Rule: Healthy Forests Reserve Program Implementation

Federal Register / Vol. 71, No.
95 / Wednesday, May 17, 2006 / Rules and Regulations 28547
data is normally maintained within electronic mechanism for collecting and the Office of Personnel Management
agency financial systems. The submitting the requested data. Thus, the (OPM) through the OPM
commenter stated that agencies may be individual hoped that a reasonable Governmentwide Electronic Data
able to report on this data in the amount of time will be allowed to Collection System.
aggregate, but generally cannot do so on collect and submit these data. OPM is (b) Beginning December 31, 2006,
a course or per capita basis since many aware there are agencies that do not each agency shall report the training
training and financial systems are not have a LMS system; however, agencies data for its employees’ training and
integrated. Agencies are free to can meet these standards and development at such times and in such
determine which of their systems (HR, requirements by using an e-Training form as required for the OPM
training, LMS, or financial) the data Initiative approved e-Learning solution. Governmentwide Electronic Data
comes from to meet the data OPM has also changed the date when Collection System, which is explained
requirements. As long as the data is agencies must begin reporting training in the Guide to Personnel
accurate, agencies can determine how to data to December 31, 2006, and has Recordkeeping and the Guide to Human
aggregate the responses in the report as added a provision (c) under section Resources Reporting.
required. 410.701, which allows agencies to (c) Agencies may request an extension
The same commenter suggested that request an extension based on their plan for the timeframe in which they will
agencies do not capture per diem cost to meet the reporting requirement at a begin reporting the data under
separately from overall travel costs and later date. paragraph (b) of this section. OPM may
observed that, generally, all travel costs grant an extension based on an
are recorded as a collective total. E.O. 12866, Regulatory Review
approved agency plan to meet the
Although per diem costs are a separate This rule has been reviewed by the reporting requirements. No extension
item in Table 3–I, OPM is mainly Office of Management and Budget as a will be granted for a timeframe beyond
interested in the final cost of the travel significant regulatory action in December 31, 2007.
for training completed by the employee accordance with Executive Order 12866. (d) Each agency shall establish a
and paid for by the Federal Government. Schedule of Records for information
There were also concerns regarding Regulatory Flexibility Act
required to be maintained by this
the granularity of the data to be reported I certify that these regulations would chapter in accordance with regulations
and the general value of that level of not have a significant economic impact promulgated by the National Archives
detail to OPM. One individual noted on a substantial number of small entities and Records Administration (NARA).
that reporting training information by because they would apply only to
training type, total contact hours, and Federal agencies and employees. [FR Doc. 06–4589 Filed 5–16–06; 8:45 am]
total cost would appear to be more BILLING CODE 6325–39–P
useful as an aggregate and would List of Subjects in 5 CFR Part 410
significantly lessen the administrative Education, Government employees.
burden on agencies in collecting and Office of Personnel Management. DEPARTMENT OF AGRICULTURE
managing this data. OPM is requesting Linda M. Springer,
the aggregate of the completed training Director.
Natural Resources Conservation
events total cost only. Even though the Service
required reporting process specifies the ■ Accordingly, OPM is amending part
cost information needed, it is not an all- 410 of 5 CFR as follows: 7 CFR Part 625
inclusive list nor is it at the lowest PART 410—TRAINING
granular level of reporting cost. OPM’s Healthy Forests Reserve Program
objective is to establish a level that is ■ 1. The authority citation for part 410 AGENCY: Natural Resources
consistent for agencies continues to read as follows: Conservation Service (NRCS), United
Governmentwide. It is important that Authority: 5 U.S.C. 4101, et seq.; E.O. States Department of Agriculture
OPM require only the level of 11348, 3 CFR, 1967 Comp., p. 275. (USDA).
granularity that OMB, Congress and
GAO have requested without having to Subpart C—Establishing and ACTION: Interim final rule with request
go back out to the agencies to request Implementing Training Programs for comments.
more information on a regular basis. SUMMARY: Title V of the Healthy Forests
One commenter stated that the § 410.311 [Removed]
Restoration Act of 2003 (Act) (Pub. L.
requirement to begin reporting data as of ■ 2. Remove § 410.311.
108–148) authorizes the establishment
April 1, 2005, is a burden for some
Subpart D—Paying for Training of the Healthy Forests Reserve Program
components due to the complexity
Expenses (HFRP). The purpose of this program is
required to go back in time to attach
to assist landowners in restoring and
additional data to historical § 410.406 [Removed] enhancing forest ecosystems to: Promote
information. OPM has not required that
■ 3. Remove § 410.406. the recovery of threatened and
agencies capture historical training data.
endangered species; improve
Agencies should start reporting data as
Subpart G—Reporting biodiversity; and enhance carbon
of December 31, 2006. The April 1, 2005
sequestration. This interim final rule
date was originally set for the pilot to ■ 4. In subpart G, revise the subpart title sets forth how NRCS will implement
begin where agencies would have had to read as set forth above: HFRP to meet the statutory objectives of
the opportunity to report data and test ■ 5. Revise § 410.701 to read as follows: the program.
dsatterwhite on PROD1PC76 with RULES
the system to determine what errors in

their reports need to be corrected and to § 410.701 Reporting. DATES: This rule is effective May 17,
be ready to submit accurate data by the (a) Each agency shall maintain records 2006. Comments must be received by
effective date of the final regulation. of training plans, expenditures, and August 15, 2006.
A commenter suggested that some activities in such form and manner as ADDRESSES: Send comments by mail to
components have no current LMS or necessary to submit the recorded data to Robin Heard, Acting Director, Easement
VerDate Aug<31>2005 18:32 May 16, 2006 Jkt 208001 PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 E:\FR\FM\17MYR1.SGM 17MYR1
28548 Federal Register / Vol. 71, No. 95 / Wednesday, May 17, 2006 / Rules and Regulations
Program Division, Natural Resources promote the recovery of listed species, applications for enrollment based on
Conservation Service, P.O. Box 2890, improve biodiversity, and to enhance ranking and selection criteria developed
Washington, DC 20013–2890; or by e- carbon sequestration. for the particular forest ecosystem,
mail: Rules@usda.gov; attn: Healthy The Secretary of Agriculture has following the national guidelines
Forests Reserve Program. This rule may delegated authority to implement HFRP outlined in the sign-up notice. With
also be accessed via Internet through the to the Chief of NRCS (Chief). In both HFRP easements and 10-year cost-
NRCS homepage at http:// addition, technical support associated share agreements, participants will have
www.nrcs.usda.gov/programs/HFRP. with forest management practices may the opportunity to utilize common
The rule may also be reviewed and also be provided by the Forest Service. management practices and activities to
comments may be submitted via the Section 501 of the Act provides that the restore, enhance, and protect forest
Federal Government’s centralized program will be carried out in ecosystems.
rulemaking Web site at http:// coordination with the Secretary of the As required by Section 503 of the Act,
www.regulations.gov. All comments, Interior and the Secretary of Commerce. 16 U.S.C. 6573 all participants will
including the name and address of each NRCS will work closely with the Fish enter into a restoration plan for the
commenter, will become a matter of and Wildlife Service (FWS) and the enrolled area (HFRP restoration plan)
public record, and may be viewed National Marine Fisheries Service for the length of their agreement or
during normal business hours by (NMFS) to further the species recovery easement. The HFRP restoration plan
contacting NRCS at the address above. objectives of the HFRP and to help make includes conservation treatments, such
FOR FURTHER INFORMATION CONTACT:
available to HFRP program participants as the conservation practices and
Robin Heard, Director, Easement safe harbor or similar assurances and measures necessary to the restoration
Programs Division, NRCS, P.O. Box protection under ESA section 7(b)(4) or and management of the enrolled area.
Section 10(a)(1), 16 U.S.C. 1536(b)(4), Where NRCS will provide financial
2890, Washington, DC 20013–2890;
1539(a)(1). assistance for this conservation
telephone: (202) 720–1854; fax: (202)
treatment, NRCS will enter into a
720–4265; e-mail: Discussion of the Program
restoration agreement and the HFRP
Robin.heard@usda.gov, Attention: HFRP is a voluntary program to assist restoration plan will serve as the basis
Healthy Forests Reserve Program. landowners in restoring, enhancing, and for the agreement. Therefore,
Persons with disabilities who require protecting forestland. The Chief participants may receive financial
alternative means for communication provides national leadership for the assistance for restoration management
(Braille, large print, audiotape, etc.) implementation of the program. At the practices identified in the restoration
should contact the USDA Target Center state level, the NRCS State plan through enrollment under the 10-
at (202) 720–2600 (voice and TDD). Conservationist determines how best to year cost-share agreement option or in
SUPPLEMENTARY INFORMATION: deliver the program and implement conjunction with enrollment through
Background national policies in an efficient manner either the 30-year or 99-year easement
based on the national priorities option. If desired by the participant, the
America’s forests provide multiple identified in each sign-up HFRP restoration plan can also serve as
benefits and resources for our society announcement. the basis for obtaining safe harbor or
including, timber, wilderness, minerals, NRCS evaluated whether the HFRP similar assurances, which shall be made
recreation and wildlife. In addition, a could be administered by partnering available to the landowner through
healthy forest ecosystem provides with third parties to acquire easements, NRCS in coordination with FWS and
critical habitat for wildlife, sustains similar to the Farm and Ranch Lands NMFS.
biodiversity, protects watersheds, Protection Program, 16 U.S.C. 3838h Landowner Protections (safe harbor or
sequesters carbon, and helps purify the and 3838i, and concluded that the Act similar assurances): Because many
air. However, some forest ecosystems does not provide authority to do so. listed species occur primarily or
have had their ecological functions Thus, the United States Department of exclusively on privately owned
reduced from a number of factors such Agriculture will hold title to HFRP property, NRCS believes it is critical to
as fragmentation, loss of periodic fires, easements. involve the private sector in the
or invasive species. This habitat loss has Enrollment Options: There are three conservation and recovery of these
been severe enough in some enrollment options for program species. Many property owners,
circumstances to cause dramatic participants and projects will be however, are concerned about land use
population decline such as in the case enrolled in the approximate proportion restrictions, particularly in relation to
of the ivory-billed woodpecker. Many of landowner interest expressed in a the prohibition on take of listed species
forests need active management to particular enrollment method. NRCS under section 9 of the ESA, which may
restore health and function to sustain may enroll land in HFRP through 10- occur if listed species colonize their
biodiversity and habitat for species that year restoration cost-share agreements; property or increase in numbers as a
have suffered significant population 30-year easements; or 99-year result of their land management. Thus,
decline. Active management of forest easements. NRCS may offer an easement these landowners may avoid or limit
ecosystems can also increase carbon with duration longer than 30 years and land and water management practices
sequestration and improve air quality. less than 99 years if a different duration and activities that could enhance and
There are many forest ecosystems on is the maximum allowed under state maintain a specific habitat.
private lands provide that habitats for law. The program has a statutory Additionally, habitat adjustments may
species that have been listed as enrollment cap of two million acres. cause an improvement in habitat for one
endangered or threatened under Section See, 16 U.S.C. 6572. species and a decline in habitat for
4 of the Endangered Species Act (ESA), NRCS will only accept applications another.
16 U.S.C. 1533, (listed species). for enrollment during announced sign- Section 506 of the Act, 16 U.S.C.
Congress enacted the HFRP to provide up periods. The sign-up announcement 6576, requires that the Secretary of
financial support to landowners to will identify the national requirements Agriculture to make available ‘‘safe
undertake projects that restore and for the particular sign-up, including the harbor or similar assurances and
enhance forest ecosystems to help geographic extent. NRCS will select protection’’ (‘‘Landowner Protections’’)
Federal Register / Vol. 71, No. 95 / Wednesday, May 17, 2006 / Rules and Regulations 28549
to program participants with land associated with returning to baseline a result of the return to baseline
enrolled in the HFRP and whose resource conditions at the end of the conditions, of the listed species covered
conservation activities result in a net applicable period. Thus, the landowner by the SHA. Thus the landowner would
conservation benefit for listed species, would not be in violation of ESA section not be in violation of ESA section 9
candidate species, or other species of 9 take prohibitions. prohibitions on take. In addition to the
concern. Landowners Protections are (A) With regard to modifications of a authorization for incidental take
explained further below. restoration plan than contains provided through the enhancement of
Section 503 of the Act requires that provisions for a net conservation survival permit, under an SHA the
land enrolled in the program be subject benefit, NRCS will work with program landowner also receives assurances that:
to a restoration plan and that the participants who request modifications (A) Provided the SHA is being
restoration plan require such practices to a restoration plan, provided the properly implemented, FWS or NMFS
as are necessary to restore and enhance requested modifications do not may not require additional or different
habitat for listed species. Consistent adversely affect the forest ecosystem for management activities be undertaken by
with the section 502 eligibility which the easement or agreement was the permittee without the consent of the
provisions, the restoration plan actions established or the basis on which the permittee; and
for lands enrolled in the HFRP will be section 7 incidental take authorization (B) The FWS must, with the consent
designed to restore, enhance, or was issued, and a net conservation of the permittee, pursue all appropriate
otherwise increase the likelihood of benefit is still likely to be achieved. options to avoid revoking an
recovery of listed species or candidates (B) In the event where a landowner enhancement of survival permit.
for listing, State-listed species, or enrolled in HFRP through a 10-year cost Whether or not a program participant
special concern species. Because share agreement does not carry out the seeks the assistance of NRCS to obtain
program participants must have an terms and conditions of the restoration the Landowner Protections through
HFRP restoration plan, program agreement, NRCS has the discretion to either of the approaches described
participants’ activities that comply with terminate the 10-year cost share above, NRCS has its own ESA Section
the terms of the 10-year cost-share agreement and associated HFRP 7(a)(1) and Section 7(a)(2)
agreement, easement and/or HFRP restoration plan. Such termination may responsibilities. Under ESA Section
restoration plan are assumed to result in also require the Services to terminate 7(a)(1), NRCS utilizes its authorities to
a net conservation benefit that Landowner Protections. NRCS does not further the purposes of ESA by carrying
contributes to the recovery of listed have authority to terminate HFRP out programs for the conservation of
species, candidate or other species. In easements. In easement circumstances, endangered and threatened species; this
addition, if the means to obtaining where a change of conditions requires program is an example of NRCS
Landowner Protections requires the the Services to terminate a Landowner utilizing its authorities to further the
program participant to take additional Protection, NRCS will work to address purposes of ESA. Consistent with ESA
conservation or protection measures the changed conditions in the HFRP Section 7(a)(2), NRCS will consult with
besides those contained in his or her 10- restoration plan in coordination with the appropriate Service to ensure that its
year cost-share agreement or easement, the landowner. activities are not likely to jeopardize the
such measures shall be considered part (2) NRCS will provide technical continued existence of any listed
of an HFRP restoration plan for these assistance to the HFRP program species or result in the destruction or
purposes. In exchange, program participant to enter into a Safe Harbor adverse modification of designated
participants will be able to obtain safe Agreement (SHA) with FWS or NMFS critical habitat of such species. Pursuant
harbor or similar assurances under section 10 of the ESA, 16 U.S.C. to consultation under ESA Section
(Landowner Protections) under ESA 1539. ESA Section 10 Safe Harbor 7(a)(2), the Service issues a biological
section 7(b)(4) or section 10(a)(1), 16 Agreements are voluntary arrangements opinion and an incidental take
U.S.C. 1536(b)(4), 1539(a)(1). between either FWS or NMFS and statement to the NRCS as the action
There are two ways that NRCS plans cooperating landowners where agency. The incidental take statement
to help its program participants obtain landowners agree to adopt practices and identifies those terms and conditions to
Landowner Protections, and these measures, or refrain from certain which the NRCS, as the action agency,
protections are very similar under either activities, that are reasonably likely to must adhere in order to avoid incurring
approach: result in a net conservation benefit that liability that would be associated with
(1) NRCS may extend to a HFRP contributes to the recovery of listed unauthorized take of listed species
program participant incidental take species. In many cases the FWS or under section 9 of the ESA. Typically,
authorization received by NRCS through NMFS enter into a programmatic SHA the action consulted upon includes
biological opinions issued by FWS or with a non-Federal entity (e.g., a State measures that designed to avoid or
NMFS pursuant to section 7(b)(4) of the Fish and Wildlife Agency or a local minimize incidental take, and the terms
ESA. Such an incidental take government), who holds the permit and and conditions simply specify that these
authorization will be obtained by NRCS assurances and extends them to agreed upon measures must be
through consultation with FWS or landowners who chose to participate in implemented.
NMFS under section 7(a)(2) of the ESA. the SHA. SHA requirements are In its administration of HFRP, NRCS
Under this approach, the program described in the Safe Harbor Policy is proposing to enter into programmatic
participant will be covered by the adopted by FWS and NMFS (64 FR consultation with FWS or NMFS on a
authorization to NRCS to ‘‘take’’ (as 32717) and, in the case of FWS, forest ecosystem basis, or other
defined in the ESA) listed species in the regulations at 50 CFR 17.22(c) and appropriate geographic scale, to
course of conducting management 17.32(c). In exchange for their encompass NRCS activities under HFRP
activities and other compliance with the commitment to undertake conservation within that area. Pursuant to the
terms of a 10-year cost-share agreement, measures, the landowner receives an consultation, if the appropriate Service
or a 30-year or 99-year easement, and enhancement of survival permit under issues NRCS a biological opinion and an
associated restoration plan. This may, if section 10 of the ESA authorizing Incidental Take Statement authorizing
the landowner so desires, include incidental take that may occur, both as NRCS activities under HFRP to occur
authorization for incidental take a result of management activities and as under certain terms and conditions,
HFRP program participants enrolled if NRCS determines enrollment applicable State Conservationists, will
automatically would be covered by this of such land is necessary for the develop a ranking process for
authorization for incidental take by efficient administration of an easement applications received within that forest
virtue of their commitment to or restoration cost-share agreement. ecosystem. States would initially screen
implement the restoration plan Enrollment Priority: As provided in applications based on criteria contained
associated with their HFRP easement or Section 502(g) of the Act, 16 U.S.C. in the sign-up announcement and the
10-year cost share agreement. Courts 6572(g), NRCS will give priority to the more locally-derived specific criteria.
have held that a party which is neither enrollment of land capable of NRCS seeks public input about the
a federal agency nor an applicant for a supporting the forest ecosystem manner in which NRCS should select
permit or license can take members of conditions that will provide the greatest particular projects for funding. In
a listed species without violating the conservation benefit primarily to carrying out the HFRP, NRCS may
ESA if the action in question was species listed under the ESA and consult with non-industrial private
contemplated by an incidental take secondarily to other species that are forest landowners, other Federal
statement issued to a federal agency candidates for such listing, State-listed agencies, State fish and wildlife
under Section 7(a)(2) of the ESA. See, species, or species identified by the agencies, State forestry agencies, State
Ramsey v. Kantor, 96 F.3d 434 (9th Cir. Chief for special funding consideration. environmental quality agencies, and
1996) Thus, HFRP program participants NRCS will not enroll otherwise eligible non-profit conservation agencies.
can obtain protection from ESA liability lands if it determines that the current
land use has modified site conditions to Provisions That Apply to Both
by adhering to the terms and conditions
such an extent that the re-establishment Easements and 10-Year Restoration
of the Incidental Take Statement issued
of the desired forest ecosystem Cost-Share Agreements
by the appropriate Service to NRCS for
that particular forest ecosystem. HFRP conditions is impracticable or As required by section 503 of the Act,
program participants also have the infeasible. NRCS will also emphasize 16 U.S.C. 6573, lands enrolled in HFRP
option of entering into a Safe Harbor program implementation to restore the shall be subject to a restoration plan for
Agreement with FWS or NMFS to Nation’s forest land for the the period of time the land is covered
receive similar protections. improvement of biological diversity and by either a 10-year cost share agreement
The HFRP and associated Landowner the sequestration of carbon. or easement that requires such
Protections will benefit listed species NRCS will consider the cost- restoration practices as necessary to
while giving private landowners effectiveness of each 10-year cost-share restore and enhance habitat for listed
protection from potential restrictions of agreement or easement, and associated species under ESA and animal and
section 9 of the ESA by authorizing the HFRP restoration plan, so as to plant species before the species reach
take of listed species that may occur maximize the Federal investment. such endangered or threatened status,
during restoration actions, ongoing However, NRCS will not utilize a strict such as candidate, State-listed species,
operations, or returning to baseline environmental benefits index, but will and special concern species as
conditions at the end of the 10-year evaluate the enrollment of particular identified by the Chief. NRCS will work
cost-share agreement or a 30-or 99-year land parcels based upon their site closely with FWS and NMFS to identify
easement. These Landowner Protections conditions, the feasibility to restore the those practices and measures that will
operate with lands enrolled in the HFRP desired forest cover, proximity to other be included as the conservation
and are valid for as long as the parcels with the desired forest cover, treatment within the HFRP restoration
participant is complying with the terms contribution of resources by partnering plan. NRCS believes that the close
under which the Landowner Protections organizations, and other resource and collaboration with FWS and NMFS will
were given. cost factors. NRCS seeks public input aid in the coordination of the
Land Eligibility: Consistent with regarding how best to maximize the implementation of the program and in
section 502(b) of the Act, 16 U.S.C. federal investment as required by establishing program policies. However,
6572(b), NRCS identifies in 625.4 that it statute. no determination by FWS, NMFS, the
will consider land eligible if it is NRCS may place enrollment priority Forest Service, federal or state agency,
privately owned land, including Indian upon certain regional forest ecosystems, conservation district, or other
trust land, the enrollment of which will such as the longleaf pine forest organization will compel the NRCS to
restore, enhance, or otherwise ecosystem of the Southeast, riparian take any action which the NRCS
measurably increase the likelihood of forest ecosystems of California and the determines will not serve the purposes
recovery of listed species, candidates for Southwest, mesic hardwood forest of the program established by this part.
such listing, State-listed species, or ecosystems of the Appalachian region, Both HFRP easements and 10-year
species identified by the Chief for coastal coniferous forests of New cost-share agreements will require that
special funding consideration. Privately- England, and temperate rainforests of the land is managed to maintain the
owned land does not include land the Pacific Northwest. Each of these vitality of the forest ecosystem as
owned by the federal, state, or local forest ecosystems have listed described in the HFRP restoration plan.
government. NRCS will work with FWS endangered and threatened species that The HFRP restoration plan will take into
and/or NMFS in identifying particular could benefit from more active forest account management practices and
forest ecosystems that meet these management practices and measures. measures necessary for further species
eligibility criteria. NRCS will identify through a sign-up recovery objectives of the HFRP and
In enrolling such land, NRCS will notice process the geographic scope and may serve as the basis for program
give additional consideration to ranking priorities for that particular participants to obtain Landowner
enrolling land that improves biological sign-up. Protections as described above.
diversity and increases carbon NRCS considered several methods of Section 503 of the Act, 16 U.S.C.
sequestration. NRCS will only enroll ranking the applications, including a 6573, requires that NRCS and the
land offered voluntarily by the state-by-state ranking, a national landowner will jointly develop the
landowner. ranking, or a combination of the two HFRP restoration plan, in coordination
Lands in addition to the above methods. Under the combination with the Secretary of the Interior.
described eligible lands may also be method, NRCS, with the input of the Similar to the Grassland Reserve
Program and the Wetland Reserve activities. Under the terms of a 10-year Easements: Section 625.4 of the
Program (which are other conservation cost-share agreement, NRCS will interim final rule provides that for
programs administered by NRCS), the include provisions within the agreement participation in an easement option, the
‘‘restoration agreement’’ will be the legal document that identify those activities applicant must be the owner of the
instrument used to incorporate the determined compatible with the short- eligible land. To grant an easement to
HFRP restoration plans into both the 10- term duration of enrollment. For a use the United States, the landowner must
year cost-share agreements and to be considered compatible, the Chief possess clear title to the land or be able
easements and will provide cost-share or designee would determine that the to provide subordination agreements
assistance for implementing measures use is consistent with the purposes of from third parties with interest in the
that will restore and enhance habitat for HFRP: (1) Promoting the recovery of land. Additionally, there must be access
listed species or candidate, state-listed listed species, (2) improving to the property from a public road. The
or species of special concern. NRCS has biodiversity, and (3) enhancing carbon landowner must comply with the terms
determined that program sequestration. NRCS seeks comment of the easement and associated
implementation is greatly enhanced in about the compatible use process for restoration agreement, if one is required.
this way if it has the flexibility to utilize HFRP. NRCS intends to acquire easements
the same type of legal instrument, in To be determined compatible, the under HFRP utilizing a standard
this case the restoration agreement, for type, method, timing, duration, and conservation easement deed similar to
providing financial assistance for extent of a use must be an integral and the deed used by the Grasslands Reserve
restoration implementation activities to positive part of the overall HFRP Program (GRP). The standard
program participants. restoration plan for the easement or 10- conservation easement, termed a
Section 506(b) directs that if year cost-share agreement. For example, negative restrictive easement, is an
Landowner Protections require the in an easement area that is a restored interest in land where the holder of the
taking of measures that are in addition forest ecosystem, a salvage cut to easement has the right to require the
to the measures covered by the remove diseased or damaged trees may owner of the burdened land (i.e., the
applicable HFRP restoration plan, the be appropriate. A selective harvest of easement area) to do or not to do
cost of the additional measures, over-story trees which opens up the specified things with respect to that
including the cost of any permit, are canopy to provide for under-story land. Under a negative restrictive
considered part of the HFRP restoration vegetative diversity may also be easement, the drafter of the easement
plan for purposes of financial compatible in specific cases. A clear deed anticipates the possible uses of the
assistance. As such, any additional cutting approach to timber harvest, property that might interfere with forest
measures that might be required so that however, for the purpose of achieving resources and specifically prohibits
the HFRP participant can qualify for economic gain at the expense of the
them in the easement document.
Landowner Protections would be Negative restrictive easements tend to
forest ecosystem or essential wildlife
eligible for cost-share assistance under work well in programs where the
habitat would not be compatible.
section 504 of the Act, 16 U.S.C. 6579. landowner will continue to conduct
NRCS will work with the program Once an easement or 10-year cost- various activities on the property and
participant and the Services to ensure share agreement has been signed, a only a few activities need to be
that these measures are designed to program participant can request prohibited to meet program purposes.
restore and enhance habitat so as to modifications to the HFRP restoration NRCS also considered utilizing a
provide a net conservation benefit for plan that do not adversely affect the reserved interest easement deed similar
listed species, candidate species, State- forest ecosystem for which the easement to the deed used for the Wetlands
listed species, and special concern or 10-year cost-share agreement was Reserve Program (WRP). Under a
species. These measures would be site- established or the basis on which reserved interest deed, the purchaser
specific and would be addressed as Landowner Protections were issued. acquires all rights in the property not
management activities in the HFRP However, as determined by NRCS, in reserved to the landowner. Thus,
restoration plan. Failure by the program coordination with FWS or NMFS, the reserve interest deeds identify to the
participant to perform the activities modification must result in equal or landowner the rights s/he is keeping in
required by the HFRP restoration plan greater species conservation. the property and thus knows which
and/or any measures required can result Section 504 of the Act, 16 U.S.C. activities are permitted and which are
in violation of the easement or 10-year 6574, provides for cost-share assistance prohibited. Activities that do not
cost-share agreement, and in the loss of for the adoption of approved practices interfere with protecting forest resources
Landowner Protections. on land enrolled through both the purposes would be identified in the
A major program participation easement and 10-year cost-share deed as reserved to the landowner.
requirement contained in § 625.11 and agreement options. However, the Act Reserved interest easements tend to
§ 625.12 of the interim final rule is the limits the rate of cost-share assistance work very well in programs where
inclusion of a right under an easement depending upon the duration of the habitat protection is a primary purpose
or 10-year cost-share agreement for enrollment. For 99-year easements, and the landowner is not expected to
NRCS to determine if a landowner’s NRCS will reimburse a program perform many activities on the property.
specific use of the enrolled area may be participant an amount not less than 75 NRCS seeks public comment regarding
permitted as compatible with the percent nor more than 100 percent of which deed form should be used in the
purposes for which the land was the cost of approved practices. For 30- administration of HFRP.
enrolled into HFRP. Under the terms of year easements, NRCS will reimburse a Easement payments are based on
an easement, the landowner would program participant an amount not appraisals that derive value from the
retain fee title to the land and such uses more than 75 percent of the cost of method commonly referred to as the
that are compatible with maintaining approved practices. For 10-year cost- before-and-after appraisal method.
the conservation benefits for priority share agreements, NRCS will reimburse Under this appraisal method, the
species. Such uses may include hunting, a program participant an amount not amount paid for the easement is the fair
fishing, hiking, camping, bird watching, more than 50 percent of approved market value of the easement which is
and other undeveloped recreational practices. determined by a before-and-after
appraisal method done by a certified submitted by the program participant Summary of Provisions and Request for
land appraiser. A certified land and processed by NRCS. NRCS Comment
appraiser appraises the fair market value welcomes public comment regarding the NRCS welcomes comments on all
of the land before an HFRP easement is use of average or actual costs when it aspects of this interim final rule. The
acquired and subtracts from this amount provides cost-share assistance under following describes the specific
what the fair market value of the land HFRP. requirements in each section of the
would be after an HFRP easement is
Lastly, section 504(d) of the Act, 16 regulation. Activities conducted by
acquired. This difference in value
U.S.C. 6574(d), provides that NRCS may NRCS would be performed by
represents the value of the HFRP
accept and use contributions of non- representatives of NRCS or third party
easement and will form the basis of
federal funds to make payments. providers hired by NRCS as identified
compensation paid to an HFRP program
in 7 CFR part 652. Section 505(b) of the
participant. For easements longer than 10-Year Restoration Cost-Share Act, 16 U.S.C. 6575(b), authorizes NRCS
30 years and not more than 99 years, Agreements: Instead of applying for to request the services of, and enter into
NRCS will offer to pay the landowner entry into HFRP through one of the cooperative agreements with,
not less than 75 percent, nor more than easement options, section 502(f) of the
100 percent, of the value of the individuals or entities identified as
Act, 16 U.S.C. 6572(f), allows technical service providers pursuant to
easement for the time period the land is landowners, including other people
subject to the easement, as determined section 1242 of the Food Security Act of
who have general control of property for 1985, as amended, 16 U.S.C. 3842.
by a before-and-after appraisal. In the the agreement period, to apply for
case of a 30-year easement, NRCS will enrollment into HFRP through 10-year Section 625.1 Purpose and Scope
offer to pay the landowner an amount
cost-share agreements. HFRP 10-year This section describes the general
equal to not more than 75 percent of the
cost-share agreements do not involve a purpose and scope of HFRP. The
value of the easement for the time
transfer of real property rights like purpose of HFRP is to assist
period the land is subject to the
under the easement enrollment options. landowners, on a voluntary basis, in
easement, as determined by a before-
and-after appraisal. Applicants who do not have fee title restoring, enhancing, and protecting
Easement payments may be provided ownership of the enrolled area need to forest ecosystems on private lands
in one lump sum payment at the time provide evidence of control of the through 10-year cost-share agreements
of closing or participants may elect to property for the length of the agreement. and easements. The objectives of HFRP
receive installment payments. If cost-share payments are to be divided are to promote the recovery of listed
Participants who elect to receive between the landowner and other species, maintain and improve plant
installment payments can receive no participants or multiple landowners, the and animal biodiversity, and enhance
more than 10 annual payments of equal 10-year cost-share agreement will need carbon sequestration.
or unequal amount, as agreed to by to be signed by all parties, indicating The Chief may implement HFRP in
NRCS and the landowner. their respective share of the payments. any of the 50 States, the District of
In addition to compensation for the As required by section 504(c) of the Act, Columbia, the Commonwealth of Puerto
conveyance of an easement, a 16 U.S.C. 6574(c), cost-share payment Rico, Guam, the Virgin Islands of the
landowner may receive cost-share United States, American Samoa, the
amounts under the 10-year cost-share
assistance towards the establishment or Commonwealth of the Northern Mariana
agreement option will not exceed 50
maintenance of practices and measures Islands, and the Trust Territories of the
percent of the average cost of approved
that restore and enhance habitat for Pacific Islands. The Chief may
practices and measures. Payments will
listed species, candidate species, State- determine to offer the program
be paid upon completion of a practice, nationwide, in particular regional forest
listed species, and other species of
a measure, or identifiable component of ecosystems, or in particular States,
special concern. These practices and
a practice. depending upon the extent of funding
measures must be approved by the Chief
or his designee, to be eligible for cost- Cost-shared practices and measures available, the identification of eligible
share assistance under HFRP. shall be maintained by the participant forest ecosystems, and other
NRCS will provide cost-share for the life of the practice or measure. considerations.
assistance to program participants for The life of the practice or measure is
Section 625.2 Definitions
practices and measures, including those determined by the NRCS State
necessary to obtain Landowner Conservationist, and shall be consistent This section sets forth the definition
Protections, which are incorporated into with other NRCS conservation of terms that are utilized throughout the
an HFRP restoration plan. The extent of programs. All practices and measures regulation. Many of these definitions are
cost-share assistance will be up to the will be implemented in accordance with not unique to HFRP. However, several
maximum allowed by law, based on the the NRCS requirements. terms included in this section have not
NRCS State average cost list, and subject been previously defined or they have
to the availability of funds. The Act Persons who enroll land initially meanings different than how these
provides an option for NRCS to base through a 10-year cost-share agreement terms are understood under other
cost-share assistance upon either actual may subsequently enroll the land conservation programs.
costs or an average cost list developed through an easement, providing the For example, NRCS is including a
by NRCS. See 16 U.S.C. 6574. NRCS application ranks high enough to be definition for ‘‘conservation treatment’’
determined to use the average cost list funded, all other eligibility criteria are that specifies that the practices,
consistent with its cost-share programs. met, and funds are available to acquire measures, and activities encompassed
NRCS believes the average cost an easement. The easement application by a conservation treatment must meet
approach is more cost-efficient when will be considered a new offer that will HFRP purposes. NRCS expects that the
considering the administrative costs be evaluated with all other new offers. actions needed to restore or enhance
associated with utilizing the actual cost This policy allows NRCS to obtain habitat for listed species may require the
approach in terms of the additional longer term protection on lands implementation of work more than the
documentation that needs to be considered valuable for enrollment. adoption of conservation practices
currently identified in NRCS Field conservation practices and measures landowners who voluntarily enroll in
Office Technical Guides. In particular, and other conservation treatment that the program. To participate in HFRP, a
the enrolled land will require a will be implemented to restore, landowner will agree to the
comprehensive system of restoration enhance, and protect forest ecosystems implementation of a HFRP restoration
and management actions to meet HFRP enrolled in HFRP. NRCS has named the plan.
purposes. For example, the terms and required conservation plan the ‘‘HFRP If a program participant must take
conditions of an Incidental Take restoration plan.’’ management measures that are in
Statement may require certain actions NRCS has included the term addition to the measures covered by the
that are not NRCS conservation ‘‘Landowner Protections’’ in the HFRP applicable HFRP restoration plan in
practices. Since there may be measures interim final rule. Such protections may order to obtain Landowner Protections,
and activities that are known to improve include those associated with: (1) the cost of additional measures, as well
habitat conditions and/or provide the Incidental take authorization issued to as the cost of any permit, if incorporated
basis for Landowner Protections, NRCS NRCS pursuant to an Incidental Take into the HFRP restoration plan, are
believes that the term conservation Statement under section 7(b)(4) of the considered eligible for financial
treatment describes the contents of an ESA, which automatically conveys to assistance as part of the HFRP
HFRP restoration plan more completely. HFRP participants, and (2) similar restoration plan.
Therefore, such practices, measures, and protections associated with Safe Harbor Paragraph (b) specifies the eligibility
activities that improve habitat Agreements under section 10(a)(1) of the requirements of program participants. In
conditions for listed species or other ESA, as described in the SHA particular, this interim final rule
species of concern are identified regulations issued by the FWS at 50 CFR requires that a program participant be a
collectively as eligible for financial 17.22 and 17.32, and the Safe Harbor landowner. However, a landowner
assistance as necessary conservation policy issued by FWS and NMFS. Under includes those persons who have
treatment. either approach, Landowner Protections control of the land for the term of the
In addition, the term ‘‘consultation’’ will most likely allow HFRP program enrollment period.
or ‘‘consult with’’ under these participants to provide beneficial To grant an easement, a landowner
regulations would mean to talk things habitat that may attract listed species to must possess clear title to the land or be
over for the purpose of providing their property, or increase the number of able to provide subordination
information, to offer an opinion for individuals of listed species already agreements from third parties with
consideration, or to meet for discussion present, while not violating the ESA if interest in the land. The landowner
or to confer. The Act calls for the the program participant chooses to must also provide NRCS access to the
Secretary of Agriculture to ‘‘consult return the enrolled area to baseline easement area from a public road.
with’’ a wide range of groups, conditions upon expiration of the term Paragraph (c) of this section defines
individuals, and agencies. Groups the of the HFRP easement or restoration the type of land that will be eligible for
Secretary may consult with include cost-share agreement. enrollment. Land is eligible if it is
non-industrial private forest private land, including tribal land. The
landowners, other Federal agencies, Section 625.3 Administration land must, subsequent to enrollment,
State fish and wildlife agencies, State This section describes how the HFRP restore, enhance, or otherwise
forestry agencies, other State will be administered under the general measurably increase the likelihood of
conservation agencies, and non-profit supervision and direction of the Chief. recovery of a listed species or other
conservation organizations. See 16 The Chief delegates certain species of concern such as state-listed
U.S.C. 6567. The term under HFRP does responsibilities to the NRCS State species or candidates for federal listing.
not have the same meaning as that same Conservationists. Among the land types eligible for
or similar term is understood to have NRCS will coordinate with FWS and enrollment, NRCS may enroll other
under the ESA. NMFS in the implementation of the lands adjacent that would contribute
Section 502 of the Act, 16 U.S.C. program and in establishing program significantly to the conservation benefit
6572, also specifies that the policies. The NRCS may also consult of the ecosystem or improve the
implementation of HFRP will be in with the nonindustrial private forest practical administration of the program.
‘‘coordination’’ with FWS and NMFS. landowners, the Forest Service and Paragraph (d) of this section describes
NRCS proposes in this regulation to other Federal agencies, State fish and lands that NRCS will not enroll into
distinguish ‘‘coordination’’ from ESA wildlife agencies, State forestry HFRP. These ineligible lands include
‘‘consultation.’’ While NRCS will enter agencies, State environmental quality lands owned by a governmental entity,
into ESA consultation with the Services agencies, other State conservation lands already subject to an easement or
where appropriate under section 7(a) of agencies; and nonprofit conservation deed restriction that provides for the
the ESA, the term ‘‘coordination’’ means organizations. However, this rule protection of wildlife habitat, or lands
something different for HFRP purposes. specifies that no determination by any where implementation of forest
NRCS has defined ‘‘coordination’’ as of these entities will compel the NRCS restoration practices would be futile due
NRCS taking the lead in making all to take any action which the NRCS to on-site or off-site conditions. These
decisions associated with implementing determines will not serve the purposes on-site or off-site conditions could
the program, involving FWS and NMFS, of HFRP. result from the presence of hazardous
and utilizing information provided by waste, incompatible land use patterns,
these agencies in HFRP implementation. Section 625.4 Program Requirements
or other factors that prove either
NRCS is the leading agency in This section sets forth the impracticable or costly to address.
conservation planning in the Federal requirements that program participants
Section 625.5 Application Procedures
Government, and HFRP will utilize this must meet to enroll lands into the
technical capability of the Agency. As HFRP. NRCS sets forth the basic This section provides the sign-up
part of any easement or 10-year cost- requirements in paragraph (a) of this notice and application procedures for a
share agreement, NRCS will develop a section. In general, NRCS will purchase person to express their wish to enroll
conservation plan that includes the conservation easements or enter into 10- land into HFRP. Interested applicants
schedule for implementation for year cost-share agreements with eligible can file an application pursuant to a
sign-up notice with their local USDA the compensation rates for easements landowner and anyone claiming title,
Service Center. will be based upon before-and-after rights, or interests under the landowner.
Paragraph (c) provides that the appraisals and the duration of the In particular, a program participant
applicant, by filing an application, will easement. must grant an easement to the United
allow an NRCS representative to come States and agree to the restoration of the
onto their property to determine Section 625.9 10-Year Cost-Share
property in accordance with the goals
whether the land is eligible and a Agreements
and objectives of HFRP.
priority for enrollment. NRCS will This section of the interim final rule Additionally, the program participant
notify the applicant when the agency describes the terms and conditions of must provide NRCS a right of access to
intends to visit the property, and the the 10-year cost-share agreement. In the easement area sufficient for the
applicant, of course, is entitled to particular, a 10-year cost-share NRCS to exercise the rights it acquires
accompany the NRCS representative on agreement will incorporate the under the easement. By enrolling an
any such visits. provisions of the HFRP restoration plan, easement into HFRP, a program
Paragraph (d) provides the flexibility be for a period of 10 years, specify the participant agrees to the use of the
for an applicant to improve their requirements for operation and easement area for the restoration,
ranking score by voluntarily accepting a maintenance of applied practices and protection, enhancement, maintenance,
lesser payment amount than that being measures, and specify the extent to and management of forest ecosystems
offered by NRCS. which NRCS will provide cost-share and recovery of a listed species or other
assistance for the adoption or species of concern. NRCS may authorize
Section 625.6 Establishing Priority for implementation of the approved
Enrollment of Properties in HFRP a landowner subject to an HFRP
conservation treatment. This section easement to engage in certain activities
The State Conservationist will also describes the limited circumstances if such activities are compatible with
develop a ranking process. As required under which a 10-year cost-share the purposes for which the easement
by section 502(g) of the Act, 16 U.S.C. agreement can be terminated. was acquired.
6572(g), NRCS will give priority to the
enrollment of land that provides the Section 625.10 Restoration Cost-Share Section 625.12 The HFRP Restoration
greatest conservation benefit primarily Payments Plan Development
to listed species under the ESA and This section of the interim final rule This section of the interim final rule
secondarily to other species that are describes the availability of cost-share sets forth the terms and conditions
candidates for such listing, State-listed assistance for practices and measures under which NRCS will enter into a
species, or species identified by the identified in the HFRP restoration plan, HFRP restoration plan. Eligible
Chief for special funding considerations. including cost-share assistance for the activities include land management,
NRCS will consider the cost- implementation of practices and vegetative, and structural practices and
effectiveness of each 10-year cost-share measures related to obtaining Safe measures in forestland ecosystems that
agreement and easement so as to Harbor Assurances and related permits. will restore, enhance, or maintain
maximize the federal investment. HFRP program participants can receive habitat conditions or otherwise increase
cost-share assistance for the the likelihood of recovery of listed
Section 625.7 Enrollment of Easements implementation of approved practices species, or candidate, state-listed or
This section of the interim final rule and measures at varying rates, species of special concern as identified
describes the process for enrolling depending upon the duration of the by the Chief. Specific activities eligible
easements into the program. NRCS will easement or if enrollment is through a for payment will be determined by the
consider land enrolled into HFRP if an restoration cost-share agreement: (1) Up NRCS at the State level in coordination
applicant responds to an NRCS offer of to 100% cost-share assistance for with FWS and NMFS.
tentative acceptance with a notice of activities implemented on up to a 99- The HFRP restoration plan will
intent to continue. The applicant’s year easement; (2) up to 75% cost-share specify the manner in which the
notice of intent to continue will assistance for activities implemented on enrolled land shall be restored,
authorize NRCS to proceed with a 30-year easement; and (3) up to 50% protected, enhanced, maintained, and
easement acquisition activities, cost-share assistance for activities managed for forest ecosystems and
including appraisal, survey, title implemented on land enrolled through recovery of listed species and other
clearance, and other matters. Prior to a 10-year cost-share agreement. species selected by the Chief for special
NRCS and the landowner executing the Practices or measures eligible for cost- funding consideration.
easement on the land, NRCS may share assistance under HFRP shall be
withdraw its offer of enrollment because approved by NRCS, in coordination Section 625.13 Modification of the
of title clearance issues, hazardous with FWS and NMFS. These practices HFRP Restoration Plan
waste issues, lack of availability of will include those necessary to restore, This section of the interim final rule
funds, or other matters related to enhance, or maintain habitat conditions provides how the HFRP restoration plan
whether the enrollment of the particular or otherwise increase the likelihood of may be modified.
parcel of land will meet program recovery of listed species, candidate,
Section 625.14 Transfer of Land
requirements. and other species identified by the Chief
for special funding consideration. This section of the interim final rule
Section 625.8 Compensation for provides how applications will be
Easements Section 625.11 Easement Participation handled if the original applicant
This section of the interim final rule Requirements transfers the land that is encompassed
describes the level of compensation that This section of the interim final rule by the application before the closing of
will be provided to HFRP program describes the responsibilities the the easement. In general, any transfer of
participants for the enrollment of up to program participant has by enrolling an the property prior to the landowner
a 99-year easement, a 30-year easement, easement into HFRP. An easement is an acceptance into the program will void
and a restoration cost-share agreement. interest in land and is binding, for the the offer of enrollment. However, at the
As described earlier in this preamble, duration of its term, upon the option of the State Conservationist, an
offer can be extended to the new Management and Budget under HFRP on a more regional or national
landowner if the new landowner agrees Executive Order 12866. scale. To ensure that NRCS has the
to the same or more restrictive easement regulatory framework in place for a pilot
Federal Crop Insurance Reform and
or cost-share agreement terms and program effort for an FY 2006 sign-up,
Department of Agriculture
conditions. Reorganization Act of 1994
NRCS has determined that it is in the
NRCS will hold the new landowner public interest for this interim rule to be
responsible for assuring completion of Pursuant to section 304 of the Federal in effect upon its publication in the
all measures and practices required by Crop Insurance Reform Act of 1994 Federal Register.
the restoration plan. NRCS will make (Pub. L. 103–354), USDA classified this
rule as non-major. Therefore, a risk Environmental Analysis
cost-share payments to the new
landowner upon presentation of an analysis was not conducted. An Environmental Assessment (EA)
assignment of rights or other evidence Regulatory Flexibility Act has been prepared to assist in
that title had passed. However, NRCS determining whether this interim final
The Regulatory Flexibility Act is not rule would have a significant impact on
does not bear any responsibility for any
applicable to this interim final rule the quality of the human environment
full payments or partial distributions of
because the Natural Resources such that an Environmental Impact
funds between the original landowner
Conservation Service (NRCS) is not Statement (EIS) should be prepared.
and the landowner’s successor.
required by 5 U.S.C. 553, or by any Based on the results of the EA, NRCS
Sections 625.15 Through 625.19 other provision of law, to publish a has issued a Finding of No Significant
These sections of the interim final notice of proposed rulemaking with Impact (FONSI). Copies of the EA and
rule are common provisions in NRCS respect to the subject matter of this rule. FONSI may be obtained from Diane
easement and cost-share programs. They Small Business Regulatory Enforcement Gelburd, Director, Ecological Sciences
include how NRCS will handle Fairness Act of 1996 Division, Natural Resources
violations and recovery of costs, This interim final rule is not a major Conservation Service, P.O. Box 2890,
including the ability to recover under a rule as defined by section 804 of the Washington, DC 20013–2890. The HFRP
liquidated damages provision in 10-year Small Business Regulatory Enforcement EA and FONSI will also be available at
cost-share agreements. Fairness Act of 1996. This interim final the following Internet address: http://
Any cost-share or easement payment rule will not result in annual effect on www.nrcs.usda.gov/programs/
or portion thereof due any person under the economy of $100 million or more, a Env_Assess/HFRP/HFRP.html. Written
HFRP will be allowed without regard to major increase in costs or prices, or comments on the EA and FONSI should
any claim or lien in favor of any significant adverse effects on be sent to Diane Gelburd, Director,
creditor, except agencies of the United competition, employment, investment, Ecological Sciences Division, Natural
States Government. productivity, innovation, or the ability Resources Conservation Service, P.O.
A person participating in the HFRP Box 2890, Washington, DC 20013–2890,
of U.S.-based companies to compete in
may obtain a review of any or submit them via the Internet to
domestic and export markets.
administrative determination Section 553(b)(B) of Title 5 of the diane.gelburd@usda.gov.
concerning eligibility for participation United States Code exempts rules from Paperwork Reduction Act
utilizing the administrative appeal notice and comment procedures if such
procedures under 7 CFR part 614 for The forms that will be utilized to
rules would be ‘‘impracticable,
non-Title XII programs. Before a person implement this regulation have
unnecessary, or contrary to the public
may seek judicial review of any action previously been approved for use and
interest.’’ NRCS hereby finds that there
taken under this part, the person must OMB assigned the control number
is ‘‘good cause’’ to proceed with interim
exhaust all administrative appeal 0578–0013. NRCS estimates that HFRP
final rule making because this
procedures set forth in part 614. results in the following changes to the
rulemaking is to implement a pilot
Additionally, any appraisals, market current package:
program effort of $2.5 million that • Increase of 26,020 respondents
analysis, or supporting documentation Congress has authorized for FY 2006.
that may be used by the NRCS in • Increase of 23,926.3 responses
The $2.5 million will be able to • Increase Burden Hours by 27,768.12
determining property value are purchase only approximately 15
considered confidential information, hours
easements encompassing an estimated • Increase in the average time to
and NRCS will only disclose such 3000 acres, and thus the scope of the
information as determined at the sole execute a form in the collection: 0.229
rule is quite small compared to other hours/14.03 minutes
discretion of the NRCS in accordance NRCS program efforts where NRCS
with applicable law. purchases over 1000 conservation Government Paperwork Elimination Act
If NRCS determines that a person has easement encompassing over 150,000 NRCS is committed to compliance
employed a scheme or device to defeat acres annually. Additionally, many of with the Government Paperwork
the purposes of HFRP, any part of any the interim rule’s provisions relate to Elimination Act (GPEA) and the
program payment otherwise due or paid acquisition of conservation easements Freedom to E-File Act, which require
such person during the applicable and are based upon standard acquisition government agencies in general, and
period may be withheld or be required provisions utilized under other NRCS NRCS in particular, to provide the
to be refunded with interest thereon, as conservation easement programs. NRCS public the option of submitting
determined appropriate by NRCS. will base the final rule upon the information or transacting business
Regulatory Certifications experience gained from the pilot electronically to the maximum extent
program effort and the public comments possible.

Executive Order 12866 it receives pursuant to this rulemaking.
The Office of Management and Budget Therefore, the 90-day comment period Executive Order 12988, Civil Justice
(OMB) determined that this interim associated with this rulemaking will Reform
final rule is not significant and it was provide the public the opportunity to This interim final rule has been
not reviewed by the Office of comment prior to NRCS implementing reviewed in accordance with Executive
Order 12988, Civil Justice Reform. The 625.15 Violations and remedies. Consultation or ‘‘consult with’’ means
rule is not retroactive and preempts 625.16 Payments not subject to claims. to talk things over for the purpose of
State and local laws to the extent that 625.17 Assignments. providing information; to offer an
625.18 Appeals.
such laws are inconsistent with this 625.19 Scheme and device.
opinion for consideration; and/or to
rule. Before an action may be brought in meet for discussion or to confer, while
a federal court of competent Authority: 16 U.S.C. 6571–6578. reserving final decision-making
jurisdiction, the administrative appeal § 625.1 Purpose and scope. authority with NRCS.
rights afforded persons at 7 CFR parts Contract means the document that
(a) The purpose of the Health Forests
614 and 11 must be exhausted. specifies the obligations and rights of
Reserve Program (HFRP) is to assist
landowners, on a voluntary basis, in any individual or entity who has been
Executive Order 13132, Federalism accepted for participation in the
restoring, enhancing, and protecting
This interim final rule has been program.
forestland resources on private lands
reviewed in accordance with the Coordination means to obtain input
through easements and 10-year cost-
requirements of Executive Order 13132, and involvement from others while
share agreements.
Federalism. NRCS has determined that reserving final decision-making
(b) The objectives of HFRP are to:
the rule conforms to the federalism (1) Promote the recovery of authority with NRCS.
principles set forth in the Executive endangered and threatened species Cost-share payment means the
Order; would not impose any under the ESA; payment made by NRCS to a program
compliance cost on the States; and (2) Improve plant and animal participant or vendor to achieve the
would not have substantial direct effects biodiversity; and restoration, enhancement, and
on the States, on the relationship (3) Enhance carbon sequestration. protection goals of enrolled land in
between the Federal Government and (c) The regulations in this part set accordance with the HFRP restoration
the states, or on the distribution of forth the policies, procedures, and plan.
power and responsibilities on the requirements for the HFRP as Easement means a conservation
various levels of government. administered by the Natural Resources easement, which is an interest in land
Conservation Service (NRCS) for defined and delineated in a deed
Unfunded Mandates Reform Act of 1995 whereby the landowner conveys certain
program implementation and processing
Pursuant to Title II of the Unfunded applications for enrollment. rights, title, and interests in a property
Mandates Reform Act of 1995, 2 U.S.C. (d) The Chief of NRCS may to the United States for the purpose of
1531–1538, NRCS assessed the effects of implement HFRP in any of the 50 States, protecting the forestland and the
this rulemaking action of State, local, the District of Columbia, the conservation values of the property.
and Tribal governments, and the public. Commonwealth of Puerto Rico, Guam, Easement area means the land
This action does not compel the the Virgin Islands of the United States, encumbered by an easement.
expenditure of $100 million or more by American Samoa, and the Easement payment means the
any State, local, or Tribal government, Commonwealth of the Northern consideration paid to a landowner for
or anyone in the private sector; Marianna Islands. an easement conveyed to the United
therefore, a statement under section 202 States under the HFRP.
of the Unfunded Mandates Reform Act § 625.2 Definitions. Fish and Wildlife Service (FWS) is an
is not required. The following definitions shall be agency of the United States Department
applicable to this part: of the Interior.
List of Subjects in 7 CFR Part 625 Activity means an action other than a Forest Service is an agency of the
Administrative practice and conservation practice that is included as United States Department of
procedure, Agriculture, Soil a part of a restoration agreement; such Agriculture.
conservation. as a measure, incremental movement on HFRP means the Healthy Forests
■ For the reason stated in the preamble, a conservation index or scale, or a pilot Reserve Program authorized by Title V
NRCS is adding a new part 625 in or assessment. of the Healthy Forests Restoration Act of
Chapter VI of 7 CFR to read as follows: Biological diversity (biodiversity) 2003.
means the variety and variability among HFRP restoration plan means the
PART 625—HEALTHY FORESTS living organisms and the ecological Health Forests Reserve Program
RESERVE PROGRAM complexes in which they live. restoration plan that identifies the
Carbon sequestration means the long conservation treatments that are
Sec. term storage of carbon in soil (as soil scheduled for application to land
625.1 Purpose and scope. organic matter) or in plant material enrolled in HFRP in accordance with
625.2 Definitions.
625.3 Administration.
(such as in trees). NRCS standards and specifications.
625.4 Program requirements.
Chief means the Chief of the Natural Indian trust lands means real property
625.5 Application procedures. Resources Conservation Service or the in which:
625.6 Establishing priority for enrollment in person delegated authority to act on (1) The United States holds title as
HFRP. behalf of the Chief. trustee for an Indian or Tribal
625.7 Enrollment of easements. Conservation treatment means any beneficiary; or
625.8 Compensation for easements. and all conservation practices, (2) An Indian or Tribal beneficiary
625.9 10-year restoration cost-share measures, activities, and works of holds title and the United States
agreements. improvement that have the purpose of maintains a trust relationship.
625.10 Cost-share payments. alleviating resource concerns, solving or Landowner means an individual or
625.11 Easement participation
reducing the severity of natural resource entity having legal ownership of land,
requirements.
625.12 The HFRP restoration plan
use problems, or taking advantage of including those who may be buying
development. resource opportunities, including the land under a purchase agreement or
625.13 Modification of the HFRP restoration, enhancement, maintenance, who have legal control of the land for
restoration plan. or management of habitat conditions for the term of the HFRP enrollment period
625.14 Transfer of land. HFRP purposes. for which enrollment is sought.
Landowner may include all forms of Practice means a specified treatment, situation is inappropriate and
collective ownership including joint such as a structural or land management inconsistent with the goals of the
tenants, tenants in common, and life practice, that is planned and applied program.
tenants and remaindermen in a according to NRCS standards and (c) No delegation in this part to lower
property. specifications. organizational levels shall preclude the
Landowner Protections means Private land means land that is not Chief from determining any issue
protections and assurances made owned by a governmental entity, and arising under this part or from reversing
available to HFRP participants whose includes land that is considered Indian or modifying any determination arising
voluntary conservation activities result trust lands. from this part.
in a net conservation benefit for listed, Restoration means implementing any (d) The State Conservationist will
candidate, or other species. Landowner conservation practice (vegetative, develop the rates of compensation for an
Protections made available by the management, or structural) or measure easement, a priority ranking process,
Secretary of Agriculture to HFRP that improves the values and functions and any related technical matters.
participants may be provided under of forestland (native and natural plant (e) The NRCS shall coordinate with
section 7(b)(4) or section 10(a)(1) of the communities). FWS and NMFS in the implementation
Endangered Species Act of 1973 (ESA; Restoration agreement means a cost-
of the program and in establishing
16 U.S.C. 1536(b)(4), 1539(a)(1)). These share agreement between the program
program policies. In carrying out this
Landowner Protections may be provided participant and NRCS to restore,
program, NRCS may consult with
by NRCS in conjunction with meeting enhance, and protect the functions and
nonindustrial private forest landowners,
its responsibilities under section 7 of values of forestland for the purposes of
the Forest Service and other Federal
the ESA, and/or by FWS or NFMS HFRP under either an easement or a 10-
agencies, State fish and wildlife
through section 10 of the ESA. These year cost-share agreement enrollment
agencies, State forestry agencies, State
Landowner Protections include a permit option.
environmental quality agencies, other
providing coverage for incidental take of Safe Harbor Agreement means a
State conservation agencies; and
species listed under the ESA. voluntary arrangement between FWS or
nonprofit conservation organizations.
Landowner Protections also include NMFS, and cooperating non-federal
No determination by FWS, NMFS, the
assurances related to potential landowners under the authority of
Forest Service, any Federal or State
modifications of HFRP restoration plans Section 10(a)(1) of the Endangered
agency, conservation district, or other
and assurances related to the potential Species Act of 1973, 16 U.S.C.
organization shall compel the NRCS to
(unlikely) termination of Landowner 1536(b)(4), 1539(a)(1). Under the Safe
take any action which the NRCS
Protections and any 10-year cost share Harbor Agreement and an associated
determines will not serve the purposes
agreement. enhancement of survival permit, the
of the program established by this part.
Liquidated damages means a sum of non-federal property owner implements
money stipulated in a restoration actions that will result in a net § 625.4 Program requirements.
agreement which the participant agrees conservation benefit for species listed (a) General. Under the HFRP, NRCS
to pay NRCS if the participant fails to under the Act without the risk of further will purchase conservation easements
adequately complete the restoration restrictions pursuant to section 9 of the from, or enter into 10-year cost-share
agreement. The sum represents an Act, which prohibits take of listed agreements with, eligible landowners
estimate of the anticipated or actual species. The property owner also who voluntarily cooperate in the
harm caused by the failure, and reflects receives assurances related to restoration and protection of forestlands
the difficulties of proof of loss and the modifications of the SHA or termination and associated lands. To participate in
inconvenience or non-feasibility of of the permit. (See ‘‘Landowner HFRP, a landowner will agree to the
otherwise obtaining an adequate Protections,’’ above.) implementation of a HFRP restoration
remedy. Sign-up notice means the public
plan, the effect of which is to restore,
Maintenance means work performed notification document that NRCS
protect, enhance, maintain, and manage
to keep the applied conservation provides to describe the particular
the habitat conditions necessary to
practice functioning for the intended requirements for a specific HFRP sign-
increase the likelihood of recovery of
purpose during its life span. up.
listed species under the Endangered
State Conservationist means the
Maintenance includes work to prevent Species Act (ESA), or measurably
NRCS employee authorized to direct
deterioration of the practice, repairing improve the well-being of species that
and supervise NRCS activities within a
damage, or replacement of the practice are not listed as endangered or
specified State, the Pacific Basin, or the
to its original condition if one or more threatened under the ESA but are
Caribbean Area.
components fail. Technical service provider means an candidates for such listing, State-listed
Measure means one or more specific individual, private-sector entity, or species, or species identified by the
actions that is not a conservation public agency certified or approved by Chief for special consideration for
practice, but has the effect of alleviating NRCS to provide technical services funding. NRCS may provide cost-share
problems or improving the treatment of through NRCS or directly to program assistance for the activities that promote
the resources. participants, as defined in 7 CFR part the restoration, protection,
National Marine Fisheries Service 652. enhancement, maintenance, and
(NMFS) is an agency of the United management of forestland functions and
States Department of Commerce. § 625.3 Administration. values. Specific restoration, protection,
Natural Resources Conservation (a) The regulations in this part will be enhancement, maintenance, and
Service (NRCS) is an agency of the administered under the general management activities may be
United States Department of supervision and direction of the Chief. undertaken by the landowner or other
Agriculture. (b) The Chief may modify or waive a NRCS designee.
Participant means an applicant who is provision of this part if the Chief (b) Landowner eligibility. To be
a party to a 10-year cost share agreement determines that the application of such eligible to enroll an easement in the
or an option agreement to purchase. provision to a particular limited HFRP, a person must:
(1) Be the landowner of eligible land notice, the Chief will announce and (5) Availability of contribution of non-
for which enrollment is sought; and explain the rationale for decisions for federal funds;
(2) Agree to provide such information the following information: (6) Significance of forest ecosystem
to NRCS as the agency deems necessary (1) The geographic scope of the sign- functions and values;
or desirable to assist in its up; (7) Estimated cost-effectiveness of the
determination of eligibility for program (2) Any additional program eligibility particular restoration cost-share
benefits and for other program criteria that are not specifically listed in agreement or easement, and associated
implementation purposes. this part; HFRP restoration plan; and
(c) Eligible land. (1) The NRCS, in (3) Any additional requirements that (8) Other factors identified in an
coordination with FWS or NMFS, shall participants must include in their HFRP HFRP sign-up notice.
determine whether land is eligible for applications and program agreements (b) The NRCS may place higher
enrollment and whether, once found that are not specifically identified in priority on certain forest ecosystems
eligible, the lands may be included in this part; based regions of the State or multi-State
the program based on the likelihood of (4) Information on the priority order area where restoration of forestland may
successful restoration, enhancement, of enrollment for funding; better achieve NRCS programmatic and
and protection of forest ecosystem (5) An estimate of the total funds sign-up goals and objectives.
functions and values when considering NRCS expects to obligate under new (c) Notwithstanding any limitation of
the cost of acquiring the easement and program agreements during a given sign- this part, NRCS may enroll eligible
the restoration, protection, up; and lands at any time in order to encompass
enhancement, maintenance, and (6) The schedule for the sign-up
project areas subject to multiple land
management costs. process, including the deadline(s) for
ownership or otherwise to achieve
(2) Land shall be considered eligible applying.
program objectives. Similarly, NRCS
for enrollment in the HFRP only if the (b) Application for participation. To
may, at any time, exclude otherwise
NRCS determines that: apply for enrollment through an
eligible lands if the participation of the
(i) Such private land is capable of easement or 10-year cost-share
adjacent landowners is essential to the
supporting habitat for a selected species agreement, a landowner must submit an
successful restoration of the forest
listed under Section 4 of the ESA; and application for participation in the
ecosystem and those adjacent
(ii) Such private land is capable of HFRP during an announced period for
landowners are unwilling to participate.
supporting habitat for a selected species such sign-up.
(c) Preliminary agency actions. By (d) If available funds are insufficient
not listed under Section 4 of the ESA
filing an application for participation, to accept the highest ranked application,
but is candidate for such listing, or the
the applicant consents to an NRCS and the applicant is not interested in
selected species is State-listed species,
representative entering upon the land reducing the acres offered to match
or is a species identified by the Chief for
for purposes of determining land available funding, USDA may select a
special consideration for funding.
(3) NRCS may also enroll land eligibility, and for other activities that lower ranked application that can be
adjacent to the restored forestland if the are necessary or desirable for the NRCS fully funded. Applicants may choose to
enrollment of such adjacent land would to make offers of enrollment. The change the duration of the easement or
contribute significantly to the practical applicant is entitled to accompany an agreement or reduce acreage amount
administration of the easement area, but NRCS representative on any site visits. offered if the application ranking score
not more than it determines is necessary (d) Voluntary reduction in is not reduced below that of the score
for such contribution. compensation. In order to enhance the of the next available application on the
(4) To be enrolled in the program, probability of enrollment in HFRP, an ranking list.
eligible land must be configured in a applicant may voluntarily offer to § 625.7 Enrollment of easements.
size and with boundaries that allow for accept a lesser payment than is being
(a) Offers of enrollment. Based on the
the efficient management of the area for offered by NRCS.
priority ranking, NRCS will notify an
easement purposes and otherwise
§ 625.6 Establishing priority for enrollment affected landowner of tentative
promote and enhance program
in HFRP. acceptance into the program for which
objectives.
(a) Ranking considerations. Based on the landowner has 15 calendar days to
(d) Ineligible land. The following land
the specific criteria set forth in a sign- sign a letter of intent to continue.
is not eligible for enrollment in the
HFRP: up announcement and the applications (b) Effect of letter of intent to continue
(1) Lands owned by a governmental for participation, NRCS, in coordination (enrollment). An offer of tentative
entity; FWS and NMFS, may consider the acceptance into the program does not
(2) Land subject to an easement or following factors to rank properties: bind NRCS or the United States to
deed restriction that already provides (1) Estimated conservation benefit to acquire an easement, nor does it bind
for the protection of wildlife habitat or habitat required by threatened or the landowner to convey an easement or
which would interfere with HFRP endangered species listed under Section agree to HFRP restoration plan
purposes, as determined by NRCS; and 4 of the ESA; activities. However, receipt of an
(3) Lands where implementation of (2) Estimated conservation benefit to executed letter of intent to continue will
restoration practices would be futile due habitat required by species not listed as authorize NRCS to proceed with
to on-site or off-site conditions. endangered or threatened under Section easement acquisition activities and the
4 of the ESA but that are candidates for land will be considered enrolled into
§ 625.5 Application procedures. such listing, State-listed species, or HFRP.
(a) Sign-up process. NRCS will species identified by the Chief for (c) Acceptance of offer of enrollment.
publish an HFRP sign-up notice with special consideration for funding; An option agreement to purchase will
sufficient time for individuals and (3) Estimated improvement of be presented by NRCS to the landowner,
entities to consider the benefits of biological diversity, if enrolled; which will describe the easement area;
participation prior to the opening of the (4) Potential for increased capability the easement terms and conditions; and
sign-up period. In the public sign-up of carbon sequestration, if enrolled; other terms and conditions for
participation that may be required by by the landowner under the easement. (8) Include any other provision
NRCS. By voluntarily participating in the determined necessary or appropriate by
(d) Effect of the acceptance of the program, a landowner waives any claim the NRCS representative.
offer. After the option agreement to to additional compensation based on (c) Once the participant and NRCS
purchase is executed by NRCS and the fair market value. have signed a 10-year cost-share
landowner, NRCS will proceed with the (2) Annual easement payments may agreement, the land shall be considered
remaining activities necessary for NRCS be made in no more than 10 annual enrolled in HFRP.
to purchase an easement, which may payments of equal or unequal size, as (d) The State Conservationist may, by
include conducting a survey of the agreed to between NRCS and the mutual agreement with the parties to the
easement area, securing necessary landowner. 10-year cost-share agreement, consent to
subordination agreements, procuring (e) Reimbursement of a landowner’s the termination of the restoration
title insurance, and conducting other expenses. For completed easement agreement where:
activities necessary to record the conveyances, NRCS will reimburse (1) The parties to the 10-year cost-
easement or implement the HFRP landowners for their fair and reasonable share agreement are unable to comply
restoration plan. If the landowner expenses, if any, incurred for surveying with the terms of the restoration
breaches an option agreement to and related costs, as determined by agreement as the result of conditions
purchase, NRCS is entitled to recover NRCS. The State Conservationist may beyond their control;
any costs, including administrative or establish maximum payments to (2) Compliance with the terms of the
technical costs, expended in reliance of reimburse landowners for reasonable 10-year cost-share agreement would
the option agreement to purchase. expenses. work a severe hardship on the parties to
(e) Withdrawal of offers. Prior to (f) Tax implications of easement the agreement;
execution and recordation by the United (3) Termination of the 10-year cost-
conveyances. Subject to applicable
States and the landowner of the share agreement would, as determined
regulations of the Internal Revenue
easement, NRCS may withdraw its offer by the State Conservationist, be in the
Service, a landowner may be eligible for
anytime due to availability of funds, public interest.
a bargain sale tax deduction which is (e) If a 10-year cost-share agreement is
inability to clear title, or other reasons. the difference between the fair market
The offer to the landowner shall be void terminated in accordance with the
value of the easement conveyed to the provisions of this section, the State
if not executed by the landowner within United States and the easement
the time specified. Conservationist may allow the
payment made to the landowner. NRCS participants to retain any cost-share
§ 625.8 Compensation for easements. disclaims any representations payments received under the 10-year
(a) Establishment of rates. (1) The concerning the tax implications of any cost-share agreement in a proportion
State Conservationist may determine the easement or cost-share transaction. appropriate to the effort the participant
maximum easement payment rates to be (g) Per acre payments. If easement has made to comply with the restoration
applied to specific geographic areas payments are calculated on a per acre agreement, or, in cases of hardship,
within the State or to individual basis, adjustment to stated easement where forces beyond the participant’s
easement areas. payment will be made based on final control prevented compliance with the
(2) In order to provide for better determination of acreage. agreement.
uniformity among States, the Regional § 625.9 10-year restoration cost-share
Assistant Chief and Chief may review § 625.10 Cost-share payments.
agreements.
and adjust, as appropriate, State or other (a) NRCS may share the cost with
(a) The restoration plan developed landowners of restoring land enrolled in
geographically based easement payment under § 625.12 forms the basis for the
rates. HFRP as provided in the HFRP
10-year cost-share agreement and is restoration plan. The HFRP restoration
(b) Determination of easement
incorporated therein. plan may include periodic manipulation
payment rates. (1) NRCS shall offer to
(b) A 10-year cost-share agreement to maximize wildlife habitat and
pay not less than 75 percent nor more
will: preserve forest ecosystem functions and
than 100 percent of the fair market value
of the enrolled land during the period (1) Incorporate all portions of a values over time and measures that are
the land is subject to the easement less restoration plan; needed to provide the Landowner
the fair market value of the land (2) Be for a period of 10 years; Protections under section 7(b)(4) or
encumbered by the easement for (3) Include all provisions as required section 10(a)(1) of the ESA, including
easement payments for easements of not by law or statute; the cost of any permit.
more than 99 years. (4) Specify the requirements for (b) Landowner Protections may be
(2) NRCS shall offer to pay not more operation and maintenance of applied made available to landowners enrolled
than 75 percent of the fair market value practices; in the HFRP who agree, for a specified
of the enrolled land less the fair market (5) Include any participant reporting period, to restore, protect, enhance,
value of the land encumbered by the and recordkeeping requirements to maintain, and manage the habitat
easement for 30-year easements. determine compliance with the conditions on their land in a manner
(c) NRCS may accept and use agreement and HFRP; that is reasonably expected to result in
contributions of non-federal funds to (6) Be signed by the participant. When a net conservation benefit that
make payments under this section. the participant is not the fee title owner, contributes to the recovery of listed
(d) Acceptance of offered easement concurrence from the fee title owner is species under the Endangered Species
compensation. (1) NRCS will not required; Act (ESA). These protections operate
acquire any easement unless the (7) Identify the amount and extent of with lands enrolled in the HFRP and are
landowner accepts the amount of the cost-share assistance that NRCS will valid for as long as the landowner is in
easement payment which is offered by provide for the adoption or compliance with the terms and
NRCS. The easement payment may or implementation of the approved conditions of such assurances, any
may not equal the fair market value of conservation treatment identified in the associated permit, the easement, and the
the interests and rights to be conveyed restoration plan; and restoration agreement.
(c) If the Landowner Protections, or § 625.11 Easement participation organizations to assist in carrying out
any associated permit, require the requirements. any landowner responsibilities on the
adoption of a practice or measure in (a) To enroll land in HFRP through easement area; and
addition to the practices and measures the 99-year or 30-year enrollment (5) Agree that each person who is
identified in the applicable HFRP option, a landowner shall grant an subject to the easement shall be jointly
restoration plan, NRCS and the easement to the United States. The and severally responsible for
landowner will incorporate the practice easement shall require that the easement compliance with the easement and the
or measure into the HFRP restoration area be maintained in accordance with provisions of this part and for any
plan as an item eligible for cost-share HFRP goals and objectives for the refunds or payment adjustment which
assistance. duration of the term of the easement, may be required for violation of any
(d) Failure to perform planned including the restoration, protection, terms or conditions of the easement or
management activities can result in enhancement, maintenance, and the provisions of this part.
violation of the easement, 10-year cost- management of habitat for listed species
within a forest ecosystem’s functions § 625.12 The HFRP restoration plan
share agreement, or the agreement under development.
which Landowner Protections have and values.
(b) For the duration of its term, the (a) The development of the HFRP
been provided. NRCS will work with
easement shall require, at a minimum, restoration plan shall be made through
landowners to plan appropriate
that the landowner, and the landowner’s an NRCS representative, in consultation
management activities.
heirs, successors and assigns, shall with the program participant and with
(e) The amount and terms and coordination of input from the FWS and
conditions of the cost-share assistance cooperate in the restoration, protection,
enhancement, maintenance, and NMFS, where applicable.
shall be subject to the following (b) The HFRP restoration plan shall
restrictions on the costs of establishing management of the land in accordance
with the easement and with the terms of specify the manner in which the
or installing practices or implementing enrolled land under easement or 10-year
measures specified in the HFRP the HFRP restoration plan. In addition,
the easement shall grant to the United cost-share agreement shall be restored,
restoration plan: protected, enhanced, maintained, and
States, through the NRCS:
(1) On enrolled land subject to an (1) A right of access to the easement managed to accomplish the goals of the
easement of not more than 99 years, area; program.
NRCS shall offer to pay not less than 75 (2) The right to permit compatible (c) Eligible restoration practices and
percent nor more than 100 percent of uses of the easement area, which may measures may include land
the average cost; include such activities as hunting and management, vegetative, and structural
(2) On enrolled land subject to a 30- fishing, managed timber harvest, or practices and measures that will restore
year easement, NRCS shall offer to pay periodic haying or grazing, if such use and enhance habitat conditions for
not more than 75 percent of the average is consistent with the long-term listed species, candidate, State-listed,
cost; and protection and enhancement of the and other species identified by the Chief
(f) On enrolled land subject to a 10- purposes for which the easement was for special funding consideration. To
year cost-share agreement without an established; the extent practicable, eligible practices
associated easement, NRCS shall offer to (3) The right to determine compatible and measures will improve biodiversity
pay not more than 50 percent of the uses on the easement area and specify and increase the sequestration of
average costs. the amount, method, timing, intensity carbon. NRCS, in coordination with
(g) Cost-share payments may be made and duration of the compatible use; FWS, will determine the conservation
only upon a determination by the NRCS (4) The rights, title and interest to the practices and measures. NRCS will
that an eligible practice or measure, or easement area as specified in the determine payment rates and cost-share
an identifiable component of the conservation easement deed; and percentages within statutory limits that
practice has been established in (5) The right to perform restoration, will be available for restoration. A list
compliance with appropriate standards protection, enhancement, maintenance, of eligible practices will be available to
and specifications. Identified practices and management activities on the the public.
and measures may be implemented by easement area.
(c) The landowner shall convey title § 625.13 Modification of the HFRP
the landowner or other designee. restoration plan.
to the easement which is acceptable to
(h) Cost-share payments may be made the NRCS. The landowner shall warrant Consistent with the easement and
for the establishment and installation of that the easement granted to the United applicable law, the State
additional eligible practices and States is superior to the rights of all Conservationist may approve
measures, or the maintenance or others, except for exceptions to the title modifications to the HFRP restoration
replacement of an eligible practice or which are deemed acceptable by the plan that do not modify or void
measure, but only if NRCS determines NRCS. provisions of the easement, restoration
the practice or measure is needed to (d) The landowner shall: agreement, or Landowner Protections.
meet the objectives of HFRP, and the (1) Comply with the terms of the NRCS may obtain and receive input
failure of the original practices or easement; from the landowner and coordination
measures was due to reasons beyond the (2) Comply with all terms and from FWS and NMFS to determine
control of the landowner. conditions of any associated agreement whether a modification is justified. Any
(i) A landowner may seek additional or contract; HFRP restoration plan modification
cost-share assistance from other public (3) Agree to the long-term restoration, must meet HFRP program objectives,
or private organizations as long as the protection, enhancement, maintenance, and must result in equal or greater
activities funded are in compliance with and management of the easement in wildlife benefits and ecological and
this part. In no event shall the accordance with the terms of the economic values to the United States.
landowner receive an amount which easement and related agreements; Modifications to the HFRP restoration
exceeds 100 percent of the total actual (4) Have the option to enter into an plan which are substantial and affect
cost of the restoration. agreement with governmental or private provisions of the easement, restoration
cost-share agreement, or Landowner of the landowner’s negligence or failure (4) If NRCS terminates a 10-year cost-
Protections will require agreement from to comply with easement or contractual share agreement due to breach of
the landowner, FWS or NMFS, as obligations. contract, or the participant voluntarily
appropriate, and may require execution (3) In addition to any and all legal and terminates the 10-year cost-share
of an amended easement and restoration equitable remedies as may be available agreement before any cost-share
cost-share agreement and modification to the United States under applicable payments have been made, the
to the protections afforded by the safe law, NRCS may withhold any easement participant will forfeit all rights for
harbor assurances. and cost-share payments owing to further payments under the 10-year
landowners at any time there is a cost-share agreement, and must pay
§ 625.14 Transfer of land. such liquidated damages as are
material breach of the easement
(a) Offers voided. Any transfer of the covenants, associated restoration prescribed in the restoration agreement.
property prior to the applicant’s agreement, or any associated contract. The State Conservationist has the option
acceptance into the program shall void Such withheld funds may be used to to waive the liquidated damages,
the offer of enrollment. At the option of offset costs incurred by the United depending upon the circumstances of
the State Conservationist, an offer can States in any remedial actions or the case.
be extended to the new landowner if the retained as damages pursuant to court (5) When making any 10-year cost-
new landowner agrees to the same or order or settlement agreement. share agreement termination decisions,
more restrictive easement and contract (4) The United States shall be entitled the State Conservationist may reduce
terms and conditions. to recover any and all administrative the amount of money owed by the
(b) Payments to landowners. (1) For and legal costs, including attorney’s fees participant by a proportion which
easements with multiple annual or expenses, associated with any reflects the good faith effort of the
payments, any remaining easement enforcement or remedial action. participant to comply with the cost-
payments will be made to the original share agreement, or the hardships
(b) 10-year Cost-Share Agreement
landowner unless NRCS receives an beyond the participant’s control that
Violations. (1) If the NRCS determines
assignment of proceeds. have prevented compliance with the
that a participant is in violation of the
(2) The new landowner shall be held contract including natural disasters or
terms of a 10-year cost-share agreement,
responsible for assuring completion of events.
or documents incorporated by reference
all measures and practices required by (6) The participant may voluntarily
into the 10-year cost-share agreement,
the contract. Eligible cost-share terminate a 10-year cost-share
NRCS will give the participant a
payments shall be made to the new agreement, without penalty or
reasonable time, as determined by the
landowner upon presentation of an repayment, if the State Conservationist
State Conservationist, to correct the
assignment of rights or other evidence determines that the cost-share
violation and comply with the terms of
that title had passed. agreement terms and conditions have
(c) Claims to payments. With respect the cost-share agreement and
attachments thereto. If the violation been fully complied with before
to any and all payments owed to a termination of the cost-share agreement.
person, the United States shall bear no continues, the State Conservationist
responsibility for any full payments or may terminate the 10-year cost-share § 625.16 Payments not subject to claims.
partial distributions of funds between agreement.
(2) Notwithstanding the provisions of Any cost-share or easement payment
the original landowner and the or portion thereof due any person under
landowner’s successor. In the event of a paragraph (b)(1) of this section, an
agreement termination is effective this part shall be allowed without regard
dispute or claim on the distribution of to any claim or lien in favor of any
cost-share payments, NRCS may immediately upon a determination by
the State Conservationist that the creditor, except agencies of the United
withhold payments without the accrual States Government.
of interest pending an agreement or participant has: Submitted false
adjudication on the rights to the funds. information; filed a false claim; engaged § 625.17 Assignments.
in any act for which a finding of Any person entitled to any cash
§ 625.15 Violations and remedies. ineligibility for payments is permitted payment under this program may assign
(a) Easement Violations. (1) In the under this part; or taken actions NRCS the right to receive such cash payments,
event of a violation of the easement or deems to be sufficiently purposeful or in whole or in part.
any associated agreement involving a negligent to warrant a termination
landowner, the landowner shall be without delay. § 625.18 Appeals.
given reasonable notice and an (3) If NRCS terminates a cost-share (a) A person participating in the HFRP
opportunity to voluntarily correct the agreement due to breach of contract, the may obtain a review of any
violation within 30 days of the date of participant will forfeit all rights for administrative determination
the notice, or such additional time as future payments under the cost-share concerning eligibility for participation
the State Conservationist may allow. agreement, and must refund all or part utilizing the administrative appeal
(2) Notwithstanding paragraph (a)(1) of the payments received, plus interest, regulations provided in 7 CFR part 614.
of this section, the NRCS reserves the and liquidated damages. The State (b) Before a person may seek judicial
right to enter upon the easement area at Conservationist may require only partial review of any action taken under this
any time to remedy deficiencies or refund of the payments received if a part, the person must exhaust all
easement violations. Such entry may be previously installed practice or measure administrative appeal procedures set
made at the discretion of the NRCS can function independently, is not forth in paragraph (a) of this section,
when such actions are deemed affected by the violation or other and for purposes of judicial review, no
necessary to protect important listed practices or measures that would have decision shall be a final agency action
species and forest ecosystem functions been installed under the cost-share except a decision of the Chief under
and values or other rights of the United agreement, and the participant agrees to these procedures.
States under the easement. The operate and maintain the installed (c) Any appraisals, market analysis, or
landowner shall be liable for any costs practice or measure for the life span of supporting documentation that may be
incurred by the United States as a result the practice or measure. used by NRCS in determining property
value are considered confidential Board (202/452–3259); for users of Regulatory Flexibility Act Certification
information, and shall only be disclosed Telecommunication Devices for the Deaf Pursuant to the Regulatory Flexibility
as determined at the sole discretion of (TDD) only, contact 202/263–4869. Act (5 U.S.C. 605(b)), the Board certifies
NRCS in accordance with applicable that the new primary and secondary
SUPPLEMENTARY INFORMATION: The
law. credit rates will not have a significantly
Federal Reserve Banks make primary
§ 625.19 Scheme and device. and secondary credit available to adverse economic impact on a
(a) If it is determined by NRCS that a depository institutions as a backup substantial number of small entities
person has employed a scheme or source of funding on a short-term basis, because the final rule does not impose
device to defeat the purposes of this usually overnight. The primary and any additional requirements on entities
part, any part of any program payment secondary credit rates are the interest affected by the regulation.
otherwise due or paid such person rates that the twelve Federal Reserve Administrative Procedure Act
during the applicable period may be Banks charge for extensions of credit
under these programs. In accordance The Board did not follow the
withheld or be required to be refunded
with the Federal Reserve Act, the provisions of 5 U.S.C. 553(b) relating to
with interest thereon, as determined
primary and secondary credit rates are notice and public participation in
appropriate by NRCS.
established by the boards of directors of connection with the adoption of these
(b) A scheme or device includes, but
the Federal Reserve Banks, subject to amendments because the Board for good
is not limited to, coercion, fraud,
the review and determination of the cause determined that delaying
misrepresentation, depriving any other
Board. implementation of the new primary and
person of payments for cost-share
secondary credit rates in order to allow
practices or easements for the purpose The Board approved requests by the notice and public comment would be
of obtaining a payment to which a Reserve Banks to increase by 25 basis unnecessary and contrary to the public
person would otherwise not be entitled. points the primary credit rate in effect
(c) A person who succeeds to the interest in fostering price stability and
at each of the twelve Federal Reserve sustainable economic growth. For these
responsibilities under this part shall Banks, thereby increasing from 5.75
report in writing to NRCS any interest same reasons, the Board also has not
percent to 6.00 percent the rate that provided 30 days prior notice of the
of any kind in enrolled land that is held each Reserve Bank charges for
by a predecessor or any lender. A failure effective date of the rule under section
extensions of primary credit. As a result 553(d).
of full disclosure will be considered a of the Board’s action on the primary
scheme or device under this section. credit rate, the rate that each Reserve 12 CFR Chapter II
Signed in Washington, DC, on May 8, 2006. Bank charges for extensions of List of Subjects in 12 CFR Part 201
Bruce I. Knight, secondary credit automatically
increased from 6.25 percent to 6.50 Banks, Banking, Federal Reserve
Chief, Natural Resources Conservation System, Reporting and recordkeeping.
Service. percent under the secondary credit rate
[FR Doc. 06–4587 Filed 5–16–06; 8:45 am] formula. The final amendments to Authority and Issuance
BILLING CODE 3410–16–P
Regulation A reflect these rate changes.
■ For the reasons set forth in the
The 25-basis-point increase in the preamble, the Board is amending 12
primary credit rate was associated with CFR chapter II to read as follows:
FEDERAL RESERVE SYSTEM a similar increase in the target for the
Federal funds rate (from 4.75 percent to PART 201—EXTENSIONS OF CREDIT
12 CFR Part 201 5.00 percent) approved by the Federal BY FEDERAL RESERVE BANKS
[Regulation A] Open Market Committee (Committee) (REGULATION A)
and announced at the same time. A
press release announcing these actions ■ 1. The authority citation for part 201
Extensions of Credit by Federal
indicated that: continues to read as follows:
Reserve Banks
Economic growth has been quite strong so Authority: 12 U.S.C. 248(i)–(j), 343 et seq.,
AGENCY: Board of Governors of the 347a, 347b, 347c, 348 et seq., 357, 374, 374a,
far this year. The Committee sees growth as
Federal Reserve System. likely to moderate to a more sustainable pace, and 461.
ACTION: Final rule. partly reflecting a gradual cooling of the ■ 2. In § 201.51, paragraphs (a) and (b)
housing market and the lagged effects of are revised to read as follows:
SUMMARY: The Board of Governors of the increases in interest rates and energy prices.
Federal Reserve System (Board) has As yet, the run-up in the prices of energy § 201.51 Interest rates applicable to credit
adopted final amendments to its and other commodities appears to have had extended by a Federal Reserve Bank.1
Regulation A to reflect the Board’s only a modest effect on core inflation, (a) Primary credit. The interest rates
approval of an increase in the primary ongoing productivity gains have helped to for primary credit provided to
credit rate at each Federal Reserve Bank. hold the growth of unit labor costs in check, depository institutions under § 201.4(a)
The secondary credit rate at each and inflation expectations remain contained. are:
Reserve Bank automatically increased Still, possible increases in resource
by formula as a result of the Board’s utilization, in combination with the elevated Federal reserve
prices of energy and other commodities, have Rate Effective
primary credit rate action. bank
the potential to add to inflation pressures.
DATES: The amendments to part 201 The Committee judges that some further Boston ................ 6.00 May 10, 2006.
(Regulation A) are effective May 17, policy firming may yet be needed to address New York ........... 6.00 May 10, 2006.
2006. The rate changes for primary and inflation risks but emphasizes that the extent
Philadelphia ....... 6.00 May 10, 2006.

secondary credit were effective on the and timing of any such firming will depend
dates specified in 12 CFR 201.51, as importantly on the evolution of the economic 1 The primary, secondary, and seasonal credit
amended. outlook as implied by incoming information. rates described in this section apply to both
In any event, the Committee will respond to advances and discounts made under the primary,
FOR FURTHER INFORMATION CONTACT: changes in economic prospects as needed to secondary, and seasonal credit programs,
Jennifer J. Johnson, Secretary of the support the attainment of its objectives. respectively.

Rule: Healthy Forests Reserve Program Implementation

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Rule: Healthy Forests Reserve Program Implementation

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Federal Register / Vol. 71, No.

95 / Wednesday, May 17, 2006 / Rules and Regulations 28547

the system to determine what errors in

program effort and the public comments possible.

Philadelphia ....... 6.00 May 10, 2006.

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