8113

Rules and Regulations Federal Register Vol. 86, No. 22

Thursday, February 4, 2021

This section of the FEDERAL REGISTER On January 6, 2020, CCC published an wetland restoration, easement contains regulatory documents having general interim rule with request for comments administration action, grazing applicability and legal effect, most of which in the Federal Register (85 FR 558–590) management plan, and nonindustrial are keyed to and codified in the Code of that implemented mandatory changes private forest land; Federal Regulations, which is published under made by the 2018 Farm Bill or that were • Removed definitions for: Active 50 titles pursuant to 44 U.S.C. 1510. required to implement administrative agricultural production, forest land, The Code of Federal Regulations is sold by improvements and clarifications. This forest land of statewide importance, and the Superintendent of Documents. final rule adopts, with minor changes, projects of special significance; the interim rule. • Made changes to easement administration actions, including Discussion of ACEP (7 CFR part 1466) DEPARTMENT OF AGRICULTURE specifying the criteria that apply to each ACEP helps farmers and ranchers type of easement administrative actions; Commodity Credit Corporation preserve their agricultural land and • Made revisions to the restore, protect, and enhance wetlands environmental markets section in 7 CFR Part 1468 on eligible lands. The program has two response to the 2018 Farm Bill; [Docket ID NRCS–2019–0006] components: • Removed the requirement that an (1) Agricultural land easements eligible entity provide evidence at the RIN 0578–AA66 (ACEP–ALE); and time of application that they have funds (2) Wetland reserve easements available to meet the minimum cash Agricultural Conservation Easement (ACEP–WRE). Program contribution requirement; The Secretary of Agriculture • Eliminated the requirement that AGENCY: Natural Resources delegated authority to the Chief, NRCS, land with a certain amount of forest Conservation Service (NRCS) and the to administer ACEP. land have a forest management plan; Through ACEP–ALE, NRCS provides Commodity Credit Corporation (CCC), • Replaced the term ‘‘proposed’’ with matching funds to eligible entities that United States Department of ‘‘permitted’’ in text about the types of are State, Tribal, and local governments, Agriculture. rights-of-way, infrastructure and nongovernmental organizations ACTION: Final rule. development, or other adjacent land with farm and ranch land protection uses whose impacts may cause land to programs, to purchase agricultural land SUMMARY: This final rule adopts, with be considered ineligible; easements. Agricultural land easements minor changes, an interim rule • Specified that under a BPS are permanent or for the maximum published in the Federal Register on transaction, the eligible entity for January 6, 2020. The interim rule duration authorized by State law. Through ACEP–WRE, NRCS protects meeting payment eligibility implemented changes to ACEP that requirements (highly erodible land and were necessitated by enactment of the wetlands on eligible lands by purchasing an easement directly from wetland conservation, and Adjusted Agriculture Improvement Act of 2018 Gross Income (AGI)) is the landowner (the 2018 Farm Bill) and changes for eligible landowners or entering into 30- year contracts on acreage owned by unless the eligible entity sells the fee administrative streamlining title to a qualified farmer or rancher improvements and clarifications. This Indian Tribes, in each case providing for the restoration, enhancement, and prior to, or at the time of, the easement final rule makes permanent many of the closing, in which case the farmer or changes made in the interim rule, protection of wetlands and associated lands. Wetland reserve easements may rancher purchaser must meet payment responds to comments received, and eligibility requirements; makes further adjustments in response be permanent, 30-years for acreage • owned by Indian Tribes, or the To address BPS transactions, to some of the comments received. specified that eligible lands owned by DATES: Effective: February 4, 2021. maximum duration authorized by State law. the eligible entity may be eligible for FOR FURTHER INFORMATION CONTACT: Participation in either ACEP–ALE or enrollment if the land is owned, on a Carrie Lindig, (202) 720–1882, or ACEP–WRE is voluntary. transitional basis, to protect the land [email protected]. Persons with The interim rule: through securing an agricultural land disabilities who require alternative • Incorporated changes to the ACEP easement on the land and to transfer fee means for communication should purposes to limit nonagricultural uses title ownership to a farmer or rancher; contact the USDA Target Center at (202) that negatively affect agricultural uses • Specified eligibility requirements 720–2600 (voice). and conservation values; related to BPS transactions; SUPPLEMENTARY INFORMATION: • Added language to specify general • Specified that NRCS will consider monitoring responsibilities under eligible entity cash contribution toward Background ACEP–ALE and ACEP–WRE; the easement purchase price and The 2018 Farm Bill reauthorized and • Removed references to the Regional measures to increase agricultural amended ACEP. The 2018 Farm Bill Conservation Partnership Program viability as ranking criteria; authorized the use of the existing (RCPP) as the 2018 Farm Bill revised • Specified that appropriate terms regulations that had been implemented RCPP as a stand-alone program, which and conditions must be included in the under the Agricultural Act of 2014 for is now in 7 CFR part 1464; easement deed to address items agreed the remainder of FY 2019 to the extent • Added definitions to reflect 2018 to by the eligible entity as a matter of that those regulations were consistent Farm Bill changes: Buy-protect-sell ranking and basis for selection for with the 2018 Farm Bill changes. (BPS) transaction, monitoring report, funding;

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• Removed the requirement for the • Included water quality as an • ALE Contribution Requirements; eligible entity to contribute its own cash additional priority along with the • ALE Deed Requirements and Terms; resources in an amount equal to 50 priority placed on acquiring wetland • ALE Entity Certification; • percent of the amount of the Federal reserve easements based on the value of ALE Land Eligibility Issues; • ALE Planning; share; the easement for protecting and • • Specified the incurred costs by the enhancing habitat for migratory birds ALE Program Requirements; • ALE Ranking; eligible entity associated with securing and other wildlife; • • Specified that grazing under reserve Definitions; a deed to the easement that may be • Easement Administration Actions; included in the calculation of the non- grazing rights wetland reserve easement • Environmental Markets; Federal share, and that the source and or 30-year contract must comply with a • Fund Allocations; limit of other costs that may be included wetlands reserve plan of operations • Landowner Eligibility—AGI in the calculation of the non-Federal (WRPO) developed by NRCS, which Limitation Waiver; share; may include a grazing management plan • Program Administration; and • Removed reference to the component, and identified that the plan • WRE Issues. availability of waivers for grasslands of may be reviewed and modified as This final rule responds to the necessary, at least every 5 years; and comments received by the public special environmental significance since • the specific eligible entity cash Included new provisions related to comment deadline and makes minor contribution requirement was removed; the evaluation and authorization of clarifying and related changes. • compatible uses on wetland reserve Added specificity to the right of ALE Buy-Protect-Sell Transactions enforcement conveyed to NRCS under easements, including that in evaluating the terms of an agricultural land and considering compatible uses NRCS BPS transactions are arrangements easement; will consider whether the use will under ALE, first authorized under the 2018 Farm Bill, between NRCS and an • Removed the requirement that the facilitate the practical administration eligible entity where the entity owns or agricultural land easement be subject to and management of the easement or will own the land prior to the an ACEP–ALE plan; contract area and ensure that the use acquisition of the agricultural land • Specified the terms and conditions furthers the functions and values for easement on the property, and the required by statute that must be which the land was enrolled. eligible entity either: addressed if the eligible entity chooses Summary of ACEP Comments (1) Sells fee title to the land to a to allow subsurface mineral The interim rule 60-day comment farmer or rancher prior to or at easement development on the land subject to the period ended March 6, 2020, and was closing; or agricultural land easement; (2) Holds fee title at the time the • extended to March 20, 2020, to provide Revised the requirement for a the public an opportunity to consider agricultural land easement is conveyed conservation plan on highly erodible the January 24, 2020, correction. on that land, and transfers ownership of cropland; the land subject to the easement to a • Seventy commenters, including Provided that an eligible entity may individuals, organizations, and farmer or rancher not later than 3 years include terms and conditions in the agencies, submitted comments to after the date of acquisition of the ACEP–ALE deed that are intended to regulations.gov. NRCS reviewed the agricultural land easement. keep the land subject to the easement input from these 70 commenters in NRCS received comments related to under farmer or rancher ownership; BPS transactions, several of which • response to the rule and identified 576 Removed the stand-alone section comments contained within these 70 expressed support for allowing BPS regarding ACEP–ALE plans and entries. NRCS reviewed these 576 transactions. Remaining comments were captured in other sections the comments and categorized and as follows: provisions related to development of summarized them according to the Comment: NRCS received comment required conservation plans or topics identified below. The topics that related to the requirement to sell at development of ACEP–ALE plans as generated the greatest response were on agricultural value except that eligible agreed-to by the eligible entity; entities could charge qualified farmers • ALE ranking, ALE BPS transactions, and Incorporated two new categories definitions. or ranchers certain holding and under which an eligible entity may Overall, the comments expressed transactions costs. These comments demonstrate that they meet the ACEP– general support for the changes made in requested a change to the amount an ALE certification requirements and the interim rule. Six comments were not eligible entity may charge the qualified revised the criteria to require a relevant to the ACEP interim rule. Ten farmer or rancher as part of the sale of minimum of 10 agricultural land comments expressed general support for the property, recommending either that easements under ACEP–ALE, or the regulation and three comments the 10-percent limitation be removed or predecessor NRCS easement programs, criticized the regulation in general. increased to 10 percent of the total fair for all eligible entities seeking These comments did not include any market value (FMV) of the property certification; recommendations for change. rather than 10 percent of the agricultural • Specified the circumstances under NRCS appreciates all comments value. Other comments recommended which NRCS may exercise its right of submitted and thanks each person and that the sale be based on appraised enforcement under ACEP–ALE, organization who expressed an opinion agricultural value (rather than lesser of including its right of inspection; related to ACEP or the interim rule. appraised agricultural value or original • Increased the percent of acres of NRCS will continue the endeavor to purchase price) to avoid a potential total cropland in a county that may be improve its customer service and the windfall to the purchaser that might subject to an ACEP–WRE easement to 15 equitable dispensation of benefits under raise private benefit or other issues percent; ACEP. under federal tax law if the eligible • Removed the requirement for NRCS In this rule, the comments have been entity is a nongovernmental to seek input from the Secretary of the organized alphabetically by topic. The organization. Interior at the local level in the topics include: Response: The 10-percent limit was determination of eligible land; • ALE Buy-Protect-Sell Transactions; identified because NRCS may have to

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recover costs if the conveyance includes forward independently without ACEP Comment: NRCS received comment more than ‘‘reasonable holding and assistance, especially if the entity would regarding the length of ACEP–ALE transaction costs.’’ It is consistent with make a profit from the subsequent land agreements for BPS transactions, industry standards and the use of a transfer, which would negate the need including request for an extension published upper limit removes the for Federal funds. beyond the 3-year ACEP–ALE potential for arbitrary decision making No change is made to the regulation agreement length (and 12-month and expensive challenges in cost in response to this issue. extension) for post-closing transfers to a recovery cases. Additionally, this Comment: NRCS received comment qualified buyer or an extension to a 5- transaction type aims to help farmers requesting that the pre-closing transfer year agreement length. and ranchers gain access to affordable of BPS easements should allow for Response: NRCS provides a period of farmland, and a limit on the holding advance payments in addition to 3 years, plus a potential additional 12 and transaction costs that may be reimbursements. months, to find a qualified buyer, in charged to the farmer or rancher ensures Response: NRCS selected the addition to the initial 2-year period that there is no circumvention of that reimbursement-only approach for pre- provided to close on the easement, for intent. closing BPS transactions as it reduces a total of 6 years for an individual A discussion of the federal income tax the risk for cost-recovery by allowing transaction. NRCS selected the 12- regulatory requirement that an NRCS and the entity to ensure the month extension for several reasons, organization described in section transaction meets all requirements prior largely based on the administrative 501(c)(3) of the Internal Revenue Code to NRCS providing cost-share burden associated with extending (IRC) operate for the benefit of public assistance. To ensure this risk is transactions further. minimized across all BPS transactions, rather than private interests is outside Additionally, NRCS recognizes that NRCS has clarified that payment of the the scope of both the jurisdiction of the post-closing BPS transactions compete Federal share will occur on a United States Department of Agriculture for the same ACEP funds that otherwise reimbursable basis for all BPS and this rule. For more information would be available to protect land that transaction types. Even under standard about the requirements applicable to is already owned by a private or Tribal tax-exempt organizations, including (non-BPS) ALE transactions, an advance payment may only be issued 30 days landowner or qualified farmer or those described in section 501(c)(3) of rancher. Under a post-closing BPS IRC, visit the IRS’s Charities and prior to closing. Therefore, the amount of time the eligible entity could be in transaction, until transfer to a qualified Nonprofits page at www.irs.gov/ farmer or rancher takes place, the charities-and-nonprofits. receipt of easement funds in advance of intended purposes of ACEP for which The ACEP statute requires the sale to the easement closing under the the Federal funds have been invested, be at ‘‘agricultural value’’ plus any requested approach is minimal, whereas reasonable holding costs. A sale at FMV the reimbursement-only approach for are not fully realized. If the property is assumes that the impact of the BPS transactions significantly reduces not ultimately transferred, then those placement of the easement on the land risk and increases administrative Federal funds have been rendered will result in the highest and best use savings for both the eligible entity and unavailable for 5 to 6 years during of the land being agriculture, and thus the Government. The regulation has which time they could have been used agricultural value. The alternative value, been updated to make the Federal share to protect another property that may the purchase price at which the entity payment provision more consistent have met ACEP purposes from the purchased the land, would have been at across the BPS transaction types. outset. Twelve months was chosen to most, theoretically, FMV of the land Comment: NRCS received comment ensure appropriate stewardship of without being encumbered by the related to adjusted gross income (AGI) Federal funds. No change is made to the easement. If the original purchase price waivers; two comments suggested regulation in response to this issue. of the property was less than FMV of the adding AGI waivers for entities involved Comment: NRCS received comment land encumbered with the easement, in BPS transactions who play an requesting addition of an option to then ACEP assistance through a BPS intermediary role as landowner. purchase at agricultural value (OPAV) arrangement is not necessary for the Another comment suggested for BPS agreements to maintain entity to have a viable transaction that automatically waiving AGI for BPS maximum flexibility. would result in the same outcome and transactions because entities only act as Response: Encumbered land under a could occur without an investment of pass-through organizations for the BPS transaction must be sold at taxpayer funds. purpose of the contract. agricultural value to a qualified farmer This requirement ensures that eligible Response: The requesting and or rancher. The ACEP statute at 16 entities do not profit from the BPS granting of AGI waivers for landowners U.S.C. 3865b(b)(4)(D)(i) specifically transaction at the cost of the qualified that the Farm Service Agency (FSA) has allows the inclusion of additional deed farmer or rancher. The provision determined do not meet the AGI terms to keep the land subject to the requiring the eligible entity to sell the limitations must ultimately be ALE under the ownership of a farmer or property at the original purchase price, addressed prior to providing ACEP rancher, which includes easement deeds if lower than the appraised agricultural funds. Determinations to waive AGI for that are part of a BPS transaction. value, was similarly included to help landowners that do not meet the AGI However, NRCS must provide oversight farmers and ranchers gain access to limitations, as set forth in 7 CFR part to ensure that the use of an OPAV term affordable farmland. NRCS has clarified 1400, must be based on a case-by-case in BPS transactions does not create an in the regulation that appraised basis. NRCS policy addresses when incentive for strawman sales to a agricultural value means agricultural NRCS makes its eligibility qualified farmer or rancher just to meet value of the land. An eligible entity determinations, including AGI, based on statutory BPS requirements and then should seek tax or legal advice if a the BPS transaction type and provides have the qualified farmer or rancher sell particular transaction, due to the maximum flexibility with respect to the the land immediately back to the entity entity’s unique circumstances, could timing of conducting AGI at agricultural value under the OPAV jeopardize its tax-exempt status. In determinations. No change is made to term. No change is made to the those instances, the entity can move the regulation in response to this issue. regulation in response to this issue.

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Comment: NRCS received comment agricultural land easement be NRCS contemplated this proposed BPS recommending modification of the transitioned to farmer or rancher transaction structure in response to penalty for failure to complete BPS ownership within 3 years.’’ Due to the previous public comments. The transactions to a sliding scale of transitional nature of this ownership, comment received does not introduce restitution rather than full repayment. there are risks that the Federal new information resulting in a different Response: The ACEP statute requires investment in ACEP–ALE benefits will determination with respect to the legal that the ‘‘Secretary shall be reimbursed not be fully realized, risks that do not issues of easement creation, as an for the entirety of the Federal share of exist with standard ALE transactions. easement, by definition, are the rights the cost of the agricultural land However, in some circumstances, such held by someone in the land owned by easement by the eligible entity if the as an imminent threat of development, another and is created at the time of the eligible entity fails to transfer this risk is outweighed by the benefit of transfer to the other person. ownership.’’ NRCS does not have any placing an easement on land not owned The article supplied by the flexibility with respect to the level of by an otherwise eligible private or respondent reaffirmed this concept by restitution and therefore no change is Tribal landowner at the time the Federal identifying cases where courts made to the regulation in response to funds are invested in the easement. determined that the doctrine of merger this issue. NRCS therefore states in the ACEP was not applicable due to the transfer of Comment: NRCS received comment regulation that, to be eligible for a BPS an easement to a third party. Merger of requesting that eligibility for BPS transaction, the land must be subject to title addresses the extinguishment of an transactions be expanded to include conditions that necessitate the easement right due to a subsequent land owned by State and local ownership of the parcel by the eligible acquisition of fee title, while the BPS governments. entity on a transitional basis prior to the transactions present issues of easement Response: The statute identifies creation of an agricultural land creation. In addition to these issues, the ‘‘eligible land’’ as ‘‘private or tribal easement, and that these conditions may conflict of interest inherent in this type land,’’ which land owned by a State or include land subject to an ‘‘imminent of ownership scenario, which would local government is not. However, this threat of development, including, but impact enforcement, monitoring, and limitation does not preclude the not limited to, planned or approved management of the easement and involvement of a State or local conversion of grasslands to more property, would not be mitigated by government in a BPS transaction. A intensive agricultural uses.’’ Other including an anti-merger provision. No state or local government can serve as conditions may also satisfy that change is made to the regulation in the interim easement holder while a requirement. NRCS made a slight response to this issue. non-governmental-eligible entity serves editorial clarification in the regulation Comment: NRCS received comment as the landowner until the land can be with respect to the requirement that the that parcel substitutions for BPS transferred to a qualified farmer or eligible entity must, within 12-months transactions should be allowed. rancher. No change is made to the of the BPS agreement, have completed Response: Due to the unique and regulation in response to this issue. the initial purchase of the land or have complex nature of BPS transactions, the Comment: NRCS received comment demonstrated that completion of the ALE agreement includes terms that are requesting that, in the development of purchase of the land is imminent. specific to the individual transaction its policy for BPS transactions, the No other change is made to the and ultimately constitute the ‘legal entity not be required to identify the regulation in response to this issue. arrangement’ being entered into ‘relating landowner or sale price during the Comment: NRCS received comment to land owned . . . by an eligible entity’ application and agreement phase. on the issue of merger of title in BPS for the purchase of an agricultural land Response: NRCS does not require the transactions, including comment easement on that particular piece of identification of the landowner or sale recommending deed term stating merger land. In contrast, the terms of the price during the application phase. The does not apply. Another comment standard ALE agreement and contract timing of the identification of the encouraged NRCS and Office of the appendix are applied universally to landowner and the sale price is General Counsel to rely on an opinion every parcel funded. No change is made specified in the ALE-agreement terms of counsel eligible to practice in the to the regulation in response to this and based on the specific BPS State in which the ALE project is issue. transaction type as either a pre-closing located to the effect that no merger Comment: NRCS received comment or post-closing transfer. No change is would result through the transaction if recommending that changes to made to the regulation in response to the eligible entity: (1) Developed strong transaction type (pre-closing versus this issue. anti-merger language to allow it to grant post-closing transfer) be allowed after Comment: NRCS received comment an agricultural land easement to itself entering into agreement. requesting that land eligibility while still holding the fee title to the Response: NRCS identified two types provisions be changed for BPS property, and then (2) reaffirmed the of BPS transactions in the interim rule: transactions, including removal of the agricultural land easement at the time pre-closing and post-closing transfers, ‘‘imminent threat’’ test example or the eased parcel is sold to a farmer or which are differentiated based on the addition of ‘‘advancing program goals’’ rancher. timing of the sale of the fee title interest as a basis for eligibility. Response: ACEP–ALE is a nationwide in the land to a qualified farmer or Response: To align with the program and State law varies on the rancher relative to the timing of ‘‘Conference Report to Accompany H.R. effectiveness of an anti-merger clause; securing the agricultural land easement. 2—Agriculture Improvement Act of however, in general, entities may The regulation specifies the 2018’’ (Managers’ Report), the ACEP– include a no merger clause in ALE requirements and ALE-agreement terms ALE ‘‘eligible land’’ definition for BPS deeds. However, NRCS does not believe that apply to both types. NRCS will transactions was modified to ‘‘allow for that the combination of an anti-merger address in the terms of the ALE agricultural land to be owned by an clause with the suggested attorney’s agreement how an eligible entity may eligible entity on a transitional basis to opinion sufficiently allows an eligible request a modification to an ALE- qualify for program participation, entity to temporarily hold the easement agreement to change between these two provided that the land subject to the and the underlying fee at the same time. types of BPS transactions. No change is

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made to the regulation in response to additional sources and amounts do not event the non-Federal share provided by this issue. need to be identified. the eligible entity is less than such Comment: NRCS received comment Additionally, given that an eligible amount, NRCS will provide a Federal requesting clarification in the preamble entity’s contribution may be related to share equivalent to the non-Federal as to whether a qualified farmer or cash resources expended for the share being provided. rancher includes those who do not file purchase of the land prior to the Response: The interim rule mirrors a Schedule F, such as a farmer in an S easement transaction, NRCS has the statute. Additionally, the language corporation. clarified in the regulation that for BPS allows for the possibility that, in the Response: IRS Form 1040 or 1040–SR, transactions, part of the non-Federal event that the non-Federal share Schedule F, ‘‘Profit or Loss from share provided by an eligible entity may provided by the eligible entity does not Farming,’’ is the preferred include that portion of the fair market comprise the difference between the documentation and is consistent with value of the agricultural land easement Federal share and the remainder of the other NRCS and USDA programs. that is not provided as the Federal FMV of the easement, NRCS could still However, NRCS will also consider share. provide a lesser amount that is circumstances in which other forms of Comment: NRCS received comment equivalent to the non-Federal share. IRS documentation identifying the requesting clarification about the timing Although this is unlikely, removing the landowners’ engagement in an and the type of documentation that language from the regulation would agricultural operation may be would be required for procured costs eliminate this possibility. No change is appropriate. incurred by the eligible entity if relied made to the regulation in response to upon to meet the non-Federal share this issue. ALE Contribution Requirements requirement. Under both the 2014 and 2018 Farm Response: The regulation states that ALE Deed Requirements and Terms Bills, NRCS may provide a Federal share documentation requirements for NRCS received comment related to that does not exceed 50 percent of the procured costs are included in the ALE the topic of ALE deed requirements and FMV of the agricultural land easement agreement. NRCS recognizes that, at the deed terms as follows: and requires the eligible entity to time of agreement, costs for procured Comment: NRCS received comment provide a share at least equivalent to items are estimated amounts and have related to the ALE deed template that provided by NRCS, except in the not yet been incurred. Such estimates review, recommending that the deed case of grasslands of special are needed in order to calculate the template review be limited to ensuring environmental significance. For amount of the Federal share that may be that the minimum deed terms are grasslands of special environmental obligated. No change is made to the incorporated and that other terms are significance, NRCS may provide a regulation in response to this issue. not contrary to the purpose of ACEP. Federal share that does not exceed 75 Comment: NRCS received comment Response: The NRCS review of ALE percent of the easement FMV and the requesting that baseline reports and deed templates focuses on ensuring that non-Federal share requirement is mineral assessments be added to the list minimum deed terms (MDT) are adjusted accordingly. The 2018 Farm of procured costs that may be included incorporated and ensuring other terms Bill removed the 50-percent cash in the non-Federal share. are not contrary to the purpose of the contribution requirement on the part of Response: NRCS added baseline program. Review of other items may be the eligible entity and identified reports and mineral assessments to the necessary to ensure that the document permissible sources of the non-Federal list of items that may be included in the will work effectively as a template for share. NRCS received the following non-Federal share if these items are the acquisition of agricultural land comments. procured by the eligible entity from easements on multiple parcels. No Comment: NRCS received comment in third parties. change is made to the regulation in support of removing the requirement for Comment: NRCS received comment response to this issue. the eligible entity to provide a minimum asking that a Federal share of up to 75 Comment: NRCS received comment cash contribution toward the purchase percent of easement costs be provided about deed provisions related to of the agricultural land easement and in communities that do not have eligible agricultural use, including a request to allowing donations of land by the entities present. strike the phrase ‘‘consistent with landowner and eligible entity expenses Response: The statute limits NRCS’s agricultural use’’ and replace it with the for procured items to satisfy the non- authority to provide a Federal share of phrase ‘‘does not negatively affect Federal share requirements. Other up to 75 percent of the easement value agricultural use’’ as to commercial uses. comments did not support eligible to grasslands of special environmental Another comment recommended that entities no longer being required to significance only. No other types of NRCS limit its ability to impose greater provide a minimum cash contribution. transactions are authorized to receive up deed restrictions in instances where the Response: The regulatory changes to 75 percent of the easement value, State definition of agricultural uses may follow requirements of the 2018 Farm including transactions that occur in result in the degradation of the soils, Bill. No change is made to the communities that do not have an agricultural nature of the land, or regulation in response to this issue. eligible entity present. No change is related natural resources. Comment: NRCS received comment made to the regulation in response to Response: This phrase ‘consistent suggesting changes to how NRCS this issue. with agricultural use’ is unchanged from structured the non-Federal share in the Comment: NRCS received comment the previous ACEP regulation and is regulation. They asked that the ‘‘and’’ at requesting a change to clarify that the expansive enough to apply to farmland the end of the list be replaced with an non-Federal share provided by the and grassland enrollments and is ‘‘or.’’ eligible entity for ACEP–ALE grasslands sufficient to prevent commercial uses Response: NRCS is clarifying that the of special environmental significance that may negatively affect agricultural sources comprising the non-Federal must comprise the difference between uses. NRCS may impose deed share are listed in order, and proceeding the Federal share and the remainder of restrictions needed to ensure ACEP– through the list, once the minimum the FMV. The comment requested ALE purposes will be met in exchange non-Federal share amount is met, removal of the provision that, in the for the Federal investment. No change is

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made to the regulation in response to with flexibility to allow for changes to Comment: NRCS received comment this issue. the agricultural operation. recommending that certified entities Comment: NRCS received comment NRCS requires a parcel-by-parcel need not be required to seek NRCS expressing general support for various determination because impervious approval for subdivision and other elements of the deed requirements set surface limitations are site-specific. activities that currently require NRCS forth in the interim rule, including NRCS will not approve a blanket waiver approval under regulatory deed commending NRCS for the revised or grant eligible entities a right to create requirements and allow only notice to mineral development language; blanket waivers for a greater impervious NRCS of these actions as sufficient. language regarding an entity’s use of surface limit. Response: The interim rule language their own deed terms and conditions; However, there is an existing waiver did not change from prior rules. and supporting the U.S. right of option available that may have been Certified entities have broad discretion enforcement and right of inspection underutilized. Specifically, when an already but still must meet regulatory language in the interim rule. eligible entity has a waiver process deed requirements. NRCS, as a Response: NRCS thanks respondents consistent with NRCS limitations and it fiduciary, must approve those actions for their input. No change is made to the is based on parcel-by-parcel that can so fundamentally affect regulation in response to these issues. determinations made by the entity, the program purposes. Comment: NRCS received comment entity may request authority from NRCS Comment: NRCS received comment related to amendment clauses that must to use its own process. In this case, with respect to the requirement of the be included in each agricultural land separate individual parcel waivers from United States right of enforcement in easement deed, recommending splitting NRCS would not be necessary. the agricultural land easement deed, the amendment provision in the No change is made to the regulation including request that a reference to regulation to avoid confusion between in response to this issue. § 1468.28 be added to the right of ‘‘amendments’’ and the various types of Comment: NRCS received comment enforcement definition, easement administration actions regarding the subsurface mineral deed recommendation that the word (subordination, modification, exchange, provisions. The comments requested: ‘‘contingent’’ should be inserted before and termination actions). • the term ‘‘United States right of Response: NRCS appreciates the A requirement that native plants be used to remediate subsurface mining enforcement’’, and a statement that the request for clarification regarding the right of enforcement does not include requirement that each agriculture land impacts; • A requirement that involves State the ability of the NRCS enforce the easement deed include clauses that terms of an ALE plan if such a plan address amendments or changes that technical committees when determining impact of mineral development; exists. may occur after recordation of the Response: NRCS removed the term • That NRCS seek guidance on timing easement. To clarify, NRCS uses the ‘‘contingent’’ many years ago to remove and responsibility for the development term ‘‘amendment’’ in the regulatory confusion that such right is a currently deed requirement in § 1468.25(d)(4) of the subsurface development plan; and • vested right. The term ‘‘contingent’’ broadly to include each type of That NRCS provide flexibility in the indicates that NRCS’s exercise of its easement administration action: identification of de minimis gravel right of enforcement is conditioned on Subordination, modification, exchange, extraction sites. particular events. It does not mean that and termination. In practice, NRCS Response: NRCS recognizes the the right itself is contingent, such that provides two separate clauses in the preference for the use of native plants it would only be vested upon some minimum deed terms to address this for remediating sites in general, but the future event. regulatory deed requirement and fully determination of the appropriate NRCS has not included any cross encompass the various types of vegetation for any particular easement references to the various sections which easement administration actions. NRCS must be based upon site-specific factors. relate to the United States right of revised the text in the final rule to While the State technical committee enforcement in the definition itself clarify and remove ambiguity regarding can provide input on the impact of since such cross-referencing is the various types of changes to the mineral development to particular land unnecessary. easement deed or easement area that uses or locations in the State, such input Agricultural land easements acquired must be approved in advance by NRCS. would be inappropriate on an under the 2018 Farm Bill are not Comment: NRCS received comment individual easement basis. required to have or be subject to an ALE regarding the interim rule’s impervious The eligible entity is responsible for plan. NRCS enforces highly erodible surface limitations that must be providing the subsurface mineral land conservation plans on highly specified in ACEP–ALE easement deeds, development plan to NRCS, which must erodible cropland as required by the including comments recommending that be approved by NRCS prior to initiation ACEP–ALE statute; however, NRCS NRCS authorize a blanket impervious of the mineral development activity, as does not otherwise identify in the surface waiver to ACEP–ALE easement set forth in § 1468.25(d)(7)(v). regulation the enforcement of an ALE deed language and cap the waiver The de minimis gravel extraction plan. authority at 5 percent of the easement matter is not a regulatory issue but the No change is made to the regulation area. comment responds to text that exists in in response to this issue. Response: The impervious surface the current minimum deed terms. Comment: NRCS received comment limitation and the current cap are well- NRCS would like to clarify that de stating that the statutory requirement of established. NRCS explained in prior minimis gravel extraction is through providing notice and right to participate rulemakings the basis for its use of a surface methods and therefore not when exercising the right of inspection 2-percent limitation and the flexibility encompassed by the subsurface mineral should be added to the rule and deed of having a waiver that allows up to 10 deed. Additionally, the current terms. percent based upon site-specific factors. minimum deed terms authorize such de Response: The circumstances under In particular, this limitation provides a minimis gravel extraction for on-farm which NRCS may enter upon and reasoned balance between ensuring the purposes. No change is made to the inspect an easement pursuant to the future capacity of agricultural land use regulation in response to these issues. United States right of enforcement is

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included in the full right of enforcement Comment: NRCS received comment NRCS specifically requested public clause provided to all eligible entities requesting additional guidance on the comment in the interim rule on whether and must be used in all ACEP-funded entity certification process, including RCPP or HFRP could protect lands on agricultural land easement deeds. The evaluation criteria, how NRCS will which NIPF is the predominant use at ACEP regulation clarifies that NRCS address partnerships between certified levels beyond the scope of ACEP–ALE. will provide the agricultural land and non-certified eligible entities, what Regarding the two-third limitation, easement holder and the landowner a technical assistance NRCS may provide NRCS cannot authorize parcels that are reasonable opportunity to participate if to certified entities (with regards to 100 percent NIPF because statutory NRCS exercises its right of inspection. things like title review and appraisal), eligibility criteria is phrased as NIPF Comment: NRCS received comment the benefits of certification, and the contributing to the economic viability of recommending that deed terms should definition of a plan for administering an offered parcel or serving as a buffer allow site potential tree height (SPTH) easements. The comment detailed to protect land from development. Thus, forested riparian buffers as a permissible recommendations about the kind of the eligibility of NIPF is in relationship provision in western Washington. transparency NRCS should have for its to other eligible land. This has long Response: The ACEP regulation process and the timeline. Another been NRCS’s interpretation of this includes a ‘‘catch-all’’ provision that comment requested a streamlined eligibility criterion under ACEP–ALE allows States to have additional process for certifying eligible entities, and its predecessor Farm and Ranch minimum deed terms. NRCS including State agencies and land trusts. Lands Protection Program. Congress recommends that the commenters and Response: The internal certification specifically rejected language that any stakeholders with similar concerns review process is found at 440 would have expanded eligibility in the should work with their applicable State Conservation Programs Manual (CPM) 2018 Farm Bill. NRCS concurs that the Conservationist. No change is made to Part 528 and may be accessed at https:// availability of other USDA easement the regulation in response to this issue. directives.sc.egov.usda.gov/. NRCS will programs that specifically protect Comment: NRCS received comment continue its ongoing efforts to forested lands warrants the continued related to how the ALE-agreement streamline processes through new focus of ACEP–ALE more broadly on references the deed requirements. business tools to be as efficient and other agricultural lands. No change is Response: The ALE agreement must effective in program delivery as possible made to the regulation in response to specify the deed requirements as set while operating within legal authorities. this issue. forth in the regulation so that they are NRCS will continue to make publicly Comment: NRCS received comment enforceable. available any new policy or guidance. about the definition of grasslands of special environmental significance ALE Entity Certification No change is made to the regulation in response to this issue. (GSES) under ACEP–ALE, including NRCS received comment related to support for the definition of GSES and Comment: NRCS received comment ALE entity certification as follows: the prioritization and management of expressing support for changes made in Comment: NRCS received comment native vegetation and habitats in the interim rule to the entity on the term of agreements with certified relationship to GSES. A comment also certification process. eligible entities recommending that encouraged the return of land to NRCS allow for a minimum 5-year term. Response: NRCS appreciates this heritage marshes and vernal pools Response: NRCS is changing the support. wherever possible on GSES enrollments. regulatory language in response to this ALE Land Eligibility Issues Another comment supported allowing comment to specify that agreements only native vegetation to be categorized NRCS received comment related to with certified entities will be for a as GSES. minimum of 5 fiscal years following the ALE land eligibility as follows: Response: NRCS believes that the fiscal year the agreement is originally Comment: NRCS received comment current GSES definition supports the executed, but may not exceed 7 fiscal about forest land eligibility issues. Many recommendation about prioritization of years following the fiscal year the supported maintaining the two-thirds native vegetation and habitat. In agreement is originally executed. NRCS limitation on non-industrial private particular, the GSES definition has found that an upper limit is forest land (NIPF) eligibility under identifies sensitive or declining native necessary to limit the administrative ACEP–ALE and offered that programs prairie or grassland types or grasslands burden associated with implementing like the Regional Conservation buffering wetlands. However, there are agreements that cross different farm Partnership Program (RCPP), Healthy grasslands that, while not native bills. Forests Reserve Program (HFRP), and vegetation, provide critical habitat for Comment: NRCS received comment Forest Legacy Program can all be used at-risk species that warrant the urging NRCS to expand eligibility for currently to protect forest lands. increased Federal investment to protect. certification for State agencies, Another comment requested the two- Thus, NRCS will not limit GSES to recommending a broadening of language third limitation on NIPF in ACEP–ALE native vegetation only. No change is for which types of prior conservation be struck. made to the regulation in response to easements would be counted, and Response: To minimize duplication, this issue. requesting that NRCS drop the number overlap, and conflict with other USDA Comment: NRCS received comment of required prior conservation easement forest easement programs, the interim related to ALE land eligibility, transactions from 10 to 5. rule and this regulation maintain the including: Response: The terms for certification existing eligibility provision that land • A request that confined animal of State agencies are set forth in statute, enrolled in ACEP–ALE cannot include feeding operations (CAFOs) not be including the type of easements that can NIPF greater than two-thirds of the eligible for an ALE-funded easement; be counted and the number of prior ACEP–ALE easement area unless • A comment addressing the transactions required, and NRCS does waived by NRCS with respect to forest ineligibility criteria related to on-site not have discretion to waive or amend lands dedicated to sugar bush that and off-site conditions; those provisions. No change is made to contribute to the economic viability of • A comment commending NRCS for the regulation in response to this issue. the parcel. including criteria related to permitted

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rights-of-way and requesting that NRCS land subject to an agricultural land which sound conservation stewardship clarify how off-site conditions are easement may enter into a CRP contract. originates. To eliminate support for deemed suitable for the purpose of Determinations of land eligibility for planning would undermine the quality making ALE land eligibility enrollment in CRP are under the of stewardship that would be determinations; purview of FSA and we have therefore encouraged on lands in which the • A comment requesting that NRCS shared the comment with FSA. No public provides a sizable financial broaden the definition of access and the change is made to the regulation in investment. Additionally, as a ranking eligibility requirements so that air response to these issues. criterion this consideration does not access can qualify; and prohibit eligible entities from being able ALE Planning • A comment requesting additional to access program funding but instead clarification as to whether a farmer or NRCS received comment related to acknowledges that eligible entities rancher can participate in both ALE and ALE planning and ALE plans as follows: committed to long-term conservation Conservation Reserve Program (CRP). Comment: NRCS received comment planning are helping to ensure an Response: For any proposed easement related to ALE planning generally and agricultural land easement yields the containing a CAFO, the confined area is some of them urging NRCS to require a greatest benefits for the landowner, a heavy use area that must be evaluated grassland management plan for conservation, and the public funds by NRCS to determine if the on-site or grasslands of special environmental invested in that easement. No change is off-site conditions render the site significance given the higher made to the regulation in response to ineligible and make a determination as environmental value of these easements. this issue. to whether the land meets the required Another comment recommended that Comment: NRCS received comment land eligibility criteria. This is a case- NRCS continue to encourage planning related to the definition of the ALE plan, specific determination and broad on ALE easements, while a comment with some advocating for the removal of categorization of land eligibility simply did not support how NRCS encouraged the ALE plan definition entirely because based on type of operation is not planning. plans are no longer mandated by statute. appropriate. NRCS has set forth in Response: The 2018 Farm Bill Another comment supported the national policy, which is publicly removed language requiring that ACEP– definition of ALE plans and available, the procedures and forms ALE easements enrolled under the 2018 commended NRCS for clearly defining NRCS uses to make land eligibility Farm Bill be subject to an ALE plan, that the plan is developed by the determinations for ACEP–ALE, including grasslands of special eligible entity and not as a component including assessing the potential of environmental significance. However, in of the deed. Comment also expressed onsite and offsite conditions to the Managers’ Report, the Managers support for limiting conservation plans undermine the purposes of ACEP. ‘‘encourage USDA and eligible entities to only highly erodible croplands. Ultimately, land eligibility to work with landowners entering into Response: NRCS supports determinations are site-specific and rely an ALE easement to undertake conservation planning as the upon programmatic and technical conservation planning activities on their cornerstone of land stewardship efforts. assessments based on criteria set forth land in order to maximize the NRCS retained the definition of the ALE broadly in national policy and more environmental value of the protected plan in the ACEP regulation. No change specifically at the State level. For more land.’’ Therefore, NRCS will continue to is made to the regulation in response to information, see: 440 CPM part 528 at encourage planning on ACEP–ALE this issue. https://directives.sc.egov.usda.gov/. enrollment, including grasslands of Legal access to agricultural land special environmental significance. No ALE Program Requirements easements is critical to the ability of the change is made to the regulation in NRCS received comment related to eligible entity, and NRCS, under its response to this issue. ALE program requirements as follows: right of enforcement, to monitor and Comment: NRCS received comment Comment: NRCS received comment enforce the terms of the easement and strongly supporting the recognition ALE requesting clarification as to how NRCS ensure that program purposes are plan as a measure that maintains or will determine if a landowner entity is achieved. Effective monitoring and increases the agricultural viability of the compliant with AGI. enforcement ultimately require ground land in the ranking criteria, and Response: NRCS uses the AGI inspection and verification. Access to an identified that the ranking criterion eligibility determinations made by the easement that can only be achieved by should strongly weight ALE plans for FSA. NRCS accesses such aircraft would require both the eligible grasslands of special environmental determinations through the agencies’ entity and NRCS to maintain, in significance and that a plan should be shared database services. No change is perpetuity, aircraft that can provide required for any application that is made to the regulation in response to personnel access to monitor and land on prioritized based on carbon this issue. the easement property and would sequestration or climate change Comment: NRCS received comment require the landowner to maintain, in resiliency goals. Another comment related to the requirement that eligible perpetuity, a landing strip or helipad on expressed that an ALE plan should not entities must provide evidence of their the property. NRCS does not maintain be recognized in the ranking criteria financial capacity for transactions in its own aircraft for easement monitoring because it is no longer required by which the non-Federal share does not purposes and cannot evaluate the safety statute. include at least a 10-percent cash and suitability of aircraft owned by the Response: As described in the contribution from the eligible entity for eligible entity or the landowner’s preamble of the interim rule, NRCS payment of easement compensation to landing strip or helipad. All lands that identified that the development and the landowner. Other comment do not have sufficient legal, physical maintenance by the eligible entity of an requested removal of the requirement access are ineligible to receive Federal ACEP–ALE plan could be a ranking that the entity provide specific evidence funds under ACEP, including those that consideration at the State level to of funds available for stewardship of the are only accessible by air. prioritize applications from eligible easement and suggested that entity The 2018 Farm Bill specifies that a entities. NRCS believes that eligibility requirements that apply to all farmer or rancher who owns eligible conservation planning is the base upon ACEP–ALE transactions regardless of

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entity cash contribution amounts are valuation options beyond USPAP framework under ACEP–ALE allows sufficient. Other comment commended appraisals. NRCS and eligible entities to more NRCS on including the requirement but Response: NRCS provides guidance in easily address enrollment changes, such requested clarification as to what would policy with respect to what is required as parcel substitution or acreage constitute specific evidence of funds if an eligible entity elects to use an modifications. Since NRCS does not available for stewardship. alternative easement valuation receive landowner applications directly Response: All entities must methodology, including a ‘‘Specification for ACEP–ALE enrollment, NRCS will demonstrate capability and capacity as and Scope of Work for Areawide Market provide outreach to States to help an eligibility requirement. Under the Analysis for ACEP–ALE.’’ These items landowners interested in ACEP–ALE 2014 Farm Bill, NRCS could use an are published and publicly available in identify eligible entities in their entity’s ability to provide at least the NRCS directive Title 440, Conservation geographic area. No change is made to required cash contribution amount for Programs Manual (440–CPM), Part 528, the regulation in response to this issue. all ACEP–ALE transactions as an Section 528.53, and in 440–CPM, Part Comment: NRCS received comment indication that the entity is able to meet 527, Subpart E, which can be accessed recommending that NRCS allow water capability and capacity requirements. on the NRCS Electronic Directives supply entities to participate in ACEP– Where an entity is unable to provide at system at https:// ALE as eligible entities. least a minimum cash contribution, directives.sc.egov.usda.gov/. No change Response: An eligible entity must questions arise as to the entity’s is made to the regulation in response to meet the definition of an eligible entity financial capacity to assume this issue. established by statute and incorporated responsibility for the easement Comment: NRCS received comment into the ACEP regulation. NRCS does acquisition. NRCS has, therefore, recommending that NRCS be required to not have authority to expand the basic specified in the regulation the consult with the State technical eligible entity definition. No change is conditions under which additional committee on ACEP–ALE prioritization made to the regulation in response to capability and capacity evidence will for ranking, special eligibility, and all this issue. always be required. However, it is other State-decided criteria. Response: Statutory authority states ALE Ranking always the entity’s responsibility to that State technical committees assist in NRCS received comment related to establish that it meets basic ACEP–ALE implementation and technical aspects of ALE ranking as follows: eligibility requirements and as conservation programs under Title XII Comment: NRCS received comment identified in the rule, the entity must of the Food Security Act, such as ACEP. related to removing the factor associated provide to NRCS sufficient information Sections 1468.2 and 1468.22 of the with national ranking criterion that to establish that the applicable entity ACEP interim rule incorporate this role, takes into consideration whether the eligibility criteria have been met. including that State technical cash contribution is being provided by Comment: NRCS received comment committees provide input on the the eligible entity toward the payment recommending that the definition of a development of ranking criteria and of easement compensation to the farm or ranch succession plan be other matters. No change is made to the landowner. Other comments: expanded to include transfers of land regulation in response to this issue. • Recommended consideration of and deeds to non-relatives and other Comment: NRCS received comment State and local tax incentives be added long-term protections for agricultural related to the ACEP–ALE application to this factor; productivity. Also, comment process and the new option for ALE- • Recommended NRCS prioritization recommended specifying that program agreements, requesting that of landowner donation in the ranking; successions plans may include options NRCS make the application form and and to purchase at agricultural value or new option for ALE-program agreements • Agreed with including the eligible preemptive purchase rights. form more usable and that the process entity’s cash contribution in the Response: The key part of a be streamlined. Other comments wished ranking. succession plan is that the landowner to have greater guidance about how Response: The Managers report makes arrangements for the future producers could participate and introduced flexibilities to provide better management of the land as a farm or supported the new ALE program access to ACEP in States where ranch once the landowner retires or agreement option and requested conservation easement funding is dies. NRCS does not limit those types of additional clarification regarding its limited. The Managers stated that they arrangements. The definition of the availability. did not intend for NRCS to reject cash succession plan in the regulation used Response: NRCS appreciates the matches entirely but broadened the intra-family succession agreements or complexity of easement transactions, options available to eligible entities. business asset transfer strategies as including the extent of information that NRCS recognizes that any time the examples. NRCS has added language to must be collected from applicants and eligible entity’s cash contribution is clarify that the examples included in the participants on various program forms. reduced, the landowner receives less definition are not all-inclusive. NRCS has made several efforts to compensation for the sale of an Comment: NRCS received comment streamline the ACEP–ALE enrollment easement on their land, which may related to the easement valuation process. In FY 2020, NRCS released result in ACEP funds being the only methods available under ACEP–ALE, various new or updated forms used to funds paid to the landowner for the encouraging NRCS to provide guidance administer ACEP–ALE. Additionally, easement. Additionally, the increased on information required for easement NRCS piloted in fiscal year 2019 and is donation by the landowner will valuation methods used other than the implementing more widely in fiscal year frequently satisfy the minimum non- Uniform Standards of Professional 2020 the use of ALE program Federal share requirement under ACEP– Appraisal Practice (USPAP) appraisals, agreements, making available several ALE. By considering the cash including areawide market analysis or automated eligibility and payment contribution as a positive attribute in other industry-approved methods. processes previously only available to ranking, NRCS is encouraging Comment also expressed support for the NRCS financial assistance programs. enrollment while ensuring that ACEP is current availability of ACEP–ALE Also, the use of a program agreement implemented equitably. Each State has

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the ability to calibrate the relative ranking criterion related to the change is made to the regulation in importance of cash contributions in the multifunctional benefits of farm and response to this issue. prioritization of applications for ranch land protection, of which social Comment: NRCS received comment enrollment in that State. No change is and economic considerations may be and appreciation related to various State made to the regulation in response to included. ranking criteria, including requesting these issues. No change is made to the regulation that NRCS provide specific references to Comment: NRCS received comment in response to these issues. geographic differences for States to use related to ranking priority for actions Comment: NRCS received comment in ranking. Other comment stated that related to the future, agricultural, and about eliminating the potential for prioritizing land in areas zoned for long-term viability of enrolled land. prioritization of applications for which agricultural use may inadvertently Comment supported adding information eligible entities agree to use the ACEP– exclude agricultural lands. Comment to the succession plan portion of the ALE minimum deed terms. also recommended that protection of ranking, such as specifically identifying Response: In the interim rule, NRCS native prairie and other native habitats, OPAV, Purchase of Development Rights indicated that it may prioritize including protection or improvement of (PDR), and other succession planning transactions where an eligible entity habitat for pollinators, be added to the options that maintain agricultural uses NRCS’s standard set of minimum State ranking criteria related to the viability or awarding points for deed terms. This potential prioritization diversity of natural resources to be innovative succession requirements. also existed for enrollment during the protected or improved, and requested Comment also: that riparian buffers be ranked as the • 2014 Farm Bill and its inclusion as a Recommended expanding the factor in the State’s ranking criteria is at highest ACEP–ALE priority. Response: NRCS believes that the ranking criteria to prioritize the State’s discretion. An eligible regulation provides a sufficient applications that increase opportunities entity’s use of the standard set of framework under which the various for historically underserved farmers; minimum deed terms streamlines the • items brought forth in these comments Supported the maintenance of easement approval process and can all be addressed at the State level agricultural viability as a ranking eliminates the need for NRCS review of with input from the State technical criterion; including supporting its the conservation easement deed for committee. No change is made to the inclusion as both a national and State individual transactions. The efficiency regulation in response to these issues. ranking factor; by which easement transactions are • Suggested that such inclusion is Comment: NRCS received comment completed, including the use of duplicative; related to various national ranking • Recommended that agricultural available administrative streamlining criteria. One comment indicated that it viability be included in the national options, is an appropriate consideration is contradictory to limit forest land ranking criteria; and in ranking, and no change was made in enrollment to two-thirds of an easement • Recommended that succession this final rule. No change is made to the area while also having the extent of planning be removed from the ranking regulation in response to this issue. forestland as part of a ranking criterion. criteria. Comment: NRCS received comment Another comment encouraged NRCS to Response: Based on national and State related to the State ranking criteria for clarify in the regulation that it will use ranking criteria in the ACEP regulation, multifunctional benefits for the the ‘median’ county average farm size NRCS at the State level develops protection of a particular farm or ranch, and requested higher priority be given ranking factors and associated weights. recommending that NRCS at the State to parcels adjacent to existing easements Broadly identifying State ranking level have the option to specify ‘other or protected areas. criteria in the regulation provides the related conservation benefits’ under this Response: Comment related to forest needed flexibility for States to develop multifunctional benefits criterion. lands refers to the national ranking the specific ranking criteria that best Comment also recommended adding criteria for the percent of cropland, address State and local priorities. ‘species of economic significance’ to the rangeland, grassland, historic grassland, Regarding long-term maintenance of consideration for at-risk species pastureland, or nonindustrial private agricultural viability, the national protection under this ranking criterion. forest land permitted in a protected ranking criteria ensures, consistent with Another comment recommended the parcel. Each State is able to tailor the the statute, that this criterion is criteria be ‘other related benefits,’ specific ranking factor to prioritize considered in every ACEP–ALE striking ‘conservation’ from the enrollment of land that contains the application by assessing whether a consideration, and other comments amounts and types of land and succession plan exists. recommended that NRCS add ranking agricultural uses that are most at risk in The existence of State ranking criteria criteria about related conservation their State. For example, a western State enables States to develop nuanced values. may establish the ranking factor to approaches to address long-term Response: NRCS agrees that prioritize parcels with a larger agricultural viability, which may evaluating the multifunctional benefits percentage of historic grassland since include more specific identification or that may result from parcel protection is those lands may be at the greatest risk prioritization of certain types of an important prioritization criterion. of conversion. In contrast, a midwestern succession plans or succession planning NRCS has enumerated in the regulation State may prioritize the percentage of strategies. NRCS does not wish to limit some potential benefits that may be cropland in a parcel since those lands agricultural landowners’ choices or considered and has included ‘other may be at the greatest risk of conversion. restrict who could be involved in related conservation benefits’ to provide Comment regarding median county succession planning. Such specificity is States with the flexibility to identify average farm size refers to the national not necessary in the regulation itself. such conservation benefits and establish ranking criteria that considers the ratio NRCS includes in the regulatory the associated ranking factors and of the size of the parcel compared to the definition of a farm or ranch succession priorities. NRCS believes the State average farm size in the county. As plan strategies that create opportunities ranking criterion is sufficiently identified in the regulation, the USDA for historically underserved expansive for NRCS to tailor ranking Census of Agriculture is the data source landowners. NRCS also includes a State factors at the State and local level. No for this national ranking criterion; the

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term ‘average size of farm’ is contained final rule for the three terms with Comment: NRCS received comment in the Census. Based on ALE respect to the term ‘‘viability;’’ the that suggested replacing the concept of application and enrollment data, use of definition of ‘‘agricultural viability,’’ as watersheds with ‘‘watershares.’’ this nationally available data item referenced in the Managers’ Report Response: NRCS has long been continues to be appropriate. NRCS language, be clarified; and various items involved in watershed and watershed affirms that proximity to other protected be added to, or deleted from, the planning, and the term ‘‘watershares’’ is lands continues to be one of the national definition of ‘‘future viability.’’ not a universal term. No change is made ranking criteria set forth in the Response: Since the creation of ACEP to the regulation in response to this regulation. in the 2014 Farm Bill, the statute uses issue. No change is made to the regulation the phrase ‘‘agricultural use and future Comment: NRCS received comment in response to these issues. viability’’ in the program purposes requesting that the definition of Comment: NRCS received comment statement. In response to comments on ‘‘riparian areas’’ be modified to recommending that NRCS allow ACEP– the February 2015 ACEP interim rule, eliminate the ‘‘movement for wildlife’’ ALE eligible entities to participate in NRCS included a definition of ‘‘future as an element. State technical committee viability’’ to identify that ACEP–ALE Response: The definition of riparian recommendations for ACEP–ALE purposes include the legal, physical, areas has long included reference to the ranking determinations. and financial conditions under which movement of wildlife as it is one of the Response: Eligible entities may the land itself will remain capable and critical functions of riparian areas. No participate in the State technical available for continued sustained change is made to the regulation in committee; however, they may not productive agricultural or grassland response to this issue. participate in developing ranking factors uses. The 2018 Farm Bill maintained the Comment: NRCS received comment for programs in which they participate. reference to ‘‘agricultural uses and requesting removal of reference to If potential participants had input into future viability’’ in the context of the species that are ‘‘likely to undergo’’ ranking factors, NRCS selection program purposes and introduced the population decline from the definition decisions would be suspect. NRCS will term ‘‘agricultural viability’’ in the of ‘‘at-risk species.’’ The commenter provide training to State offices context of potential application objected to an unnamed agency describing the roles of eligible entities. prioritization. NRCS believes that the imposing restrictions through an No change is made to the regulation in existing definition of ‘‘future viability,’’ unknown process. Response: The interim rule identified response to this issue. which is sufficiently expansive without the determination of ‘‘likely to undergo Comment: NRCS received comment being overly prescriptive, includes such population decline’’ is made by the supporting various aspects of the ACEP– concepts as accessibility to beginning NRCS State Conservationist, with advice ALE ranking provisions, including: farmers or ranchers and continued from the State technical committee or Commending NRCS for not using cost as affordability. To address the request for Tribal Conservation Advisory Council. a ranking criterion; commending clarity, NRCS has included a reference The definition is shared across NRCS NRCS’s consideration of proximity to to the adoption of a farm or ranch conservation programs, all of which are other protected land as a ranking succession plan as another example of voluntary. No change is made to the criteria; and commending the a condition that supports the future regulation in response to this issue. straightforward implementation of viability of the protected land. ranking that allows States to prioritize Comment: NRCS received comment Comment: NRCS received comment parcels through ranking criteria. requesting a change to the definition of related to the definition of historically Response: NRCS appreciates the ‘‘agricultural commodity’’ so that the underserved landowner, recommending comments. intent to harvest annually rather than Comment: NRCS received comment that socially disadvantaged farmers be tillage is used as the determining recommending landowners who have specifically identified, be included in mechanism. protected their land through ACEP–ALE the definition of historically Response: The definition of receive priority for funding under underserved landowners, and be added agricultural commodity is contained in NRCS’ financial assistance programs, to the definition of ‘‘socially statute. No change is made to the such as the Environmental Quality disadvantaged farmer or rancher.’’ This regulation in response to this issue. comment refers to the provision in the Incentives Program (EQIP). Easement Administration Actions Response: NRCS receives input on interim rule associated with farm or program priorities, including priorities ranch succession planning that NRCS received comment related to for enrollment in its financial assistance identifies new or beginning farmers or easement administration actions as programs, from the State technical ranchers, veteran farmers or ranchers, or follows: committees. There is no need to identify ‘‘other historically underserved Comment: NRCS received comment priorities for other programs’ enrollment landowners.’’ related to the identification of the in the ACEP regulation. No change is Response: The definition of sequencing procedures under the made to the regulation in response to historically underserved landowner National Environmental Policy Act this issue. includes beginning, limited resource, (NEPA) with respect to easement socially disadvantaged, and veteran administration actions, recommending Definitions farmer or ranchers. As a result, the that easement administration actions NRCS received comment related to definition of farm or ranch succession related to sequencing considerations be the definitions in the ACEP interim rule plan has been modified in this final rule classified as categorical exclusions for as follows: to refer simply to ‘‘historically NEPA analysis. Other comment Comment: NRCS received comment underserved landowner’’ since this term suggested that the provision be related to the terms ‘‘future,’’ is all-encompassing. The definition of amended to eliminate NEPA sequencing ‘‘agricultural,’’ and ‘‘long-term’’ with socially disadvantaged farmer or review if the easement administrative respect to the term ‘‘viability.’’ rancher has been in the definitions actions either enhance purposes of the Comment recommended that greater section since the ACEP regulation was ACEP–ALE program or do not consistency be applied throughout the first promulgated in 2015. materially threaten the ALE’s protection

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of agricultural viability or other section 170(h) in their part of the address or affect compensation that may conservation values, and requested conservation easement deed terms. be owed to other interest holders. removal of reference to NEPA entirely. NRCS must implement easement No change is made to the regulation Comment also requested clarification administration actions in accordance in response to these issues. about how NEPA sequencing with Federal law and responsibilities; Comment: NRCS received comment considerations may affect NRCS private land trusts are not subject to that requested NRCS modify language approval of easement administration these requirements when conducting regarding easement termination to actions. actions without Federal involvement. It clarify that it also applies to the partial Response: The decision to modify or would not be appropriate for NRCS to termination of an easement. terminate a Federal interest has long adopt ‘‘industry standards’’ that do not Response: NRCS has clarified that been subject to NEPA review, and NRCS account for these Federal standards. No partial termination of an easement is must comply with NEPA statutory, change is made to the regulation in subject to the easement termination regulatory, and policy requirements response to this issue. requirements to the same extent as the during its review of a requested Comment: NRCS received comment full termination of an easement. All easement administration action. These related to the various easement easement termination actions are subject requirements include reviewing administration action requirements, to review at both the NRCS State office whether adverse impacts associated including: and National Headquarters levels. with an easement administration action • Recommending that NRCS remove Comment: NRCS received comment can be avoided, minimized, or the 10-percent limitation on easement that supported allowing the use of mitigated. Since the impacts and administration actions so that an updated deed provisions when making outcomes of an easement administration easement modification or exchange easement amendments, cautioned that action cannot be categorized generally, action would just need to meet one of flexibility be granted to do simple a specific review is necessary. As NRCS the two thresholds: (1) The action amendments, and advised NRCS not to evaluates the NEPA analyses developed provide equal or greater conservation require updates to new language that for the individual easement functions and values and (2) equal or may be contained in updated deed administrative actions, it is gathering greater economic values; provisions of those provisions are evidence that may be used to propose • Recommending removal of the unnecessary or unacceptable to the categorical exclusions for certain standard of no net loss of easement landowner. easement administrative actions in the acres required for easement Response: NRCS appreciates the future. NRCS may identify new subordination, modification, or support received for deed amendment categorical exclusions, through issuing exchange actions; and process requirements. Deed new NEPA procedures (including by • Recommending a change to the amendments to ACEP–ALE easement amending NRC’s current regulations definition of easement termination to deeds must be approved by NRCS, as implementing NEPA at 7 CFR part 650), acknowledge compensation that may be discussed above. No change is made to consistent with the Council on owed to other interest holders in a the regulation in response to this issue. Environmental Quality’s regulations for conservation easement. implementing the procedural provisions Environmental Markets of NEPA, published at 40 CFR parts Response: NRCS uses the 10-percent Comment: NRCS received comment 1500 through 1508. No change is made limitation requirement to minimize the expressing support for updates to the to the regulation in response to this effects of administration actions. NRCS section on environmental markets. issue. selected the 10-percent level based upon Response: NRCS appreciates the Comment: NRCS received comment review of the scope of prior requests for comments. related to adding references or easement administration actions and for additional requirements to the easement consistency with other NRCS Fund Allocations administration action criteria, including conservation programs. NRCS received comment related to a reference to the easement It is a statutory requirement that an ACEP fund allocations as follows: administration criteria indicating that easement modification or exchange Comment: NRCS received comment any easement modification or action must meet both thresholds (equal supporting the historic division of fund termination conform to State law or greater conservation value and equal allocations across ACEP, that is based requirements, and including a reference or greater economic value). on demand for funding. Approximately that easement administration actions As to the threshold for an easement 70 percent of ACEP funding is dedicated must conform to section 170(h) of IRC subordination, modification, or to wetland conservation through ACEP– and associated U.S. Department of the exchange to result in no net loss of WRE and 30 percent is for agricultural Treasury (Treasury) regulations. easement acres, NRCS believes, based land preservation through ACEP–ALE. Comment also requested that easement on long-standing experience, that the Another comment urged greater administration actions align more existing standard ensures that the public flexibility with respect to fund closely with Land Trust Alliance (LTA) investment in conservation easements allocations. industry standards. endures for the life of the easement and Response: NRCS has not specified in Response: Easement administration that NRCS is able to make credible the regulation an allocation of program actions are documented in land records determinations of equal or greater funds between the two components of in accordance with State law. NRCS’s conservation and economic value as the program. NRCS maintains program authority to approve easement required by statute. The definition of flexibility year-to-year to respond to administration actions is not subject to easement termination addresses only program demand. No change is made to requirements in section 170(h) of the the United States’ rights or interests in the regulation in response to this issue. Treasury or associated regulations an easement, including that the United Comment: NRCS received comment related to charitable donations. States must be fully compensated for the recommending continued use of ACEP– However, entities are not prevented termination of such rights and interests WRE authorities to enter into from incorporating language that that are held by the United States. The agreements and contracts with non- addresses their own compliance with easement termination language does not governmental organizations, State

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agencies, and other partners to continue Response: NRCS may only grant the Tribal Conservation Advisory to leverage resources and expertise. waivers on a case-by-case basis where Committees. No change is made to the Response: NRCS relies on its partners the waiver criteria are met. Broadening regulation in response to this issue. to assist NRCS in its delivery of ACEP– the waiver authority to eliminating AGI Comment: NRCS received comment WRE and will continue to utilize its applicability to all ALE enrollment expressing specific support for various authorities to coordinate with these types is outside statutory authority. No aspects of program administration, valuable partners. No change is made to change is made to the regulation in including supporting NRCS discretion the regulation in response to this issue. response to this issue. to waive certain program administration Comment: NRCS received comment Comment: NRCS received comment provisions and commending NRCS for supporting the continued allocation of a seeking increased streamlining and continuing to obtain input from State portion of ACEP funds for monitoring guidance regarding AGI waivers. technical committees, other Federal and and management of existing easements Response: NRCS will continue its State agencies, conservation districts, and recommending that State ongoing efforts to streamline processes and other organizations. Conservationists have discretion to through the use of new tools. NRCS will Response: NRCS appreciates the determine the appropriate portion of the continue to develop and release specific support it has received for ACEP individual State allocation to be used guidance as needed. No change is made administration. Comment: NRCS received comment for monitoring and management of to the regulation in response to this urging continued or increased existing easements. issue. consultation with partners and Response: NRCS National Comment: NRCS received comments expressing support for the use of AGI stakeholders, including State technical Headquarters provides on-going committees, non-governmental coordination, guidance, and support to waiver authority in ACEP. Response: NRCS appreciates support organizations, and the U.S. Fish and State Conservationists to ensure that for its AGI waiver process. Wildlife Service. sufficient funds are dedicated and used Response: NRCS will continue to seek to appropriately monitor, manage, and Program Administration stakeholder input on how to improve enforce stewardship lands. No change is NRCS received comment on the topic program administration, especially made to the regulation in response to of program administration as follows: input that NRCS receive on State and this issue. Comment: NRCS received one local resource issues. No change is made Landowner Eligibility—Adjusted Gross detailed comment emphasizing the to the regulation in response to this Income (AGI) Limitation Waiver importance of protecting endangered issue. and at-risk species through ACEP. This Comment: NRCS received comment NRCS received comment related to comment specifically referred to asking that technical assistance the AGI limitation waiver as it affects salmonid species. provided by NRCS regarding landowner eligibility to enroll in ACEP Response: NRCS appreciates the compliance with easement terms be as follows: importance of protecting threatened and clarified and recommending creation of Comment: NRCS received comment endangered species and its ACEP-specific forms. Comment also related to the definition and criteria for responsibility to comply with the recommended guidance on conflicts of environmentally sensitive lands of Endangered Species Act (ESA), interest and information on the special significance, including including ESA section 7(a)(1). As part of implementation of Voluntary Public encouraging NRCS in its AGI waiver its conservation planning framework Access and Habitat Incentives Program determinations to give the most and site-specific NEPA process, NRCS (VPA–HIP). consideration to lands with the highest also considers impacts to at-risk species Response: NRCS will continue its conservation value, particularly lands of as required by its NEPA implementing ongoing efforts to streamline processes, special significance that can regulations (7 CFR part 650). No change including modifying its required forms, demonstrate significant linkages with is made to the regulation in response to through the use of new tools. the conservation objectives of migratory this issue. Additionally, NRCS will continue to bird, wetlands conservation, and water Comment: NRCS received comment develop and release guidance on quality programs, plans, or initiatives. related to outreach activities, including specific topics as needed. NRCS Comment also requested that recommending that: NRCS retain its regulation and policy regarding VPA– environmentally sensitive land of outreach focus on historically HIP is provided separately and can be special significance be explicitly underserved farmers and ranchers; found in 7 CFR part 1455, and defined. funds expended for historically associated agency policy is available on Response: NRCS will consider the underserved purposes be identified and the NRCS website. No change is made factors noted in the comment in made public; and NRCS ensure that the to the regulation in response to this granting AGI waivers. Terms associated process is streamlined to ensure access issue. with the AGI waiver are set forth in the to disadvantaged and underserved Comment: NRCS received comment regulations governing payment populations. Comment also reminded recommending that NRCS include text limitation and payment eligibility NRCS regarding sovereign-to-sovereign regarding ACEP ranking that prioritizes requirements, including AGI provisions, consultation for Farm Bill easement lands enrolled in the Transition at 7 CFR part 1400. No change is made programs having Tribal implications. Incentives Program under the to the regulation in response to this Response: NRCS will continue to Conservation Reserve Program (CRP– issue. evaluate options to enhance TIP). Section 1235(f)(1)(E) of the CRP Comment: NRCS received comment opportunities for historically statute requires that priority enrollment suggesting that NRCS expand eligibility underserved producers and focus be given to land subject to a CRP–TIP for AGI waivers, including allowing the resources on ensuring parity in program contract into EQIP, Conservation waiver for all ACEP–ALE enrollment, enrollment. NRCS conducted several Stewardship Program (CSP), and ACEP. automatically waiving AGI for BPS Tribal meetings in FY 2019 and FY 2020 Response: Section 1468.22(b)(11) of transactions, and interpreting AGI and State Conservationists obtained the ACEP interim rule identifies as a waiver factors broadly. input on program implementation from national priority for ALE enrollment

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grasslands currently enrolled in CRP in water quality standards and salmon ranking factors. NRCS uses geographic a contract that is set to expire within 1 recovery plan habitat objectives; and information system tools to help year. Section 1468.32(c) of the ACEP • Review easement deed terms at identify source water protection areas interim rule identifies as a potential least every 100 years to ensure and easement enrollment. No change is State priority for WRE enrollment consistency with existing conditions. made to the regulation in response to whether land is farmed wetland and Response: The operation and this issue. maintenance that may occur on ACEP adjacent land that is currently enrolled WRE Issues in CRP in a contract that is set to expire easements and who may perform such within 1 year. However, neither ALE activities is addressed in the terms of NRCS received comment related to nor WRE identify a specific priority the easement deeds. ACEP–WRE topics as follows: ranking for CRP–TIP land. Therefore, NRCS staffing is not a part of this Comment: NRCS received comment NRCS is adding a specific priority in the rulemaking, but the agency will supporting revisions to the definition of ACEP regulation for CRP–TIP. continue providing the highest quality wetland restoration in the interim rule Comment: NRCS received comment customer service and program regarding ACEP–WRE. Comment related to the practices and activities implementation with its resources. highlighted that the expanded flexibility administered through ACEP, including: Permanent easements are authorized would benefit wetland functions and • Encouraging NRCS to adopt the and prioritized by statute. habitat values. Comment also ‘‘Active River Area Concept’’ to its As NRCS collects data, the agency encouraged NRCS to engage robustly management scheme; generates multiple reports on a variety with State technical committees when • Proposing that all easements go of impacts, which are typically made devising the State-specific NRCS criteria through a plant and plant community available to the public upon request. and guidelines for wetland restoration. survey by a botanist prior to enrollment; NRCS will consider the Response: NRCS appreciates support • Seeking confirmation that NRCS recommendation regarding consistency for the revised definition of wetland would not enter into agreements with with water quality standards and restoration. entities who would preclude forested recovery plan habitat objectives as it Comment: NRCS received comment riparian buffers; continues to evaluate and refine ranking related to compatible use authorizations • Recommending that NRCS and eligibility criteria. under ACEP–WRE, expressing support recognize specifically intensive Review of easement deed terms at for the inclusion of water management rotational grazing as one of the best least every 100 years is beyond the and supporting the use of such management tools; and scope of current regulation and policy. management activities to maintain, • Recommending that diverse native No change is made to the regulation enhance, and diversify wetland habitats plant mixes be prioritized in ACEP in response to these issues. on ACEP–WRE easements. Comment wetland and grassland restoration and Comment: NRCS received comment also recommended removing ‘‘hunting management plans. related to source water protection issues and fishing’’ from the list of activities Response: NRCS addresses how best including: that can be authorized as a compatible to administer its practices and activities • Recommending that NRCS use in § 1468.37(a)(2)(ii) because through technical and program policy acknowledge source water protection as undeveloped recreational uses, implemented at the State level through a goal of ACEP; including hunting and fishing, are listed the discretion given NRCS State • Adding discussion about how as one of the five rights reserved by the Conservationists. In general, NRCS source water protection priorities will landowner in the ACEP–WRE warranty supports the development and be included in the implementation of easement deed. Comment also identified implementation of plans and restoration ACEP and other NRCS conservation that NRCS should seek input from the activities that consider the value of programs; State technical committee on technical management and restoration activities • Addressing how ACEP will be matters related to compatible use that provide for a diverse assemblage of included in accounting for overall designations and guidelines. native plants, including pollinator- source water expenditures by Response: NRCS appreciates support friendly species. However, NRCS publishing a plan for comment; for the inclusion of water management believes that specific resource • Adding source water protection in and recognizes the potential utility of management issues are best addressed at the ACEP ranking criteria; this activity to wetland functions and • the State level. No change is made to the Ensuring adequate attention given values when properly prescribed and regulation in response to this issue. to source water protection at State implemented on ACEP–WRE easements Comment: NRCS received comment technical committees; and through the compatible use • related to program administration that Recommending that NRCS address authorization process. Hunting and did not fit neatly into any single how spatial data related to source water fishing are specifically identified in the subtopic: areas will intersect with ACEP. ACEP statute as a ‘compatible use’ that • Require landowners to assume Response: Source water protection is is subject to NRCS determination of responsibility for operation and a statutory priority and NRCS compatibility. NRCS has implemented maintenance of easements; Headquarters provides guidance to this provision by identifying in all • Provide sufficient staffing to meet ensure that all its programs are ACEP–WRE easement deeds that customer service needs; contributing to the protection of source undeveloped hunting and fishing, • Concern over the authorization of water protection areas. The ACEP subject to the terms of the easements, is permanent easements; regulation includes water quality as a a reserved right. However, any hunting • Make publicly available consideration in the list of ranking and fishing activities that extend information related to easement criteria for both ALE and WRE and the beyond that reserved right are enrollments such as acres enrolled, soil State Conservationist, in consultation prohibited unless determined classification of land, and before and with the State technical committee, may compatible by NRCS through the after land use; develop and include specific compatible use authorization process. In • Condition ACEP so that all funded considerations for source water the ACEP interim rule, NRCS included efforts achieve consistency with State protection as part of their State’s compatible use criteria and related

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matters in the expanded list of examples 10 percent to 15 percent; and requesting Response: Both ACEP regulation and provided in § 1468.2(b) regarding flexibility with respect to the 2-year policy require the NRCS to seek subjects on which the State technical ownership requirement for land that the continued engagement from these committee may provide advice to the farmer has managed for numerous years partners. No change is made to the State Conservationist. prior to purchase. regulation in response to this issue. Comment: NRCS received comment Response: NRCS prohibits cropping Comment: NRCS received comment regarding wetland restoration and on ACEP–WRE enrolled lands because related to the Wetland Restoration management activities, encouraging that the purpose of the program is to restore Enhancement Partnership (WREP), the technical requirements for grazing the wetland functions and values and recommending that NRCS restore the 5 management plans and exhibits for crop production is inconsistent with percent match requirement for the ACEP–WRE grazing reserved rights such purposes. NRCS appreciates the WREP partner contributions and enrollments be developed in comments related to the county maintain historic levels of partner consultation with State technical cropland limitation. The 2-year contributions at 25 percent. Another committees and that the individual ownership provision in the ACEP comment recommended that NRCS grazing management plans be dynamic regulation is a specific statutory provide an annual allocation for WREP to accommodate wildlife and habitat requirement, but flexibility exists of between $35–50 million per year. conservation along with producer through the waiver process. When Response: NRCS appreciates the needs. Comment also recommended that deciding whether to waive the 2-year support for WREP. NRCS has not NRCS prioritize activities supporting ownership requirement, NRCS established any regulatory level of migratory waterfowl and other wetland- considers whether the land has been match that is required for WREP and dependent wildlife through science- managed by the landowner as part of bases such determination upon the based management and recommended their operation prior to acquiring focus of each year’s WREP effort. No levee setbacks and forested riparian ownership of the land. No change is change is made to the regulation in buffers be allowed on all easements in made to the regulation in response to response to this issue. Washington State. these issues. Response: NRCS appreciates comment Notice and Comment, Paperwork Comment: NRCS received comment related to grazing management plans Reduction Act, and Effective Date relating to factors used to prioritize and ACEP–WRE reservation of grazing enrollments in ACEP–WRE, including In general, the Administrative rights enrollments. The ACEP interim support for prioritizing permanent Procedure Act (APA) (5 U.S.C. 553) rule provided clarifying changes easements over non-permanent requires that a notice of proposed consistent with these recommendations, easements and including water quality rulemaking be published in the Federal including addition of a grazing as a conservation benefit. Register and interested persons be given management plan definition that is an opportunity to participate in the Response: NRCS appreciates support specific to ACEP–WRE and provisions rulemaking through submission of for the ACEP–WRE prioritization related to the review and modification written data, views, or arguments with factors. of such plans for reserved grazing rights or without opportunity for oral Comment: NRCS received comment enrollments. NRCS conducts and presentation, except when the rule recommending NRCS consider funds supports monitoring and research on its involves a matter relating to public from other Federal sources as wetland easements to obtain data and property, loans, grants, benefits, or contributions for ranking purposes. information that informs technical contracts. This rule involves matters Response: Section 1265C(b)(3) of the decisions related to prioritization and relating to benefits and therefore is ACEP statute authorizes as a ranking selection of new easements and exempt from the APA requirements. factor whether the landowner or other restoration and management of existing Further, the regulations to implement person offers to contribute to the cost of easements. NRCS will continue to the programs of chapter 58 of title 16 of the easement and thereby leverage collaborate with partners and the U.S. Code, as specified in 16 U.S.C. Federal funds. The statutory priority is institutions to obtain the information 3846, and the administration of those that Federal funds, not just ACEP–WRE needed to make science-based decisions programs, are: to maximize wildlife benefits and funds, be leveraged by other sources, • To be made as an interim rule wetland functions and values on every and NRCS has incorporated this factor effective on publication, with an ACEP–WRE easement. The concern into the regulation. NRCS State opportunity for notice and comment; related to restoration activities in the Conservationists, with input from State • Exempt from the Paperwork State of Washington do not rise to a technical committees, may consider Reduction Act (44 U.S.C. ch. 35); and nationwide level and are not addressed other priorities that further program • To use the authority under 5 U.S.C. in the regulation. The ACEP regulation goals, including other sources of 808 related to congressional review. and other NRCS planning procedures contribution. However, other Federal Consistent with the use of the provide the States the needed sources of contribution may have authority under 5 U.S.C. 808 related to flexibilities to make technical decisions restrictions on the use of their funds and Congressional review for the immediate related to enrollment, restoration, and NRCS must ensure that there is no effect date of the interim rule, this rule management of ACEP–WRE lands. augmentation in contravention of is also effective on the date of NRCS recommends that stakeholders appropriations law. No change is made publication in the Federal Register. with concerns should work with their to the regulation in response to this applicable State Conservationist. issue. Executive Orders 12866 and 13563 Comment: NRCS received comment Comment: NRCS received comment Executive Order 12866, ‘‘Regulatory related to WRE land eligibility: supporting and encouraging NRCS to Planning and Review,’’ and Executive Recommending that NRCS allow continue to seek advice and input on Order 13563, ‘‘Improving Regulation cropping on the WRE easement area; implementation of ACEP–WRE from the and Regulatory Review,’’ direct agencies supporting the increase in the U.S. Fish and Wildlife Service, State to assess all costs and benefits of percentage of easements that can be fish and wildlife agencies, and State available regulatory alternatives and, if enrolled on cropland in a county from technical committees. regulation is necessary, to select

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regulatory approaches that maximize Missouri, North Dakota, and Puerto Restoring and protecting high value net benefits (including potential Rico) that currently have no enrollment wetlands; controlling sheet and rill economic, environmental, public health in ACEP–ALE. This may have been due erosion as lands are restored from and safety effects, distributive impacts, to a lack of available financial resources cropland to wetlands and associated and equity). Executive Order 13563 for an eligible entity to meet the habitats; restoring, enhancing, and emphasizes the importance of minimum cash contribution protecting habitat for fish and wildlife, quantifying both costs and benefits, of requirement or may be due to a lack of including threatened and endangered reducing costs, of harmonizing rules, entities that meet the eligibility species and migratory birds; improving and of promoting flexibility. requirements to participate in ACEP– water quality by filtering sediment and The Office of Management and Budget ALE. The changes to the non-Federal chemicals; reducing flooding and flood- (OMB) designated this rule as share requirements may result in related damage; recharging significant under Executive Order 12866 increased ACEP–ALE enrollments in groundwater; protecting biological and therefore, OMB has reviewed this areas where enrollment has been limited diversity; controlling invasive species rule. The costs and benefits of this rule due to a lack of financial resources with planting of native vegetation; and are summarized below. The full available for entities that meet the providing opportunities for educational, regulatory impact analysis is available ACEP–ALE eligibility requirements. To scientific, and recreational activities. on https://www.regulations.gov/. address these statutory changes, in this Soil health and air quality are improved Clarity of the Regulation final, we eliminated a specified by reduced wind erosion, reduced soil minimum cash contribution amount and disturbance, increased organic matter Executive Order 12866, as incorporated provisions for considering accumulation, and an increase in carbon supplemented by Executive Order costs related to securing the easement. sequestration. 13563, requires each agency to write all These changes are applicable to all For land enrolled in ACEP–ALE, the rules in plain language. In addition to eligible entities in all States and as a suite of conservation effects on the substantive comments NRCS result, it is anticipated that the amount protected grasslands are different than received on the interim rule, NRCS of the Federal contribution toward those on protected farmland; the invited public comments on how to ACEP–ALE easements will increase by 8 impacts are not valued here as one being make the rule easier to understand. to 10 percentage points. more beneficial than another. For NRCS has incorporated these Another change under the 2018 Farm example, ACEP–ALE easements on recommendations for improvement Bill provides NRCS with authority to grasslands limit agricultural activities to where appropriate. NRCS responses to enter into legal arrangements with predominantly haying and grazing, public comment are described in more eligible entities to conduct BPS whereas easements on farmland allow detail above. transactions under ACEP–ALE. Under a crop cultivation and pasture-based Cost-Benefit Analysis BPS transaction, NRCS may provide agriculture. As such, farmland ACEP–ALE cost-share assistance to an protection effects are derived from One of the most significant ACEP eligible entity for the purchase of an onsite and ecological services, as well as changes in the 2018 Farm Bill is to the agricultural land easement on private or preserving highly productive existing contribution requirements for Tribal agricultural land owned on a agricultural areas from development or the non-Federal share under ACEP– transitional basis by an eligible entity fragmentation. Impacts on grasslands ALE. Previously, there were only two when the ownership of that land will be are derived from onsite and ecological sources of non-Federal contribution— timely transferred to a qualified farmer impacts as well as preventing the entity’s cash resources towards the or rancher. BPS transactions are conversion to nongrassland uses. The purchase and the donation by the intended to help farmers and ranchers net conservation effects through time entity—with cash resources towards the acquire agricultural land they could not from farmland protection include direct purchase required for half of the non- otherwise afford and to protect access benefits (pick-your-own, agri- Federal contribution. The 2018 Farm agricultural land that may have tourism, and nature based activities like Bill eliminated the requirement for cash otherwise been developed or removed hunting), indirect access benefits (open resources towards the purchase and from agricultural production. spaces and scenic views), and nonuse allows the entity to consider other costs, NRCS continues to have the benefits (wildlife habitat and existence previously not included, toward the discretion to rank and prioritize projects values). Grassland protection non-Federal match. This change adds and to select individual applications conservation effects include direct, flexibility for eligible entities to meet based on their ability to achieve indirect, and nonuse benefits, and also the non-Federal share requirement by program purposes and to assess and on-farm production gains and carbon no longer specifying a minimum cash determine the appropriate allocation of sequestration. contribution amount to be provided by funds for the acquisition of agricultural The authorized level of funding for the eligible entity and allowing the total land and wetland easements. The 2018 ACEP for the period of FY 2019 through of the non-Federal share to be Farm Bill does not limit NRCS’s 2023 is $2.25 billion (assuming future comprised of a charitable donation or discretion to determine the allocation of funding is set at authorized amounts). qualified conservation contribution funds between ACEP–WRE and ACEP– This represents an increase in ACEP from the private landowner. It also ALE. The relative emphasis NRCS average annual funding over the 2014 includes provisions for costs related to places on these two program Farm Bill of 11 percent—from $405 securing the easement to be included in components depends on State and million per year to $450 million per the calculation of the non-Federal share. national priorities, environmental year in nominal dollars. While removing a potential hurdle to impacts, and local demand. It is The regulatory impacts of ACEP entity participation, the additional anticipated that enrollment in ACEP funding consist of payments for the flexibility is not intended to supersede will be consistent with historic purchase of easements or real property the conservation benefits possible under enrollment trends. interests; the costs incurred related to ACEP. Land enrolled in ACEP–WRE the acquisition, such as title companies, There are six states and one territory easements produces onsite and offsite appraisers, licensed land surveyors; and (Alabama, Arkansas, Hawaii, Louisiana, environmental benefits. Those include: the costs of restoring wetlands.

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Although these transfers create the NRCS regulations for compliance on the distribution of power and incentives that likely cause changes in with NEPA (7 CFR part 650). NRCS responsibilities among the various the way society uses its resources, NRCS conducted an analysis of the ACEP levels of government, except as required lacks data with which to identify where interim rule and NRCS’s analysis by law. Nor does this rule impose these resources would otherwise be determined there would not be a substantial direct compliance costs on used. significant impact to the human State and local governments. Therefore, NRCS also recognizes that applicants environment and as a result, an consultation with the States is not and participants incur costs in terms of environmental impact statement (EIS) is required. time used to gain access to ACEP. We not required to be prepared (40 CFR Executive Order 13175 estimate the imputed value of applicant 1501.5 and 1501.6). The Environmental and participant time spent in accessing Assessment (EA) and Finding of No This rule has been reviewed in the program from FY 2019 through 2023 Significant Impact (FONSI) were accordance with the requirements of at $1.1 million for the 5 years. available for review for 30 days from the Executive Order 13175, ‘‘Consultation Our estimates of costs, benefits and date of publication of the interim rule in and Coordination with Indian Tribal transfers of ACEP on an annual basis are the Federal Register. NRCS considered Governments.’’ Executive Order 13175 reported in Table 1. Given a 3 percent comments received during the 30-day requires federal agencies to consult and discount rate, the projected annualized period and determined minor changes coordinate with Tribes on a real cost to producers of accessing the to the ACEP EA and FONSI were Government-to-Government basis on program is $229,000 and the projected sufficient, and that no information policies that have Tribal implications, annualized real transfers are $433 warranting preparation of an EIS was including regulations, legislative million. Conservation benefits from the received. The final ACEP EA and FONSI comments or proposed legislation, and easement are difficult to quantify at a have been posted to the NRCS other policy statements or actions that national scale but have been described homepage at https:// have substantial direct effects on one or by studies at an individual project or www.nrcs.usda.gov/wps/portal/nrcs/ more Indian Tribes, on the relationship watershed or local scale. detail/national/programs/farmbill/ between the Federal Government and ?cid=stelprdb1263599. Indian Tribes or on the distribution of TABLE 1—ANNUALIZED REAL ESTI- power and responsibilities between the Executive Order 12372 MATED COSTS, BENEFITS, AND Federal Government and Indian Tribes. The USDA’s Office of Tribal Relations TRANSFERS a Executive Order 12372, ‘‘Intergovernmental Review of Federal (OTR) has assessed the impact of this Category Annual estimate Programs,’’ requires consultation with rule on Indian Tribes and determined State and local officials that would be that this rule does not have significant Cost b ...... $229,000 directly affected by proposed Federal Tribal implications that require Tribal Benefits ...... Qualitative financial assistance. The objectives of consultations at this time for ACEP, Transfers ...... $433,000,000 the Executive order are to foster an which is a beneficial voluntary program. a All estimates are discounted at 3 percent intergovernmental partnership and a Notwithstanding this conclusion, OTR to 2019. Note that this table focuses on the strengthened federalism, by relying on believes that continued focused costs, benefits, and transfers of the entire pro- State and local processes for State and outreach to Tribes could increase gram, not the marginal change in a compari- engagement in ACEP and provide son of the 2014 and 2018 Farm Bills. local government coordination and b Imputed cost of applicant time to gain ac- review of proposed Federal financial assistance with water quality issues for cess to the program. assistance and direct Federal Tribes. OTR states that NRCS has adhered to the spirit and intent of Regulatory Flexibility Act development. For reasons specified in the final rule-related notice regarding 7 Executive Order 13175. If a Tribe The Regulatory Flexibility Act (5 CFR part 3015, subpart V (48 FR 29115, requests consultation, NRCS and CCC U.S.C. 601–612), as amended by the June 24, 1983), the programs and will work with OTR to ensure Small Business Regulatory Enforcement activities in this rule are excluded from meaningful consultation is provided Fairness Act of 1996 (SBREFA), the scope of Executive Order 12372. where changes, additions, and generally requires an agency to prepare modifications identified in this rule are a regulatory analysis of any rule Executive Order 12988 not expressly mandated by the 2018 whenever an agency is required by APA This rule has been reviewed under Farm Bill. Tribal consultation for this or any other law to publish a proposed Executive Order 12988, ‘‘Civil Justice rule was included in the 2018 Farm Bill rule, unless the agency certifies that the Reform.’’ This rule will not preempt Tribal consultation held on May 1, rule will not have a significant State or local laws, regulations, or 2019, at the National Museum of the economic impact on a substantial policies unless they represent an American Indian, in Washington, DC. number of small entities. This rule is irreconcilable conflict with this rule. The portion of the Tribal consultation not subject to the Regulatory Flexibility Before any judicial actions may be relative to this rule was conducted by Act because this rule is exempt from brought regarding the provisions of this Bill Northey, USDA Under Secretary for notice and comment rulemaking rule, the administrative appeal the Farm Production and Conservation requirements of the APA and no other provisions of 7 CFR part 11 are to be mission area, as part of the Title I law requires that a proposed rule be exhausted, consistent with 7 U.S.C. session. There were no specific published for this rulemaking initiative. 6912(e). comments from Tribes on ACEP during this Tribal consultation. Environmental Review Executive Order 13132 Additionally, NRCS held sessions The environmental impacts of this This rule has been reviewed under with Indian Tribes and Tribal entities rule have been considered in a manner Executive Order 13132, ‘‘Federalism.’’ across the country in the spring of FY consistent with the provisions of NEPA The policies contained in this rule do 2019 to describe the 2018 Farm Bill (42 U.S.C. 4321–4347), the regulations not have any substantial direct effect on changes to NRCS conservation of the Council on Environmental States, on the relationship between the programs, obtain input about how to Quality (40 CFR parts 1500–1508), and Federal Government and the States, or improve Tribal and Tribal member

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access to NRCS conservation assistance, State, local, and Tribal Governments or ■ e. In the second sentence in the and make any appropriate adjustments the private sector. Therefore, this rule is definition of ‘‘Maintenance’’, add the to the regulations that will foster such not subject to the requirements of word ‘‘performed’’ immediately after the improved access. NRCS invited State UMRA. word ‘‘work’’. leaders for FSA and Rural Development Federal Assistance Programs (RD), as well as Regional Directors for § 1468.6 [Amended] the Risk Management Agency (RMA) to The title and number of the Federal ■ 3. Amend § 1468.6 in paragraph discuss their programs also. Domestic Assistance Programs in the (a)(3)(iii) by removing the cross As a result, approximately 50 percent Catalog of Federal Domestic Assistance reference ‘‘paragraph (a)(4)’’ and add in of the comments received as a result of to which this rule applies is: 10.931— its place add the cross reference these sessions were directed to FSA, Agricultural Conservation Easement ‘‘paragraph (a)(5)’’. RMA, RD, and other USDA agencies, Program. with many comments specific to hemp Subpart B—Agricultural Land production and the surrounding E-Government Act Compliance Easements regulations. Over 40 percent of the NRCS and CCC are committed to feedback pertained to NRCS programs. complying with the E-Government Act, § 1468.20 [Amended] Comments listed challenges specific to to promote the use of the internet and ■ 4. Amend § 1468.20 in paragraph Tribes that impact eligibility and inhibit other information technologies to (b)(1)(ii) by adding the word access to USDA programs. None of the provide increased opportunities for ‘‘demonstrated’’ immediately before the feedback received necessitated a change citizen access to Government word ‘‘capability’’. to the regulation. information and services, and for other ■ 5. Amend § 1468.22 as follows. NRCS will continue to work with our purposes. ■ a. Revise paragraph (b)(11); and Tribal stakeholders to address the issues ■ b. In paragraph (c)(2), add the word raised in order to facilitate greater List of Subjects in 7 CFR Part 1466 ‘‘annually’’ immediately after the words technical assistance and program Agricultural, Flood Plains, Grazing ‘‘monitored’’ and ‘‘reported’’. delivery to Indian country. lands, Natural resources, Soil Separate from Tribal consultation and conservation, and Wildlife. The revision reads as follows: the sessions discussed above, Accordingly, the interim rule § 1468.22 Establishing priorities, ranking communication and outreach efforts are published January 6, 2020, at 85 FR 558, considerations, and project selection. in place to assure that all producers, is adopted as final with the following * * * * * including Tribes (or their members), are changes: (b) * * * provided information about the (11) Whether the land is currently regulation changes. Specifically, NRCS PART 1468—AGRICULTURAL enrolled in CRP in a contract that is set obtains input through Tribal CONSERVATION EASEMENT to expire within 1 year and is grassland Conservation Advisory Councils. A PROGRAM that would benefit from protection Tribal Conservation Advisory Council under a long-term easement or is land may be an existing Tribal committee or ■ 1. The authority citation for part 1468 under a CRP contract that is in department and may also constitute an continues to read as follows: transition to a covered farmer or rancher association of member Tribes organized Authority: 15 U.S.C. 714b and 714c; 16 pursuant to 16 U.S.C. 3835(f); to provide direct consultation to NRCS U.S.C. 3865–3865d. at the State, regional, and national levels * * * * * to provide input on NRCS rules, Subpart A—General Provisions § 1468.23 [Amended] policies, programs, and impacts on § 1468.3 [Amended] Tribes. Tribal Conservation Advisory ■ 6. Amend § 1468.23 as follows: Councils provide a venue for agency ■ 2. Amend § 1468.3 as follows: ■ a. In paragraph (b)(1), remove the leaders to gather input on Tribal ■ a. In the definition of ‘‘Beginning words ‘‘Up to’’ and add ‘‘A minimum interests. farmer or rancher’’: of’’ in their place and add the words ■ i. In paragraph (1), remove the words ‘‘and not to exceed 7 fiscal years’’ Unfunded Mandates ‘‘farm or ranch or’’ and add in their immediately after the words ‘‘5 fiscal Title II of the Unfunded Mandates place the words ‘‘farm, ranch, or’’ each years’’; and Reform Act of 1995 (UMRA) (Pub. L. time they appear; ■ b. In paragraph (b)(2), remove the 104–4), requires Federal agencies to ■ ii. In paragraphs (2) and (3), remove words ‘‘Up to’’ and add ‘‘At least’’ in assess the effects of their regulatory the words ‘‘farm or ranch’’ and add the their place. actions on State, local, and Tribal words ‘‘farm, ranch, or NIPF’’ in their ■ 7. In § 1468.24 revise paragraphs Governments or the private sector. place each time they appear; (b)(2)(i), (iii), and (iv) to read as follows: Agencies generally must prepare a ■ b. In the definition of ‘‘Eligible land’’, written statement, including cost- add the word ‘‘land’’ immediately after § 1468.24 Compensation and funding for benefits analysis, for proposed and final the word ‘‘private’’; agricultural land easements. rules with Federal mandates that may ■ c. In the definition of ‘‘Farm or ranch * * * * * result in expenditures of $100 million or succession plan’’, remove the words (b) * * * more in any 1 year for State, local or ‘‘include specific’’ and add the words (2) * * * Tribal Governments, in the aggregate, or ‘‘include, but is not limited to, specific’’ (i) The eligible entity’s own cash to the private sector. UMRA generally in their place and remove the words resources for payment of easement requires agencies to consider ‘‘new or beginning farmers or ranchers, compensation to the landowner or for a alternatives and adopt the more cost- veteran farmers, or other’’; buy-protect-sell transaction, the amount effective or least burdensome alternative ■ d. In the definition of ‘‘Future of the fair market value of the that achieves the objectives of the rule. viability’’, add the words ‘‘or adoption agricultural land easement, less the This rule contains no Federal mandates, of a farm or ranch succession plan’’ amount of the Federal share, that is as defined under Title II of UMRA, for immediately after the word ‘‘plan’’; and provided through the conveyance of the

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agricultural land easement by the ■ a. In paragraph (c)(1), add the words land’’ immediately after the word eligible entity; ‘‘the purchase of the land’’ after the ‘‘application’’. word ‘‘completed’’; * * * * * Terry Cosby, ■ (iii) Where the amounts as identified b. In paragraphs (c)(3)(ii) and (c)(4), Acting Chief, Natural Resources Conservation in paragraphs (b)(2)(i) and (ii) of this add the words ‘‘of the land’’ after the Service. section are not sufficient to meet the word ‘‘value’’; Robert Stephenson, non-Federal share amount, the eligible ■ b. Redesignate paragraphs (e)(4)(iii) Executive Vice President, Commodity Credit entity may also include the procured and (iv) as paragraphs (e)(4)(iv) and (v); Corporation. costs paid by the eligible entity to a ■ c. Add a new paragraph (e)(4)(iii). [FR Doc. 2021–02268 Filed 2–3–21; 8:45 am] third-party for an appraisal, boundary survey, phase-I environmental site The addition reads as follows: BILLING CODE 3410–16–P assessment, title commitment or report, § 1468.27 Buy-Protect-Sell transactions. title insurance, baseline reports, mineral * * * * * assessments, or closing cost; and DEPARTMENT OF ENERGY (iv) Where the amounts as identified (e) * * * in paragraphs (b)(2)(i) through (iii) of (4) * * * Federal Energy Regulatory this section are not sufficient to meet (iii) The Federal share for the Commission the non-Federal share amount, the agricultural land easement will be eligible entity may also include up to 2 provided on a reimbursable basis only, 18 CFR Parts 250 and 385 percent of the fair market value of the after the agricultural land easement has [Docket No. RM21–8–000; Order No. 875] agricultural land easement for easement closed and the required documents have stewardship and monitoring costs been provided to and reviewed by provided by the eligible entity. Civil Monetary Penalty Inflation NRCS. Adjustments * * * * * * * * * * ■ 8. In § 1468.25 revise paragraphs (c) AGENCY: Federal Energy Regulatory ■ 11. Amend § 1468.28 as follows: and (d)(4) to read as follows: Commission, Department of Energy ■ a. Revise paragraph (c); and (DOE). § 1468.25 Agricultural land easement ■ b. In paragraph (f), add the words ‘‘in ACTION: Final rule. deeds. whole or in in part,’’ immediately after * * * * * the word ‘‘terminated’’. SUMMARY: The Federal Energy (c) The eligible entity may use its own Regulatory Commission (Commission) is The revision reads as follows: terms and conditions in the agricultural issuing a final rule to amend its land easement deed, but the agricultural § 1468.28 Violations and remedies. regulations governing the maximum land easement deed must provide for * * * * * civil monetary penalties assessable for the effective administration, violations of statutes, rules, and orders (c) Notwithstanding paragraph (a) of management, and enforcement of the within the Commission’s jurisdiction. this section, NRCS reserves the right to agricultural land easement by the The Federal Civil Penalties Inflation enter upon and inspect the easement eligible entity or its successors and Adjustment Act of 1990, as amended area if the annual monitoring report assigns and must address the deed most recently by the Federal Civil provided by the agricultural land requirements as specified by this part Penalties Inflation Adjustment Act easement holder documenting and by NRCS in the ALE-agreement. Improvements Act of 2015, requires the compliance with the agricultural land (d) * * * Commission to issue this final rule. easement is insufficient or is not (4) Include clauses requiring that any provided annually, the United States DATES: This final rule is effective changes to the easement deed or has a reasonable and articulable belief February 4, 2021. easement area made after easement that the terms and conditions of the FOR FURTHER INFORMATION CONTACT: recordation, including any amendment easement have been violated, or to Todd Hettenbach, Attorney, Office of to the easement deed, any subordination remedy deficiencies or easement Enforcement, Federal Energy Regulatory of the terms of the easement, or any violations as it relates to the Commission, 888 First Street NE, modifications, exchanges, or conservation plan in accordance with 7 Washington, DC 20426. Phone: (202) terminations of some or all of the CFR part 12. Prior to its inspection, 502–8794; email: Todd.Hettenbach@ easement area, must be consistent with NRCS will notify the agricultural land ferc.gov. the purposes of the agricultural land easement holder and the landowner and easement and this part and must be SUPPLEMENTARY INFORMATION: provide a reasonable opportunity for the 1. In this final rule, the Federal approved by NRCS and the easement agricultural land easement holder and holder in accordance with § 1468.6 prior Energy Regulatory Commission the landowner to participate in the (Commission) is complying with its to recordation or else the action is null inspection. and void. statutory obligation to amend the civil * * * * * monetary penalties provided by law for * * * * * matters within the agency’s jurisdiction. § 1468.26 [Amended] Subpart C—Wetland Reserve Easements I. Background ■ 9. Amend § 1468.26 in paragraph § 1468.32 [Amended] 2. The Federal Civil Penalties (b)(1) by removing the words ‘‘up to’’ Inflation Adjustment Act Improvements and adding ‘‘a minimum of’’ in their ■ 12. Amend § 1468.32 in paragraph Act of 2015 (2015 Adjustment Act),1 place and adding ‘‘and not to exceed 7 (c)(2) by adding the words ‘‘or land which further amended the Federal fiscal years’’ after the words ‘‘5 fiscal under a CRP contract that is in Civil Penalties Inflation Adjustment Act years’’. transition to a covered farmer or rancher ■ 10. Amend § 1468.27 as follows: pursuant to 16 U.S.C. 3835(f), and such 1 Public Law 114–74, Sec. 701, 129 Stat. 584, 599.

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