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Federal Register / Vol. 86, No. 22 / Thursday, February 4, 2021 / Rules and Regulations
Removed the requirement for the eligible entity to contribute its own cash resources in an amount equal to 50
percent of the amount of the Federal share;
Specified the incurred costs by the eligible entity associated with securing a deed to the easement that may be included in the calculation of the nonFederal share, and that the source and limit of other costs that may be included in the calculation of the non-Federal share;
Removed reference to the availability of waivers for grasslands of special environmental significance since the specific eligible entity cash contribution requirement was removed;
Added specificity to the right of enforcement conveyed to NRCS under the terms of an agricultural land easement;
Removed the requirement that the agricultural land easement be subject to an ACEPALE plan;
Specified the terms and conditions required by statute that must be addressed if the eligible entity chooses to allow subsurface mineral development on the land subject to the agricultural land easement;
Revised the requirement for a conservation plan on highly erodible cropland;
Provided that an eligible entity may include terms and conditions in the ACEPALE deed that are intended to keep the land subject to the easement under farmer or rancher ownership;
Removed the stand-alone section regarding ACEPALE plans and captured in other sections the provisions related to development of required conservation plans or development of ACEPALE plans as agreed-to by the eligible entity;
Incorporated two new categories under which an eligible entity may demonstrate that they meet the ACEP
ALE certification requirements and revised the criteria to require a minimum of 10 agricultural land easements under ACEPALE, or predecessor NRCS easement programs, for all eligible entities seeking certification;
Specified the circumstances under which NRCS may exercise its right of enforcement under ACEPALE, including its right of inspection;
Increased the percent of acres of total cropland in a county that may be subject to an ACEPWRE easement to 15
percent;
Removed the requirement for NRCS
to seek input from the Secretary of the Interior at the local level in the determination of eligible land;

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Included water quality as an additional priority along with the priority placed on acquiring wetland reserve easements based on the value of the easement for protecting and enhancing habitat for migratory birds and other wildlife;
Specified that grazing under reserve grazing rights wetland reserve easement or 30-year contract must comply with a wetlands reserve plan of operations WRPO developed by NRCS, which may include a grazing management plan component, and identified that the plan may be reviewed and modified as necessary, at least every 5 years; and Included new provisions related to the evaluation and authorization of compatible uses on wetland reserve easements, including that in evaluating and considering compatible uses NRCS
will consider whether the use will facilitate the practical administration and management of the easement or contract area and ensure that the use furthers the functions and values for which the land was enrolled.
Summary of ACEP Comments The interim rule 60-day comment period ended March 6, 2020, and was extended to March 20, 2020, to provide the public an opportunity to consider the January 24, 2020, correction.
Seventy commenters, including individuals, organizations, and agencies, submitted comments to regulations.gov. NRCS reviewed the input from these 70 commenters in response to the rule and identified 576
comments contained within these 70
entries. NRCS reviewed these 576
comments and categorized and summarized them according to the topics identified below. The topics that generated the greatest response were on ALE ranking, ALE BPS transactions, and definitions.
Overall, the comments expressed general support for the changes made in the interim rule. Six comments were not relevant to the ACEP interim rule. Ten comments expressed general support for the regulation and three comments criticized the regulation in general.
These comments did not include any recommendations for change.
NRCS appreciates all comments submitted and thanks each person and organization who expressed an opinion related to ACEP or the interim rule.
NRCS will continue the endeavor to improve its customer service and the equitable dispensation of benefits under ACEP.
In this rule, the comments have been organized alphabetically by topic. The topics include:
ALE Buy-Protect-Sell Transactions;

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ALE Contribution Requirements;
ALE Deed Requirements and Terms;
ALE Entity Certification;
ALE Land Eligibility Issues;
ALE Planning;
ALE Program Requirements;
ALE Ranking;
Definitions;
Easement Administration Actions;
Environmental Markets;
Fund Allocations;
Landowner EligibilityAGI
Limitation Waiver;
Program Administration; and WRE Issues.
This final rule responds to the comments received by the public comment deadline and makes minor clarifying and related changes.
ALE Buy-Protect-Sell Transactions BPS transactions are arrangements under ALE, first authorized under the 2018 Farm Bill, between NRCS and an eligible entity where the entity owns or will own the land prior to the acquisition of the agricultural land easement on the property, and the eligible entity either:
1 Sells fee title to the land to a farmer or rancher prior to or at easement closing; or 2 Holds fee title at the time the agricultural land easement is conveyed on that land, and transfers ownership of the land subject to the easement to a farmer or rancher not later than 3 years after the date of acquisition of the agricultural land easement.
NRCS received comments related to BPS transactions, several of which expressed support for allowing BPS
transactions. Remaining comments were as follows:
Comment: NRCS received comment related to the requirement to sell at agricultural value except that eligible entities could charge qualified farmers or ranchers certain holding and transactions costs. These comments requested a change to the amount an eligible entity may charge the qualified farmer or rancher as part of the sale of the property, recommending either that the 10-percent limitation be removed or increased to 10 percent of the total fair market value FMV of the property rather than 10 percent of the agricultural value. Other comments recommended that the sale be based on appraised agricultural value rather than lesser of appraised agricultural value or original purchase price to avoid a potential windfall to the purchaser that might raise private benefit or other issues under federal tax law if the eligible entity is a nongovernmental organization.
Response: The 10-percent limit was identified because NRCS may have to
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