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Federal Register / Vol. 86, No. 22 / Thursday, February 4, 2021 / Rules and Regulations
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included in the full right of enforcement clause provided to all eligible entities and must be used in all ACEP-funded agricultural land easement deeds. The ACEP regulation clarifies that NRCS
will provide the agricultural land easement holder and the landowner a reasonable opportunity to participate if NRCS exercises its right of inspection.
Comment: NRCS received comment recommending that deed terms should allow site potential tree height SPTH
forested riparian buffers as a permissible provision in western Washington.
Response: The ACEP regulation includes a catch-all provision that allows States to have additional minimum deed terms. NRCS
recommends that the commenters and any stakeholders with similar concerns should work with their applicable State Conservationist. No change is made to the regulation in response to this issue.
Comment: NRCS received comment related to how the ALE-agreement references the deed requirements.
Response: The ALE agreement must specify the deed requirements as set forth in the regulation so that they are enforceable.
ALE Entity Certification NRCS received comment related to ALE entity certification as follows:
Comment: NRCS received comment on the term of agreements with certified eligible entities recommending that NRCS allow for a minimum 5-year term.
Response: NRCS is changing the regulatory language in response to this comment to specify that agreements with certified entities will be for a minimum of 5 fiscal years following the fiscal year the agreement is originally executed, but may not exceed 7 fiscal years following the fiscal year the agreement is originally executed. NRCS
has found that an upper limit is necessary to limit the administrative burden associated with implementing agreements that cross different farm bills.
Comment: NRCS received comment urging NRCS to expand eligibility for certification for State agencies, recommending a broadening of language for which types of prior conservation easements would be counted, and requesting that NRCS drop the number of required prior conservation easement transactions from 10 to 5.
Response: The terms for certification of State agencies are set forth in statute, including the type of easements that can be counted and the number of prior transactions required, and NRCS does not have discretion to waive or amend those provisions. No change is made to the regulation in response to this issue.

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Comment: NRCS received comment requesting additional guidance on the entity certification process, including evaluation criteria, how NRCS will address partnerships between certified and non-certified eligible entities, what technical assistance NRCS may provide to certified entities with regards to things like title review and appraisal, the benefits of certification, and the definition of a plan for administering easements. The comment detailed recommendations about the kind of transparency NRCS should have for its process and the timeline. Another comment requested a streamlined process for certifying eligible entities, including State agencies and land trusts.
Response: The internal certification review process is found at 440
Conservation Programs Manual CPM
Part 528 and may be accessed at https
directives.sc.egov.usda.gov/. NRCS will continue its ongoing efforts to streamline processes through new business tools to be as efficient and effective in program delivery as possible while operating within legal authorities.
NRCS will continue to make publicly available any new policy or guidance.
No change is made to the regulation in response to this issue.
Comment: NRCS received comment expressing support for changes made in the interim rule to the entity certification process.
Response: NRCS appreciates this support.
ALE Land Eligibility Issues NRCS received comment related to ALE land eligibility as follows:
Comment: NRCS received comment about forest land eligibility issues. Many supported maintaining the two-thirds limitation on non-industrial private forest land NIPF eligibility under ACEPALE and offered that programs like the Regional Conservation Partnership Program RCPP, Healthy Forests Reserve Program HFRP, and Forest Legacy Program can all be used currently to protect forest lands.
Another comment requested the twothird limitation on NIPF in ACEPALE
be struck.
Response: To minimize duplication, overlap, and conflict with other USDA
forest easement programs, the interim rule and this regulation maintain the existing eligibility provision that land enrolled in ACEPALE cannot include NIPF greater than two-thirds of the ACEPALE easement area unless waived by NRCS with respect to forest lands dedicated to sugar bush that contribute to the economic viability of the parcel.

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NRCS specifically requested public comment in the interim rule on whether RCPP or HFRP could protect lands on which NIPF is the predominant use at levels beyond the scope of ACEPALE.
Regarding the two-third limitation, NRCS cannot authorize parcels that are 100 percent NIPF because statutory eligibility criteria is phrased as NIPF
contributing to the economic viability of an offered parcel or serving as a buffer to protect land from development. Thus, the eligibility of NIPF is in relationship to other eligible land. This has long been NRCSs interpretation of this eligibility criterion under ACEPALE
and its predecessor Farm and Ranch Lands Protection Program. Congress specifically rejected language that would have expanded eligibility in the 2018 Farm Bill. NRCS concurs that the availability of other USDA easement programs that specifically protect forested lands warrants the continued focus of ACEPALE more broadly on other agricultural lands. No change is made to the regulation in response to this issue.
Comment: NRCS received comment about the definition of grasslands of special environmental significance GSES under ACEPALE, including support for the definition of GSES and the prioritization and management of native vegetation and habitats in relationship to GSES. A comment also encouraged the return of land to heritage marshes and vernal pools wherever possible on GSES enrollments.
Another comment supported allowing only native vegetation to be categorized as GSES.
Response: NRCS believes that the current GSES definition supports the recommendation about prioritization of native vegetation and habitat. In particular, the GSES definition identifies sensitive or declining native prairie or grassland types or grasslands buffering wetlands. However, there are grasslands that, while not native vegetation, provide critical habitat for at-risk species that warrant the increased Federal investment to protect.
Thus, NRCS will not limit GSES to native vegetation only. No change is made to the regulation in response to this issue.
Comment: NRCS received comment related to ALE land eligibility, including:
A request that confined animal feeding operations CAFOs not be eligible for an ALE-funded easement;
A comment addressing the ineligibility criteria related to on-site and off-site conditions;
A comment commending NRCS for including criteria related to permitted
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