement or other interest in eligible 

land in an amount that is not less than 

25 percent of the acquisition purchase 

price. 

• Require that the Secretary hold a 

right of enforcement in FRPP funded 

conservation easements. 

• Amend the definition of eligible 

land to allow for the inclusion of forest 

land as an eligible land use. 

• Allow for the inclusion of forest 

land that contributes to the economic 

viability of an agricultural operation or 

serves as a buffer to protect an 

agricultural operation. 

Description of Changes to the 

Regulation 

Subpart A—General Provisions 

Section 1491.1 Applicability 

Section 1491.1(a) is revised to update 

the effective date by removing the 

reference to ‘‘May 16, 2003’’ and 

inserting that cooperative agreements 

shall be administered under the 

regulations in effect at the time the 

cooperative agreement is signed. This 

change is necessary for administrative 

clarity because NRCS is administering 

active cooperative agreements that were 

entered into before passage of the 2008 

Act. In addition, the word ‘‘easements’’ 

is removed from paragraph (a). The term 

‘‘easements’’ is removed for 

administrative clarity because the terms 

and conditions in effect when the 

cooperative agreements were signed will 

determine the terms and conditions for 

a given easement. 

Further, § 1491.1(a) is revised to 

change ‘‘will’’ to ‘‘shall’’. The change 

from ‘‘will’’ to ‘‘shall’’ is made 

throughout this regulation for 

consistency and to strengthen the 

understanding of the requirement, this 

change will not be referenced again in 

this preamble. 

Section 1491.2 Administration 

Section 1491.2, in paragraph (b)(4) is 

revised to clarify that a landowner’s 

eligibility must be determined as well as 

the land eligibility and the eligibility of 

the entity that receives cost-share 

through FRPP to purchase the easement. 

Other non-substantive changes are 

included to improve readability 

Section 1491.3 Definitions 

The purpose of the definition section 

set forth at § 1491.3 is to ensure 

consistent interpretation by the public 

and NRCS personnel of the terms used 

throughout the regulation. Through this 

rulemaking, NRCS is amending portions 

of the definition section to implement 

2008 Act changes as well as to provide 

consistency with other conservation 

programs when practicable. 

The definition of ‘‘Agriculture uses’’ 

is amended to use more current and 

correct terminology, and to broaden the 

definition to reflect the new statutory 

program purposes. The definition in the 

2003 rule linked to the state’s purchase 

of development rights (PDR) program. 

The revised definition uses a more 

universal term, ‘‘farm or ranch land 

protection program or equivalent.’’ The 

definition is also revised to change the 

program purpose from protecting 

topsoil, the purpose of the 2002 Act, to 

‘‘protect agricultural use and related 

conservation uses’’ as provided for in 

the 2008 Act. Additional nonsubstantive changes were made to 

improve readability. 

The term ‘‘Certified entities’’ is added 

to conform to the new statutory 

requirement providing for an eligible 

entity certification process. Certification 

of ‘‘eligible entities’’ is discussed in the 

description of changes to § 1491.4. 

The definition for ‘‘contingent right’’ 

is removed because the regulation no 

longer refers to the term. 

The term ‘‘Cooperative agreement’’ is 

added to define the document that 

specifies the obligations and rights of 

NRCS and the eligible entities. 

The term ‘‘Dedicated fund’’ is added 

and describes an account that can only 

be used for the purposes of 

management, monitoring, and 

enforcement of conservation easements. 

This requirement applies to nongovernmental organizations wishing to 

become ‘‘certified entities’’ and serves 

as evidence of their capacity to ensure 

the long term protection of easements. 

The definition of ‘‘Eligible entities’’ is 

revised to reflect the statutory change in 

the program’s purpose and to remove 

language that is irrelevant to the new 

definition. The 2008 Act amended the 

definition of an eligible entity to add 

organizations that are described in 

paragraph (1) of section 509(a) of the 

Internal Revenue Code of 1986. 

The definition of ‘‘Eligible land’’ is 

removed because the term is fully 

explained in § 1491.4(f). 

The definition of ‘‘Fair market value’’ 

is amended to reflect the change in the 

statute regarding easement valuation 

methodology. NRCS will approve the 

use of either the Uniform Standards for 

Professional Appraisal Practice (USPAP) 

or the Uniform Appraisal Standards for 

Federal Land Acquisition (UASFLA) 

procedures by the eligible entity for 

determining ‘‘fair market value.’’ This 

decision is discussed further in this 

preamble where the agency addresses 

changes to § 1491.4(g). 

The definition of ‘‘Farm and 

ranchland of statewide importance’’ is 

added to provide greater specificity to 

the existing umbrella term ‘‘other 

productive soils.’’ This new definition is 

more descriptive and technically correct 

than the current definition of this land 

type, which is subsumed in general term 

‘‘other productive soils.’’ 

The definition of ‘‘Farm and 

ranchland of local importance’’ is added 

for the same reason discussed above 

under ‘‘Farm and ranchland of 

statewide importance.’’ 

The definition of ‘‘Farm or ranch 

succession plan’’ is changed to correct 

typographical errors in capitalization 

and lower case. The phrase ‘‘Farm or 

Ranch Succession Plan is * * *’’ is 

changed to ‘‘Farm or Ranch Succession 

Plan means * * *’’ for consistency 

purposes. 

The definition of ‘‘Field Office 

Technical Guide (FOTG)’’ is revised to 

provide consistency with the way the 

term is defined in other NRCS program 

regulations. 

The definition of ‘‘Forest land’’ is 

amended to delete the minimum acreage 

requirement for forest land. The 2008 

Act provides that forest land is eligible 

providing it contributes to the economic 

viability of an agricultural operation or 

serves as a buffer to protect an 

agricultural operation from 

development. No minimum acreage 

enrollment levels were established in 

statute. 

The term ‘‘Forest management plan’’ 

is added to define a newly established 

documentation requirement needed to 

demonstrate forest land eligibility, when 

the ‘‘forest land’’ is being enrolled under 

the ‘‘contributes to the economic 

viability of the agricultural operation’’ 

land eligibility category. NRCS is using 

the ‘‘forest management plan’’ as 

documentation of eligibility rather than 

requiring submission of receipts or tax 

returns, which may be viewed as 

intrusive. The definition is consistent 

with the way the term is defined in 

other NRCS program regulations. 

The definition of Historical and 

archaeological resources is amended to 

include resources listed in the State 

Historic Preservation Officer or Tribal 

Historic Preservation Officer inventory 

with written justification as to why the 

resource meets National Register of 

Historic Places criteria. This change is 

made to more fully recognize 

preservation efforts of State, Tribal, and 

local preservation offices. 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 2813 

The definition of ‘‘Imminent harm’’ is 

amended to incorporate the change in 

statutory purpose of the program from 

protection of topsoil to protection of 

agricultural use and related 

conservation values. Other nonsubstantive changes are made to 

improve sentence structure and clarity. 

The definition of ‘‘Indian Tribe’’ is 

updated to give the term the meaning 

provided in section 4(e) of the Indian 

Self-Determination and Education 

Assistance Act (25 U.S.C. 450(b)(e)). 

This definition is consistent with the 

way the term is defined for other NRCS 

easement programs. 

The definition of ‘‘landowner’’ is 

amended to clarify that a landowner 

may be a ‘‘person, legal entity, or Indian 

Tribe.’’ The definition clarifies that 

State and local governments, and nongovernmental organizations are not 

considered eligible landowners. This 

clarification was previously included in 

policy, but it was not included in the 

regulation. 

The term ‘‘Natural Resources 

Conservation Service’’ is amended to 

more appropriately refer to the ‘‘United 

States’’ rather than ‘‘U. S.’’ and to 

denote ‘‘NRCS’’ as the defined acronym. 

The definition of ‘‘Non-governmental 

organization’’ is amended in accordance 

with the 2008 Act to incorporate 

reference to organizations that are 

described in section 509(a)(1) of the 

Internal Revenue Code. 

The definition of ‘‘Other interests in 

land’’ is amended to clarify that other 

interests are interests other than 

easements. 

The definition of ‘‘Other productive 

soils’’ is amended to identify that the 

term is restricted to farm and ranch land 

soils that are considered ‘‘unique 

farmland,’’ and ‘‘farm and ranch land of 

statewide and local importance.’’ The 

terms ‘‘unique farmland’’, ‘‘farm and 

ranch land of statewide importance’’ 

and ‘‘farm and ranch land of local 

importance’’ are now defined separately 

rather than within the definition of 

‘‘other productive soils.’’ The change 

was made to provide specific definitions 

for these types of land. 

The definition of ‘‘Prime and unique 

farmland’’ is deleted and replaced with 

separate definitions for ‘‘Prime 

farmland’’ and ‘‘Unique farmland.’’ The 

change is made to improve the clarity 

and technical correctness of the 

definitions for these types of land. 

The definition of ‘‘Purchase price’’ is 

added to provide for consistent use of 

the term in the regulation. ‘‘Purchase 

price’’ is the appraised fair market value 

of the easement minus the landowner 

donation. The definition of ‘‘purchase 

price’’ is essential to determining the 

entity’s minimum contribution as 

provided for in the 2008 Act. 

The term ‘‘Right of enforcement’’ is 

added to clarify that a right of 

enforcement is an interest in the land 

which the United States may exercise 

under specific circumstances to enforce 

the terms of the conservation easement. 

The exercise of this right is provided in 

the description of changes to § 1491.22. 

The definition of ‘‘Secretary’’ is 

amended to more appropriately refer to 

the ‘‘United States’’ rather than the ‘‘U. 

S.’’. 

The definition of ‘‘State Technical 

Committee’’ is changed to remove ‘‘of 

the U.S. Department of Agriculture’’ 

following the term ‘‘Secretary’’ to 

simplify the definition. The definition 

for the term ‘‘Secretary’’ already 

includes these words. 

The definition of ‘‘State 

Conservationist’’ is updated to use the 

current terminology for the ‘‘Pacific 

Island Area’’ rather than ‘‘Pacific Basin 

Area.’’ 

As noted above, the term ‘‘Unique 

farmland’’ is added to improve clarity 

and provide a more technically accurate 

definition of this type of land than is 

described in the existing regulation 

under ‘‘Prime and unique farmland.’’ 

The term ‘‘United States’ rights’’ is 

removed because the 2008 Act limited 

the Secretary’s interest in FRPP funded 

easements to a right of enforcement 

which runs with the land. The term 

‘‘right of enforcement’’ is defined in this 

section. 

Section 1491.4 Program Requirements 

Section 1491.4(a) is amended to 

incorporate the statutory requirement 

that NRCS provide funding for 

conservation easements or other 

interests in land versus acquiring a 

Federal interest in land; change the 

reference from the ‘‘Secretary’’ to 

‘‘Chief’’; and to add the ‘‘right of 

enforcement’’. The ‘‘right of 

enforcement’’ is discussed further under 

the description of changes to § 1491.22. 

The 2008 Act changed the role of the 

Secretary to ‘‘facilitate and provide 

funding for the purchase of conservation 

easements or other interests in eligible 

land’’ rather than to directly purchase 

easements. Related changes are made to 

remove the requirement that the United 

States is named as a grantee on the deed 

and instead require that the United 

States’ right of enforcement is noted in 

the opening paragraph of the deed that 

acknowledges the parties. The purpose 

for requiring this acknowledgement is to 

put the public on notice of the Federal 

right and to guard against condemnation 

of FRPP-funded deeds. Minor nonsubstantive changes are also made to 

improve readability. 

Section 1491.4(b) is amended to add 

that in states that limit the term of the 

easement, the term of the easement must 

be the maximum allowed by State law. 

Section 1491.4(c) is amended to make 

non-substantive changes to improve 

readability. 

A new § 1491.4(d) is added, and 

subsequent paragraphs are redesignated, to address the requirements 

that an entity must meet to become a 

‘‘certified entity.’’ The certification 

process was added by the 2008 Act as 

an option for entities. To meet the 

certification requirements established 

under the 2008 Act, NRCS is requiring 

that an entity demonstrate long-term 

and substantial experience directly with 

the FRPP program. This section also 

includes a requirement for the existence 

of a dedicated fund for nongovernmental organizations, as 

described in the changes to § 1491.3. 

Section 1491.4(d)(1) includes the 

requirement that an entity have a 

demonstrated ability to complete timely 

acquisition of easements through 

compliance with the terms under 

previously executed FRPP cooperative 

agreements. 

A new § 1491.4(e) is added to describe 

the provisions for review and revocation 

of certification included in the 2008 

Act. 

Section 1491.4(f), previously 

§ 1491.4(d), is restructured to increase 

clarity and readability. Section 1491.4(f) 

is amended in paragraph (1) to combine 

the provisions of the former 

§ 1491.4(d)(2) and certain provisions 

found in the ‘‘eligible land’’ definition 

in § 1491.3. Section 1491.4(f)(1) is also 

amended to add the new statutory 

eligibility land category identified as ‘‘to 

further a State or local policy consistent 

with the purposes of the program.’’ 

Section 1491.4(f)(2) is added to describe 

the type of agriculture land categories 

that are eligible for enrollment. This 

language was previously found in the 

definition of ‘‘eligible land’’ in § 1491.3, 

except that, the text in paragraph (f)(2) 

contains restrictions on forest land 

provided in the 2008 Act. Section 

§ 1491.4(f)(3) is added to include 

language on incidental lands formerly 

found in the definition of ‘‘eligible 

land’’. Section 1491.4(f)(4), previously 

§ 1491.4(d)(1), is revised to clarify that 

whole or part of a farm or ranch may be 

offered for enrollment. In § 1491.4(f)(5), 

NRCS is establishing a threshold for 

requiring the development of forest 

management plans. The threshold will 

be the greater of 10 acres of forest or 10 

percent of the easement area in forest. 

Based on historical program 


sroberts on PROD1PC70 with RULES
2814 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 

participation, NRCS estimates that this 

policy would have resulted in forest 

management plans on about 40 percent 

of the parcels enrolled in the program 

currently. Farms that are less than 100 

acres in size with less than 10 acres of 

forest are not required to have a plan to 

be eligible. A forest management plan 

will help ensure that the Federal 

investment in an easement 

encompassing significant forest acreage 

will have long-term viability for food, 

fiber, and environmental benefits. The 

requirement also helps to ensure that 

these forest lands contribute to the 

viability of the agricultural operation as 

required by the 2008 Act. 

Section 1491.4(f)(6), previously 

§ 1491.4(d)(5), is revised to clarify that 

lands currently under ownership by an 

entity whose purpose is to protect 

agricultural uses and related 

conservation values are not eligible for 

the program. Lands owned by these 

entities are already protected. Exclusion 

of these lands will allow program 

investments to protect additional 

acreage. This provision is already 

included in the FRPP policy, and is now 

being incorporated into the regulation 

by this rulemaking. 

Section 1491.4(f)(7), previously 

§ 1491.4(d)(6), is amended to add the 

current regulatory Adjusted Gross 

Income (AGI) eligibility reference, nonsubstantive changes are made to 

improve clarity, and paragraphs are renumbered as appropriate. 

Section 1491.4(f)(8) is added to 

describe the on-site and off-site 

conditions that are not compatible with 

the program’s purposes. 

Section 1491.4(f)(9) is added to clarify 

that a landowner may submit an 

application on land on which the 

mineral estate is owned by someone 

other than the landowner (also referred 

to as a split estate), but that USDA 

reserves the right to determine the 

impacts of third party rights upon a 

potential easement and to deny funding 

where the purposes of the program 

cannot be achieved. 

Section 1491.4(g), previously 

§ 1491.4(e), is amended to define the 

industry-approved appraisal methods 

specified in the 2008 Act as the Uniform 

Standards of Professional Appraisal 

Practices (USPAP) or the Uniform 

Appraisal Standards for Federal Land 

Acquisition (UASFLA). USPAP and 

UASFLA are the guidelines that 

professional appraisers use for 

appraising properties. The entity may 

choose which of these methods they 

prefer to use. The 2008 Act specified 

that an appraisal would be used; 

therefore, administrative valuation 

processes which are used by some farm 

and ranchland protection programs will 

not be acceptable because they are not 

appraisal methodologies. 

Section 1491.4(h), previously 

§ 1491.4(f), is amended to clarify that a 

standard deed form may be required and 

is updated to reflect the passage of the 

2008 Act by indicating that any 

standard form must meet the purposes 

of this part. 

Section 1491(4)(i), previously 

§ 1491.4(g), was not otherwise amended. 

Section 1491.4(i) contains the 

requirement that a landowner must 

meet the payment eligibility 

requirements of 7 CFR part 12. 

Section 1491.5 Application Procedures 

The text of the existing section is 

deleted in its entirety and replaced with 

a new application process. Section 

1491.5(a) establishes that an entity must 

submit an application to the State 

Conservationist in the State where the 

parcels are located. Section 1491.5(b) 

provides that the Chief will determine 

whether an eligible entity qualifies as a 

certified entity based on the criteria in 

§ 1491.4(d) and in the NRCS national 

FRPP database. 

Section 1491.5(c) indicates that the 

State Conservationist will notify the 

entity about whether or not the entity 

has been determined to be eligible or 

certified. 

Section 1491.5 (d) clarifies that an 

entity with an established cooperative 

agreement will not need to submit an 

annual application in response to an 

RFP, but that the entity may re-apply 

when their cooperative agreement 

expires. NRCS determined, based on 

experience administering other 

easement programs, that FRPP can be 

implemented using a continuous signup 

process. This process provides better 

service to agency clients because 

applications can be submitted in 

accordance with their own schedule. 

Clients do not have to wait for a Federal 

Register publication. It also reduces 

administrative burden for the agency. 

Section 1491.5(e) identifies that the 

new application process will allow 

continuous sign-up, which is consistent 

with other conservation programs. The 

State Conservationist will announce 

periodic ranking dates no less than 60 

days before the date of the ranking. The 

process will allow certified and noncertified eligible entities to compete 

under the same application and ranking 

process. NRCS has decided to have 

certified and non-certified entities 

participate similarly in the program to 

simplify the application process and 

allow parcels to compete on equal 

resource-based terms, regardless of the 

status of the entity. 

To eliminate confusion and 

miscommunication on the status of nonselected parcels at the end of each fiscal 

year, § 1491.5(f) provides that NRCS 

will purge the unfunded parcels from 

the application list on September 30 of 

each year unless the entity requests that 

the parcels be considered for funding in 

the next fiscal year. If an entity fails to 

request that their parcels be retained on 

the list, a new list of parcels must be 

submitted for consideration each year. 

This process will allow NRCS State 

Offices to purge their lists of parcels that 

may have dropped their applications or 

were funded with other sources, and 

eliminate confusion for entities 

regarding the status of their existing 

applications. 

Section 1491.6 Ranking 

Considerations and Proposal Selection 

The existing section is deleted and 

replaced by a new ranking process. 

Section 1491.6(a) establishes that prior 

to scoring and ranking parcels for 

funding, NRCS must evaluate the 

eligibility of both the landowner and the 

land. Section 1491.6(b) of this section 

establishes that such parcels will be 

ranked according to both National and 

State criteria. Within the State ranking 

criteria, the National criteria must 

comprise at least half of the available 

ranking points. Section 1491.6(c) 

identifies that State Conservationists 

will establish and announce a date for 

ranking the applications that were 

accepted and scored in the continuous 

signup. Section 1491.6(d) states that 

applications from certified entities and 

non-certified entities will be ranked 

together and not separately so that the 

parcels submitted compete equally. 

Section 1491.6(e) provides that 

parcels selected for funding will be 

included in the cooperative agreements 

signed by both NRCS and the entity; 

that funds for each fiscal year will be 

obligated through an amendment signed 

by both parties to the existing 

cooperative agreement; and that the 

amendment will identify the closing 

and payment reimbursement deadline 

applicable to each funding year’s 

parcels. 

Paragraph (f) sets forth the national 

ranking criteria. The national ranking 

criteria are changed to reflect site 

(parcel)-specific criteria rather than 

entity performance criteria and language 

has been added to clarify that the 

national requirements are mandatory for 

inclusion in the state ranking. The 

national criteria set forth in the 2003 

Rule included information in the State 

FRPP plans, and criteria on eligible 

entities regarding their histories of 

protecting farms and ranches. These 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 2815 

criteria did not include parcel specific 

criteria; however, it is the individual 

parcels that are being rated and ranked. 

Therefore, these changes are made 

because the use of the new factors 

provides a more quantifiable resourcebased ranking of individual parcels. 

In addition, in order to clarify and 

streamline their use, funding priorities 

set forth in the existing § 1491.7 are 

being incorporated into the new 

national and the state funding criteria 

established by this rulemaking in 

§ 1491.6(f) and (g). In the ‘‘other 

protected land’’ criteria set forth at 

§ 1491.6(f)(7), this rulemaking adds a 

reference to military installations to 

emphasize the USDA partnership with 

the Department of Defense under its 

buffer program. 

Section 1491.6(g) identifies the type 

of criteria that a State Conservationist, 

with advice of the State Technical 

Committee, may include. The State 

ranking criteria may address the 

viability of the parcel for agriculture 

into the future, the landowner’s 

willingness to grant public access for 

recreational purposes, and the 

performance of the entity. Because the 

leveraging factors may skew the ranking 

of individual parcels and the other 

factors set forth in the existing 

regulation are not relevant to individual 

parcels, the State ranking criteria is 

being changed by this rulemaking to 

eliminate criteria related to the type of 

farm, the maximum amount of Federal 

funding required per acre, the percent 

leveraging, and an entity’s history of 

assisting beginning farmers and 

ranchers. Funding priorities from the 

former § 1491.7, however, were 

incorporated as possible State factors. 

Section 1491.6(h), previously 

§ 1491.6(b), provides that the State 

ranking criteria will be developed on a 

State-by-State basis. However, it 

removes the language in § 1491.6(b) that 

recommends interested entities request 

ranking criteria from the State 

Conservationist. This language is 

replaced with a provision that requires 

NRCS State Conservationists to make 

available the full listing of National and 

State ranking criteria. Section 1491.6(i) 

is removed because the purpose of (i) is 

addressed with the changes in § 1491.4 

(g). 

Section 1491.7 Funding Priorities 

Section 1491.7 is deleted and its 

elements incorporated in § 1491.6 as 

noted above to improve the structure of 

the regulation. 

Subpart B—Cooperative Agreements 

and Conservation Easement Deeds 

Section 1491.20 Cooperative 

Agreements 

Section 1491.20(a) is amended to 

reflect changes to the contents of 

cooperative agreements that are 

necessitated by the 2008 Act, including 

the change that FRPP funds are used to 

assist eligible entities with the purchase 

of rights in land rather than to purchase 

these rights directly by the United 

States. To implement 2008 Act statutory 

changes, the following additions have 

been made to this section: requirements 

of the easement deed, management and 

enforcement requirements, the 

responsibilities of NRCS, the 

responsibilities of the eligible entity, the 

ability to substitute parcels by mutual 

agreement, and other requirements 

deemed necessary by NRCS. These 

issues have been addressed in the 

cooperative agreements since 1996, but 

their presence in the cooperative 

agreements has never been required by 

regulation. These issues are included in 

this regulation to inform the eligible 

entities what their responsibilities are in 

the agreement and list the 

responsibilities of NRCS. Other nonsubstantive changes were made to 

paragraph (a) to improve its readability. 

A new § 1491.20(b) is added which 

sets forth the new statutory requirement 

that the terms of agreements be a 

minimum of five years for certified 

entities and three years for other eligible 

entities. 

The existing § 1491.20(b) is being 

redesignated as § 1491.20(c) and is 

amended to require that the list of 

parcels funded under a cooperative 

agreement include the acreage, the 

estimated fair market value of the 

parcel, and the FRPP contribution 

amount. The requirement for a location 

map is being removed from the existing 

regulation, but such information may be 

still required as a matter of policy under 

the category of ‘‘other relevant 

information’’. 

Section 1491.21 Funding 

Section 1491.21(a) is amended to 

reflect that NRCS may share the cost of 

an interest in land, and not just the cost 

of a conservation easement. Section 

1491.21(b) incorporates the 2008 Act 

change that the minimum entity costshare to be an amount that is not less 

than 25 percent of the acquisition 

purchase price. As discussed above in 

the changes to the definitions section, 

‘‘purchase price’’ is defined as the fair 

market value of the easement less the 

landowner’s contribution. Section 

1491.21(c) authorizes landowner 

donations without restrictions. The 

previous rule limited landowner 

donations to 25 percent. Section 

1491.21(d) includes the requirement 

that the entity must provide a minimum 

of 25 percent of the purchase price of 

the conservation easement. Section 

1491.21(e) remains unchanged. Section 

1491.21(f) emphasizes that a State 

Conservationist shall not assign a higher 

priority to any easement solely based on 

its lesser cost to FRPP. 

Section 1491.21(g) is added to affirm 

that NRCS asserts no direct or indirect 

interests to environmental credits 

associated with an easement purchased 

in part with FRPP funds. 

Section 1491.22 Conservation 

Easement Deeds 

Section 1491.22(b) is amended to 

clarify that easements in States where 

State law prohibits permanent 

easements shall be of the maximum 

duration allowed by state law. The 2008 

Act requires that entities may use their 

own terms and conditions of 

conservation easement deeds, provided 

that such terms and conditions meet the 

minimum requirements set forth in the 

statute and are approved by the 

Secretary. Consequently, this 

rulemaking amends § 1491.22(c) to 

provide that eligible entities may use 

their own easement deeds when the 

deed form to be used for its land 

transactions under the cooperative 

agreement has been submitted to and 

approved by NRCS in advance. 

In accordance with the 2008 Act 

change made to the property interest 

acquired by the United States in FRPP 

funded easements, this rulemaking 

deletes the language of the existing 

§ 1491.22(d), which requires the United 

States to be named a grantee on FRPP 

funded easements. 

New language is set forth in 

§ 1491.22(d) incorporating the 2008 Act 

requirement that the Secretary shall 

require the inclusion of a ‘‘contingent 

right of enforcement’’ for the Secretary 

in the terms of the conservation 

easement deed. Because this right is 

new in the 2008 Act and is not a 

standard real property term, NRCS has 

carefully considered its meaning while 

promulgating this rule. Specifically, 

NRCS interpreted the plain meaning of 

the statutory language, considered the 

legislative history, and consulted with 

the Office of the General Counsel for the 

Department. 

The purpose of the right is to ensure 

that the easement is enforced and that 

the Federal investment is protected. The 

FRPP statute requires that the easement 

deed include a contingent right of 

enforcement. Given the requirement for 


sroberts on PROD1PC70 with RULES
2816 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 

inclusion of a contingent right of 

enforcement in the terms of the deed, 

the Agency has determined that it is 

Congress’ intent that such a right run 

with the land for the duration of the 

easement. 

The only legislative history discussing 

the nature of the contingent right of 

enforcement is found in the Manager’s 

Report for FRPP. Here the Managers 

indicated that Congress did not want the 

contingent right of enforcement 

considered an acquisition of real 

property. The House version of FRPP 

included specific statutory language 

stating that the contingent right of 

enforcement was not a real property 

acquisition. However, Congress adopted 

the Senate version (with amendment), 

which did not include this language. 

NRCS has concluded that it cannot 

accomplish the intent of the Managers 

as reflected in the legislative history 

regarding the effect of ‘‘contingent right 

of enforcement’’ and give meaning to 

the plain statutory language of FRPP. 

This is because when an interest is to 

run with the land, it constitutes a real 

property right. The agency has 

considered other theories, including 

contractual and constitutional authority 

under the Spending Clause, but none 

provide a sufficient legal justification 

for the Secretary to enforce the terms of 

the easement for its duration against 

subsequent landowners. Consequently, 

the Agency has concluded that the 

contingent right of enforcement as used 

in FRPP means a vested real property 

right, which provides the Secretary, on 

behalf of the United States, the right to 

enforce the terms of the easement for the 

duration of the easement. In addition, 

because the United States has a vested 

real property right in FRPP easements, 

i.e., its right of enforcement, the 

easement cannot be condemned by state 

or local government, thereby providing 

further protection of the easement and 

the federal investment. 

Finally, the Agency is interpreting the 

term ‘‘contingent’’ in ‘‘contingent right 

of enforcement’’ to mean that the 

Secretary exercises that right under 

certain circumstances, not that the right 

itself is contingent. Consequently, to 

prevent confusion over the scope of 

right, the Agency is referring to its 

enforcement right as a ‘‘right of 

enforcement.’’ The definition clarifies 

that this right is only exercised under 

certain circumstances. Section 

1491.22(d) is changed to provide 

information about the United State’s 

right of enforcement. Specifically, the 

paragraph provides that the conveyance 

document must include the right of 

enforcement as set forth in the FRPP 

cooperative agreement, it identifies 

when the United States may exercise 

this right and it explains that the right 

is a vested interest in real property and 

cannot be condemned by State or local 

governments. Section 1491.22(e) is 

amended to remove the requirement for 

conservation districts to approve the 

conservation plan, as this is not always 

consistent with local practice. The 

change still gives NRCS the ability to 

work through local conservation 

districts in the development of 

conservation plans. The requirement 

that NRCS sign the deed accepting its 

terms is incorporated at § 1491.22(g) for 

administrative clarity. 

Section 1491.22(i) retains the 

impervious surface limit of 2%, but is 

amended to increase the impervious 

surface waiver to up to 10% from the 

existing policy of 6%. This change is 

possible because the statute was 

amended to eliminate the protection of 

topsoil as the primary purpose of the 

program. This impervious surface limit 

should be adequate to allow for various 

types of agricultural needs in different 

regions, while providing an adequate 

protection against destruction of 

agricultural soil resources and other 

conservation values associated with 

agricultural land such as open space. 

The indemnification language 

previously located in § 1491.30(d) is 

moved to § 1491.22(j) because this 

language describes a deed requirement 

and is appropriately placed in this 

section. 

Section 1491.22(k) is added to require 

that any conservation easement deed 

include a clause which addresses 

amendments to its terms. In particular, 

§ 1491.22(k) requires that any 

amendment be consistent with the 

purposes of the conservation easement 

and with FRPP. This paragraph replaces 

the provisions previously found in 

§ 1491.23. 

Section 1491.23 is removed since the 

United States is no longer a grantee 

under the terms of the conservation 

easements acquired with FRPP funds. 

Therefore, modifications to the terms of 

the conservation easement will be 

handled through an amendment clause 

required under § 1491.22(k). 

Subpart C—General Administration 

Section 1491.30 Violations and 

Remedies 

Section 1491.30(b) and (f) are revised 

to incorporate the changes to the nature 

of the Federal right. The former section 

1491.30(e) is moved to § 1491.22 as 

described above. Subsequent sections 

are re-numbered. Section 1491.30(d) 

clarifies that any cost recoveries levied 

by NRCS will be directed to the 

cooperating entity, not the specific 

landowner. 

Section 1491.31 Appeals 

Section 1491.31(a) is changed by 

replacing the term ‘‘cooperating entity’’ 

with the term ‘‘eligible entity’’ to refer 

to potential FRPP participants. The term 

‘‘cooperating entity’’ is no longer used. 

Section 1491.31(b) is changed to add the 

term ‘‘of eligible entity’’ after the term 

‘‘person’’ to ensure the public 

understands that all participants have 

the same rights. Paragraph (b) is further 

changed to refer to ‘‘administrative 

action’’ rather than ‘‘any action taken 

under this part’’. Only administrative 

actions are appealable. Last, paragraph 

(b) is changed to provide that no 

decision shall be a final Agency action 

except a decision of the Chief of NRCS. 

The words ‘‘Chief of NRCS’’ replace the 

words ‘‘U.S. Department of 

Agriculture’’. Paragraph (c) is added to 

further clarify that once an easement is 

recorded, 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, 7 CFR 

part 11, and Federal real property law. 

Section 1491.32 Scheme and Device 

The text of Section 1491.32 is revised 

by replacing ‘‘Secretary’’ with ‘‘NRCS’’. 

Section 2708, ‘‘Compliance and 

Performance’’, of the 2008 Act added a 

paragraph to section 1244(g) of the 1985 

Act entitled, ‘‘Administrative 

Requirements for Conservation 

Programs,’’ which states the following: 

‘‘(g) Compliance and performance.— 

For each conservation program under 

Subtitle D, the Secretary shall develop 

procedures— 

(1) To monitor compliance with 

program requirements; 

(2) To measure program performance; 

(3) To demonstrate whether long-term 

conservation benefits of the program are 

being achieved; 

(4) To track participation by crop and 

livestock type; and 

(5) To coordinate activities described 

in this subsection with the national 

conservation program authorized under 

section 5 of the Soil and Water 

Resources Conservation Act of 1977 (16 

U.S.C. 2004).’’ 

This new provision presents in one 

place the accountability requirements 

placed on the Agency as it implements 

conservation programs and reports on 

program results. The requirements 

apply to all programs under Subtitle D, 

including the Wetlands Reserve 

program, the Conservation Security 

Program, the Conservation Stewardship 

Program, the Farm and Ranch Lands 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 2817 

Protection Program, the Grassland 

Reserve Program, the Environmental 

Quality Incentives Program (including 

the Agricultural Water Enhancement 

Program), the Wildlife Habitat Incentive 

Program, and the Chesapeake Bay 

Watershed initiative. These 

requirements are not directly 

incorporated into these regulations, 

which set out requirements for program 

participants. However, certain 

provisions within these regulations 

relate to elements of section 1244(g) of 

the 1985 Act and the Agency’s 

accountability responsibilities regarding 

program performance. NRCS is taking 

this opportunity to describe existing 

procedures that relate to meeting the 

requirements of section 1244(g) of the 

1985 Act, and Agency expectations for 

improving its ability to report on each 

program’s performance and 

achievement of long-term conservation 

benefits. Also included is reference to 

the sections of these regulations that 

apply to program participants and that 

relate to the Agency accountability 

requirements as outlined in section 

1244(g) of the 1985 Act. 

Monitor compliance with program 

requirements. NRCS has established 

application procedures to ensure that 

participants meet eligibility 

requirements, and follow-up procedures 

to ensure that participants are 

complying with the terms and 

conditions of their contractual 

arrangement with the government and 

that the installed conservation measures 

are operating as intended. These and 

related program compliance evaluation 

policies are set forth in Agency 

guidance (440 CPM_519) (http:// 

directives.sc.egov.usda.gov/). 

The program requirements applicable 

to participants that relate to compliance 

are set forth in these regulations in 

§ 1491.4, ‘‘Program Requirements’’, 

§ 1491.22, ‘‘Conservation Easement 

Deeds’’, and § 1491.30, ‘‘Violations and 

remedies’’. These sections make clear 

the general program participant and 

entity obligations, the terms and 

conditions of the conservation 

easement, and the ramifications of 

noncompliance. Pursuant to the 

requirements of the Government 

Performance and Results Act of 1993 

(Pub. L. 103–62, Sec. 1116) and 

guidance provided by OMB Circular A– 

11, NRCS has established performance 

measures for its conservation programs. 

Program-funded conservation activity is 

captured through automated field-level 

business tools and the information is 

made publicly available at: http:// 

ias.sc.egov.usda.gov/PRSHOME/. 

Program performance also is reported 

annually to Congress and the public 

through the annual performance budget, 

annual accomplishments report and the 

USDA Performance Accountability 

Report. Related performance 

measurement and reporting policies are 

set forth in Agency guidance 

(GM_340_401 and GM_340_403) (http:// 

directives.sc.egov.usda.gov/). 

The actions undertaken by eligible 

entities and participants are the basis for 

measuring program performance— 

specific actions are tracked and reported 

annually, while the effects of those 

actions relate to whether the long-term 

benefits of the program are being 

achieved. The program requirements 

applicable to participants and eligible 

entities that relate to undertaking 

conservation actions are set forth in 

these regulations in § 1491.4, ‘‘Program 

Requirements,’’ § 1491.20, ‘‘Cooperative 

Agreements,’’ and § 1491.22 

‘‘Conservation Easement Deeds’’. 

Demonstrate whether long-term 

conservation benefits of the program are 

being achieved. Demonstrating the longterm natural resource benefits achieved 

through conservation programs is 

subject to the availability of needed 

data, the capacity and capability of 

modeling approaches, and the external 

influences that affect actual natural 

resource condition. While NRCS 

captures many measures of ‘‘output’’ 

data, such as acres of conservation 

practices, it is still in the process of 

developing methods to quantify the 

contribution of those outputs to 

environmental outcomes NRCS 

currently uses a mix of approaches to 

evaluate whether long-term 

conservation benefits are being achieved 

through its programs. Since 1982, NRCS 

has reported on certain natural resource 

status and trends through the National 

Resources Inventory (NRI), which 

provides statistically reliable, nationally 

consistent land cover/use and related 

natural resource data. However, lacking 

has been a connection between these 

data and specific conservation 

programs. In the future, the interagency 

Conservation Effects Assessment Project 

(CEAP), which has been underway since 

2003, will provide nationally consistent 

estimates of environmental effects 

resulting from conservation practices 

and systems applied. CEAP results will 

be used in conjunction with 

performance data gathered through 

Agency field-level business tools to help 

produce estimates of environmental 

effects accomplished through Agency 

programs, such as WRP. In 2006 a Blue 

Ribbon panel evaluation of CEAP 

strongly endorsed the project’s purpose, 

but concluded ‘‘CEAP must change 

direction’’ to achieve its purposes. In 

response, CEAP has focused on 

priorities identified by the Panel and 

clarified that its purpose is to quantify 

the effects of conservation practices 

applied on the landscape. Information 

regarding CEAP, including reviews and 

current status is available at (http:// 

www.nrcs.usda.gov/technical/NRI/ 

ceap/. Since 2004 and the initial 

establishment of long-term performance 

measures by program, NRCS has been 

estimating and reporting progress 

toward long-term program goals. Natural 

resource inventory and assessment, and 

performance measurement and 

reporting policies set forth in Agency 

guidance (GM_290_400; GM_340_401; 

GM_340_403) (http:// 

directives.sc.egov.usda.gov/). 

Demonstrating the long-term 

conservation benefits of conservation 

programs is an Agency responsibility. 

Through CEAP, NRCS is in the process 

of evaluating how these long-term 

benefits can be achieved through the 

conservation practices and systems 

applied by participants under the 

program. The program requirements 

applicable to participants that relate to 

producing long-term conservation 

benefits are described previously under 

‘‘measuring program performance.’’ 

Track participation by crop and 

livestock type. NRCS’ automated fieldlevel business tools capture participant, 

land, and operation information. This 

information is aggregated in the 

National Conservation Planning 

database and is used in a variety of 

program reports. Additional reports will 

be developed to provide more detailed 

information on program participation to 

meet congressional needs. These and 

related program management 

procedures supporting program 

implementation are set forth in Agency 

guidance (440 CPM 519). 

The program requirements applicable 

to participants that relate to tracking 

participation by crop and livestock type 

are put forth in these regulations in 

§ 1491.4, ‘‘Program Requirements,’’ 

which makes clear program eligibility 

requirements, including the requirement 

to provide NRCS the information 

necessary to implement WRP. 

Coordinate these actions with the 

national conservation program 

authorized under the Soil and Water 

Resources Conservation Act (RCA). The 

2008 Act reauthorized and expanded on 

a number of elements of the RCA related 

to evaluating program performance and 

conservation benefits. Specifically, the 

2008 Farm Bill added a provision 

stating, ‘‘Appraisal and inventory of 

resources, assessment and inventory of 

conservation needs, evaluation of the 

effects of conservation practices, and 

analyses of alternative approaches to 


sroberts on PROD1PC70 with RULES
2818 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 

existing conservation programs are basic 

to effective soil, water, and related 

natural resources conservation.’’ 

The program, performance, and 

natural resource and effects data 

described previously will serve as a 

foundation for the next RCA, which will 

also identify and fill, to the extent 

possible, data and information gaps. 

Policy and procedures related to the 

RCA are set forth in Agency guidance 

(GM_290_400; M_440_525; 

GM_130_402)(http:// 

directives.sc.egov.usda.gov/). 

The coordination of the previously 

described components with the RCA is 

an Agency responsibility and is not 

reflected in these regulations. However, 

it is likely that results from the RCA 

process will result in modifications to 

the program and performance data 

collected, to the systems used to acquire 

data and information, and potentially to 

the program itself. Thus, as the 

Secretary proceeds to implement the 

RCA in accordance with the statute, the 

approaches and processes developed 

will improve existing program 

performance measurement and outcome 

reporting capability and provide the 

foundation for improved 

implementation of the program 

performance requirements of section 

1244(g) of the 1985 Act. 

List of Subjects in 7 CFR 1491 

Administrative practice and 

procedure, Agriculture, Soil 

conservation. 

■ For the reasons stated in the preamble, 

the Commodity Credit Corporation 

revises 7 CFR part 1491 to read as 

follows: 

PART 1491—FARM AND RANCH 

LANDS PROTECTION PROGRAM 

Subpart A—General Provisions 

Sec. 

1491.1 Applicability. 

1491.2 Administration. 

1491.3 Definitions. 

1491.4 Program requirements. 

1491.5 Application procedures. 

1491.6 Ranking considerations and 

proposal selection. 

Subpart B—Cooperative Agreements and 

Conservation Easement Deeds 

1491.20 Cooperative agreements. 

1491.21 Funding. 

1491.22 Conservation easement deeds. 

Subpart C—General Administration 

1491.30 Violations and remedies. 

1491.31 Appeals. 

1491.32 Scheme or device. 

Authority: 16 U.S.C. 3838h–3838i. 

Subpart A—General Provisions 

§ 1491.1 Applicability. 

(a) The regulations in this part set 

forth requirements, policies, and 

procedures, for implementation of the 

Farm and Ranch Lands Protection 

Program (FRPP) as administered by the 

Natural Resources Conservation Service 

(NRCS). FRPP cooperative agreements 

shall be administered under the 

regulations in effect at the time the 

cooperative agreement is signed. 

(b) The NRCS Chief may implement 

FRPP 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 

Mariana Islands. 

§ 1491.2 Administration. 

(a) The regulations in this part shall 

be administered under the general 

supervision and direction of the NRCS 

Chief. 

(b) NRCS shall— 

(1) Provide overall program 

management and implementation 

leadership for FRPP; 

(2) Develop, maintain, and ensure that 

policies, guidelines, and procedures are 

carried out to meet program goals and 

objectives; 

(3) Ensure that the FRPP share of the 

cost of an easement or other deed 

restrictions in eligible land shall not 

exceed 50 percent of the appraised fair 

market value of the conservation 

easement; 

(4) Determine eligibility of the land, 

the landowner, and the entity; 

(5) Ensure a conservation plan is 

developed in accordance with 7 CFR 

part 12; 

(6) Make funding decisions and 

determine allocations of program funds; 

(7) Coordinate with the Office of the 

General Counsel (OGC) to ensure the 

legal sufficiency of the cooperative 

agreement and the easement deed or 

other legal instrument; 

(8) Sign and monitor cooperative 

agreements for the CCC with the 

selected entity; 

(9) Monitor and ensure conservation 

plan compliance with highly erodible 

land and wetland provisions in 

accordance with 7 CFR part 12; and 

(10) Provide leadership for 

establishing, implementing, and 

overseeing administrative processes for 

easements, easement payments, and 

administrative and financial 

performance reporting. 

(c) NRCS shall enter into cooperative 

agreements with eligible entities to 

assist NRCS with implementation of this 

part. 

§ 1491.3 Definitions. 

The following definitions will apply 

to this part and all documents issued in 

accordance with this part, unless 

specified otherwise: 

Agricultural uses are defined by the 

State’s farm or ranch land protection 

program or equivalent, or where no 

program exists, agricultural uses should 

be defined by the State agricultural use 

tax assessment program. (If NRCS finds 

that a State definition of agriculture is 

so broad that an included use could lead 

to the degradation of soils and 

agriculture productivity, NRCS reserves 

the right to impose greater deed 

restrictions on the property than 

allowable under that State definition of 

agriculture in order to protect 

agricultural use and related 

conservation values.) 

Certified entity means an eligible 

entity that NRCS has determined to 

meet the requirements of § 1491.4(d) of 

this part. 

Chief means the Chief of NRCS, 

USDA. 

Commodity Credit Corporation (CCC) 

is a Government-owned and operated 

entity that was created to stabilize, 

support, and protect farm income and 

prices. CCC is managed by a Board of 

Directors, subject to the general 

supervision and direction of the 

Secretary of Agriculture, who is an exofficio director and chairperson of the 

Board. CCC provides the funding for 

FRPP, and NRCS administers FRPP on 

its behalf. 

Conservation Easement means a 

voluntary, legally recorded restriction, 

in the form of a deed, on the use of 

property, in order to protect resources 

such as agricultural lands, historic 

structures, open space, and wildlife 

habitat. 

Conservation Plan is the document 

that— 

(1) Applies to highly erodible 

cropland; 

(2) Describes the conservation system 

applicable to the highly erodible 

cropland and describes the decisions of 

the person with respect to location, land 

use, tillage systems, and conservation 

treatment measures and schedules; 

(3) Is approved by the local soil 

conservation district in consultation 

with the local committees established 

under Section 8(b)(5) of the Soil 

Conservation and Domestic Allotment 

Act (16 U.S.C. 5909h(b)(5)) and the 

Secretary, or by the Secretary. 

Cooperative agreement means the 

document that specifies the obligations 

and rights of NRCS and eligible entities 

participating in the program. 

Dedicated fund means an account 

held by an eligible entity sufficiently 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 2819 

capitalized for the purpose of covering 

expenses associated with the 

management, monitoring, and 

enforcement of conservation easements 

and where such account cannot be used 

for other purposes. 

Eligible entity means federally 

recognized Indian Tribes, State, unit of 

local government, or a nongovernmental organization, which has a 

farmland protection program that 

purchases agricultural conservation 

easements for the purpose of protecting 

agriculture use and related conservation 

values by limiting conversion to nonagricultural uses of the land. 

Fair market value means the value of 

a conservation easement as ascertained 

through standard real property appraisal 

methods, as established in § 1491.4(g). 

Farm and ranch land of statewide 

importance means, in addition to prime 

and unique farmland, land that is of 

statewide importance for the production 

of food, feed, fiber, forage, bio-fuels, and 

oil seed crops. Criteria for defining and 

delineating this land are to be 

determined by the appropriate State 

agency or agencies. Generally, 

additional farmlands of statewide 

importance include those that are nearly 

prime farmland and that economically 

produce high yields of crops when 

treated and managed according to 

acceptable farming methods. Some may 

produce as high a yield as prime 

farmlands if conditions are favorable. In 

some States, additional farmlands of 

statewide importance may include tracts 

of land that have been designated for 

agriculture by State law in accordance 

with 7 CFR part 657. 

Farm and ranch land of local 

importance means farm or ranch land 

used to produce food, feed, fiber, forage, 

bio-fuels, and oilseed crops, that are not 

identified as having national or 

statewide importance. Where 

appropriate, these lands are to be 

identified by the local agency or 

agencies concerned. Farmlands of local 

importance may include tracts of land 

that have been designated for 

agriculture by local ordinance. 

Farm or Ranch Succession Plan 

means a general plan to address the 

continuation of some type of 

agricultural business on the conserved 

land; the farm or ranch succession plan 

may include specific intra-family 

succession agreements or strategies to 

address business asset transfer planning 

to create opportunities for beginning 

farmers and ranchers. 

Field Office Technical Guide (FOTG) 

means the official local NRCS source of 

resource information and interpretations 

of guidelines, criteria, and requirements 

for planning and applying conservation 

practices and conservation management 

systems. The FOTG contains detailed 

information on the conservation of soil, 

water, air, plant, and animal resources 

applicable to the local area for which it 

is prepared. 

Forest land means a land cover or use 

category that is at least 10 percent 

stocked by single-stemmed woody 

species of any size that will be at least 

13 feet tall at maturity. Also included is 

land bearing evidence of natural 

regeneration of tree cover (cutover forest 

or abandoned farmland) that is not 

currently developed for non-forest use. 

Ten percent stocked, when viewed from 

a vertical direction, equates to an aerial 

canopy cover of leaves and branches of 

25 percent or greater. 

Forest management plan means a sitespecific plan that is prepared by a 

professional resource manager, in 

consultation with the participant, and is 

approved by the State Conservationist. 

Forest management plans may include a 

forest stewardship plan, as specified in 

section 5 of the Cooperative Forestry 

Assistance Act of 1978 (16 U.S.C. 

2103a); another practice plan approved 

by the State Forester; or another plan 

determined appropriate by the State 

Conservationist. The plan complies with 

applicable Federal, State, Tribal, and 

local laws, regulations and permit 

requirements. 

Historical and archaeological 

resources mean resources that are: 

(1) Listed in the National Register of 

Historic Places (established under the 

National Historic Preservation Act 

(NHPA), 16 U.S.C. 470, et seq.), 

(2) Formally determined eligible for 

listing in the National Register of 

Historic Places (by the State Historic 

Preservation Officer (SHPO) or Tribal 

Historic Preservation Officer (THPO) 

and the Keeper of the National Register 

in accordance with section 106 of the 

NHPA), 

(3) Formally listed in the State or 

Tribal Register of Historic Places of the 

SHPO (designated under section 

101(b)(1)(B) of the NHPA) or the THPO 

(designated under section 101(d)(1)(C) 

of the NHPA), or 

(4) Included in the SHPO or THPO 

inventory with written justification as to 

why it meets National Register of 

Historic Places criteria. 

Imminent harm means easement 

violations or threatened violations that, 

as determined by the Chief, would 

likely cause immediate and significant 

degradation to the conservation values; 

for example, those violations that would 

adversely impact agriculture use, 

productivity, and related conservation 

values or result in the erosion of topsoil 

beyond acceptable levels as established 

by NRCS. 

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, 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 (25 U.S.C. 

450(b)(e)). 

Land Evaluation and Site Assessment 

System (LESA) means the land 

evaluation system approved by the 

NRCS State Conservationist used to rank 

land for farm and ranch land protection 

purposes, based on soil potential for 

agriculture, as well as social and 

economic factors, such as location, 

access to markets, and adjacent land 

use. (For additional information see the 

Farmland Protection Policy Act rule at 

7 CFR part 658.) 

Landowner means a person, legal 

entity, or Indian Tribe having legal 

ownership of land, and those who may 

be buying eligible land under a 

purchase agreement. The term 

‘‘landowner’’ may include all forms of 

collective ownership including joint 

tenants, tenants-in-common, and life 

tenants. State governments, local 

governments, and non-governmental 

organizations that qualify as eligible 

entities are not eligible as landowners. 

Natural Resources Conservation 

Service (NRCS) means an agency of the 

United States Department of 

Agriculture. 

Non-governmental organization 

means any organization that: 

(1) Is organized for, and at all times 

since the formation of the organization, 

has been operated principally for one or 

more of the conservation purposes 

specified in clause (i), (ii), (iii), or (iv) 

of section 170(h)(4)(A) of the Internal 

Revenue Code of 1986; 

(2) Is an organization described in 

section 501(c)(3) of that Code that is 

exempt from taxation under 501(a) of 

that Code; and 

(3) Is described— 

(i) In section 509(a)(1) and (2) of that 

Code; or 

(ii) Is described in section 509(a)(3) of 

that Code and is controlled by an 

organization described in section 

509(a)(2) of that Code. 

Other interests in land include any 

right in real property other than 

easements that are recognized by State 

law. FRPP funds shall only be used to 

purchase other interests in land with 

prior approval from the Chief. 


sroberts on PROD1PC70 with RULES
2820 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 

Other productive soils means farm 

and ranch land soils, in addition to 

prime farmland soils that include 

unique farmland and farm and ranch 

land of statewide and local importance. 

Pending offer means a written bid, 

contract, or option extended to a 

landowner by an eligible entity to 

acquire a conservation easement before 

the legal title to these rights has been 

conveyed for the purpose of limiting 

non-agricultural uses of the land. 

Prime farmland means land that has 

the best combination of physical and 

chemical characteristics for producing 

food, feed, fiber, forage, oilseed, and 

other agricultural crops with minimum 

inputs of fuel, fertilizer, pesticides, and 

labor, without intolerable soil erosion, 

as determined by the Secretary. 

Purchase price means the appraised 

fair market value of the easement minus 

the landowner donation. 

Right of enforcement means an 

interest in real property set forth in the 

conservation easement deed, equal in 

scope to the right of inspection and 

enforcement granted to the grantee, that 

the United States Government may 

exercise under specific circumstances in 

order to enforce the terms of the 

conservation easement. 

Secretary means the Secretary of the 

United States Department of 

Agriculture. 

State Technical Committee means a 

committee established by the Secretary 

in a State pursuant to 16 U.S.C. 3861 

and 7 CFR part 610, subpart C. 

State Conservationist means the 

NRCS employee authorized to direct 

and supervise NRCS activities in a State, 

the Caribbean Area (Puerto Rico and the 

Virgin Islands), or the Pacific Island 

Area (Guam, American Samoa, and the 

Commonwealth of the Northern Mariana 

Islands). 

Unique farmland means land other 

than prime farmland that is used for the 

production of specific high-value food 

and fiber crops, as determined by the 

Secretary. It has the special combination 

of soil quality, location, growing season, 

and moisture supply needed to 

economically produce sustained high 

quality or high yields of specific crops 

when treated and managed according to 

acceptable farming methods. Examples 

of such crops include citrus, tree nuts, 

olives, cranberries, fruits, and 

vegetables. Additional information on 

the definition of prime, unique, or other 

productive soil can be found in 7 CFR 

part 657 and 7 CFR part 658. 

§ 1491.4 Program requirements. 

(a) Under FRPP, the Chief, on behalf 

of CCC, shall provide funding for the 

purchase of conservation easements or 

other interests in eligible land that is 

subject to a pending offer from an 

eligible entity for the purpose of 

protecting the agricultural use and 

related conservation values of the land 

by limiting nonagricultural uses of the 

land. Eligible entities submit 

applications to NRCS State Offices to 

partner with NRCS to acquire 

conservation easements on farm and 

ranch land. NRCS enters into 

cooperative agreements with selected 

entities and provides funds for up to 50 

percent of the fair market value of the 

easement. In return, the entity agrees to 

acquire, hold, manage, and enforce the 

easement. A Federal right of 

enforcement must also be included in 

each FRPP funded easement deed for 

the protection of the Federal 

investment. 

(b) The term of all easements shall be 

in perpetuity unless prohibited by State 

law. In states that limit the term of the 

easement, the term of the easement must 

be the maximum allowed by State law. 

(c) To be eligible to receive FRPP 

funding, an entity must meet the 

definition of ‘‘eligible entity’’ as listed 

in § 1491.3. In addition, eligible entities 

interested in receiving FRPP funds must 

demonstrate: 

(1) A commitment to long-term 

conservation of agricultural lands; 

(2) A capability to acquire, manage, 

and enforce easements; 

(3) Sufficient number of staff 

dedicated to monitoring and easement 

stewardship; and 

(4) The availability of funds. 

(d) To be eligible as a ‘‘certified 

entity,’’ an entity must be qualified to be 

an ‘‘eligible entity’’ and have 

demonstrated, as determined by the 

Chief: 

(1) The ability to complete acquisition 

of easements in a timely fashion; 

(2) The ability to monitor easements 

on a regular basis; 

(3) The ability to enforce the 

provisions of easement deeds; 

(4) Experience enrolling parcels in the 

Farm and Ranch Lands Protection 

Program (FRPP) or the Farmland 

Protection Program (FPP); 

(5) For non-governmental 

organizations, the existence of a 

dedicated fund for the purposes of 

easement management, monitoring, and 

enforcement where such fund is 

sufficiently capitalized in accordance 

with NRCS standards. The dedicated 

fund must be dedicated to the purposes 

of managing, monitoring, and enforcing 

each easement held by the eligible 

entity; and 

(6) Other certification criteria, 

including having a plan for 

administering easements enrolled under 

this part, as determined by the Chief. 

(e) Review and Revocation of 

Certification. 

(1) The Chief shall conduct a review 

of certified entities every three years to 

ensure that the certified entities are 

meeting the certification criteria 

established in § 1491.4(d). 

(2) If the Chief finds that the certified 

entity no longer meets the criteria in 

§ 1491.4(d), the Chief may: 

(i) Allow the certified entity a 

specified period of time, at a minimum 

180 days, in which to take such actions 

as may be necessary to meet the criteria; 

and 

(ii) Revoke the certification of the 

entity, if after the specified period of 

time, the certified entity does not meet 

the criteria established in § 1491.4(d). 

(f) Eligible land: 

(1) Must be privately owned land on 

a farm or ranch and contain at least 50 

percent prime, unique, Statewide, or 

locally important farmland, unless 

otherwise determined by the State 

Conservationist; contain historical or 

archaeological resources; or furthers a 

State or local policy consistent with the 

purposes of the program; and is subject 

to a pending offer by an eligible entity; 

(2) Must be cropland, rangeland, 

grassland, pasture land, or forest land 

that contributes to the economic 

viability of an agricultural operation or 

serves as a buffer to protect an 

agricultural operation from 

development; 

(3) May include land that is incidental 

to the cropland, rangeland, grassland, 

pasture land, or forest land if the 

incidental land is determined by the 

Secretary to be necessary for the 

efficient administration of a 

conservation easement; 

(4) May include parts of or entire 

farms or ranches; 

(5) Must not include forest land of 

greater than two-thirds of the easement 

area. Forest land that exceeds the greater 

of 10 acres or 10 percent of the easement 

area shall have a forest management 

plan before closing; 

(6) NRCS shall not enroll land in 

FRPP that is owned in fee title by an 

agency of the United States, a State or 

local government, or by an entity whose 

purpose is to protect agricultural use 

and related conservation values, 

including those listed in the statute 

under eligible land, or land that is 

already subject to an easement or deed 

restriction that limits the conversion of 

the land to nonagricultural use, unless 

otherwise determined by the Chief; 

(7) Must be owned by landowners 

who certify that they do not exceed the 

adjusted gross income limitation 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 2821 

eligibility requirements set forth in part 

1400 of this title; 

(8) Must possess suitable on-site and 

off-site conditions which will allow the 

easement to be effective in achieving the 

purposes of the program. Suitability 

conditions may include, but are not 

limited to, hazardous substances on or 

in the vicinity of the parcel, land use 

surrounding the parcel that is not 

compatible with agriculture, and 

highway or utility corridors that are 

planned to pass through or immediately 

adjacent to the parcel; and 

(9) May be land on which gas, oil, 

earth, or other mineral rights 

exploration has been leased or is owned 

by someone other than the applicant 

may be offered for participation in the 

program. However, if an applicant 

submits an offer for an easement project, 

USDA will assess the potential impact 

that the third party rights may have 

upon achieving the program purposes. 

USDA reserves the right to deny funding 

for any application where there are 

exceptions to clear title on any property. 

(g) Prior to FRPP fund disbursement, 

the value of the conservation easement 

must be appraised. Appraisals must be 

completed and signed by a Statecertified general appraiser and must 

contain a disclosure statement by the 

appraiser. The appraisal must conform 

to the Uniform Standards of 

Professional Appraisal Practices or the 

Uniform Appraisal Standards for 

Federal Land Acquisitions, as selected 

by the entity. State Conservationists will 

provide the guidelines through which 

NRCS will review appraisals for quality 

control purposes. 

(h) The landowner shall be 

responsible for complying with the 

Highly Erodible Land and Wetland 

Conservation provisions of the Food 

Security Act of 1985, as amended, and 

7 CFR part 12. 

§ 1491.5 Application procedures. 

(a) An entity shall submit an 

application to the State Conservationist 

in the State where parcels are located in 

order to determine if the entity is 

eligible to participate in FRPP. 

(b) The Chief shall determine whether 

an eligible entity is a certified entity 

based on the criteria set forth in 

§ 1491.4(d); information provided by the 

entity’s application; and data in the 

national FRPP database. 

(c) The State Conservationist shall 

notify each entity if it has been 

determined eligible, certified, or 

ineligible. 

(d) Entities with cooperative 

agreements entered into after the 

effective date of this part will not have 

to resubmit an annual application for 

the duration of the cooperative 

agreement. Entities may reapply for 

eligibility when their cooperative 

agreements expire. 

(e) Throughout the fiscal year, eligible 

entities may submit to the appropriate 

NRCS State Conservationist applications 

for parcels, in that State, with 

supporting information to be scored, 

ranked, and considered for funding. 

(f) At the end of each fiscal year, the 

lists of pending, unfunded parcels shall 

be cancelled unless the entity requests 

that specific parcels be considered for 

funding in the next fiscal year. Entities 

must submit a new list of parcels each 

fiscal year in order to be considered for 

funding unless they request that parcels 

from the previous fiscal year be 

considered. 

§ 1491.6 Ranking considerations and 

proposal selection. 

(a) Before the State Conservationist 

can score and rank the parcels for 

funding, the eligibility of the landowner 

and the land must be assessed. 

(b) The State Conservationist shall use 

National and State criteria to score and 

rank parcels. The national ranking 

criteria will be established by the Chief 

and the State criteria will be determined 

by the State Conservationist, with 

advice from the State Technical 

Committee. The national criteria shall 

comprise at least half of the ranking 

system score. 

(c) When funds are available, the State 

Conservationist shall announce the date 

on which ranking of parcels shall occur. 

A State Conservationist may announce 

more than one date of ranking in a fiscal 

year. 

(d) All parcels submitted throughout 

the fiscal year shall be scored. All 

parcels will be ranked together in 

accordance with the national and state 

ranking criteria before parcels are 

selected for funding. 

(e) The parcels selected for funding 

shall be listed on the agreements of the 

entities that submitted the parcels and 

the agreements shall be signed by the 

State Conservationist and the eligible 

entity. Funds for each fiscal year’s 

parcels shall be obligated with a new 

signature each year on an amendment to 

the agreement. Parcels funded on each 

fiscal year’s amendment shall have a 

separate deadline for closing and 

requesting reimbursement. 

(f) The national ranking criteria are: 

(1) Percent of prime, unique, and 

important farmland in the parcel to be 

protected; 

(2) Percent of cropland, pastureland, 

grassland, and rangeland in the parcel to 

be protected; 

(3) Ratio of the total acres of land in 

the parcel to be protected to average 

farm size in the county according to the 

most recent USDA Census of 

Agriculture; 

(4) Decrease in the percentage of 

acreage of farm and ranch land in the 

county in which the parcel is located 

between the last two USDA Censuses of 

Agriculture; 

(5) Percent population growth in the 

county as documented by the United 

States Census; 

(6) Population density (population per 

square mile) as documented by the most 

recent United States Census; 

(7) Proximity of the parcel to other 

protected land, such as military 

installations land owned in fee title by 

the United States or a State or local 

government, or by an entity whose 

purpose is to protect agricultural use 

and related conservation values, or land 

that is already subject to an easement or 

deed restriction that limits the 

conversion of the land to 

nonagricultural use; 

(8) Proximity of the parcel to other 

agricultural operations and 

infrastructure; and 

(9) Other additional criteria as 

determined by the Chief. 

(g) State or local criteria, as 

determined by the State Conservationist, 

with advice of the State Technical 

Committee, may include: 

(1) The location of a parcel in an area 

zoned for agricultural use; 

(2) The performance of an entity 

experience in managing and enforcing 

easements. Performance must be 

measured by the closing efficiency or 

percentage of monitoring that is 

reported. Years of an entity’s existence 

shall not be used as a ranking factor; 

(3) Multifunctional benefits of farm 

and ranch land protection including 

social, economic, historical and 

archaeological, and environmental 

benefits; 

(4) Geographic regions where the 

enrollment of particular lands may help 

achieve National, State, and regional 

conservation goals and objectives, or 

enhance existing government or private 

conservation projects; 

(5) Diversity of natural resources to be 

protected; 

(6) Score in the Land Evaluation and 

Site Assessment (LESA) system. This 

score serves as a measure of agricultural 

viability (access to markets and 

infrastructure); 

(7) Existence of a farm or ranch 

succession plan or similar plan 

established to encourage farm viability 

for future generations; and 

(8) Landowner willingness to allow 

public access for recreational purposes. 


sroberts on PROD1PC70 with RULES
2822 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 

(h) State ranking criteria will be 

developed on a State-by-State basis. The 

State Conservationist will make 

available a full listing of applicable 

National and State ranking criteria. 

Subpart B—Cooperative Agreements 

and Conservation Easement Deeds 

§ 1491.20 Cooperative agreements. 

(a) NRCS, on behalf of CCC, shall 

enter into a cooperative agreement with 

those entities selected for funding. Once 

a proposal is selected by the State 

Conservationist, the entity must work 

with the State Conservationist to 

finalize and sign the cooperative 

agreement, incorporating all necessary 

FRPP requirements. The cooperative 

agreement must address: 

(1) The interests in land to be 

acquired, including the United States’ 

right of enforcement as well as the form 

and other terms and conditions of the 

easement deed; 

(2) The management and enforcement 

of the rights on lands acquired with 

FRPP funds; 

(3) The responsibilities of NRCS; 

(4) The responsibilities of the eligible 

entity on lands acquired with FRPP 

funds; 

(5) The allowance of parcel 

substitution upon mutual agreement of 

the parties; and 

(6) Other requirements deemed 

necessary by NRCS to meet the purposes 

of this part or protect the interests of the 

United States. 

(b) The term of cooperative 

agreements shall be a minimum of five 

years for certified entities and three 

years for other eligible entities. 

(c) The cooperative agreement shall 

also include an attachment listing the 

parcels accepted by the State 

Conservationist. This list shall include 

landowners’ names and addresses, 

acreage, the estimated fair market value, 

the estimated Federal contribution, and 

other relevant information. An example 

of a cooperative agreement shall be 

made available by the State 

Conservationist. 

§ 1491.21 Funding. 

(a) Subject to the statutory limits, the 

State Conservationist, in coordination 

with the cooperating entity, shall 

determine the NRCS share of the cost of 

purchasing a conservation easement or 

other interest in the land. 

(b) NRCS may provide up to 50 

percent of the appraised fair market 

value of the conservation easement, as 

determined in § 1491.4(g). An entity 

shall share in the cost of purchasing a 

conservation easement in accordance 

with the limitations of this part. 

(c) A landowner may make donations 

toward the acquisition of the 

conservation easement. 

(d) The entity must provide a 

minimum of 25 percent of the purchase 

price of the conservation easement. 

(e) FRPP funds may not be used for 

expenditures such as appraisals, 

surveys, title insurance, legal fees, costs 

of easement monitoring, and other 

related administrative and transaction 

costs incurred by the entity. 

(f) If the State Conservationist 

determines that the purchase of two or 

more conservation easements are 

comparable in achieving FRPP goals, the 

State Conservationist shall not assign a 

higher priority to any one of these 

conservation easements solely on the 

basis of lesser cost to FRPP. 

(g) Environmental Services Credits. 

(1) NRCS asserts no direct or indirect 

interest in environmental credits that 

may result from or be associated with an 

FRPP easement. 

(2) NRCS retains the authority to 

ensure that the requirements for FRPPfunded easements are met and 

maintained consistent with this part. 

(3) If activities required under an 

environmental credit agreement may 

affect land covered under a FRPP 

easement, landowners are encouraged to 

request a compatibility assessment from 

the eligible entity prior to entering into 

such agreements. 

§ 1491.22 Conservation easement deeds. 

(a) Under FRPP, a landowner grants 

an easement to an eligible entity with 

which NRCS has entered into an FRPP 

cooperative agreement. The easement 

shall require that the easement area be 

maintained in accordance with FRPP 

goals and objectives for the term of the 

easement. 

(b) Pending offers by an eligible entity 

must be for acquiring an easement in 

perpetuity, except where State law 

prohibits a permanent easement. In such 

cases where State law limits the term of 

a conservation easement, the easement 

term shall be for the maximum allowed 

under state law. 

(c) The entity may use its own terms 

and conditions in the conservation 

easement deed, but a conservation 

easement deed template used by the 

eligible entity shall be submitted to the 

NRCS National Headquarters within 30 

days of the signing of the cooperative 

agreement. The conservation easement 

deed templates must be reviewed and 

approved by the NRCS National 

Headquarters in advance of use. NRCS 

reserves the right to require additional 

specific language or to remove language 

in the conservation easement deed to 

protect the interests of the United 

States. 

(d) The conveyance document must 

include a ‘‘right of enforcement’’ clause 

for the United States. NRCS shall 

specify the terms for the ‘‘right of 

enforcement’’ clause to read as set forth 

in the FRPP cooperative agreement. The 

right of enforcement provides that the 

NRCS has the right to inspect and 

enforce the easement, if the eligible 

entity fails to uphold the easement, as 

determined by NRCS. This right is a 

vested interest in real property and 

cannot be condemned by State or local 

government. 

(e) As a condition for participation, a 

conservation plan shall be developed by 

NRCS in consultation with the 

landowner and implemented according 

to the NRCS Field Office Technical 

Guide. NRCS may work through the 

local conservation district in the 

development of the conservation plan. 

The conservation plan will be 

developed and managed in accordance 

with the Food Security Act of 1985, as 

amended, 7 CFR part 12 or subsequent 

regulations, and other requirements as 

determined by the State Conservationist. 

To ensure compliance with this 

conservation plan, the easement shall 

grant to the United States, through 

NRCS, its successors or assigns, a right 

of access to the easement area. 

(f) The cooperating entity shall 

acquire, hold, manage and enforce the 

easement. The cooperating entity may 

have the option to enter into an 

agreement with governmental or private 

organizations to carry out easement 

stewardship responsibilities. 

(g) Prior to easement closing, NRCS 

must sign an acceptance of the 

conservation easement, concurring with 

the terms of the conservation easement 

and accepting its interest in the 

conservation easement deed. 

(h) All conservation easement deeds 

acquired with FRPP funds must be 

recorded. Proof of recordation shall be 

provided to NRCS by the cooperating 

entity. 

(i) Impervious surfaces shall not 

exceed two percent of the FRPP 

easement area, excluding NRCSapproved conservation practices. The 

NRCS State Conservationist may waive 

the two percent impervious surface 

limitation on a parcel by parcel basis, 

provided that no more than ten percent 

of the easement area is covered by 

impervious surfaces. Before waiving the 

two percent limitation, the State 

Conservationist must consider, at a 

minimum: population density; the ratio 

of open prime other important farmland 

versus impervious surfaces on the 

easement area; the impact to water 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 2823 

quality concerns in the area; the type of 

agricultural operation; and parcel size. 

All FRPP easements must include 

language limiting the amount of 

impervious surfaces within the 

easement area. 

(j) The conservation easement deed 

must include an indemnification clause 

requiring the landowner (grantor) to 

indemnify and hold harmless the 

United States from any liability arising 

from or related to the property enrolled 

in FRPP. 

(k) The conservation easement deed 

must include an amendment clause 

requiring that any changes to the 

easement deed after its recordation must 

be consistent with the purposes of the 

conservation easement and this part. 

Subpart C—General Administration 

§ 1491.30 Violations and remedies. 

(a) In the event of a violation of the 

terms of the easement, the eligible entity 

shall notify the landowner. The 

landowner may be given reasonable 

notice and, where appropriate, an 

opportunity to voluntarily correct the 

violation in accordance with the terms 

of the conservation easement. 

(b) In the event that the entity fails to 

enforce any of the terms of the 

conservation easement, as determined 

in the sole discretion of the Chief, the 

Chief and his or her successors or 

assigns may exercise the United States’ 

rights to enforce the terms of the 

conservation easement through any and 

all authorities available under Federal 

or State law. 

(c) Notwithstanding paragraph (a) of 

this section, NRCS, upon notification to 

the landowner, reserves the right to 

enter upon the easement area at any 

time to monitor conservation plan 

implementation or remedy deficiencies 

or easement violations, as it relates to 

the conservation plan. The entry may be 

made at the discretion of NRCS when 

the actions are deemed necessary to 

protect highly erodible soils and 

wetland resources. The landowner will 

be liable for any costs incurred by the 

NRCS as a result of the landowner’s 

negligence or failure to comply with the 

easement requirements as it relates to 

conservation plan violations. 

(d) The United States shall be entitled 

to recover any and all administrative 

and legal costs from the participating 

entity, including attorney’s fees or 

expenses, associated with any 

enforcement or remedial action as it 

relates to the enforcement of the FRPP 

easement. 

(e) In instances where an easement is 

terminated or extinguished, NRCS shall 

collect CCC’s share of the conservation 

easement based on the appraised fair 

market value of the conservation 

easement at the time the easement is 

extinguished or terminated. CCC’s share 

shall be in proportion to its percentage 

of original investment. 

(f) In the event NRCS determines it 

must exercise the United States’ right to 

enforce the terms of, or taking a 

property interest in, the conservation 

easement, NRCS shall provide written 

notice by certified mail to the grantee at 

the grantee’s last known address. The 

notice will set forth the nature of the 

noncompliance by the grantee and a 60- 

day period to cure. If the grantee fails 

to cure within the 60-day period, the 

United States shall take the action 

specified under the notice. The United 

States reserves the right to decline to 

provide a period to cure if NRCS 

determines that imminent harm may 

result to the conservation easement 

deed or the conservation values it seeks 

to protect. 

§ 1491.31 Appeals. 

(a) A person or eligible entity which 

has submitted an FRPP proposal and is 

therefore participating in FRPP may 

obtain a review of any administrative 

determination concerning eligibility for 

participation utilizing the 

administrative appeal regulations 

provided in 7 CFR part 614. 

(b) Before a person or eligible entity 

may seek judicial review of any 

administrative action taken under this 

part, the person or eligible entity must 

exhaust all administrative appeal 

procedures set forth in paragraph (a) of 

this section, and for the purposes of 

judicial review, no decision shall be a 

final Agency action except a decision of 

the Chief of the NRCS under these 

provisions. 

(c) Enforcement action undertaken by 

the NRCS in furtherance of its vested 

property rights are under the 

jurisdiction of the Federal District Court 

and not subject to review under 

administrative appeal regulations. 

§ 1491.32 Scheme or device. 

(a) If it is determined by the NRCS 

that a cooperating entity has employed 

a scheme or device to defeat the 

purposes of this part, any part of any 

program payment otherwise due or paid 

such a cooperating entity during the 

applicable period may be withheld or be 

required to be refunded with interest 

thereon, as determined appropriate by 

NRCS on behalf of CCC. 

(b) A scheme or device includes, but 

is not limited to, coercion, fraud, 

misrepresentation, depriving any other 

person or entity of payments for 

easements for the purpose of obtaining 

a payment to which a person would 

otherwise not be entitled. 

Signed this 9th day of 2009 in Washington, 

DC. 

Arlen L. Lancaster, 

Vice President, Commodity Credit 

Corporation and Chief, Natural Resources 

Conservation Service. 

[FR Doc. E9–829 Filed 1–15–09; 8:45 am] 

BILLING CODE 3410–16–P 

DEPARTMENT OF AGRICULTURE 

Rural Utilities Service 

7 CFR Part 1779 

Rural Housing Service 

7 CFR Part 3575 

Rural Business—Cooperative Service 

Rural Utilities Service 

7 CFR Parts 4279 and 4280 

Rural Business—Cooperative Service 

Rural Housing Service 

Rural Utilities Service 

7 CFR Part 5001 

[FR Doc. E8–29151] 

RIN 0570–AA65 

Rural Development Guaranteed Loans 

AGENCIES: Rural Business—Cooperative 

Service, Rural Housing Service, Rural 

Utilities Service, USDA. 

ACTION: Interim rule; delay of the 

effective date. 

SUMMARY: Rural Development is 

delaying the effective date of the interim 

rule for Rural Development Guaranteed 

Loans, which was published on 

December 17, 2008. The interim rule 

establishes a unified guaranteed loan 

platform for the enhanced delivery of 

four existing Rural Development 

guaranteed loan programs—Community 

Facility; Water and Waste Disposal; 

Business and Industry; and Renewable 

Energy Systems and Energy Efficiency 

Improvement Projects. 

DATES: This effective date of the interim 

rule, published on December 17, 2008 

[73 FR 76698], is delayed from January 

16, 2009, until February 17, 2009. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Michael Foore, Rural Development, 

Business and Cooperative Programs, 

U.S. Department of Agriculture, 1400 

Independence Avenue, SW., Stop 3201, 


sroberts on PROD1PC70 with RULES