[Federal Register Volume 77, Number 28 (Friday, February 10, 2012)]
[Rules and Regulations]
[Pages 6941-6945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-3173]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 77, No. 28 / Friday, February 10, 2012 /
Rules and Regulations
[[Page 6941]]
DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
7 CFR Part 1491
[Docket No. NRCS-2009-0004]
RIN 0578-AA46
Farm and Ranch Lands Protection Program
AGENCY: Commodity Credit Corporation, Natural Resources Conservation
Service, United States Department of Agriculture.
ACTION: Final rule amendment; response to comments.
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SUMMARY: The Natural Resources Conservation Service (NRCS) published in
the Federal Register a final rule for the Farm and Ranch Lands
Protection Program (FRPP) on January 24, 2011, to address comments
received on the interim rule and to publish changes to the entity
certification requirements. At that time, NRCS provided an opportunity
for the public to submit comments for 30 days on the certification
requirements only. This rulemaking action is necessary to address those
comments received on the entity certification requirements.
DATES: Effective date: This amendment is effective February 10, 2012.
FOR FURTHER INFORMATION CONTACT: Steve Parkin, Team Leader, Easement
Programs, Easement Programs Division, Department of Agriculture,
Natural Resources Conservation Service, 1400 Independence Ave. SW.,
Room 6807 South Building, Washington, DC 20250; Telephone: (202) 720-
1864; Fax: (202) 720-9689; Email: [email protected].
Persons with disabilities who require alternative means for
communication (Braille, large print, audio tape, etc.) should contact
the USDA TARGET Center at: (202) 720-2600 (Voice and TDD).
SUPPLEMENTARY INFORMATION:
Regulatory Certifications
Executive Order 12866
Pursuant to Executive Order 12866, the Office of Management and
Budget (OMB) has determined that this final rule amendment is not
significant and will not be reviewed by OMB. The FRPP final rule
published on January 24, 2011, is a significant regulatory action, and
NRCS conducted an economic analysis of the potential impacts associated
with this program. NRCS reviewed the economic analysis prepared for the
final rule and determined that the provisions of this amendment do not
alter the assessment and the findings that were originally prepared. A
copy of the economic analysis is available on the NRCS Web site at:
http://www.nrcs.usda.gov/wps/portal/nrcs/main/national/programs/farmbill/analysis.
Regulatory Flexibility Act
The Regulatory Flexibility Act is not applicable to this final rule
amendment because NRCS is not required by 5 U.S.C. 553, or by any other
provision of law, to publish a notice of proposed rulemaking with
respect to the subject matter of this rule.
Environmental Analysis
An environmental assessment (EA) was prepared in association with
the FRPP interim and final rule. The provisions of this amendment do
not alter the assessment and the findings that were originally
prepared. The analysis determined that there would not be a significant
impact to the human environment and as a result, an Environmental
Impact Statement was not required to be prepared (40 CFR 1508.13). A
copy of the EA and Finding of No Significant Impact may be obtained
from the NRCS Web site at: http://www.nrcs.usda.gov/wps/portal/nrcs/main/national/programs/farmbill/analysis.
Civil Rights Impact Analysis
NRCS has determined through a Civil Rights Impact Analysis that the
final rule discloses no disproportionately adverse impacts for
minorities, women, or persons with disabilities. The provisions of this
amendment to the final rule do not alter the assessment and the
findings that were originally prepared. A copy of the analysis may be
obtained from the NRCS Web site at: http://www.nrcs.usda.gov/wps/portal/nrcs/main/national/programs/farmbill/analysis.
Paperwork Reduction Act
Section 2904 of the Food, Conservation, and Energy Act of 2008
(2008 Act) requires that implementation of programs authorized under
Title II of the Act be made without regard to the Paperwork Reduction
Act of 1995 (Title 44 U.S.C. 3501 et seq.). Therefore, NRCS is not
reporting recordkeeping or estimated paperwork burden associated with
this final rule amendment.
Executive Order 13132
Executive Order 13132 requires agencies to conform to principles of
Federalism in the development of its policies and regulations. NRCS has
determined that this final rule amendment conforms with the Federalism
principles set forth in the Executive Order; would not have impose any
compliance costs on the States; and would not have substantial direct
effects on the States, on the relationship between the Federal
Government and the States, or on the distribution of power and
responsibilities on the various levels of government. Therefore, NRCS
concludes that this final rule amendment does not have Federalism
implementations.
Executive Order 13175
This final rule amendment has been reviewed in accordance with the
requirements of Executive Order 13175, Consultation and Coordination
with Indian Tribal Governments. NRCS has assessed the impact of this
final rule amendment on Indian Tribal Governments and concluded it will
not negatively affect Indian Tribal Governments or their communities.
This final rule amendment does not have a substantial direct effect on
Tribes, as these regulatory provisions do not impose unreimbursed
compliance costs nor preempts Tribal law.
Unfunded Mandates Reform Act of 1995
This action does not compel the expenditure of $100 million or more
in any one year (adjusted for inflation) by any State, local, or Tribal
Governments, or anyone in the private sector.
[[Page 6942]]
Therefore, a statement under section 202 of the Unfunded Mandates
Reform Act of 1995 is not required.
Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994
The Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994, Title III, section 304, requires that for
each proposed major regulation with a primary purpose to regulate
issues of human health, human safety, or the environment, USDA is to
publish an analysis of the risks addressed by the regulation and the
costs and benefits of the regulation. This final rule is not a proposed
major regulation, and therefore, a risk analysis was not conducted.
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)
This final rule amendment is neither major nor significant, and
therefore, it is not subject to the SBREFA 60-day requirement.
Accordingly, this final rule amendment is effective upon publication in
the Federal Register.
Background
NRCS published in the Federal Register on January 16, 2009, an
interim rule with request for comment amending the program regulations
for FRPP. The interim rule implemented changes to FRPP made by the 2008
Act and made administrative improvements to the program. NRCS published
a correction to the interim rule on July 2, 2009, to clarify that the
contingent right of enforcement is a condition placed upon the award of
financial assistance and, therefore, does not constitute a realty
acquisition. That action also reopened the public comment period for
the interim rule.
The FRPP final rule was issued on January 24, 2011, to address
comments received on the interim rule and to publish changes to the
entity certification requirements. At that time, NRCS provided the
public an additional 30 days to comment only on the changes made by the
final rule to the entity certification requirements. This rulemaking
action is necessary to address comments received on the entity
certification requirements during that public comment period.
Responses to Comments and Amendment to Final Rule
NRCS received 27 comments from 7 commenters on FRPP entity
certification requirements as set forth in the January 24, 2011, final
rule. The commenters addressed both procedural and substantive topics
associated with FRPP entity certification. This section of the preamble
addresses these comments and NRCS responses. Comments that NRCS
received on other topics were not considered in this rulemaking.
Administrative Flexibility
Comment: One commenter expressed support for the administrative
flexibility certified entities could receive regarding NRCS oversight
of FRPP-funded easement transactions.
NRCS Response: NRCS believes that the administrative flexibility
provided by the certification process implements the statutory changes
made to FRPP by the 2008 Act. NRCS is taking this opportunity to
identify additional administrative flexibility afforded to certified
entities. A certified entity may avail itself of post-closing
administrative flexibility as well. In particular, Sec. 1491.22(k) of
the FRPP final rule identifies that any changes to the easement deed
after its recordation must be consistent with the purposes of the
conservation easement and FRPP, and any substantive amendments will
require NRCS approval. For certified entities, NRCS will deem
amendments submitted by certified entities as approved and will only
require the certified entity to provide the NRCS State office a copy of
any recorded amendment within 60 days of recording the amendment. NRCS
will consider a certified entity's implementation of this
administrative flexibility as part of its 3-year certification review
cycle and other quality assurance reviews. Any amendment that
substantively adversely impacts the conservation values protected by
the conservation easement deed may be considered a deficiency in terms
of the certified entity's ability to enforce its conservation easement
deeds effectively.
Comment: One commenter recommended NRCS not mandate technical
reviews of all appraisals, and instead should conduct quality assurance
reviews on a sampling of appraisals in conjunction with the title and
easement reports for certified entities.
NRCS Response: NRCS has already adopted a practice consistent with
this comment in the January 24, 2011, final rule. In particular, Sec.
1491.4(e)(5) states that NRCS will conduct quality assurance reviews of
a percentage of the conservation easement transactions submitted by the
certified entity for payment. The review will include whether the deed,
title review, or appraisals were conducted in accordance with the
requirements set forth by NRCS in its certification of the eligible
entity or in the cooperative agreement entered into with the certified
entity.
NRCS requires industry approved appraisals for every FRPP easement
transaction. NRCS performs a technical review to establish that the
industry approved appraisal standard and NRCS requirements have been
met in the appraisal report. For certified entities, NRCS will not
require technical reviews on every appraisal because certified entities
have shown competency in administering the program. However, NRCS has a
fiduciary responsibility to the Nation's taxpayers to ensure the
program is carried out as authorized and that funds expended meet the
program's purpose. In order to ensure that Federal dollars have been
spent appropriately, NRCS will conduct a sampling of appraisals to
ensure compliance with appraisal standards. No changes were made to the
final rule as a result of this comment.
Certification Process
Comment: NRCS received a recommendation that there should be an
explicit step in the rule that states NRCS will make a certification
determination and notify the eligible entity regarding that decision.
NRCS Response: NRCS agrees that the certification determination and
notification are necessary steps in the certification process and will
notify an eligible entity of the NRCS certification determination with
a letter from the Chief or the Chief's designee. Accordingly, NRCS has
amended Sec. 1491.4(e) to clarify that NRCS will notify entities in
writing whether they have met the certification requirements. If
certification is denied, an entity may resubmit their certification
application after addressing the application deficiencies.
Comment: NRCS received two comments that several of the
certification criteria in Sec. 1491.4(d) appeared redundant to the
basic entity eligibility criteria in Sec. 1491.4(c), including
criteria related to the timely acquisition of easements and adjustment
of procedures to meet program purposes.
NRCS Response: No changes were made to the final rule based on this
comment. The criteria identified in Sec. 1491.4(d) are not duplicative
of the eligibility criteria. Certification requirements are designed to
build upon basic aspects of eligibility in order to provide streamlined
acquisition of conservation easements by certified entities. Easement
transactions conducted by certified entities occur with reduced
oversight by NRCS. NRCS
[[Page 6943]]
believes that additional assurance at the time of certification is
necessary to ensure certified entities will handle FRPP-funded
transactions in an efficient manner that adheres to FRPP requirements.
Comment: One commenter stated that Sec. 1491.4(d)(9) requires a
plan for administering easements as ``determined by the Chief.'' This
appears to give the Chief unlimited discretion to reject certification
requests, suggests uncertainty for the program, and may conflict with
State and local land preservation programs' approvals. The commenter
argued that there needs to be a way for an entity to judge whether its
plan will be found as adequate.
NRCS Response: Given the range of partners in FRPP (over 400), NRCS
does not want to circumscribe the content of an entity's plan in
regulation. However, NRCS agrees with the commenter that further
general guidance would be helpful. Accordingly, NRCS sets forth the
following general categories that should be addressed by entities:
Monitoring frequency and methodology, site visits, enforcement
policies, policies related to when to notify NRCS about easement
activities, amendment policies, and methods for periodic communication
with landowners. NRCS believes that this flexibility works to the
benefit of the applicant, allowing the applicant to demonstrate how its
particular stewardship strategy will further FRPP purposes. No changes
were made to the final rule as a result of this comment.
Comment: One commenter cautioned that the terms ``certified'' and
``eligible'' need to be used carefully. The word ``qualified'' can be
confused with ``certified.'' Under this section, the respondent
suggests that for any entity to become certified, it must be eligible.
This same commenter recommended that NRCS not require that a request
for certification be submitted in conjunction with a request for FRPP
funding.
NRCS Response: NRCS agrees that the terms should be clear and that
a certification request does not also require a funding request. Any
entity seeking certification must meet the basic eligibility
requirements identified in Sec. 1491.4(c) which is currently required
under Sec. 1491.4(d)(1). Therefore, NRCS has revised the introductory
text to Sec. 1491.4(d) to read as follows: ``To be considered for
certification, an entity must submit a written request for
certification to NRCS, and must: * * *'' NRCS has removed the phrases
``must be qualified to be an eligible entity and'' and ``at the time
the entity is requesting FRPP cost-share assistance.''
Comment: NRCS received three comments recommending that NRCS
utilize the work of the Land Trust Alliance Accreditation Commission
(LTAC) to determine whether an eligible entity has met some or all of
the FRPP certification criteria, since the LTAC completes extensive
reviews of land trusts to ensure that accredited land trusts have the
ability to acquire, manage, and hold.
NRCS Response: NRCS is familiar with the accreditation process used
by LTAC and agrees with the commenters that in some instances, LTAC
accreditation indicates a high level of competency in areas also
required by NRCS. Where LTAC criteria meet or exceed FRPP certification
requirements, NRCS will likely determine that an LTAC-accreditation
will satisfy those FRPP requirements. However, NRCS also requires that
an entity be proficient with the FRPP program and be knowledgeable
about FRPP requirements in order to be certified. With respect to those
FRPP-specific criteria, each entity will be evaluated by NRCS. No
changes were made to the final rule as a result of this comment.
Comments: NRCS received several comments expressing concern about
the certification requirement that an entity hold, manage, and monitor
a minimum of 25 agricultural land conservation easements and a minimum
of 5 FRPP easements. Commenters stated that an entity may have stellar
land preservation programs but not meet the agricultural land or
numerical requirement because there are fewer farms to enroll.
Accordingly, the commenters proposed that waivers should be provided
for LTAC accredited land trusts or those entities who have demonstrated
through their participation with other organizations or on other land
types that they have sufficient conservation easement experience.
Response: As explained in the preamble of the January 24, 2011,
FRPP final rule, NRCS based the minimum 25 agricultural land
conservation easement requirement upon data from the Land Trust
Alliance 2005 National Land Trust Census Report. In particular, NRCS
looked at acres owned and under easement by land trusts, the number of
land trusts, and the average size FRPP easement. This figure represents
the average number of easements held by land trusts, and therefore,
serves as an indicator of entity capacity and stability. NRCS
recognizes that this number can vary widely between States and regions.
Entities with less than 25 easements may be demonstrating high
standards in easement acquisition, management, and monitoring.
Therefore, NRCS also incorporated a waiver provision in Sec.
1491.4(d)(3) of the January 24, 2011, final rule, allowing entities to
be certified even if they do not have the requisite minimum 25
agricultural land conservation easements. However, there is no waiver
provision for the requirement that entities hold five FRPP easements.
NRCS believes a certified entity should be familiar with FRPP and its
requirements before receiving the benefits of certification, and the
requirement that the certified entity holds a minimum of five FRPP-
funded easements is a fair and reasonable threshold demonstrating such
familiarity.
Closing Efficiency
Comment: NRCS received several comments urging NRCS to utilize as
its closing efficiency element whether an entity is able to
consistently close on its easement within 18 months of the signing of
the cooperative agreement. These commenters requested clarification on
when NRCS begins measuring the 18 months and asked NRCS to only
consider the time for aspects of the process that are within the
entity's control. The commenters also identified that because parcel
substitutions are allowed, adding or removing projects from a pending
offer list should not affect the determination of closing efficiency so
long as the majority of parcel transactions on the final list are
completed within 18 months.
NRCS Response: NRCS will base closing efficiency upon the time from
the execution date of the cooperative agreement or amendment, and the
closing date of the easement transaction funded under that cooperative
agreement or amendment. The 18-month closing efficiency standard for
certification is based upon the current closing efficiency requirement
set forth in the FRPP cooperative agreements. NRCS calculates an
average completion time for each funding year, and then averages the
past 5 years together. The 5-year period of calculation provides an
average that mitigates against concerns related to the timing of
substitute parcels. NRCS will not remove substituted parcels from these
closing efficiency calculations. NRCS has encountered situations where
an eligible entity has allowed initial easement transactions to
languish and then requested extensions to the cooperative agreement to
conduct activities associated with substitute parcels. While allowance
for substitute parcels is necessary, the abuse of this practice results
in the inefficient use of Federal
[[Page 6944]]
funds or staff resources. To ensure fairness in situations where NRCS
may have contributed unnecessarily to the delay, NRCS will allow an
entity seeking certification to request a waiver of the 18-month
closing efficiency requirement. The NRCS State Conservationist will
make a recommendation to the Chief based on the information in the
waiver request. No changes were made to the final rule to implement
this administrative flexibility.
Cooperative Agreements
Comment: NRCS received two comments recommending that the
provisions for certified entities be applied retroactively to any
cooperative agreements approved since adoption of the changes made by
the 2008 Act.
NRCS Response: NRCS is applying the certification provisions to
cooperative agreements entered into by NRCS and the certified entity in
fiscal year (FY) 2011 or later. The agency has chosen this date because
in FY 2011, all partners were required to execute new agreements with
the revised cooperative agreement template which incorporated 2008 Act
requirements. Choosing this date ensures that all certified entities
will be bound by the same requirements when using FRPP funds. NRCS
views this decision to be administrative; therefore, no changes were
made to the final rule.
Decertification
Comment: NRCS received one comment recommending that NRCS change an
entity's review period to coincide with the renewal of the cooperative
agreement. The commenter asserted that a 5-year review period will be
more efficient and will provide NRCS with a more complete body of work.
NRCS Response: Section 1238I(h)(3)(A) of the FRPP statute requires
NRCS to conduct a review of certified entities every 3 years. This
review would occur at least once during the life of the 5-year
cooperative agreement. No changes were made to the final rule in
response to this comment.
Comment: NRCS received one comment about certified entities that
may close on easements without prior review of appraisals, deeds, and
title commitment. The commenter asserted that decertification of a
certified entity should not be based on the NRCS reviewer's conclusions
of deficiencies found in an appraisal report or other aspect of the
easement transaction. Another commenter requested clarification
regarding the appeal rights of a certified entity that has been de-
certified.
NRCS Response: Decertification actions are not initiated based on
NRCS identification of any particular deficiency that may be revealed
in an appraisal or other review. Rather, decertification of a certified
entity is based on the entity's failure to remedy one or more of the
deficiencies regarding the criteria in Sec. 1491.4(d) within 180 days
of receiving notice of such deficiency from NRCS. Additionally, NRCS
will provide guidance to the certified entity regarding correcting
identified deficiencies. The NRCS decertification decision is not a
matter subject to a National Appeals Division appeal because it is not
an adverse decision affecting the rights of a participant (see 7 CFR
part 11). However, the FRPP decertification process at Sec.
1491.4(f)(2) provides entities subject to decertification an
opportunity to contest such action within 20 days of a Notice of
Decertification. Eligible entities who are not certified may still
participate in FRPP.
Dedicated Fund
Comment: Four commenters requested clarification about the NRCS
capitalization requirements for the dedicated fund for easement
management, monitoring, and enforcement. Two of these commenters
recommended that NRCS consider the capitalization guidelines provided
by the Land Trust Alliance accreditation process.
Response: NRCS does not want to dictate capitalization requirements
for the land trust community. However, as a general guideline based
upon standards in the farmland protection community, NRCS identified in
the preamble of the final rule that the dedicated fund must have at
least $50,000 for legal defense and $10,000 per easement for management
and monitoring.
Comment: NRCS received several comments asking for clarification
about whether certified entities must have a dedicated fund for each
easement transaction.
Response: NRCS agrees that a dedicated fund is not needed for each
transaction. A certified non-governmental entity may have funds reside
in a pool dedicated for the management, monitoring, and enforcement of
all easements. No changes were made to the final rule in response to
these comments.
Quality Assurance
Comment: NRCS received one comment requesting that NRCS conduct all
quality assurance reviews prior to the certified entity closing on the
transactions since a pre-closing quality assurance review will allow
the certified entity to work through any issues.
NRCS Response: NRCS agrees that a pre-closing quality assurance
review has less risk than a post-closing review. However, the purpose
of the expanded flexibility available to certified entities under the
final rule is to improve the efficiency of easement acquisition
activities for those responsible entities with a proven track-record.
Through the certification process, NRCS determines the ability of an
eligible entity to conduct acquisition activities in accordance with
FRPP requirements without pre-closing review of each easement
transaction. Additionally, a certified entity may consult with NRCS at
any time during the easement acquisition process, but it will not be a
requirement. No changes were made to the final rule in response to this
comment.
List of Subjects in 7 CFR Part 1491
Administrative practice and procedure, Agriculture, Soil
conservation.
For the reasons stated above, the Commodity Credit Corporation
amends part 1491 of Title 7 of the CFR as set forth below:
PART 1491--FARM AND RANCH LANDS PROTECTION PROGRAM
0
1. The authority citation for part 1491 continues to read as follows:
Authority: 16 U.S.C. 3838h-3838i.
0
2. Amend Sec. 1491.4 by revising the introductory text of paragraph
(d) and the introductory text of paragraph (e) to read as follows:
Sec. 1491.4 Program requirements.
* * * * *
(d) To be considered for certification, an entity must submit a
written request for certification to NRCS, and must:
* * * * *
(e) NRCS will notify an entity in writing whether they have been
certified and the rationale for the agency's decision. Once NRCS
determines an entity qualifies as certified:
* * * * *
[[Page 6945]]
Signed this 2nd day of February 2012, in Washington, DC.
Dave White,
Vice President, Commodity Credit Corporation and Chief, Natural
Resources Conservation Service.
[FR Doc. 2012-3173 Filed 2-9-12; 8:45 am]
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