[Federal Register: May 16, 2003 (Volume 68, Number 95)]
[Rules and Regulations]
[Page 26461-26478]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16my03-1]
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Rules and Regulations
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[[Page 26461]]
DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
7 CFR Part 1491
RIN 0578-AA37
Farm and Ranch Lands Protection Program
AGENCY: Commodity Credit Corporation, Department of Agriculture (USDA).
ACTION: Final rule.
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SUMMARY: This final rule sets forth the policies implementing the Farm
and Ranch Lands Protection Program. The Farm Security and Rural
Investment Act of 2002 repealed the Farmland Protection Program (FPP),
established by the Federal Agriculture Improvement and Reform Act of
1996, and authorized a new farmland protection program. The new program
will be called the Farm and Ranch Lands Protection Program (FRPP) to
both distinguish it from the repealed program and to better describe
the types of land the program seeks to protect. Under the FRPP, the
Secretary of Agriculture, acting through the Natural Resources
Conservation Service (NRCS), is authorized, on behalf of the Commodity
Credit Corporation (CCC) and under its authorities, to purchase
conservation easements or other interests in land for the purpose of
protecting topsoil by limiting nonagricultural uses of the land. The
final rule promulgates policy regarding the implementation of the FRPP,
while the Request for Proposals (RFP), which will continue to be used,
announces national fund availability and sets forth nationwide
application procedures and ranking criteria. Conservation easements
recorded on or following this date will be administered according to
this final rule. Cooperative agreements signed on this date or
following this date also will be administered according to this final
rule.
DATES: This final rule is effective May 16, 2003.
ADDRESSES: This final rule can be accessed via the internet. Users can
access the Natural Resources Conservation Service (NRCS) homepage at:
http://www.nrcs.usda.gov.
FOR FURTHER INFORMATION CONTACT: Denise Coleman, Farm and Ranch Lands
Protection Program Manager, Natural Resources Conservation Service,
P.O. Box 2890, Washington, DC 20013-2890. Telephone: (202) 720-9476.
Electronic mail denise.coleman@usda.gov. 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).
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This final rule has been reviewed under USDA procedures and
Executive Order 12866 on Regulatory Planning and Review. The Office of
Management and Budget (OMB) has determined that this final rule is not
a significant rulemaking action. Therefore, no benefit cost assessment
of potential impacts is necessary.
Regulatory Flexibility Act
Pursuant to 5 U.S.C. 605(c) of the Regulatory Flexibility Act, it
has been determined that this final rule will not have a significant
economic impact on a substantial number of small entities as defined by
that Act. Therefore, a regulatory flexibility analysis is not required
for this final rule. This final rule implements the Farm and Ranch
Lands Protection Program, which involves the voluntary acquisition of
interests in property by NRCS in partnership with State, local, and
Tribal governments and nonprofit entities.
Small Business Regulatory Enforcement Fairness Act of 1996
This final rule is not a major rule as defined by Section 804 of
the Small Business Regulatory Enforcement Fairness Act of 1996. This
final rule will not result in annual effect on the economy of
$100,000,000 or more, a major increase in costs or prices, or
significant adverse effects on competition, employment, investment,
productivity, innovation, or the ability of U. S.based companies to
compete in domestic and export markets.
Environmental Analysis
An Environmental Assessment (EA) has been prepared to assist NRCS
in determining whether this final rule would have a significant impact
on the quality of the human environment such that an Environmental
Impact Statement (EIS) should be prepared. Based on the results of the
draft EA, NRCS has issued a Finding of No Significant Impact (FONSI).
Copies of the EA and FONSI may be obtained from Denise Coleman,
Farmland Protection and Community Planning Staff, Natural Resources
Conservation Service, P.O. Box 2890, Washington, DC 20013-2890. The
FRPP EA and FONSI will also be available at the following Internet
address: http://www.nrcs.usda.gov/programs/Env_Assess/FPP/FPP.html.
Paperwork Reduction Act
Section 2702 of the Farm Security and Rural Investment Act of 2002
provides that the promulgation of this final rule is carried out
without regard to Chapter 35 of Title 44, United States Code (commonly
known as the Paperwork Reduction Act).
Executive Order 12988, Civil Justice Reform
This final rule has been reviewed in accordance with Executive
Order 12988. NRCS has not identified any State or local laws or
regulations that are in conflict with this regulation or that would
impede full implementation of this rule. Nevertheless, in the event
that such a conflict were to be identified, the final rule would
preempt the State or local laws or regulations found to be in conflict.
The provisions of this final rule are not retroactive. Before an action
may be brought in a Federal court of competent jurisdiction, the
administrative appeal rights afforded persons at 7 CFR part 614 must be
exhausted.
Executive Order 13132, Federalism
This final rule has been reviewed in accordance with the
requirements of Executive Order 13132, Federalism. NRCS has determined
that the rule conforms to the Federalism principles set forth in the
Executive Order; would not impose any compliance cost 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
[[Page 26462]]
distribution of power and responsibilities on the various levels of
government.
Unfunded Mandates Reform Act of 1995
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995, 2
U.S.C. 1531-1538, NRCS has assessed the effects of this rulemaking
action of State, local, and Tribal governments, and the public. This
action does not compel the expenditure of $100,000,000 or more by any
State, local, or Tribal government, or anyone in the private sector;
therefore, a statement under section 202 of the Act is not required.
Background Related to the Farm and Ranch Lands Protection Program
Urban sprawl continues to threaten the Nation's farm and ranch
land. Social and economic changes over the past three decades have
influenced the rate at which land is converted to nonagricultural uses.
Population growth, demographic changes, large lot development,
expansion of transportation systems, and economic prosperity have
contributed to increased agricultural land conversion rates. Increased
population, growing affluence, and an expanded transportation
infrastructure have accelerated the depopulation of the urban centers
and have resulted in the conversion of farm and ranch land. Between
1960 and 1990, metropolitan area population grew by 50 percent, while
the acreage of developed land increased 100 percent. About 45 percent
of new construction between the years of 1994 and 1997 occurred in
rural areas, with nearly 80 percent being land bordering urban areas.
Overall, this translates to over 2.2 million acres being converted per
year (USDA, Maintaining Farm and Forestland In Rapidly Growing Areas,
2000).
According to the USDA National Resources Inventory (NRI), urban and
built-up areas increased from 65.3 million acres in 1992, to 79 million
acres in 1997, equaling an area approximately the size of Ohio. Perhaps
more important than the overall rate of land conversion is the location
and type of land subject to this change in land use. On average, prime
and important farmlands are being converted at a rate of two to four
times that of other lands. Based on NRI urban and built-up data for the
1980s, 46 percent of the land converted to urban and built-up uses
comes from cropland and pasture, while 38 and 14 percent comes from
forest land and range land, respectively. Much of the land being lost
is prime, unique, or important farmland located near cities. Moreover,
an end to farm and forest land conversion is not in sight. The National
Home Builders Association forecasts an expansion of 1.3 to 1.5 million
new homes per year through 2010 (USDA, Maintaining Farm and Forestland
In Rapidly Growing Areas, 2000).
As a result of these land use changes, there is growing national
interest in protecting farm and ranch lands. Once developed, productive
topsoil is effectively lost forever, placing the Nation's future food
security at risk. Furthermore, land use devoted to agriculture provides
other significant public benefits, including environmental quality,
historic preservation, and scenic beauty.
Overview of the Farm and Ranch Lands Protection Program
The FRPP is a voluntary program that helps farmers and ranchers
keep their land in agriculture. The program provides matching funds to
State, Tribal, and local governments, and non-governmental
organizations with existing farmland protection programs to purchase
conservation easements. NRCS is authorized by statute to purchase
conservation easements, or other interests in land. NRCS cannot use
FRPP funds to restore historical or archaeological resources, nor share
in the cost of installing conservation practices.
Under the FRPP, NRCS solicits proposals from Federally recognized
Indian Tribes, States, units of local government, and non-governmental
organizations to cooperate in the acquisition of conservation easements
on farms and ranches for the purpose of protecting topsoil from
conversion to nonagricultural uses. Although NRCS has authority to
acquire other interests in land, the FRPP will seek to fund the
acquisition of conservation easements.
Discussion of Comments and Changes
The Natural Resources Conservation Service (NRCS), on behalf of the
Commodity Credit Corporation (CCC), published a proposed rule on
October 29, 2002 at 7 CFR 1491. NRCS received 296 timely filed letters
containing nearly 800 comments. Respondents included the following: 1
Congressional representative, 1 Federal agency, 5 State agencies, 5
local governments, 59 non-governmental organizations, and 225 from
individuals. Comments were received from California, Colorado,
Connecticut, Delaware, Florida, Idaho, Illinois, Iowa, Kansas,
Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota,
Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey,
New Mexico, New York, North Carolina, Oklahoma, Oregon, Pennsylvania,
Rhode Island, South Carolina, Tennessee, Texas, Vermont, Washington,
West Virginia, Wisconsin, Wyoming, and the District of Columbia. Some
letters and e-mails did not indicate from which State they originated.
Some comments pertained to a specific situation or locality and were
not national in scope; therefore, these comments were not addressed in
the final rule.
The discussion that follows is organized in the same sequence as
the proposed rule.
Subpart A--General Provisions
Section 1491.1 Applicability
This section addresses the scope of the Farm and Ranch Lands
Protection Program. The Farm and Ranch Lands Protection Program is
available in all 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. One
respondent asked whether this final rule governs the policy for fiscal
year 2002 applications. This final rule is effective upon publication.
Conservation easements recorded on/or following this date will be
administered according to this final rule. Cooperative agreements
signed on this date or following this date also will be administered
according to this final rule. One respondent asked that there be a
discussion of how the final rule differs from the Request for
Proposals, while one respondent requested that NRCS continue to use
national Request for Proposal announcements, as it did under the
Farmland Protection Program. The final rule promulgates policy
regarding the implementation of the FRPP, while the Request for
Proposals, which will continue to be used, announces national fund
availability and sets forth nationwide application procedures and
ranking criteria.
Three respondents indicated their overall support for the FRPP
program and its proposed rule, while two respondents indicated that
they did not support FRPP, contending that tax dollars should not be
used on programs where the Federal government decides how private lands
are to be used, and that a program such as FRPP invites more ``boom and
bust'' land speculation. FRPP is a voluntary program that protects
agricultural land from conversion to nonagricultural uses. FRPP,
coupled with community planning and zoning, such as the use of
agricultural districts, can help curb
[[Page 26463]]
``boom and bust'' land speculation and ensure that farm and ranch lands
remain viable in communities across the Nation.
Two respondents indicated their support for the program's name
change from the Farmland Protection Program to the Farm and Ranch Lands
Protection Program. Another respondent supported the name change as
long as east coast farms remained competitive in acquiring FRPP funds.
As it always has, FRPP will continue to protect both farm and ranch
land from conversion to nonagricultural uses. The reason for the name
change is not to shift the Program's purpose, but rather to distinguish
it from the repealed program and to better describe the types of land
the Program seeks to protect.
Another respondent raised the concern that farms and ranches
located outside of priority areas be protected. FRPP promotes
flexibility and local decision making as it relates to parcel
protection. Priority area designation is at the discretion of the State
Conservationist, with advice from the State Technical Committee.
Section 1491.2 Administration
In this section, the roles and responsibilities of NRCS were
identified. Three respondents indicated that FRPP duplicates many
processes already in use by various State and local governments and
non-governmental organizations. One of these respondents further went
on to state that the FRPP provisions ``go way beyond the necessary
criteria needed for Federal reimbursement of the easement purchase
price and challenge the rights of the State, County, or non-
governmental organization as Grantee.'' For this reason, the
respondents requested that NRCS enter into Memoranda of Understandings
with existing State and local farmland protection programs under which
non-Federal review procedures and selection criteria would suffice for
Federal purposes.
The Farm Security and Rural Investment Act of 2002 states:
The Secretary, acting through the Natural Resources Conservation
Service, shall establish and carry out a farmland protection program
under which the Secretary shall purchase conservation easements or
other interests in eligible land that is subject to a pending offer
from an eligible entity for the purpose of protecting topsoil by
limiting nonagricultural uses of the land.
In accordance with this statutory language, the Farm and Ranch
Lands Protection Program is not a grant program, rather it is a land
procurement program that acquires an actual Federal interest in the
Property. In the case of FRPP, the interest acquired is a contingent
right. In order to carry out the intent of the statute, NRCS has been
active in conducting eligibility determinations, ranking parcels based
on its own criteria, and reviewing and approving conservation
easements.
Moreover, even if FRPP was a grant program, memoranda of
understandings (MOUs) or memoranda of agreements (MOAs) are not legally
binding instruments. Therefore, the Federal government does not utilize
MOUs or MOAs to provide Federal funds to recipients. NRCS understands
the fact that a number of State and local farmland protection programs
have a longer history of acquiring parcels than FRPP. Many of these
State and local governments have well established procedures to acquire
parcels. For this reason, NRCS has and will continue to work with
established farmland protection programs utilizing the State Technical
Committee. In consultation with the State Technical Committee, NRCS:
[sbull] Issues Statewide application guidance;
[sbull] Develops ranking criteria that meets the objectives of FRPP
and the State and local farmland protection programs; and
[sbull] Establishes NRCS State policy as it relates to FRPP
easement acquisition.
Eighteen respondents asked that NRCS address FRPP's association
with other conservation programs administered by the United States
Department of Agriculture (USDA). NRCS encourages landowners to utilize
other conservation programs to protect natural resources on FRPP land.
Landowners who enroll in FRPP are eligible to participate in USDA's
cost share programs, including the Agricultural Management Assistance
Program (AMA), Conservation Reserve Program (CRP), Environmental
Quality Incentives Program (EQIP), Wildlife Habitat Incentives Program
(WHIP), and the long-term contract options under the Wetlands Reserve
Program (WRP) and Conservation Reserve and Enhancement Program (CREP).
One respondent suggested that permanently protected lands, such as
FRPP, receive priority ranking in other USDA programs. Current policy
allows the NRCS State Conservationist to establish ranking criteria at
the State level for other conservation programs. The NRCS State
Conservationist has the authority to rank FRPP parcels higher than
other parcels, if the State Conservationist deems it to be appropriate.
Thirteen respondents asked NRCS to address, as it relates to FRPP
implementation, the Partnership and Cooperation provision that was
authorized in the 2002 Farm Bill. Partnerships and Cooperation, as
authorized under the Farm Security and Rural Investment Act of 2002
(Title XII, Subtitle E, Section 1243 (f)), offers new opportunities to
address pressing conservation and natural resource needs. The provision
provides authority for the Secretary of Agriculture to use resources
provided under other conservation programs to enter into stewardship
agreements with State and local agencies, Indian tribes, and non-
governmental organizations. Under this provision, the State
Conservationist, with advice from the State Technical Committee, may
designate special projects to enhance technical and financial
assistance provided to owners, operators, and producers, and to address
natural resource issues related to agricultural production. The U.S.
Department of Agriculture is presently working to define the
operational aspects of Partnerships and Cooperation. The provision is
unique among the new Farm Bill authorities in that it builds from seven
core programs, including the Farm and Ranch Lands Protection, Wetlands
Reserve, Environmental Quality Incentives, Conservation Reserve,
Wildlife Habitat Incentives, Grassland Reserve, and Conservation
Security Programs. A number of these core programs required rule
development or revision, many of which are in various stages of
completion. The results of these activities will influence the overall
design for Partnerships and Cooperation.
Section 1491.3 Definitions
This section provides and defines the common terms used throughout
the FRPP proposed rule.
Agricultural Uses
Two comments were received concerning this definition. One comment
suggests that the term ``agricultural uses'' should include ``the
construction of on-farm structures necessary for farm operations,''
while the other comment suggests that agricultural uses be defined by
the State's Purchase of Development Rights (PDR) Program, or where no
PDR program exists, agricultural uses should be defined by the State
agricultural use assessment program. NRCS prefers to continue to
utilize the flexibility afforded by the proposed rule's definition,
which allows agricultural uses to be defined at the State level;
however, NRCS supports the latter comment of making the definition
consistent with the PDR or State
[[Page 26464]]
agricultural use assessment programs' definitions. For this reason, the
definition of agricultural uses has been modified in the final rule. To
ensure that broad State definitions of agricultural uses do not
conflict with FRPP's mandate to protect soils, NRCS has chosen to
continue to retain the language: ``NRCS reserves the right to impose
greater deed restrictions on the property than allowable under a State
definition of agriculture in order to protect topsoil.''
Conservation Easement
Comments were received from one respondent who requested that the
term ``agricultural conservation easement'' should be used instead of
the generic term ``conservation easement.'' NRCS has chosen to continue
using the term ``conservation easement'' because it provides a greater
flexibility to work with cooperating entities which may use
conservation easements that seek to protect not only farm and ranch
lands, but also multiple, compatible conservation values, such as open
space, scenic, and wildlife values.
Conservation Plan
Ten respondents requested clarification on the scope of a
conservation plan. Several were confused because the preamble stated
that ``all lands enrolled in FRPP must have a conservation plan
developed based on the NRCS Field Office Technical Guide specifications
and highly erodible land and wetland conservation provisions in
accordance with 7 CFR part 12,'' while the proposed rule defined a
conservation plan as a plan that covered only highly erodible cropland.
In accordance with the Food Security Act of 1985, as amended, the
authorizing FRPP legislation, a conservation plan under the FRPP will
cover only highly erodible cropland. Conservation planning on other
lands or on other resources is at the discretion of the NRCS State
Conservationist and the cooperating entity.
In addition to the comments requesting clarification of the scope
of the conservation plan, nineteen respondents requested that all lands
enrolled under FRPP have a conservation plan that addresses all natural
resources, not only soil erosion. These resources include: water,
wildlife, air, and plants. Three sources noted that a conservation plan
should address all natural resources as a benefit to the United States
taxpayer. Two respondents suggested that resource concerns be addressed
within a specified time frame. In addition to the nineteen respondents,
several respondents asked that specific resources or management
activities be addressed in the conservation plan. One respondent
requested that water quality should be specifically addressed in the
conservation plan, while another requested water quality and wildlife
habitat be addressed. Another respondent requested that the
conservation plan address pest and weed control, while another
requested that all forest land have a forest stewardship plan. Nine
respondents requested that a conservation plan be required, but the
respondents gave no indication as to what level or whether all the land
should be covered by a conservation plan.
Two respondents requested that NRCS consider only those lands with
highly erodible soils, and that landowners never be required to have a
higher level of planning than those mandated at the time of easement
signature. One respondent indicated that planning only for highly
erodible land was inadequate for their program. Based on these
comments, NRCS has chosen an option that one respondent suggested. The
rule will be modified to state that any higher level of conservation
planning and implementation be at the discretion of the cooperating
entity and the NRCS State Conservationist. By doing this, for FRPP
purposes, farmers and ranchers would never be held to a higher erosion
standard than at the time of easement signature; the conservation plan
would only be required on highly erodible soil as legislatively
mandated; yet more land and more resources may be addressed under a
conservation plan if the NRCS State Conservationist and cooperating
entity deem it to be appropriate.
Other respondents requested modifications to the proposed rule's
definition of a conservation plan to incorporate greater landowner
involvement. Two respondents suggested modifying the definition to read
as follows: ``A conservation plan meeting the NRCS Field Office
Technical Guide will be developed by the landowner with NRCS
assistance,'' while another respondent suggested the definition include
the following statement: ``technically feasible, based on local
resource conditions, cost effective; and not cause undue economic
hardship on the landowner.'' These suggestions echo NRCS' current
conservation planning policy, which takes into account the landowner's
needs and economic situation, as well as local resource conditions. For
this reason, as well as the intent to mirror FRPP's authorizing
legislation's conservation plan definition, NRCS has chosen not to
alter the proposed rule's conservation plan definition.
Eligible Land
One respondent requested that NRCS modify its definition of
eligible land to include lands that protect drinking water sources,
while another respondent requested that NRCS include in its definition
the qualifier that ``eligible lands must be under active management
that fits the definition of agriculture used by the existing State
Purchase of Development Rights (PDR) program, where no such program
exists, the definition of agriculture used by the State agricultural
use assessment program.'' Another respondent requested that NRCS
specify to what degree non-traditional farm, ranch, and forest land are
eligible. The purpose of FRPP is to protect agricultural lands from
conversion to nonagricultural uses. NRCS believes that the definition
of eligible lands, as currently defined in the statute and the final
rule, is broad enough to allow the NRCS State Conservationist to
protect any farm and ranch land in any geographic area or under any
land use that the State Conservationist, with advice from the State
Technical Committee, chooses to protect, as long as it meets the
program's broad eligibility guidelines. For this reason, NRCS has
chosen to retain the proposed rule's eligible land definition.
Fair Market Value
Three respondents suggested that the definition of fair market
value be revised. They indicated that the proposed rule's definition
only refers to the fee simple value of a property, not the ``before''
and ``after'' values needed to determine the value of a conservation
easement. NRCS agrees with amending the definition to account for how
conservation easement values are derived. For this reason, NRCS amends
the definition as follows:
Fair market value is ascertained through standard real property
appraisal methods. Fair market value is the amount in cash, for
which in all probability the property would have sold on the
effective date of the appraisal, after a reasonable exposure of time
on the competitive market, from a willing and reasonably
knowledgeable seller to a willing and reasonably knowledgeable
buyer. Neither the seller nor the buyer act under any compulsion to
buy or sell, giving due consideration to all available economic uses
of the property at the time of the appraisal. In valuing FRPP
easements, the certified general appraiser estimates both the fair
market value of the whole property before the easement acquisition
and the fair market value of the remainder property after the
easement has been imposed. The difference
[[Page 26465]]
between these two values is deemed the value of the conservation
easement.
Farm Succession Plan
Thirteen respondents requested that Farm Succession Plan be added
to the final rule's list of definitions. NRCS accepts this suggestion
and adds the definition to read as follows:
Farm or ranch succession plan is 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.
Historical and Archaeological Resources
Several respondents raised questions regarding the determination of
what FRPP considers historical and archaeological resources. Most of
the respondents recommended or provided comments on the second bullet
in the proposed rule regarding which properties will be considered. One
respondent suggested that the second bullet describing parcels eligible
for the National Register is confusing, and suggested the following
language: ``Formally determined eligible for listing in the National
Register of Historic Places by the Keeper of the National Register;''
while another respondent suggested that the second bullet be worded as
follows: ``Be determined eligible for listing on the National Register
of Historic Places through a written determination by a State Historic
Preservation Officer (SHPO) or Tribal Historic Preservation Officer
(THPO).'' Regarding the first recommendation, because only the Keeper
of the National Register may make formal determinations of eligibility,
NRCS does not believe that the rule needs to add this reference.
Regarding the second recommendation, NRCS does not have the authority
to establish a new National Register eligibility determination process
for the FRPP program, such as using written determinations by SHPOs and
THPOs, beyond that which is currently in effect for compliance with
section 106 of the National Historic Preservation Act.
In relation to the FRPP historical and archaeological definition,
two other respondents suggested that a broader definition of historical
and archaeological resources exists. One respondent suggested that
where there is no formal listing in the State, refer instead to other
inventories and have the SHPO or THPO provide an additional
certification of significance, while another suggested that a fourth
bullet be added: ``Identified in a congressionally authorized study of
U.S. battlefield sites, including the July 1993 report on the Nation's
Civil War battlefields prepared by the Civil War Sites Advisory
Commission.'' Regarding the suggestion that NRCS establish a new
certification of significance process, NRCS believes a separate and
distinct evaluation process beyond the current National Register
programs and State and tribal register programs would cause confusion.
Additionally, NRCS believes that by keeping the focus on existing
registers and inventories, NRCS is supporting and strengthening our
partners' programs without adding to their current workload. As it
relates to the use of the inventory in the Civil War Sites Advisory
Commission's 1993 Report, NRCS acknowledges the importance of these
properties, but also recognizes that the inventory was developed, in
part, for use by a Department of Interior battlefield protection
program, one that has a much narrower focus than that of the FRPP
(protection of farm and ranch lands across the entire United States).
If NRCS elected to use this one very specialized list, it would have to
also consider using other specialized lists of cultural resources (i.e.
bridges, lighthouses, dams, industrial resources) developed for other
programs. Additionally, it is most likely that the properties in this
battlefield inventory are already in State inventories and registers.
Another respondent questions what it meant to be ``determined formally
eligible on the National Register.'' NRCS believes that this language
is clear and need not be further explained. Finally, one commenter
suggested that the FRPP rule is more restrictive regarding
determinations of eligibility than current historic preservation
compliance guidelines. NRCS does not agree and does not want to
establish a separate determination and evaluation process. This would
undermine existing historic preservation evaluation and designation
programs and would also risk further confusion.
Land Evaluation and Site Assessment System (LESA)
NRCS did not receive any comments on this definition, but for
clarification NRCS has defined what is meant by ``Federal'' for the
purposes of FRPP. For this reason, NRCS amends the definition to read
as follows: ``Land Evaluation and Site Assessment System (LESA) is a
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 regulation, 7 CFR
part 658.)''
Non-Governmental Organization
Four respondents suggested inserting the word ``and'' in the
definition for eligible non-governmental organizations to clarify that
non-governmental organizations must be a conservation organization and
must be recognized by the Internal Revenue Service as tax exempt by
virtue of being operated for religious, charitable, scientific or
similar purposes. Despite these suggestions, NRCS has chosen to retain
the original definition which reflects FRPP's authorizing legislation:
Non-governmental organization, is defined as any organization
that:
[sbull] 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;
[sbull] Is an organization that is described in section
501(c)(3)of that code that is exempt from taxation under 501(a) of
that code;
[sbull] Is described in section 509(a)(2) of that code; or
[sbull] 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.
Prime Farmland
One respondent requested that the term ``prime farmland'' be
changed to ``prime soils'' since it is the soils that NRCS is
describing in the definition. NRCS is choosing to retain the ``prime
farmland'' definition to make it consistent with the definition from
which it is derived in 7 CFR part 657. Two respondents asked whether
land that grows Christmas trees, flowers, nursery stock and grapes for
wine are considered prime since they are not producing food, feed, and
forage. NRCS may consider these areas prime, unique, Statewide or
locally important in accordance with 7 CFR part 657, since these areas
have a special combination of soil quality, location, growing season,
and moisture supply to produce these crops.
Ranch Land
Two respondents requested that the term ``ranch land'' be clarified
so that it is more inclusive of many of the lands used in ranching
across the country. Both respondents suggest that the following NRCS
Pasture and Range Handbook definition be utilized,
Land on which the historic climax plant community is
predominantly grasses, grasslike plants, forbs, or shrubs. Includes
[[Page 26466]]
lands revegetated naturally or artificially when routine management
of that vegetation is accomplished mainly through manipulation of
grazing. Rangelands include natural grasslands, savannas,
shrublands, most deserts, tundra, alpine communities, coastal
marshes, and wet meadows.
NRCS believes that the aforementioned ranch land definition is too
broad and that a broad definition of ranch land could lead to the
protection of ranch land that does not meet the statute's intent of
protecting prime, unique, and important soils. Moreover, such a
definition may limit NRCS' flexibility to protect lands not included in
this definition. Another respondent generally stated that eligibility
criteria for prime, unique farm and ranch land should be broadened. For
the aforementioned reasons, NRCS has chosen not to limit the enrollment
of farm and ranch land to one single definition, but instead chooses to
determine eligible farm and ranch lands through already established
procedures. In determining eligible farm and ranch lands, NRCS will
continue to use the procedures that identify important farm and ranch
lands outlined in 7 CFR part 657. Under this rule, farm and ranch lands
not considered prime and unique may be considered Statewide or locally
important, if a State agency or local planning body determines the land
to be of importance. If determined to be prime, unique, or Statewide or
locally important, these soils are then eligible for FRPP assistance.
NRCS believes this process provides sufficient flexibility to protect
farm and ranch lands that may not meet the prime and unique definition,
but at the same time assures that the Congressional intent of
protecting land that has ``prime, unique, or other productive soil,''
is maintained. For this reason, NRCS chooses to retain the original
eligibility definition and process determining prime, unique, and
important soils.
Section 1491.4 Program Requirements
Three respondents directly or indirectly referred to FRPP as a
grant program and that NRCS does not need to substitute its judgment
for that of State and local farmland protection programs. As explained
previously, the Farm and Ranch Lands Protection Program is not a grant
program, rather it is a program where the Federal Government acquires
an interest in the Property for the purpose of protecting the resource.
For this reason, NRCS has been active and will continue to be active in
conducting eligibility determinations, ranking parcels based on its own
criteria, and reviewing and approving conservation easements in order
to meet the statutory requirements of the Program.
One respondent questioned FRPP's emphasis on topsoil, stating that
``Too much emphasis is placed on protecting topsoil and prime and
unique farmland, more of an emphasis should be placed on protecting
rangeland and watersheds,'' while two other respondents believed that
requiring a pending offer is unrealistic, burdensome, and requires an
expense on the part of the partner. As a result, land deals often fall
through because a pending offer is required. In response to these
comments, NRCS refers to the FRPP authorizing legislation which sets
forth FRPP's purpose, ``protecting topsoil by limiting nonagricultural
uses of the land.'' The statute further defines eligible land as ``farm
and ranch land that has prime, unique or other productive soil; or
contains historical or archaeological sources; and is subject to a
pending offer for purchase from an eligible entity.'' In order to
comply with its authorizing legislation, NRCS has placed a program
emphasis on protecting prime, unique, and important farm and ranch
land, as well as requiring a pending offer from an eligible entity. One
respondent stated that historical and archeological resources and a
pending offer should be factors to consider, not essential to
eligibility. NRCS, once again refers to FRPP's authorizing legislation
which states that ``eligible land means land on a farm or ranch that
has prime, unique, or other productive soil; or contains historical or
archaeological resources; and is subject to a pending offer for
purchase from an eligible entity.'' NRCS is bound by the statute.
Consequently, NRCS has determined that land on a farm or ranch must
contain historical or archaeological resources or prime, unique, or
other productive soil to be eligible. In either case, the land must
also have a pending offer to be eligible for FRPP. One respondent
stated that the proposed rule adequately reflects the intent of the
statute as it relates to historical and archaeological resources, while
one respondent questioned whether parts of a farm can be enrolled. NRCS
will enroll all or part of a farm or ranch, so long as 50 percent of
the farm or ranch land enrolled consists of prime, unique, or important
soils, or contains historical and archaeological resources and is
subject to a pending offer.
One respondent stated that all FRPP easements should be perpetual.
NRCS agrees with this comment; however, in some States, perpetual
easements are prohibited. As a result, NRCS has required that ``all
easements will be in perpetuity unless prohibited by State law.''
Two respondents indicated their support of NRCS' criteria used to
evaluate interested entities that wish to receive FRPP funds in
1491.4(c)(1-4). NRCS will continue to use these criteria to evaluate
eligible entities, and to ensure the entities have the capacity to
hold, manage, and enforce conservation easements.
Several respondents questioned NRCS' policy on only acquiring
conservation easements on privately owned land. One respondent thought
that State-owned prison farm and ranch land should be eligible for
FRPP, while another respondent questioned whether lands temporarily
bought in fee simple by the State or local government can be acquired
under FRPP. With a vast majority of the Nation's farm and ranch land
being privately owned, the demand for the protection of prime, unique,
or important farmland on privately owned land exceeds available funds.
As a result, NRCS will continue to place emphasis on protecting
privately owned farm and ranch land; however, NRCS will assist public
entities with protecting lands if the acquisition of land is temporary
and the land will later be sold to a private land owner in fee simple.
NRCS will not disburse Federal payment to the public entity until the
fee simple rights are transferred to a private landowner.
Six respondents raised concerns about the adjusted gross income
land eligibility requirement. Two respondents argued that the adjusted
gross income limitation should not apply to FRPP since NRCS is getting
equal value in the land and oftentimes at a bargain sale; therefore,
the FRPP payment should not be considered a benefit, but rather an
equal exchange between the landowner and the United States Department
of Agriculture. One respondent stated that the sale of land should not
be considered in computing the adjusted gross income limitation, while
two respondents stated that this will limit high value land often owned
by developers or other landowners, who derive a majority of their
income from non-farm or ranch enterprises. One respondent requested
that the adjusted gross income limitation be subject to regional
variation, while another requested that NRCS explain how this affects
corporate owners. Another respondent requested that NRCS specify the
adjusted gross income limitation requirements in the final rule, while
another respondent indicated that this is just another burdensome step
in the easement acquisition process. One respondent requested that the
[[Page 26467]]
cooperating entity not be held responsible for verification or auditing
of the certification by the landowner.
In order to avoid a conflict with any policy contained within the
Adjusted Gross Income Limitation final rule, NRCS directs respondents
to the Adjusted Gross Income Limitation final rule, which is currently
being promulgated. However, to clarify some matters raised during the
FRPP proposed rule comment period, NRCS will briefly explain the
adjusted gross income limitation and identify how this limitation
relates to the FRPP. Section 1604 of the Farm Security and Rural
Investment Act of 2002 (Pub. L. 1-7-171) prohibits individuals and
entities exceeding an average adjusted gross income limitation of $2.5
million from receiving USDA payments, unless 75 percent or more of
their adjusted gross income is derived from farming, ranching or
forestry production. Landowners receiving FRPP payments would be
subject to this adjusted gross income limitation. The proposed Adjusted
Gross Income Limitation rule, 7 CFR part 1400.6, clarifies this income
limitation, and sets forth the criteria to be applied in determining
whether certain income limits have been exceeded by an individual.
Policy on corporate ownership and land sale revenues, as well as
administrative procedures, such as income verification, are addressed
in 7 CFR part 1400.6. In order to comply with Section 1604 of the Farm
Security and Rural Investment Act of 2002, NRCS will comply with the
statute and final rule governing the adjusted gross income limitation.
Twelve respondents raised concerns regarding NRCS' appraisal
policy. One respondent requested that all appraisals be done in
accordance with the Uniform Appraisal Standards for Federal Land
Acquisitions (UASFLA) and that they be reviewed by a Federal appraiser.
The same respondent stated UASFLA standards must be used, since the
Uniform Standards of Professional Appraisal Practice (USPAP) does not
address the ``before'' and ``after'' technique used to evaluate
conservation easements. To provide cooperating entities maximum
flexibility and reduce transaction costs, appraisals conducted for the
FRPP shall conform to USPAP or USFLA standards. NRCS acknowledges that
the ``before'' and ``after'' technique is an appropriate methodology to
use in order to determine conservation easement value, and shall be
adopted by FRPP. One respondent requested that NRCS address in the
final rule how appraisal reports should be submitted and how these
reports will be used. Another respondent requested that the
reproduction of appraisal reports for NRCS use be minimized and that an
annual meeting between NRCS and the cooperating entity would suffice,
while another respondent suggested that providing a copy of the
appraisal report is possible, but providing priority rating criteria is
not. NRCS concurs with the need to streamline the appraisal submission
process. However, due to the complexity of the appraisal review process
and the fact that this type of administration issue is more appropriate
for manual policy, NRCS has addressed specific appraisal review and
process issues in its current policy manual, CPM part 519. CPM part 519
can be accessed via the Internet at: http://policy.nrcs.usda.gov/scripts/lpsiis.dll/M/M_440_519.htm
.
Two local government respondents requested that NRCS adopt
alternative real estate evaluation systems used by local governments,
which reduce easement acquisition costs, rather than requiring that
appraisals be conducted. Considering these comments, NRCS has
determined that the adoption of alternative evaluation systems, which
under certain circumstances were permitted in the Farmland Protection
Program, conflicts with the terms of the FRPP authorizing legislation
that states ``the Federal share cannot exceed 50 percent of the
appraised fair market value of the conservation easement.'' For this
reason, NRCS has determined that only appraisals are appropriate to
value FRPP parcels.
In addition, the FRPP is subject to the Department of
Transportation regulations at 49 CFR part 24, which the USDA has
adopted by reference in its own regulations at 7 CFR 21.1. 49 CFR part
24 implements the Uniform Relocation Assistance and Real Property
Policies Act of 1970 (the 1970 Act) and applies to real property
acquisition, including the acquisition of partial interests, such as
conservation easements. One of the main purposes of the 1970 Act is to
ensure that owners of real property to be acquired by the Federal
Government or through Federally-assisted acquisitions are treated
fairly. Because the FRPP is a voluntary program, the FRPP is exempt
from the regulations that govern Federal acquisition. However, FRPP
must comply with the terms of the exemption that is set forth at 49 CFR
24.101. Accordingly, cooperating entities receiving FRPP funds must
comply with the requirements of 49 CFR 24.101(a)(2) which provides
that: (1) Prior to making an offer for the property, the FRPP
cooperating entity must advise the landowner that it is unable to
acquire the property (e.g. by eminent domain) in the event negotiations
fail to result in an amicable agreement; and (2) inform the owner of
what the FRPP cooperating entity believes to be the fair market value
of the property. In order to determine the fair market value of a
property, an appraisal by a State-certified general or licensed
appraiser must be done.
Three respondents requested that NRCS reimburse the entity for the
cost of appraisals, while another respondent requested that appraisals
older than one year may be acceptable if agreed to by NRCS and the
cooperating entity in a Memorandum of Understanding. NRCS is required
by law not to exceed ``50 percent of the appraised fair market value of
the conservation easement.'' As a result of this statutory requirement,
NRCS requires an appraisal. The appraisal shall not be more than one
year old prior to easement closure, in order to ensure that the Federal
share does not exceed 50 percent of the appraised fair market value.
One respondent asked that the appraiser certification be addressed, as
well as stated that the Uniform Standard of Professional Appraisal
Practice (USPAP) system does not utilize the ``before'' and ``after''
technique for partial acquisitions. NRCS believes that the ``before''
and ``after'' technique is the appropriate method in valuing
conservation easements for the purpose of FRPP. The ``before'' and
``after'' technique does not conflict with other methodologies used by
USPAP and is therefore adopted as a recommended way to determine FRPP
easement values. NRCS has addressed appraisal review in CPM part 519
including administrative and technical reviews of appraisals by NRCS.
CPM part 519 can be accessed via the Internet at: http://policy.nrcs.usda.gov/scripts/lpsiis.dll/M/M_440_519.htm
.
The same respondent suggested that the final rule insert the word
``general'' in the appraiser description to read ``State certified
general appraiser,'' while another respondent has asked that the
Section 1491.4(e) be reworded as follows: ``Prior to FRPP fund
disbursement, the value of the conservation easement must be
appraised.'' NRCS acknowledges that ``State certified general
appraiser'' is the correct terminology, it also agrees with the second
suggestion which inserts the clarifying language that the value of the
conservation easement must be appraised. As a result, NRCS has changed
the rule accordingly.
Six respondents provided comments on 1491.4(f), which stated that
at the discretion of the Chief, a standard easement will be required as
a condition
[[Page 26468]]
for program participation. Four respondents objected to the Chief
requiring a standard easement, while two respondents suggested that
NRCS utilize a standard conservation easement deed, but provide for the
local entity to supply other language as needed to comply with their
specific requirements. One respondent objected to NRCS' use of a
standard easement template, since NRCS was not a Grantee and the
Federal Government's right of asserting the use of a standard easement
was questionable. Three other respondents suggested that NRCS develop a
standard easement template in each State. One respondent further
clarified that the standard easement template should be a part of a
Memorandum of Understanding that is signed by the cooperating entity
and NRCS. NRCS chooses to retain the flexibility to develop
conservation easement deed template by retaining the proposed rule
language, if it determines it to be appropriate in order to protect the
interests of the United States. However, NRCS finds the current process
in which NRCS and the Office of General Counsel review and approve
conservation easement templates provided by the cooperating entity to
be sufficient at this time. As it has previously done, NRCS and the
Office of General Counsel will continue to review conservation easement
template deeds to ensure that the easement deeds protect the Federal
interest and uphold FRPP's policies and objectives. Where an easement
sufficiently deviates from the agreed-to template, NRCS and OGC may
review the easement deed.
As it relates to specific language within the proposed rule,
another respondent inserted that ``at the discretion of the Chief, a
standard easement, or equivalent legal form which meets the intent of
the 2002 Act, will be required as a condition of program
participation.'' Some entities that partner with NRCS use other forms
of deeds to convey the acquisition of development rights. For this
reason, NRCS has chosen to adopt this suggestion. Section 1491.4(f) has
been changed accordingly.
There was one comment on the confidentiality of information related
to the agricultural operation as set forth in 1491.4(g). The respondent
requested that information related to the agricultural operation, as
well as other incidental information be held in confidence by the State
or local farmland protection program and NRCS. The respondent further
stated that NRCS should require confidentiality from the non-
governmental organization as a condition of partnership with NRCS.
Section 1244 of the Food Security Act of 1985, as amended, states that
information provided to the Secretary or a contractor of the Secretary
for the purpose of providing technical or financial assistance to an
owner, operator, or producer with respect to any natural resources
conservation program administered by NRCS or FSA shall not be
considered to be public information and shall not be released to any
person or Federal, State, local agency or Indian tribe outside the
Department of Agriculture. The issue of requiring confidentiality from
non-governmental organizations and other cooperating entities will be
addressed in a regulation pertaining specifically to confidentiality,
which is being developed by NRCS in accordance with Section 1244 of the
Food Security Act of 1985, as amended.
Another respondent asked about the timing of the development of the
conservation plan. The conservation plan will be developed prior to the
payment disbursement made by NRCS to the cooperating entity. One
respondent requested that NRCS take the lead in monitoring conservation
plans and make the initial determination that the landowner is not in
compliance, after which the Grantee will be required to take necessary
action. As it relates to monitoring the conservation plan on highly
erodible land, the respondent's suggestion is current NRCS policy. If
the landowner is found out of compliance with a conservation plan on
highly erodible land or is violating wetland conservation provisions,
NRCS will work with the landowner to assist the landowner in getting
back into compliance. If the landowner refuses to comply with the terms
of the conservation plan and has been afforded all the appeal and other
administrative rights in accordance with 7 CFR part 12, NRCS will
report the conservation plan violation to the cooperating entity. At
such time, the cooperating entity will consider such noncompliance with
the conservation plan to be an easement violation and the cooperating
entity will proceed with their administrative or judicial procedures as
it relates to easement violations.
Section 1491.5 Application Procedures
This section articulates how interested entities apply for FRPP
assistance. One respondent requested that NRCS require from entities a
plan showing how the entity plans to spend FRPP money. The respondent
also suggested that NRCS review the entity's management strategies, as
well as their ability to manage. NRCS believes that these concerns are
addressed during the application review and the ranking and evaluation
of parcels as set forth in Section 1491.6. One respondent requested
that a consistent date for annual applications be established to allow
for coordination between the Federal and State programs. Two factors
make the establishment of a fixed application date problematic.
Historically, USDA waits until Congress appropriates funds through an
appropriation law. Second, because FRPP is funded annually through CCC,
the Office of Management and Budget must apportion the funds to NRCS,
before NRCS can obligate the funds to eligible entities.
Section 1491.6 Ranking Considerations and Proposal Selection
This section outlines how NRCS will rank and evaluate proposals
from eligible entities. It also examines criteria that may be used by
the NRCS State Conservationist to evaluate parcels. A number of
respondents commented on this section, particularly the criteria that
may be used by the NRCS State Conservationist.
As it relates to overall program administration, two respondents
requested that memoranda of understandings be signed with State and
local programs to determine a mutually acceptable way for non-federal
entities to review and select parcels based on FRPP criteria. The
memoranda of understandings, between the NRCS State Conservationist and
the State or local programs, would outline mutually acceptable criteria
to use in evaluating FRPP proposals. Decisions on which parcels to fund
would be made by the cooperating State or local program, not NRCS. In
the opinion of the two respondents, it would provide the needed
flexibility at the State level, while at the same time reduce
duplicative efforts in evaluating parcels. One respondent requested
that NRCS purchase properties in a geographic area and match FRPP
dollars with State program dollars, not choosing actual parcels which
to fund, but rather selecting specific geographic areas. A majority of
these concerns regarding review and selection of parcels have been
addressed in Section 1491.2 Administration. However, NRCS wishes to
further clarify that the FRPP authorizing legislation has a specific
purpose of protecting prime, unique, and other productive soil from
conversion to non-agricultural uses. This purpose is not always the
primary purpose of cooperating entities' programs. For these reasons,
as well as the practical reason that NRCS has
[[Page 26469]]
many parcels submitted by numerous cooperating entities, making
execution of memoranda of understandings impractical. As a result, NRCS
has chosen to retain the current procedures of selecting and evaluating
parcels using uniform criteria at the State level.
Another respondent suggested that NRCS utilize a two-step process
whereby eligible entities can be certified prior to the identification
of eligible lands so that the cooperating entities might be poised to
make an offer when eligible farmlands become available. This option is
not possible under FRPP because the authorizing legislation requires
that the entities have pending offers prior to NRCS awarding funds to
eligible entities.
Four respondents requested clarification on how the National and
State criteria are used in selecting parcels. The FRPP proposed rule
set forth the national criteria used in determining State allocations.
The national criteria are based on national agricultural land
conversion rates as provided by the National Resources Inventory (NRI),
as well as information gathered from interested entities through the
FRPP State Plan process. This latter information includes but is not
limited, to entity history, entity acquisition strategies, anticipated
average FRPP cost per acre, and total acres needing to be protected in
that fiscal year. The proposed rule also stated that national criteria,
in addition to State criteria, will be used to evaluate parcels.
Currently, FRPP policy states that parcels will be evaluated using
State criteria and national criteria, with no less than 50 percent of
the weight placed on national criteria. While criteria such as the NRI
agricultural land conversion rates cannot be used beyond the State
level, State conservationists have the flexibility to choose the
national criteria which they deem appropriate. NRCS believes that the
mix of national and State criteria allows national FRPP objectives to
be met, while at the same time providing the NRCS State Conservationist
the necessary flexibility needed to evaluate parcels at the State
level. One respondent suggested that NRCS adopt a committee approach in
developing ranking criteria, such as that used by USDA's Forest Legacy
Program, while another respondent requests that NRCS develop a process
for obtaining public input on ranking criteria. The final rule allows
for the NRCS State Conservationist to develop ranking criteria with the
advice from the State Technical Committee. In a majority of States, the
NRCS State Conservationist currently develops ranking criteria based on
the advice of the State Technical Committee. NRCS believes this
committee approach allows for public input to be obtained.
Several respondents suggested on expanding FRPP ranking criteria.
One respondent suggested that an emphasis be placed on watershed
protection, while another suggested that agricultural economic
viability of a farm or ranch be included as criteria. Another
respondent suggested that FRPP criteria consider fish and wildlife
habitat and water quality, as well as soils. One respondent questioned
the applicability of the criteria, ``proximity to other protected
clusters'' in areas where conservation easements are not utilized,
while another respondent, in an area with increasing development
pressures, suggested that NRCS consider the rate of land conversion
relative to the remaining agriculture in the geographic area. This same
respondent, as well as another respondent, suggested that NRCS evaluate
parcels relative to specific geographic areas in which they were
protecting. For example, the anticipated FRPP cost per acre or acreage
to be protected should be considered in relation to the geographic area
where the parcel is located. Another respondent suggested that LESA
criteria should be modified so that sites near sewage lines, water
lines, or other public utility lines should receive a higher ranking.
NRCS has not changed the final rule as it relates to parcel ranking and
evaluation because the agency believes that the State Technical
Committee process, as well as the State Conservationist's ability to
choose his or her own criteria to evaluate parcels, provide the NRCS
State Conservationist the necessary flexibility to develop criteria and
rank eligible parcels for funding.
Nineteen respondents requested that NRCS add the following to the
list of possible State criteria: ``History of an eligible entity's
commitment to assisting beginning farmers and ranchers, to promoting
opportunities in farming and ranching, and to farm and ranch succession
and transfer planning,'' while another stressed the importance of
funding entities who place priority on protecting parcels in zoned
agricultural areas. To encourage that these farms and ranches remain
agriculturally viable in the future, NRCS has added these suggestions
for the NRCS State Conservationists to use in State ranking criteria,
if they deem appropriate. Two respondents questioned what is meant by
``degree of leveraging guaranteed by eligible entities.'' One of these
respondents suggested that NRCS rephrase this criterion to read as
follows: ``Amount of the Federal share to be contributed to the
acquisition of the conservation easement relative to the fair market
value of the conservation easement.'' NRCS partially accepts this
suggestion and has rephrased the criteria accordingly.
Section 1491.7 Funding Priorities
Several respondents requested that NRCS place a priority on a
variety of factors when evaluating parcels. One respondent requested
that the highest priority should be given to parcels and areas that
protect drinking water sources. Twelve respondents requested that NRCS
place a priority on those farms and ranches that have a comprehensive
resource management system where all the natural resources are
addressed on the farm or ranch, seventeen respondents requested that
NRCS place a higher priority on applications from landowners who have
developed farm or ranch succession or transfer plans with a preference
for plans that will benefit beginning farmers and ranchers. One
respondent requested that NRCS place a higher priority on lands and
locations where parcel size, soils, markets, local farm infrastructure,
proximity of other agriculture, and other considerations make it more
likely that the protected lands will constitute or contribute to an
economically viable, independent farming operation.
NRCS has incorporated some of these comments in the final rule;
however, as indicated previously, the State Conservationist, with
advice from the State Technical Committee, develops criteria used to
select parcels in accordance with the statutory objectives of FRPP. In
addition, the selection of one set of criteria over another is at the
discretion of the State Conservationist. For this reason, NRCS has
chosen to include these suggested priorities, but continues to
encourage and permit the NRCS State Conservationist with advice from
the State Technical Committee, to determine the ranking criteria
preference based on State natural resource conditions, anticipated
funding, geographic priority areas, and other factors deemed to be
important in each State.
NRCS also received comments requesting clarification of the meaning
of Section 1491.7. For example, one respondent requested clarification
of what is meant by on-site and off-site conditions. Examples of what
is meant by on-site or off-site conditions are respectively a farm that
contains a hazardous waste site, or a ranch that neighbors a
commercially zoned area. Where on-site or off-site conditions exist,
NRCS may choose not to fund a
[[Page 26470]]
parcel because of the implications surrounding that acquisition. One
respondent requested that NRCS clarify what is meant by multi-
functional benefits, while another respondent requested that historical
and archaeological protection be added to the lists of lands that
provide multifunctional benefits where NRCS may place a higher
priority. NRCS concurs with the second respondent and will add
historical and archaeological protection to the list of multi-
functional benefits. In response to the initial comment, NRCS believes
that multi-functional benefits vary across the nation; therefore, these
multi-functional benefits are best determined by the State
Conservationist, with advice from the State Technical Committee.
Another respondent asked how certain geographical areas will receive
high priority. As it relates to multi-functional benefits in a general
sense, NRCS believes that multi-functional benefits and geographic
priority areas can best be determined at the State level, where local
input is provided through the State Technical Committee on State
ranking criteria.
Subpart B--Cooperative Agreements and Conservation Easement Deeds
Section 1491.20 Cooperative Agreements
The section outlines the process of how NRCS enters into
cooperative agreements with eligible entities and what constitutes a
cooperative agreement. One respondent indicated that NRCS must provide
oversight of non-governmental organizations participating in FRPP to
assure FRPP obligations are met. NRCS believes that the cooperative
agreement, the contractual document between NRCS and the cooperating
entity, binds the entity to perform duties and tasks in accordance with
program policy and standards. NRCS oversight of these cooperative
agreements ensures that NRCS program policy and objectives are met.
Other comments received on topics contained within this section were
addressed in other sections of the rule.
Section 1491.21 Funding
The Farm Security and Rural Investment Act of 2002 (2002 Act),
provided policy direction for cost sharing in three areas:
[sbull] First, it specified that the Federal share could not exceed
50 percent of the appraised fair market value of the conservation
easement.
[sbull] Second, it made it possible for landowner donations to be
included as part of the entity's share.
[sbull] Third, it limited the amount of the donation that could be
used as part of the entity's share to not more than 25 percent of the
conservation easement's appraised fair market value.
The 2002 Act did not provide guidance on the minimum cash
contribution by the entity. As a result, the proposed rule attempted to
set forth cash requirements by the cooperating entity. Based on these
three premises, the agency stated in the proposed rule that an entity
may:
(1) Provide in cash, at least 25 percent of the appraised fair
market value of the conservation easement, when accompanied by a
landowner donation; or
(2) Provide in cash, at least 50 percent of the conservation
easement purchase price. In this situation, the NRCS share cannot
exceed the entity's contribution.
This proposal was met with a great deal of opposition primarily
from the land trust community. Of the total 296 letters received, 214
objected to NRCS requiring cooperating entities to provide a minimum
cash contribution. They maintain that by proposing a minimum cash
contribution by the entity, NRCS is discouraging bargain sales by the
landowner. While four respondents argued that if a land owner donated
50 percent of the easement's value and the Natural Resources
Conservation Service (NRCS) paid 50 percent, the letter of the law
could be met without any cash commitment from the land trust, fifty-
five other respondents suggested a contribution provided by the entity
but in a lesser degree to what NRCS proposed, stating that the
requirement of a cash match will significantly restrict the number of
properties that can be protected under FRPP. Forty-one respondents
specifically stated that a landowner should be able to donate more than
25 percent of the appraised fair market value, and that the 25 percent
contribution of the appraised fair market value limits the contribution
by the landowner, while 175 respondents asked that the rules be
rewritten to ``base the required match for an easement on the price
paid for the property not the price it would be on the open market.''
In response to all of the above comments, NRCS did not intend to
mislead readers that a landowner donation be limited to 25 percent. On
the contrary, land donations by the landowner are readily accepted,
since the easement acquisition cost is less for both NRCS and the
cooperating entity. To take advantage of sizeable landowner donations,
NRCS clarified the final rule language by inserting the ``50 percent of
the purchase price'' option.
In response to NRCS' proposed rule options, many within the land
trust community countered NRCS' proposal by suggesting the elimination
of any mention of the 25 percent of the appraised fair market value
requirement and several respondents suggested the following or similar
language:
``The entity must provide, in cash, an amount at least half of that
provided by the NRCS.''
The following table summarizes the FRPP and cooperating entity
shares given the proposed rule's language and the above-mentioned
language suggested by the land trust community. The analysis assumes
that the appraised fair market value of the conservation easement is
$100,000.
Comparison of Cost Sharing Criteria
Proposed FRPP Rule and the Land Trust Suggestion
[Dollars]
----------------------------------------------------------------------------------------------------------------
Proposed rule Land trust suggestion
---------------------------------------------------
Land owner donation Entity cash Entity cash
share FRPP share share FRPP share
----------------------------------------------------------------------------------------------------------------
Zero........................................................ $50,000 $50,000 $50,000 $50,000
10,000...................................................... 40,000 50,000 40,000 50,000
25,000...................................................... 25,000 50,000 25,000 50,000
40,000...................................................... 25,000 35,000 20,000 40,000
55,000...................................................... 22,500 22,500 15,000 30,000
70,000...................................................... 15,000 15,000 10,000 20,000
----------------------------------------------------------------------------------------------------------------
[[Page 26471]]
Note that the cash shares for the cooperating entity and FRPP are
identical from zero donation to a $25,000 (25 percent) donation level.
At donation levels greater than $25,000 the cooperating entity
contributions are greater with the proposed rule. In this example, if
the landowner makes a $40,000 donation then the cash requirement is
$5,000 greater in the proposed rule scenario as compared to the
suggested change by the land trust community.
After considering these comments, NRCS has decided to retain the
same funding options albeit with some clarification. NRCS believes that
the final rule's language supports large bargain sales by the landowner
and requires only that in these cases, the entity match NRCS'
contribution dollar-for-dollar. Assuming a $100,000 easement, if the
landowner chooses to donate 70 percent of the appraised fair market
value, the actual easement purchase price would be $30,000. In this
case, NRCS and the cooperating entity both contribute $15,000. By
providing the option for the entity to choose either 25 percent of the
appraised fair market value or 50 percent of the purchase price, NRCS
is accommodating the cooperating entities desire to take advantage of
bargain sales and at the same time, ensuring that the Federal
investment is secured with some contribution by the cooperating entity.
Consequently, the final rule adopts the language of the proposed rule.
Several respondents suggested that NRCS take into account donations
of other lands by an entity, as a matching offer. NRCS interprets the
statute to mean that an entity's contribution pertains specifically to
the parcel of land, which is subject to a pending offer in which the
Secretary is purchasing an interest. Using land as match for the
purchase of such land is not within the statutory authority of the
program.
Five respondents recommended that to the extent that they are
ordinary, necessary and reasonable, administrative costs associated
with NRCS requirements be reimbursable with FRPP funds, or at the very
least count towards the entity's share. In accordance with the statute
that authorizes NRCS to cost share only the purchase of a property
interest, NRCS does not reimburse a cooperating entity's easement costs
associated with easement acquisitions, nor do these easement
acquisition costs count towards an entity's share of the contribution.
One respondent requested that NRCS insert in the final rule that
easement administrative and transaction costs will not be paid for
using FRPP funds. NRCS agrees with this recommendation and has inserted
this policy into the final rule.
One respondent requested that NRCS provide the option to the entity
to issue landowner payments in installments. NRCS concurs with this
recommendation. However, due to the complexity of the payment process,
will address this issue in its policy manual, CPM part 519.
Section 1491.22 Conservation Easement Deeds
One respondent requested a clear articulation of FRPP's goals and
objectives in Section 1491.22(a). NRCS agrees with the respondent and
has inserted clauses under Section 1491.22(a) to more fully describe
the goals and objectives of FRPP. As set forth in FRPP's authorizing
legislation, the purpose of FRPP is to purchase conservation easements
for the purpose of protecting topsoil by limiting nonagricultural uses
of the land. With this in mind, NRCS has inserted the following goals
into section 1491.22: (i) To protect the topsoil from conversion to
nonagricultural uses; and (ii) to ensure that the agricultural capacity
of the soils remains viable for future generations.
Several other respondents requested specifics on what is or should
be allowed in FRPP. Two respondents stated that easements associated
with FRPP should clearly provide for continued, active management of
the farm, ranch and associated forest land. One respondent stated every
conservation easement deed should require a farm succession plan. While
NRCS encourages that these farms be actively farmed for perpetuity, the
agency also recognizes that FRPP's authority is limited to protecting
the soils, not ensuring that the farm or ranch be actively farmed for
perpetuity, nor does the agency believe it is practicable to do so.
One of these respondents also asked that NRCS consider forestry as
an agricultural use, making it clear that the conversion of farm to
forest does not constitute a conversion to non-agricultural use. NRCS
agrees with this response; however, NRCS believes that the majority of
farms and ranches accepted into the program will not be converted into
forestland because the quality of farm and ranch land that are accepted
into the program would make conversion to forest land economically
infeasible. Moreover, NRCS believes that the FRPP ranking criteria
favor parcels that will remain agriculturally viable in the future.
NRCS acknowledges that some parcels enrolled under FRPP may be
converted to forest land in the future. Although the agency has
attempted to structure the program so that the primary focus of the
program is to protect high quality farmland that will be actively
cropped or grazed, NRCS believes that it lacks the authority to mandate
that farms and ranches remain actively farmed in perpetuity. NRCS
believes that its authority extends only to ensure that the topsoil
protected under FRPP easements is not converted to nonagricultural uses
and that the agricultural capacity of the soils remains viable for
future generations. Under this rationale, NRCS believes that the
conversion of farm and ranch land to forest land retains the
agricultural viability of the soils and that if future generations
deemed it appropriate, the forest acreage could be harvested and the
land could be tilled or grazed.
One respondent requested that NRCS clarify its association with
other conservation programs. As previously discussed, NRCS encourages
landowners to utilize other conservation programs to protect natural
resources on FRPP land. Landowners who enroll in FRPP are eligible to
participate in USDA's cost share programs, including the Agricultural
Management Assistance Program (AMA), Conservation Reserve Program
(CRP), Environmental Quality Incentives Program (EQIP), Wildlife
Habitat Incentives Program (WHIP), and the long-term contract options
under the Wetlands Reserve Program (WRP) and Conservation Reserve and
Enhancement Program (CREP). However, NRCS believes that WRP 30-year and
permanent easements, as well as CREP permanent easements which restore
wetlands and limit agricultural uses, may undermine FRPP goals and
objectives to protect the agricultural viability of topsoil for future
generations. For this reason as well as the desire to maximize Federal
dollars, NRCS has chosen to exclude WRP and CREP acreage from FRPP
easements. For example, a landowner who wishes to enroll in both
programs can continue to do so; however, the land under WRP easement
must border the FRPP easement--the same acreage cannot be enrolled
under both easements.
One respondent questioned the language in 1491.22(c) that required
a review of the conservation easement by NRCS and the Office of General
Counsel. The respondent argued that there is ``no legal standing by the
Federal government as Grantee.'' NRCS and the Office of General Counsel
(OGC) refer once again to the statute that instructs the Secretary,
acting through
[[Page 26472]]
NRCS, to purchase conservation easements. In interpreting the statute,
NRCS has acquired an interest in the Property in the form of a
contingent right. A contingent right in the conservation easement deed
provides that all rights conveyed by the landowner under the easement
deed shall become vested in the United States should the grantee
abandon or attempt to terminate or extinguish the conservation
easement. To ensure that the United States property interest is upheld
and to ensure that the American taxpayer is acquiring legally sound
conservation easement deeds, NRCS and OGC must review all conservation
easement templates used by the cooperating entity. In the interest of
time, NRCS and OGC try to negotiate standard deed templates with the
cooperating entity. Once these standard easement templates meet OGC
approval, the cooperating entity may use that template on all easement
deeds acquired with FRPP funds.
Several respondents raised issues concerning the contingent right
paragraph that is incorporated into every conservation easement deed
acquired with FRPP funds. Three respondents requested that NRCS allow
for a right of appeal to be granted to eligible entities regarding a
determination by the Secretary that the entity has failed to enforce
the easement. NRCS' authority is to purchase an interest in land. With
this authority, NRCS purchases a contingent right in the land. This
contingent right is activated only in cases, where the cooperating
entity terminates, extinguishes or fails to uphold the conservation
easement. NRCS has determined that it needs to have this absolute right
in order to protect the Federal Government's property interest should
the Federal Government determine that the Grantee has attempted to
terminate, extinguish or fail to uphold the conservation easement.
Another respondent objected to the Secretary having sole discretion in
the contingent right paragraph and suggested that the contingent right
paragraph be relaxed where conservation easements are co-held with
State or local funds within the DelMarVa Conservation Corridor. For the
reasons mentioned above, NRCS believes that it is in the interest of
the Federal government to retain in the final rule, the contingent
right that was set forth in the proposed rule. One respondent indicated
that a Federal contingent right interest would not be acceptable to
many landowners. The Federal contingent right interest may discourage
some landowners from participating in FRPP. However, FRPP is a
voluntary program, and landowners are not forced to participate if they
find the contingent right paragraph, or other conservation easement
provisions unacceptable. One respondent recommended that should the
cooperating entity transfer the conservation easement, the landowner
should have the right of first refusal for reacquiring the easement
interest. The United States' contingent right to hold the conservation
easement negates a landowner's right of first refusal. In addition, the
right of first refusal by a landowner undermines the purpose of placing
a conservation easement on the land.
Currently, NRCS signs the conservation easement deed, accepting
NRCS' property interest in the deed of easement. One respondent
requested that the requirement that NRCS sign the conservation easement
deed be included in the rule, while another respondent recommended that
NRCS require that easements be recorded and that the entity provide
proof of recordation. NRCS concurs with these recommendations and has
included these provisions in the final rule.
One respondent recommended that if NRCS requires implementation of
the conservation plan, NRCS should also provide cost-share assistance
to the landowner. A majority of farmers and ranchers are already
subject to highly erodible land and wetland conservation requirements
through participation in other USDA programs. Where financial
assistance is needed to help a producer reduce soil erosion on highly
erodible lands, cost-share assistance through programs, such as EQIP,
is available. Another respondent suggested that a landowner be notified
in writing about and consulted regarding conservation measures required
on the Property. As indicated previously, this suggestion replicates
NRCS'' current conservation planning policy which takes into account a
landowner's needs and economic situation, as well as local resource
conditions.
One respondent raised a concern about the enforcement issues
surrounding the conservation plan and the conservation easement,
stating ``the important matter is a commitment to conservation
planning, not to a particular static conservation plan. Enforcement
should be about ensuring maintenance of an evolving plan.'' NRCS
believes that the conservation planning process is an evolving and
interactive process; however, NRCS has decided that a landowner should
not be required to maintain a higher standard of erosion reduction than
the landowner originally agreed to at the time of easement signature.
This does not mean however that the landowner is prohibited from
achieving a higher standard of resource protection, if the landowner or
cooperating entity deem appropriate. Another respondent recommended
that if NRCS require an entity to enforce a conservation plan, the
entity be required to be involved in conservation planning. NRCS has
the responsibility to enforce the conservation plan as it relates to
highly erodible land and wetland conservation provisions. If the
landowner refuses to comply with these requirements and all the appeal
rights and other waivers afforded the landowner in accordance with 7
CFR part 17 and 7 CFR part 614 have been exhausted, NRCS will report to
the cooperating entity that the landowner is in violation of the
easement. At this time, it becomes the responsibility of the
cooperating entity to enforce the terms of the conservation easement.
Section 1491.23 Easement Modifications
Several respondents objected to or requested clarification on this
section, which required that easement deed amendments be approved by
NRCS. Three respondents requested that the final rule clarify who,
within NRCS, is able to approve conservation easement modifications.
NRCS has clarified this in the final rule by stating that the State
Conservationist, with concurrence from the Office of General Counsel,
shall approve or disapprove conservation easement modifications, in the
form of deed amendments. One respondent supported NRCS approving
easement modifications. They also suggested that NRCS establish a
criterion that no amendment will be allowed if it would lower the net
benefit of the easement for conservation. NRCS believes that a single
criterion, such as lowering the net benefit of the conservation, is
difficult to establish on a nationwide basis; therefore, NRCS has
chosen to approve amendments on a case-by-case basis. One respondent
asserted that the easement modification provisions are inconsistent and
incompatible with their program and question NRCS and the Office of
General Counsel's authority to accept or reject such modifications. It
is not NRCS' intention to supersede the cooperating entity's decision
to prohibit an easement amendment. However, where easement amendments
are allowed, NRCS' response regarding easement modifications or
amendments mirrors its response on easement review--
[[Page 26473]]
because the United States is buying an interest in the property, any
modification or amendment shall be approved by NRCS and the Office of
General Counsel. One respondent requested that NRCS interpret Section
1491.23 to give a cooperating entity the discretion to distinguish
between a major and minor amendment. If appropriate, NRCS, with advice
from the Office of General Counsel, will review and delegate authority
for amendment review on a case-by-case basis as it relates to minor
amendments.
Subpart C--General Administration
Section 1491.30 Violations and Remedies
Fifty-five respondents commented on this portion of the proposed
rule. Fifty-two respondents recommended that section 1491.30(c) be
reworded to allow for landowner notification prior to NRCS' entry on
the property as it relates to conservation plan violations, while one
respondent questioned the need to include this provision in the rule,
but rather state it in the conservation easement deed. NRCS accepts the
first set of recommendations and has modified the final rule provision
to allow for landowner notification prior to NRCS entry. NRCS also
addresses and inserts right of access provisions in all FRPP
conservation easement deeds.
One respondent suggested that NRCS should contact the landowner,
but it should not be prevented from exercising its imminent violation
rights by rules outside of the easement or in the case of an emergency;
therefore, they suggest that the wording be changed to NRCS notifies or
reasonably attempts to notify. As a condition of program eligibility,
landowners agree to allow NRCS to enter the land when they sign the AD-
1026, Highly Erodible Land Conservation and Wetland Conservation
Certification form; however, NRCS' policy is to make all reasonable
advance notification to the landowner prior to any visit on the
property.
One respondent has objected to NRCS accessing the easement area
stating that it conflicts with the rights of the Grantee. The
respondent notes that since neither NRCS nor CCC are Grantees of the
recorded conservation easements, neither NRCS nor CCC have
responsibilities under law to monitor, enforce or prosecute violators
of FRPP easements. Therefore, NRCS should not impose rules and
regulations covering these enforcement authorities already governed by
State legislation. NRCS's monitoring responsibility relates only to the
conservation plan, which is required by FRPP's authorizing legislation.
Violations related to the conservation plan and any other such
violations that NRCS may encounter while on the farm or ranch will be
reported to the cooperating entity. NRCS does not assume the role of
any monitoring beyond the conservation plan compliance provision of the
Food Security Act of 1985, as amended.
One respondent requested that if enforcement language is required
in the deed, the rule should contain such language. The final rule
contains the general guidelines related to conservation plan
compliance, while the cooperative agreement between NRCS and the
cooperating entity will articulate any specific enforcement language as
it relates to the conservation plan. One respondent asked whether lands
that do not contain highly erodible soils or wetland resources need to
be monitored by NRCS. Lands that do not contain highly erodible soils
or wetland resources do not need to be monitored by NRCS, unless the
State Conservationist and cooperating entity have entered into a
cooperative agreement whereby they have agreed to assist the
cooperating entity monitor non-highly erodible lands enrolled under
FRPP. One respondent requested that NRCS articulate whether all
easements prior to the publication of the final rule will be monitored.
NRCS will monitor easements that were recorded prior to the publication
of this final rule in accordance with the terms and conditions set
forth in individual conservation easement deeds.
One respondent requested that the NRCS clarify that the landowner
be liable for any costs incurred by the United States as it relates
specifically to the conservation plan.
NRCS agrees with this respondents request for clarification and has
reworded the last sentence of 1491.30(c) to read as follows: ``The
landowner shall be liable for any costs incurred by the United States
as a result of the landowner's negligence or failure to comply with the
easement requirements as it relates to conservation plan violations.''
Two respondents requested that NRCS clarify section 1491.30(d) by
adding ``related to the FRPP easement.'' NRCS agrees with this
recommendation and has redrafted this section to read as follows: ``The
United States shall be entitled to recover any and all administrative
and legal costs, including attorney's fees or expenses, associated with
any enforcement or remedial action related to the FRPP easement.''
Two respondents requested that NRCS soften the indemnification
language. One entity requested that the section be amended for cross
indemnification, while another entity requested that the
indemnification language read as follows: ``(e) The conservation
easement shall include an indemnification clause requiring landowners
to indemnify, defend, and hold harmless the United States from any
liability resulting from the negligent acts of the landowner.'' NRCS
has chosen to retain the proposed rule's language as it relates to
indemnification, which is similar to the second respondent's
suggestion. In response to the first respondent's request for cross
indemnification, NRCS does not have the authority to waive the Federal
government's sovereign immunity.
Section 1491.31 Appeals
One respondent has objected to NRCS affording appeals to landowners
and cooperating entities, asserting that it conflicts with the rights
of the Grantee. The respondent notes that since neither NRCS nor CCC
are Grantees of the recorded conservation easements with individual
landowners, NRCS has no responsibilities under law to monitor, enforce
or prosecute violators of easements. Therefore, NRCS should not impose
rules and regulations covering these enforcement authorities already
legislated by State legislation under which they are governed.
The Department of Agriculture Reform Act (Pub. L. 103-354; 7 U.S.C.
6991 et seq.), requires that USDA agencies covered by this Act develop
and implement an informal and formal appeals policy. The USDA has
developed regulations articulating how the appeal process works when
making decisions over a disputed agency decision or determination.
Accordingly, NRCS provides an appeal and mediation process to agency
program participants where decisions and determinations made by the
agency are disputed by the program participant. Under these provisions,
program participant can mean the cooperating entity or the landowner,
depending on the circumstance. Appealable items include, but are not
limited to:
[sbull] The determination that the land is eligible;
[sbull] The determination that the conservation plan submitted by
the landowner to the entity and further submitted to NRCS is not
sufficient; and
[sbull] The determination by NRCS that the person farming the land
under FRPP easement has violated the HELC or WC provisions.
Section 1491.32 Scheme and Device
One respondent has objected to the NRCS scheme and device
provisions,
[[Page 26474]]
asserting that they conflict with the rights of the Grantee. The
respondent notes that since neither NRCS nor CCC are Grantees of the
recorded conservation easements with individual landowners, NRCS has no
responsibilities under law to monitor, enforce or prosecute violators
of easements. Therefore, NRCS should not impose rules and regulations
covering these enforcement authorities already legislated by a State
legislation under which they are governed. To clarify any confusion
regarding the applicability of scheme and device provisions and to
address the respondent's concerns, NRCS has removed the term
``landowner'' from the scheme and device paragraphs. However, NRCS has
retained these paragraphs as drafted in the proposed rule in the event
a cooperating entity with whom NRCS directly enters into a cooperative
agreement commits waste, fraud, or abuse. These paragraphs have been
edited to reflect this change in policy.
List of Subjects in 7 CFR Part 1491
Administrative practice and procedure, Agriculture, Soil
conservation.
0
For the reasons stated in the preamble, the Commodity Credit
Corporation amends chapter XIV by adding a new part 1491 as set forth
below:
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.
1491.7 Funding priorities.
Subpart B--Cooperative Agreements and Conservation Easement Deeds ec.
1491.20 Cooperative agreements.
1491.21 Funding.
1491.22 Conservation easement deeds.
1491.23 Easement modifications.
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
Sec. 1491.1 Applicability.
(a) The regulations in this part set forth policies, procedures,
and requirements for program implementation of the Farm and Ranch Lands
Protection Program as administered by the Natural Resources
Conservation Service (NRCS). FRPP cooperative agreements and easements
signed on or after May 16, 2003, will be administered according to 7
CFR part 1491.
(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.
Sec. 1491.2 Administration.
(a) The regulations in this part will 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 land and entity eligibility;
(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 may enter into cooperative agreements with eligible
entities to assist NRCS with implementation of this part.
Sec. 1491.3 Definitions.
The following definitions may be applicable to this part:
Agricultural uses are defined by the State's Purchase of
Development Rights (PDR) program, or where no PDR program exists,
agricultural uses should be defined by the State agricultural use
assessment program. (If the Agency finds that a State definition of
agriculture is so broad that an included use could lead to the
degradation of soils, NRCS reserves the right to impose greater deed
restrictions on the property than allowable under that State definition
of agriculture in order to protect topsoil.)
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 ex-officio 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.
Contingent right is an interest in land held by the United States,
which the United States may exercise under specific circumstances in
order to enforce the terms of the conservation easement or hold title
to the easement.
Eligible entities means Federally recognized Indian Tribes, States,
units of local government, and certain non-governmental organizations,
which have a farmland protection program that purchases agricultural
conservation easements for the purpose of protecting topsoil by
limiting conversion to non-agricultural uses of the land.
Additionally, to be eligible for FRPP, the entity must have pending
offers, for acquiring conservation easements for the purpose of
protecting agricultural land from conversion to non-agricultural uses.
[[Page 26475]]
Eligible land is privately owned land on a farm or ranch that has
prime, unique, Statewide, or locally important soil, or contains
historical or archaeological resources, and is subject to a pending
offer by an eligible entity. Eligible land includes cropland,
rangeland, grassland, and pasture land, as well as forest land that is
an incidental part of an agricultural operation. Other incidental land
that would not otherwise be eligible, but when considered as part of a
pending offer, may be considered eligible, if inclusion of such land
would significantly augment protection of the associated farm or ranch
land.
Fair market value is ascertained through standard real property
appraisal methods. Fair market value is the amount in cash, for which
in all probability the property would have sold on the effective date
of the appraisal, after a reasonable exposure of time on the open
competitive market, from a willing and reasonably knowledgeable seller
to a willing and reasonably knowledgeable buyer. Neither the seller nor
the buyer act under any compulsion to buy or sell, giving due
consideration to all available economic uses of the property at the
time of the appraisal. In valuing conservation easements, the appraiser
estimates both the fair market value of the whole property before the
easement acquisition and the fair market value of the remainder
property after the conservation easement has been imposed. The
difference between these two values is deemed the value of the
conservation easement.
Farm or Ranch Succession Plan is 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) is the official document for
NRCS guidelines, criteria, and standards for planning and applying
conservation treatments 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.
Historical and archaeological resources must be:
(1) Listed in the National Register of Historic Places (established
under the National Historic Preservation Act (NHPA), 16 U.S.C. 470, et
seq.), or
(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), or
(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).
Land Evaluation and Site Assessment System (LESA) is 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, persons, estate, corporation, or other
business or nonprofit entity having fee title ownership of farm or
ranch land.
Natural Resources Conservation Service is an agency of the U.S.
Department of Agriculture.
Non-governmental organization is defined as 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;
(3) Is described in section 509(a)(2) of that Code; or
(4) 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
recognized by State law, including fee title. FRPP funds will only be
used to purchase other interests in land with prior approval from the
Chief.
Other productive soils are soils that are contained on farm or
ranch land that is identified as farmland of Statewide or local
importance and is used for the production of food, feed, fiber, forage,
or oilseed crops. The appropriate State or local government agency
determines Statewide or locally important farmland with concurrence
from the State Conservationist. Generally, these farmlands produce high
yields of crops when treated and managed according to acceptable
farming methods. In some States and localities, farmlands of Statewide
and local importance may include tracts of land that have been
designated for agriculture by State law or local ordinance. 7 CFR part
657 sets forth the process for designating soils as Statewide or
locally important.
Pending offer is 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 and unique farmland are defined separately, as follows:
(1) Prime farmland is 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.
(2) Unique farmland is 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.
Secretary is the Secretary of the U.S. Department of Agriculture.
State Technical Committee means a committee established by the
Secretary of the U.S. Department of Agriculture 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 Basin Area (Guam, American
Samoa, and the Commonwealth of the Northern Mariana Islands).
Sec. 1491.4 Program requirements.
(a) Under the FRPP, the Secretary, on behalf of CCC, shall purchase
conservation easements, in partnership with eligible entities, from
landowners who voluntarily wish to protect their farm and ranch lands
from conversion to nonagricultural uses. Eligible entities submit
applications to NRCS State Offices to partner with NRCS to acquire
conservation easements on farm and ranch land. NRCS enters into
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cooperative agreements with selected entities and provides funds for up
to 50 percent of the appraised market value for the easement purchase.
In return, the entity agrees to acquire, hold, manage, and enforce the
easement. A Federal contingent right interest in the property must be
included in each easement deed for the protection of the Federal
investment.
(b) The term of all easements will be in perpetuity unless
prohibited by State law.
(c) To be eligible to receive FRPP funding, an entity must meet the
definition of ``eligible entity'' as listed in Sec. 1491.3. In
addition, eligible entities wishing to receive FRPP funds must also
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) Eligible land must meet the definition of ``eligible land'' as
provided in Sec. 1491.3. In addition:
(1) Entire farms or ranches may be enrolled in FRPP.
(2) Farms must contain at least 50 percent of prime, unique,
Statewide, or locally important soil, unless otherwise determined by
the State Conservationist, or contain historical or archaeological
resources.
(3) Eligible lands are farm and ranch lands subject to a pending
offer, as defined in Sec. 1491.3, for purchase of a conservation
easement.
(4) Eligible land must be privately owned. NRCS will not enroll
land in FRPP that is owned in fee title by an agency of the United
States or State or local government, 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 Secretary.
(5) Eligible land must be owned by landowners who certify that they
do not exceed the adjusted gross income limitation eligibility
requirements set forth in Section 1604 of the Farm Security and Rural
Investment Act of 2002.
(e) Prior to FRPP fund disbursement, the value of the conservation
easement must be appraised. Appraisals shall be completed and signed by
a State-certified or licensed general appraiser and shall contain a
disclosure statement by the appraiser. The appraisal shall conform to
either the Uniform Standards of Professional Appraisal Practices or the
Uniform Appraisal Standards for Federal Land Acquisitions.
(f) At the discretion of the Chief, a standard easement or
equivalent legal form, which meets the intent of the 2002 Act, will be
required as a condition for program participation.
(g) 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.
Sec. 1491.5 Application procedures.
(a) When funds are available, NRCS publishes a Request for
Proposals in the Federal Register or, at the discretion of the Chief,
uses another process to solicit applications from eligible entities to
cooperate in the acquisition of conservation easements on farms and
ranches. Information required in the application will be set forth in
the Request for Proposals.
(b) To participate, an eligible entity submits a proposal to NRCS
for the acquisition of conservation easements on eligible farm or ranch
land, on which the entity already has pending offers. An entity's
application contains a request to fund one or more parcels. All
applications must be submitted to the appropriate NRCS State
Conservationist by the specified date, as indicated in the Request for
Proposals.
Sec. 1491.6 Ranking considerations and proposal selection.
(a) Once the NRCS State Conservationist has assessed entity
eligibility and land eligibility, the State Conservationist shall use
National and State criteria to evaluate the land and rank parcels.
Entities and parcels will be selected for participation based on the
entities' responses to the Request for Proposals. Selection will be
based on national ranking criteria set forth by the Chief in the
Request for Proposals and State criteria as determined by the State
Conservationist, with advice from the State Technical Committee.
(1) Examples of national criteria may include:
(i) Acreage of prime, unique, and important farm and ranch land to
be protected;
(ii) Total acres of land to be protected with the requested award;
(iii) Acreage of prime, unique, and important farm and ranch land
identified in the National Resources Inventory as converted to
nonagricultural uses;
(iv) Total acres needing protection;
(v) Number or acreage of historical and archaeological resources to
be protected on farm or ranch lands;
(vi) Anticipated average FRPP cost per acre;
(vii) Rate of land conversion (e.g., local land use conversion
rates);
(viii) Amount of the Federal share to be contributed to the
acquisition of the conservation easement, as guaranteed by the eligible
entity;
(ix) History of eligible entity's commitment to conservation
planning and conservation practice implementation;
(x) History of an eligible entity's commitment to assisting
beginning farmers and ranchers, to promoting opportunities in farming
and ranching, and to farm and ranch succession transfer;
(xi) Eligible entity's history of acquiring, managing, holding, and
enforcing conservation easements. This could include annual farmland
protection expenditures, monetary donations received, accomplishments,
and staffing levels;
(xii) A description of the eligible entity's farmland protection
strategy and how the FRPP application submitted by the entity
corresponds to the entity's strategic plan; and
(xiii) Eligible entity's estimated acres of unfunded proposed
conservation easements on prime, unique, and important farm and ranch
land.
(2) Examples of State or local criteria, as determined by the State
Conservationist may include:
(i) Proximity of parcel to other protected clusters;
(ii) Proximity of parcel to other agricultural operations and
infrastructure;
(iii) Parcel size;
(iv) Type of land use;
(v) Maximum FRPP cost expended per acre;
(vi) Amount of the Federal share to be contributed to the
acquisition of the conservation easement, as guaranteed by the eligible
entity;
(vii) History of an eligible entity's commitment to assisting
beginning farmers and ranchers, to promoting opportunities in farming
and ranching, and to farm and ranch succession transfer;
(viii) Existence of a parcel in an agriculturally zoned area.
(b) State ranking criteria will be developed on a State-by-State
basis. Prior to proposal submission, interested entities should contact
the State Conservationist located in their State for a full listing of
applicable National and State ranking criteria.
(c) The NRCS State Conservationist may seek advice from the State
Technical Committee (established pursuant to 16 U.S.C. 3861) in
[[Page 26477]]
evaluating the merits of the applications.
Sec. 1491.7 Funding priorities.
(a) NRCS will only consider funding the acquisition of eligible
land in the Program if the agricultural viability of the land can be
demonstrated. For example, the land must be of sufficient size and have
boundaries that allow for efficient management of the area. The land
must also have access to markets for its products and a support
infrastructure appropriate for agricultural production.
(b) NRCS may not fund the acquisition of eligible lands if NRCS
determines that the protection provided by the FRPP would not be
effective because of on-site or off-site conditions.
(c) NRCS will place a higher priority on easements acquired by
entities that have extensive experience in managing and enforcing
easements.
(d) During the application period, pending offers having appraisals
completed and signed by State-certified general appraisers within the
preceding one year shall receive higher funding priority by the NRCS
State Conservationist. Before funding is released for easement
acquisition, the cooperating entity must provide NRCS with a copy of
the certified appraisal.
(e) NRCS may place a higher priority on lands and locations that
help create a large tract of protected area for viable agricultural
production and that are under increasing urban development pressure(s).
(f) NRCS may place a higher priority on lands and locations that
link to other Federal, Tribal, or State governments or non-governmental
organization efforts with complementary farmland protection objectives
(e.g. open space, watershed and wildlife habitat protection).
(g) NRCS may place a higher priority on lands that provide
multifunctional benefits including social, economic, historical and
archaeological, and environmental benefits.
(h) NRCS may place a higher priority on certain geographic regions
where the enrollment of particular lands may help achieve National,
State, and regional goals and objectives, or enhance existing
government or private conservation projects.
(i) NRCS may place a higher priority on farms or ranches that have
or will have a greater variety of natural resources protected.
(j) NRCS may place a higher priority on farms or ranches that have
a farm succession plan or similar plan established to encourage farm
viability for future generations.
(k) NRCS may place a higher priority on the national ranking
criteria listed in Sec. 1491.6(a)(1) than State criteria, if the NRCS
Chief deems appropriate.
Subpart B--Cooperative Agreements and Conservation Easement Deeds
Sec. 1491.20 Cooperative agreements.
(a) NRCS, on behalf of CCC, enters into a cooperative agreement
with those entities selected for funding awards. Once a proposal is
selected by the State Conservationist, the entity must work with the
appropriate State Conservationist to finalize and sign the cooperative
agreement incorporating all necessary FRPP requirements. The
cooperative agreement addresses:
(1) The interests in land to be acquired, including the form of the
easements to be used and terms and conditions;
(2) The management and enforcement of the rights acquired;
(3) The role of NRCS;
(4) The responsibilities of the easement manager on lands acquired
with the assistance of FRPP; and
(5) Other requirements deemed necessary by NRCS to protect the
interests of the United States.
(b) The cooperative agreement will also include an attachment
listing the parcels accepted by the State Conservationist, landowners'
names, addresses, location map(s), and other relevant information. An
example of a cooperative agreement may be obtained from the State
Conservationist.
Sec. 1491.21 Funding.
(a) The State Conservationist, in coordination with the cooperating
entity, shall determine the NRCS share of the cost of purchasing a
conservation easement.
(b) Under the FRPP, NRCS may provide up to 50 percent of the
appraised fair market value of the conservation easement. Entities are
required to supplement the NRCS share of the cost of the conservation
easement.
(c) Landowner donations up to 25 percent of the appraised fair
market value of the conservation easement may be considered part of the
entity's matching offer.
(d) For the entity, two cost-share options are available when
providing its matching offer.
(1) The entity may provide in cash at least 25 percent of the
appraised fair market value of the conservation easement, or
(2) The entity may provide at least 50 percent of the purchase
price in cash, of the conservation easement. This second option may be
preferable to an entity in the case of a large bargain sale by the
landowner. If this option is selected, the NRCS share cannot exceed the
entity's contribution.
(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 based on lesser cost to FRPP.
Sec. 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.
(c) The conveyance document or conservation easement deed used by
the eligible entity may be reviewed and approved by the NRCS National
Office and Office of the General Counsel (OGC) before being recorded.
(d) Since title to the easement is held by an entity other than the
United States, the conveyance document must contain a ``contingent
right'' clause that provides that all rights conveyed by the landowner
under the document will become vested in the United States should the
eligible entity (i.e., the grantee[s]) abandon or attempt to terminate
the conservation easement. In addition, the contingent right also
provides, in part, that the Secretary takes title to the easement, if
the eligible entity fails to uphold the easement or attempts to
transfer the easement without first securing the consent of the
Secretary.
(e) As a condition for participation, a conservation plan will be
developed by NRCS in consultation with the landowner and implemented
according to the NRCS Field Office Technical Guide and approved by the
local conservation district. 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
[[Page 26478]]
easement will 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 if approved by NRCS.
(g) Prior to fund disbursement, NRCS must sign 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.
Sec. 1491.23 Easement modifications.
(a) After an easement has been recorded, no amendments to the
easement will be made without prior approval by NRCS State
Conservationist and the USDA Office of General Counsel.
(b) Easement modifications will be approved only when easement is
duly prepared and recorded in conformity with standard real estate
practices, including requirements for title approval, subordination of
liens, and recordation, and when the amendment is consistent with the
purposes of the conservation easement.
Subpart C--General Administration
Sec. 1491.30 Violations and remedies.
(a) In the event of a violation of the terms of the easement, the
cooperating 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 cooperating entity fails to enforce any
of the terms of the easement as determined in the sole discretion of
the Secretary, the Secretary and his or her successors and assigns
shall have the right to enforce the terms of the easement through any
and all authorities available under Federal or State law. In the event
that the cooperating entity attempts to terminate, transfer, or
otherwise divest itself of any rights, title, or interests of the
easement or extinguish the easement or without the prior consent of the
Secretary and payment of consideration to the United States, then, at
the option of the Secretary, all right, title, and interest in the
conservation easement shall become vested in the United States of
America.
(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 United States 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, including attorney's fees or expenses,
associated with any enforcement or remedial action as it relates to the
enforcement of the FRPP easement.
(e) The conservation easement shall include an indemnification
clause requiring landowners to indemnify, defend, and hold harmless the
United States from any liability resulting from the negligent acts of
the landowner.
(f) In instances where an easement is terminated or extinguished,
NRCS will 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.
Sec. 1491.31 Appeals.
(a) A person or cooperating 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 may seek judicial review of any action taken
under this part, the person 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 U. S. Department of Agriculture under these
provisions.
Sec. 1491.32 Scheme or device.
(a) If it is determined by the Secretary 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 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 in Washington, DC, on May 8, 2003.
Bruce I. Knight,
Vice President, Commodity Credit Corporation and Chief, Natural
Resources Conservation Service.
[FR Doc. 03-12064 Filed 5-15-03; 8:45 am]
BILLING CODE 3410-16-P