[Federal Register: May 14, 2004 (Volume 69, Number 94)]
[Rules and Regulations]
[Page 26755-26763]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14my04-1]
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[[Page 26755]]
DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
7 CFR Part 1410
RIN 0560-AG74
2002 Farm Bill--Conservation Reserve Program--Long-Term Policy
AGENCY: Commodity Credit Corporation, USDA.
ACTION: Final rule.
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SUMMARY: This final rule adopts as final an interim final rule for the
Conservation Reserve Program published on May 8, 2003. The interim rule
set out the existing program regulations in their entirety, including
revisions conforming to new legislation. Those revisions included,
among others, a change to the definition of ``conserving use.''
DATES: This rule is effective May 13, 2004.
FOR FURTHER INFORMATION CONTACT: Charles Chadwell, Program Manager, at
USDA/FSA/CEPD/STOP 0513, 1400 Independence Avenue SW., Washington, DC
20250-0513; telephone 202-720-7674; e-mail:
Charles_Chadwell@wdc.usda.gov. Persons with disabilities who require
alternative means for communication (braille, large print, audiotape,
etc.) should contact the USDA Target Center at 202-720-2600 (voice and
TDD).
SUPPLEMENTARY INFORMATION:
Background
The interim rule amended the regulations of the Commodity Credit
Corporation (CCC) at 7 CFR part 1410 that govern the Conservation
Reserve Program (CRP). The amendment was published to cost-effectively
target the CRP to more environmentally sensitive acreage and to comply
with amendments made by the Farm Security and Rural Investment Act of
2002 (Pub. L. 107-171) (2002 Act), by:
Setting forth the terms and conditions of enrolling
acreage in the CRP;
Updating program eligibility requirements; and
Eliminating unnecessary regulations and improving the
remaining regulations.
The CRP was authorized by the Food Security Act of 1985 (Pub. L.
99-198)(1985 Act), which was recently amended by the 2002 Act. The 2002
Act provided the Secretary of Agriculture (Secretary) the authority to
maintain up to 39.2 million acres in the CRP. The CRP is intended to
cost-effectively assist producers in conserving and improving soil,
water, and wildlife resources by converting highly erodible and other
environmentally-sensitive acreage to a long-term vegetative cover. CRP
participants enroll land under contracts for 10 to 15 years in exchange
for annual rental payments and financial assistance to install certain
conservation practices and to maintain approved vegetative or tree
covers.
Based on 2002 Act amendments, an interim rule was published on May
8, 2003 (68 FR 24830) which asked for comment on the rule changes and
other policy issues. The agency will continue to consider policy
comments as appropriate, and in this notice restricts the discussion,
for the most part, to whether any further amendment of the program
regulations is needed at this time.
Summary of Comments
CCC received 800 comments concerning the interim rule. Entities
responding included: individuals, State government agencies, State
conservation organizations, State and national commodity organizations,
conservation organizations, Federal Government agencies, and a national
environmental organization. Comments came from Alabama, Arkansas,
California, Colorado, District of Columbia, Georgia, Iowa, Idaho,
Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Minnesota,
Missouri, Mississippi, Montana, North Carolina, North Dakota, Nebraska,
New Jersey, Ohio, Oregon, Pennsylvania, South Carolina, South Dakota,
Tennessee, Texas, Utah, Virginia, Washington, and Wisconsin. The
Midwest, Southeast, and Northern Great Plains were represented on the
regional level as well.
There were 135 comments that were not directed to the interim rule
itself, but to related matters such as payment rates, other eligible
land provisions, internal guidance and procedures, acreage allocation
scenarios among the different programs within CRP, and primary nesting
season jurisdiction. Also, 51 comments were not considered because they
were unclear on the point they intended to make or were not submitted
timely. The comments not directed to the interim rule itself and the
late comments may be considered in future policy development.
General Comments
Overall Support for the Program
There were 45 comments in support of the interim rule or in support
of the CRP as a whole. This category accounted for the second largest
number of comments on the interim rule behind those about managed
haying and grazing, followed by comments regarding the Environmental
Benefits Index (EBI), conserving use, and continuous practices. These
comments ranged from overall programmatic support for CRP to supportive
comments regarding various aspects of the program and specific sections
of the rule.
Most supportive comments stated that the CRP has been one of the
most significant conservation programs in history by reducing soil
erosion, improving water quality, and enhancing wildlife habitat for
many species. One respondent complimented FSA for utilizing the EBI as
a tool to encourage enrollment of lands which will result in a program
that provides the greatest amount of environmental benefits per dollar
expended. Others indicated the development of the EBI has had a
positive impact on the effectiveness of CRP.
One comment was received concerning the cost share for installation
of conservation buffers; however, concern was expressed over the
confusion from the program's differential incentives for various
eligible buffer practices. The comment did not recommend a specific
change. The interim rule was written so as to limit confusion as much
as possible and provide flexibility to the agency to address new
situations as they arise. No
[[Page 26756]]
change in the regulations was found to be warranted with respect to
these comments.
Support for Environmental Benefits of the Program
Two comments suggested that FSA take advantage of this program in
order to get the maximum environmental benefit out of the new
authority, while also doing the most it can to help producers meet the
many environmental goals expected of them through an incentive-based
approach. The comments did not make specific recommendations. In any
event, no rule change would be needed to take these concerns into
account.
Program Administration
There were 19 comments concerning the administration of CRP. The
comments concerned the way the program was being administered and the
need for the program to be more locally flexible.
Some respondents recommended an increased role for the Natural
Resource Conservation Service (NRCS) and the Forest Service, acting
through State government foresters. These respondents were also
concerned about whether Technical Service Providers are qualified to
give advice, the implementation of Technical Service Providers and the
potential for a conflict of interest with local Technical Service
Providers. One comment supported the way the CRP was administered, but
made a non-specific comment that program implementation and efficiency
could be improved. To the extent that specific comments were made in
this regard, no rule change was found needed as the rule is flexible
enough to allow changes as may be warranted. Further, the rule provides
considerable involvement of FSA State and county committees in making
determinations, resulting in substantial local influence and control.
Thus, no changes were made in the final rule as a result of these
comments.
The interim rule's provisions clarifying continuous sign-up and its
role within the CRP program received comments. Another comment felt
that the program should emphasize conservation treatments for upland
areas associated with CRP acres and offer more compensation for land
removed from production to protect water quality. These suggestions are
possible without a rule change, and no rule change is needed.
Additional comments specific to administration dealt with Sec. 1410.1
and are addressed under the heading for comments on that section below.
Opposition to Economic Impacts of the Program
Comments expressed concern that CRP supports conservation, but
asserted that it hurts the economy of rural communities. One respondent
stated that the current CRP, while supporting conservation, is emptying
rural communities of agriculture-focused economic opportunity and
people. A cost-benefit analysis examined the environmental, economic,
and budgetary impacts of enrolling land in CRP. The FSA analysis
estimated that the new provisions of the CRP will not only continue
benefitting soil, water, and wildlife resources, but will also produce
a net benefit to the economy of approximately $131 million per year. In
addition, there is a clear statutory intent and expectation that the
CRP will continue to operate and limitations are included in the
statute to address the concerns expressed by the respondent. Further, a
study that describes the economic and social effects on rural
communities resulting from the CRP was required by section 2101(b) of
the 2002 Act. The USDA's Economic Research Service published the study
in January, 2004, which indicated that the concerns of the respondents
are addressed within the limits and requirements within the CRP
regulations. Thus, the comments did not result in any change in the
final rule.
Comments on Specific Sections of the Interim Rule
Section 1410.1 Administration
Seven comments addressed the wildlife objectives of CRP requesting
clarification of the program's wildlife objectives versus the
landowner's wildlife objectives. A comment supported what CRP has
accomplished for wetlands and associated wildlife. The CRP uses the
wildlife benefit standards from the Field Office Technical Guide (FOTG)
of NRCS and the program is intended to encourage wildlife benefits.
Still, the CRP is a voluntary program, and if the landowner has
objectives that differ from those used by FSA, they may decline to
participate. Because wildlife objectives are addressed in the NRCS
FOTG, this comment was not adopted in the final rule.
Section 1410.2 Definitions
There were 25 comments concerning several technical terms defined
in the new rule, and their clarity and consistency. Some respondents
felt that ``marginal pastureland,'' ``local eco-type,'' and ``native''
should be defined in the regulations. A majority of the respondents
felt the intent of the 2002 Act was to make conserving use lands
eligible for CRP and they did not agree with the CCC definition of that
term in the interim rule. These comments were considered with other
conserving use comments submitted under the land eligibility section at
Sec. 1410.6.
One respondent suggested that the definition of an agricultural
commodity as it pertains to a perennial crop be amended to specify that
a perennial crop must be from the same root structure for two or more
years. The definition used in the interim rule is consistent with this
comment; however, because a perennial crop may involve vegetation that
is not considered an ``agricultural commodity'' within the meaning of
the program regulations, ``agricultural commodity'' is removed from the
definition of a perennial crop and an adjustment to that definition has
been made in this final rule.
One respondent was concerned that the definition of ``conserving
use'' for cropland eligibility purposes in the interim rule excluded
expired CRP contracts with trees planted. Under section 2131(c) of the
1985 Act, as amended, land that is in a ``conserving use'' can be
considered to be planted to an ``agricultural commodity.'' This
definition is consistent with requirements for enrollments based on
erodibility under section 1231(b)(1), which requires that such land
have been cropped 4 out of the 6 years preceding the 2002 Act. Under
the customary CRP practices, cropping history must generally be for the
kinds of enrollments originally provided for in the 1985 Act. Those
enrollments were from lands committed to ``agricultural commodities''
which, because of a special definition in the 1985 Act, means crops
that are annually tilled, plus sugar cane. Other enrollments do not
have these strict ties to ``agricultural commodities,'' although, there
are still inconsistencies in the statute's references to ``agricultural
commodities''. For example, of the enrollments not tied to
``agricultural commodities,'' section 1231(b)(2) is explicitly directed
at enrollments of marginal pastureland, which clearly do not involve
land that was annually planted. Also, section 1231(g) provides that
alfalfa and other multi-years grasses and legumes in a rotation
practice approved by the Secretary shall be considered to be
``agricultural commodities.'' As to the question of trees, land planted
to trees is no longer considered ``cropland,'' which is one of the
essential criteria of section 1231(b)(1) enrollments where ``conserving
use'' comes into play. Also,
[[Page 26757]]
such use is not considered to be a ``conserving use'' within the
meaning of the statute, because trees involve, ultimately, a planting
undertaken for a commercial purpose.
A respondent suggested conserving use should include alfalfa, other
multi-year grasses and legumes and summer fallow during 1996 through
2001. The respondent indicated that hay land, regardless of the year
planted, is a conserving use and that requiring hay land to have been
planted between 1996-2001 will make many lands in the eastern U.S.
ineligible for CRP. The interim rule provided that, for conserving use
credit, cropland must have been planted during the year 1996 through
2001 with alfalfa and planted to other multi-year grasses and legumes
and summer fallow in a rotation. Such land would only be considered
fallow if the plantings were in a rotation with agricultural
commodities. This is made more explicit in this final rule. The rule is
amended to require that such rotation must be approved by FSA as needed
to assure the integrity of the program. Nonetheless, the 2002 Act
requires a cropping history during the period from 1996-2001. Land that
was planted beyond this period, regardless of whether it was in
rotation with other crops, cannot be considered. Therefore, no rule
change was warranted to address this comment.
A number of comments were received suggesting the conserving use
definition be expanded to include cropland in CRP with a grass cover,
under contract which went to full term, and which remains in grass
cover. Effectively, this land has continued to be maintained as if it
was still in CRP, and making it eligible is similar to making land
eligible at the end of the contract period automatically, as the 2002
Act provides. Therefore, this comment is adopted in the final rule
under the Sec. 1410.2 definition of conserving use making eligible
lands under contract that expired during the period 1996 through 2001,
if the cover continues to be maintained as though under contract.
Moreover, unlike with trees, it is presumed that a grass cover is
there, not for commercial purposes, but for compliance with the CRP
contract, as the land was moved out of the production. Also, under
traditional definitions, such land would remain as cropland.
A respondent recommended a definition should be added for
``marginal pastureland'' due to its importance in terms of eligibility,
practice requirements, and rental rates. Consistent with new
legislation, the interim rule expanded eligibility for marginal
pastureland devoted to a riparian buffer, a new wetland practice, or a
new wildlife habitat buffer to provide wildlife habitat where tree
plantings are not practical near water bodies. The agency feels that
marginal pastureland is adequately defined in context as well as the
FOTG, and promulgating a definition would reduce flexibility. Thus, CCC
did not adopt this comment.
Seven comments addressed lands classified as ``infeasible to
farm.'' One respondent stated that the interim rule did not clearly
define ``infeasible to farm'' and how it will be determined. Section
1410.2 defines ``infeasible to farm'' as an area that is too small or
isolated to be economically farmed. The local qualifying land
characteristics as to whether it is infeasible to farm will be
determined at the county level by FSA. ``Infeasible to farm'' acreage
is properly determined at the local level where all relevant factors
can be considered. The agency does not feel that this limitation will
be arbitrarily applied; thus, this comment was not adopted.
A respondent recommended that FSA should allow its State offices,
with the advice of State wildlife agencies, to enroll up to one-half of
a percent of their cropland in mapped areas of value to critical
wildlife needs. The respondent feels that this will help achieve
critical wildlife objectives of the CRP. As suggested by the
respondent, FSA emphasizes wildlife habitat in the EBI and its practice
standards for wildlife habitat applicable to the area. Further, a
unique conservation plan is developed for individual contracts based on
the site conditions and the NRCS FOTG, which include wildlife needs.
Therefore, the respondents' suggestions on allocating acreage are
already addressed by the interim rule and further changes were not
made.
Section 1410.4 Maximum County Acreage
Ten comments were received regarding the currently imposed 25-
percent county acreage enrollment limit for the CRP and Wetland Reserve
Program (WRP). Six of the comments opposed counting continuous lands in
the 25 percent cap. One respondent indicated that the CRP acreage cap
should be determined at the watershed scale, not the county level. We
understand the respondent's rationale; however, the 1985 Act provides
that CRP acreage enrollment is to be calculated on a county basis.
Therefore, this and similar comments were not considered further.
One respondent recommended that limits on participation should be
included to protect the economic stability of individual counties or
regions. CCC is committed to addressing conservation issues of the
nation and providing an opportunity for producers to offer eligible
lands through a variety of conservation programs consistent with
statutory authority. Before waiving the cropland limit, CCC, by
statute, must determine that enrollment of additional land would have
no adverse economic impact and producers are having difficulty
complying with their highly erodible land conservation plan. Thus, the
respondent's concerns are addressed under current regulations,
consistent with law, and no changes are made in the final rule to
further limit participation.
Section 1410.5 Eligible Persons
Two comments concerned the relationship between renters (or
tenants) and landlords. An individual commented that a renter needs
immediate notice if a landlord goes to FSA and starts the process of
sign-up. One respondent recommended that landowners not be required to
own or have operated the land for the previous 12 months to be eligible
to enroll in the continuous CRP or Conservation Reserve Enhancement
Program (CREP).
FSA encourages landlords and tenants to work closely when enrolling
land in the CRP. Further, all operators, owners, and tenants who have
an interest in the acreage being offered are required to sign the CRP
contract. Also, producers can withdraw an offer anytime before a
contract is approved. As for the time an applicant must have operated
the land, the law that authorized the CRP requires landowners and
tenants to have owned or operated the land for the previous 12 months.
However, the statute allows CCC to consider, on a case-by-case basis,
both a landowner or tenant eligible when the land was not acquired for
the purpose of enrolling it in the CRP. Thus, current regulations are
sufficient to address the comments, and no rule change was warranted.
Section 1410.6 Eligible Land
Over 150 comments were received regarding land eligibility. The
majority of these comments focused on the role of what the agency
considered to be a ``conserving use'' and the impact of that term on an
eligibility determination. These comments were addressed with the
comments regarding Sec. 1410.2 above.
Twenty comments focused on the interim rule's requirements for
cropping history. A few comments fully supported the new 4-out-of-6
year
[[Page 26758]]
cropping history requirements, although most criticized the new rule
and suggested FSA revert to the original 2-out-of-5 year cropping
history requirement, However, the 4-out-of-6 year cropping history is a
statutory requirement. Therefore, these comments were not considered
further and were not adopted.
Four comments requested clarification regarding the eligibility of
permanent crops for CRP programs. The remaining comments criticized
current regulations for the type of agriculture allowed in the CRP and
its shortcomings in California. The respondent suggested that CRP
requirements resulted in land being used to produce grain and row crops
using conventional tillage when that land may be better suited for
grazing or forage production. The comments were not clear on what
change in the regulations would allay their concerns, and they made no
specific recommendations. Furthermore, from the start, the CRP has
focused, at least in part, on directing active cropland into conserving
uses. Rather than encouraging environmentally damaging uses of land as
suggested by the respondent, the CRP has resulted in many acres of
marginal land that were being used to produce row crops in the past
being shifted into a much more ecologically sound practice. Therefore,
the comments were not further considered and no change in the
regulations has been made.
Five comments on re-enrollment were received. Three respondents
supported the provision required by the 2002 Act, and included in Sec.
1410.6(a)(3), that there be an option for CRP participants to offer a
new contract into the program when their contracts expire. Two other
respondents questioned why tree-planted CRP contracts expiring in 2001
are not eligible for renewal, based upon the expiration, while similar
contracts expiring in 2002 and 2003 are being renewed. This is because
this provision in the regulations follows section 1231(i) of the 2002
Act, which provided for eligibility for future expirations
prospectively only. Hence, no change in the regulations was warranted.
Six comments were received in support of the continuous enrollment
provisions included in Sec. 1410.6 of the interim rule. A few
respondents suggested expansion of tha CRP to benefit wildlife by
enrolling high value practices that restore and protect rare and
declining species.
As discussed above, the interim rule expanded CRP eligibility for
marginal pastureland devoted to a riparian buffer practice, a new
wetland practice, or a new wildlife habitat buffer practice. Wildlife
habitat may now be established where tree plantings are not practical
or appropriate. This change will be valuable in addressing Federal and
State wildlife issues near streams, rivers, or other water bodies.
Furthermore, CCC has added continuous sign-up eligibility for practices
involving wetland restoration and bottomland hardwood trees.
In riparian areas where the climax vegetation for the site is
shrub, forb, grass, or a wetland complex, the current rule provided for
the establishment of conservation practices that are best suited for
the site. This rule will further permit development of conservation
practices that provide water-quality benefits such as wetland
restoration, on marginal pastureland which, at Sec. 1410.6(a)(2)(ii),
will be limited to enrollments under CREP agreements with State
governments. This will ensure implementation of conservation practices
on the most environmentally-desirable lands to improve water quality.
Some respondents expressed concern about removing cover and
suggested that farmland previously enrolled in the CRP program and
planted to approved grasses must be plowed and re-seeded in order to be
eligible for a future sign-up. Other comments pertaining to this
section concerned buffer guidelines, and consistency between their
application by other USDA agencies and programs to native prairies and
marginal pastureland. One respondent suggested allowing the use of
continuous sign-up and CREP to meet the producer's buffer requirements
under State and local mandatory setback laws. Because FSA already
allows otherwise eligible land to be offered, provided the producer has
not been specifically designated out-of-compliance with a State and/or
local setback law, these comments were not considered further and can
be addressed within existing rules if further action is needed.
Three comments regarding land eligibility and general sign-up
touted the need to protect fragile lands and utilize native vegetation
in order to achieve the highest public benefit and enhance
biodiversity. The 2002 Act made no changes to the EBI. However, in an
effort to maximize environmental benefits and implement plantings
consistent with local ecosystems, CCC has structured the EBI to give
more weight to contract offers that devote acreage to native plantings.
CCC recognizes that in certain critical planting areas the use of
introduced vegetative species may be required to stabilize the soil
faster, be easier to establish, or provide a more cost-effective
conservation effort. The agency agrees with the comment; however,
current rule language is sufficient to accomplish the desired result,
and no change in the regulations is warranted.
Section 1410.8 Conservation Priority Areas
A total of 11 comments were received on this section of the rule.
The majority of the comments suggested that State agencies be provided
flexibility to revise wildlife and water quality Conservation Priority
Areas (CPA) between general sign-ups. Because the interim rule does not
preclude revisions of CPA's between sign-ups, no rule change is needed
to implement the suggested change.
Section 1410.9 Conversion to Trees
There were 14 comments pertaining to the planting of CRP acreage to
trees. Comments were received from State government agencies and
national conservation organizations. A respondent suggested this
practice be limited to areas where trees existed historically, because
planting trees in historically prairie areas created a number of
problems such as habitat and refuge for predators, ecological traps for
nesting birds, and nuisance exotic species.
All 14 respondents were concerned with the effects of converting
permanent vegetative grass covers under CRP contracts from prior to
1990 to hardwood trees when the ecosystem did not historically support
hardwood trees. This rule encourages planting native species suited to
the environment. Further, the EBI is designed to encourage planting of
native species. Thus, no rule change is needed to address the concerns
of the respondent.
Section 1410.11 Farmable Wetlands Program
There were six comments concerning the Farmable Wetlands Program,
including eligibility requirements, payment methods, and the methods
for delineating wetland. Also, there was one comment on the size of
contiguous wetland acres being accepted into the program regarding the
basis for enrolling 10 contiguous acres when the owner/operator will
only be paid for the first 5 acres. The comments did not address
specific rule provisions that caused these concerns or how they may be
mitigated. The agency determines wetlands using the FOTG and guidance
from NRCS, and has no plans to promulgate how wetlands are delineated.
As for the acreage limitation, it is imposed by the 2002 Act. Thus,
these comments were not considered further and no change was warranted.
[[Page 26759]]
Section 1410.20 Obligations of Participants
There were 28 comments received on the obligations of participants,
a majority of which suggested stricter requirements for keeping noxious
weeds off CRP lands. Comments on noxious weeds fell into two general
groups. The first group suggested mandatory control of noxious weeds as
an essential component of managing CRP lands. The second group
recommended that weed control be limited to official Federal or State
recognized noxious weeds, since most so-called weeds provide extremely
high quality wildlife habitat. As a condition of enrollment, a CRP
participant must establish and maintain certain covers for the benefit
of soil erosion, water quality, and wildlife habitat. On an individual
contract basis, a conservation plan is developed according to the NRCS
FOTG outlining the requirements to establish and maintain those covers
including any necessary weed, insect, and pest control measures. As to
noxious weed matters, State governments enforce noxious weed laws and
CCC takes appropriate action when notified by State authorities of
violations. When CCC becomes aware of a contract violation, it pursues
appropriate remedies, including contract termination. The weed control
provisions of the program as articulated in the conservation plan
developed on a contract-by-contract basis according to NRCS FOTG
standards assure the protection of the cover.
The remainder of the comments on this section dealt with
maintenance payments and the use of burning as a maintenance tool. Four
respondents felt that the landowners were not receiving sufficient
rental incentives to pay maintenance costs. Of those, one felt that
rental payments should meet a level-of-effort standard, and that
landowners who agree to do more maintenance should receive higher
rental payments. Two individuals were concerned that some participants
receive rental incentives for maintenance for doing nothing, while two
others suggested that FSA hold payments until maintenance was
completed. One suggested that these incentive payments be made only
when maintenance is needed, and, finally, one suggested that holistic
grazing be added as eligible for such incentives.
Maintenance incentive rental payments are paid to ensure proper
cover of the CRP acreage. What constitutes maintenance and proper
coverage varies by geography, topography, and other factors.
Consequently, it is difficult to promulgate these amounts and practices
at a national level. Thus, what is eligible for maintenance incentive
payments and the amount to be paid is determined at the local level
based on local conditions. If practices are not carried out as agreed
to by the program participant, then payments are not made or are
required to be refunded when CCC becomes aware through an informant or
a spot-check that an enforcement action is necessary.
A comment stressed the importance of including fire protection
plans and annual controlled burns as a maintenance tool and advocated
that the landowner and tenant should not be penalized for such
maintenance related burns.
The respondent's concerns are addressed by FSA operating procedures
and are not included in the regulation. CRP participants must have an
approved conservation plan developed locally and for the unique site
conditions. Where appropriate, a conservation plan will include a fire
protection plan, which may include controlled burns as a maintenance
measure. These plans are prepared according to the NRCS FOTG and may
incorporate the advice of other experts. Thus, the interim rule already
addresses the respondent's concerns, and no changes are made in the
final rule.
Section 1410.22 CRP Conservation Plan
A total of 15 comments were received concerning conservation plans
and, more specifically, mid-contract management. Six comments fully
supported mid-contract management for its role in maintaining and
maximizing wildlife benefits of the program. A comment recommended that
the practices to be employed and the timing of application for mid-
contract management should be determined at the State level to account
for variability in climate and cover development. The interim rule
requires CRP participants to follow a local technical standard which
provides the greatest protection of the State's soil, water, and
wildlife resources, improves and preserves water quality, and enhances
fish and wildlife habitat. Because the program already incorporates
local technical standards, as appropriate, it would not serve the
program well to abandon those and adopt State standards. Therefore,
this comment was not adopted.
One respondent suggested that the rule be clarified concerning when
renewed contracts are considered ``new'' and whether previously
enrolled acres will now be subject to mid-contract cover management.
Mid-contract cover management applies to contracts entered into after
the interim rule's effective date of May 8, 2003, and applies to all
contracts, including renewal contracts, approved after May 8, 2003.
Terms of the contracts will, moreover, be specified in the contracts.
An individual suggested clarification of how cost-share for mid-
contract management practices would be provided, primarily for tree
thinning. Consistent with the authorizing legislation, CRP participants
must thin trees under their CRP contract without cost-share and receive
an annual payment reduction on acreage thinned. Therefore, the comment
was not considered and no rule change was needed.
Three comments recommended that all State wildlife agencies be
engaged to develop criteria for mid-cover management. FSA has consulted
with the U.S. Fish and Wildlife Service and other agencies on these
matters. Because the rule already allows consultation other agencies
with expertise, the rule is sufficient as written.
Section 1410.30 Sign-Up
There were 23 comments received regarding this section. Some
respondents suggested expanding the uses of targeted CRP through
continuous enrollment and CREP to meet more environmental needs.
Environmentally-desirable land devoted to certain conservation
practices may be enrolled in CRP at any time under continuous sign-up.
These practices are usually filter strips, riparian buffers, certain
wetlands, grass waterways, and other practices the enrollment of which
provide substantial environmental benefits meeting the conservation
goals of the program including soil erosion, water quality, and
wildlife habitat. CCC will annually publish in the Federal Register to
the extent practicable conservation practices and lands made eligible
for continuous signup after September 30, 2004.
A majority of respondents stated that practices installed under the
continuous sign-up have insufficiently utilized vegetative cover with
high wildlife values. They recommended that continuous sign-up be
limited to the use of 40- or 50-point EBI vegetative cover types to
achieve the highest environmental benefits.
CCC currently utilizes the FOTG of the NRCS and issues other Agency
guidance on this subject. Wildlife considerations are a major
consideration in the practice requirements for most continuous sign-up
practices. The agency feels that wildlife is being addressed properly
under the provisions
[[Page 26760]]
of the interim rule and increased emphasis on vegetation for wildlife
is unnecessary.
Section 1410.31 Acceptability of Offers
About 60 comments were received regarding the acceptability of
offers. Comment categories ranged from local eco-type and native
vegetation consistency, to whole-farm enrollment, to the EBI. The vast
majority of comments expressed concern that conservation practices
implementing native vegetation should be more highly considered than
non-native vegetation, and that the vegetation used in conservation
practices should be vegetation that is of local eco-type seed. CRP
policy regulations and the EBI already emphasize planting native
vegetation. In any event, no rule prohibits the results sought by the
respondent. Another comment recommended the EBI be included in the
regulation to protect the EBI against legal challenge. The agency
understands the respondent's concerns that the acceptability of offers
be more strictly determined by regulations. The weighing of factors in
the EBI can change over time and over enrollments based on changing
conditions, changing needs, and based on the nature of the land
achieved in previous enrollments. Incorporating the EBI into the rules
could harden the index in a way that would be harmful to the
achievement of the goals of the program because of the time that would
otherwise be needed to change the index. Further, competition in all
cases is a set formula for enrollments, so as to not allow the agency
to assign special merit to especially attractive offers. Therefore,
this comment was not adopted. However, CCC will consider this comment
further but, should CCC adopt the suggestion, it would be best to do so
as a separate action from this rulemaking with a full opportunity for
public comment.
Section 1410.42 Annual Rental Payments
Over half of the 42 comments received under this section of the
rule pertained specifically to rental payments. The interim rule
provides that rental rates are based on relative soil productivity of
the soil type for dryland cash rental rates for the county. Most
respondents supported this policy--that CRP rental rates mirror the
rates for comparable land in the immediate area and be based on the
agricultural production value of the land. Concerning irrigated lands,
a comment noted that continuous CRP should allow CCC to pay irrigated
rates in irrigated landscapes. Further, the comment noted that,
environmentally, these irrigated areas have highly significant
concentrated flows with increased soil erosion and degraded water
quality. As a result of the comment, FSA is evaluating options to
consider the impact of irrigated rental rates. No rule change is needed
to make such an allowance.
A few comments recommended increasing incentive payments under CRP.
All 42 respondents on this section requested additional incentives for
CREP and continuous sign-up practices. The respondents felt that
landowners need adequate funding to maintain and enhance their
properties to meet CRP conservation plan goals and maximize
environmental benefits. CCC feels that the payment of competitive,
market-based rental rates is sufficient enticement for the enrollment
of land, and the best method for ensuring that payments are distributed
equitably. Further, the regulations allow for incentives, where
appropriate, to meet program goals and objectives. Therefore, no rule
change is needed.
With regard to contract payments, two comments from a commodity
organization recommended that if CRP payments are reduced or delayed
for more than 60 days, the producer should have the option to withdraw
from the contract without penalty and program crop bases would be
restored to their prior level. CRP regulations anticipate that contract
payments will be made in a timely manner. CCC may pay interest if
claims are overdue for a material portion of time. Contract release is
too drastic and unwarranted. Accordingly, no change has been made in
the regulations.
Section 1410.50 Enhancement Programs
Five comments were received regarding enhancement programs
suggesting expanding CREP, continuous enrollment, associated practices,
and incentives. However, the comments were not specific on recommended
changes. The agency feels that program regulations already encourage
participation and adequately address CREP and continuous enrollment.
Section 1410.63 Permissive Uses
There were over 200 comments focused on this section of the rule,
making it the most commented-upon section. Comment categories included
managed and emergency haying and grazing, the use of wind turbines,
maintenance associated with haying and grazing, and the grazing of
buffer strips. Emergency haying and grazing allows producers to hay or
graze CRP acreage during disaster-related emergency conditions. Managed
haying and grazing is intended to have positive effects on the
management of the cover consistent with CRP's conservation goals.
Managed haying and grazing is not intended to maximize forage benefits.
Concerning managed haying and grazing, a majority of comments were
critical. Many felt that it is unfair for a farmer to receive CRP
payments while being able to profit from grazing their cattle for free,
or from selling the harvested hay. However, contrary to what the
comments suggest, the statute and the regulation require reduction of
CRP payments based on the acres used for haying and grazing. Thus, no
change in the regulations was warranted.
Other respondents were concerned about the effects of haying and
grazing, stating that the maximum one-in-three year haying and grazing
frequency may have a negative impact on wildlife. A few respondents
supported managed haying and grazing, and suggested that it strictly
comply with the Upland Wildlife Habitat Management standard in the FOTG
of NRCS.
The interim rule provisions on managed haying and grazing were
developed after CCC reviewed scientific recommendations from both
government and non-government experts on environmental and wildlife
impacts. Also, in 2001, a panel of grassland ecologists developed a
number of recommendations for CRP. The panel recommended that haying
and grazing of CRP land be limited to that which is of ecological
benefit and in accordance with a management plan suited to the site and
vegetative cover. Managed haying and grazing is approved locally, and
the FSA State committee, in consultation with the NRCS State technical
committee, establishes beginning and ending primary nesting and brood
rearing dates to ensure wildlife habitat is sufficiently protected.
Since the interim rule was published, FSA delegated authority to its
State committees to modify primary nesting season dates as recommended
by NRCS State technical committees to ensure applicable nesting seasons
reflect local needs of wildlife. As the regulations provide sufficient
flexibility for the handling of these issues based on circumstances, no
change to the regulations is necessary.
There were 26 comments about emergency haying and grazing. The
majority of these comments offered specific recommendations how to
reduce its impact to wildlife habitats. These recommendations included
acreage caps, timing of harvesting, and
[[Page 26761]]
allowing only grazing. A few respondents suggested that FSA prohibit
the sale of emergency haying/grazing privileges, while some respondents
fully supported emergency haying and grazing as it is currently
implemented. One respondent fully opposed using CRP land for emergency
haying or grazing.
The requirements for emergency haying and grazing eligibility were
enhanced and streamlined this year with the implementation of the
interim rule. In periods of extreme emergency, the Secretary may make
certain CRP lands eligible under the rule for emergency haying and
grazing. Counties also may qualify under a ``D3 Drought--Extreme''
category utilizing the U.S. Drought Monitor to streamline the
application process. The emergency haying and grazing provisions are
promulgated as required by the statute, incorporating administrative
flexibility where appropriate. Thus, no changes were made to the
regulations as a result of these comments.
Eleven comments addressed maintenance thinning of CRP softwood
plantations. All eleven felt that poor wildlife habitat quality is
provided by CRP softwood that is not thinned and, therefore, thinning
should be allowed with no reduction in annual rental payments. Tree
thinning ensures the health of trees and is not intended to guarantee
an income. Further, the law requires a payment reduction to the extent
income results from CRP softwood. Because CRP contracts already require
tree thinning, the comment was not adopted.
Two respondents felt that incidental grazing of grass buffer strips
should be allowed only when located in green wheat fields or fields
containing other similar forage. CCC already allows limited grazing of
certain practices taking into consideration the affects on the
practice, the environment, and wildlife when grazing is incidental to
the gleaning of the crop residue in a field after crop harvest.
Therefore, no changes were made in the final rule as a result.
Three respondents expressed concerns about detrimental effects on
grassland birds and other wildlife from wind turbines on CRP lands. CCC
considers environmental impacts of each site and prepares a site
specific environmental assessment or environmental impact statement, as
applicable, before approving the location of wind turbines. If a wind
turbine will create material wildlife concerns, those concerns will be
properly considered in determining whether to grant approval. Thus, the
respondent's concerns are addressed in each instance, and revision of
the final rule is not necessary.
Three respondents believe that the 1-in-3 year managed haying and
grazing rotation was inconsistent with wildlife habitat goals of the
program. These respondents suggested that the interim rule will have
severe negative impacts on grassland nesting birds and other wildlife
within the Northern Great Plains region. They suggested more clearly
defining the wildlife objectives of the program as a whole. Since these
impacts and the compliance with wildlife protection requirements can be
addressed in each contract based on local requirements, specification
in the regulations of program wildlife objectives is not needed.
One comment suggested amending the rule to allow managed haying and
grazing, including the harvest of biomass, without a reduction in
annual payment in certain areas and allowing more frequent grazing of
short grass prairie areas established in native short grass vegetation.
CCC established criteria for frequency of haying or grazing based on
scientific research to enhance vegetative cover and wildlife habitat
benefits. The statute requires a reduction of annual rental payments
commensurate with the economic value of the activity. Current rules are
consistent with the statutory provision and no change in the
regulations is warranted.
Other Changes
This rule amends the interim rule promulgating 7 CFR part 1410 (68
FR 24830, May 8, 2003) as discussed above with regard to those comments
adopted. In addition, the interim rule did not address the crop
insurance requirements in 7 CFR part 1405 as they apply to CRP
contracts. This rule amends the interim rule to correct that oversight.
Executive Order 12866
This rule has been determined to be economically significant and
was reviewed by the Office of Management and Budget (OMB) under
Executive Order 12866. A Cost/Benefit Analysis was prepared and is
summarized following the discussion of other applicable laws and
Executive Orders.
Regulatory Flexibility Act
It has been determined that the Regulatory Flexibility Act is not
applicable to this interim rule because the Commodity Credit
Corporation (CCC) is not required by 5 U.S.C. 553 or any other law to
publish a notice of proposed rulemaking for the subject matter of this
rule. CCC is authorized by section 2702 of the 2002 Act to issue a
final rule.
Environmental Evaluation
The environmental impacts of this rule have been considered
consistently with the provisions of the National Environmental Policy
Act of 1969 (NEPA), 42 U.S.C. 4321 et seq.; the regulations of the
Council on Environmental Quality (40 CFR parts 1500-1508); and FSA's
regulations for compliance with NEPA at 7 CFR part 799. Because certain
programs may significantly have impacts on the human environment, FSA
completed a final Environmental Impact Statement (EIS) on May 8, 2003,
which is on file and available to the public in the Administrative
Record at the address specified in the ADDRESSES section. The EIS is
also available electronically at: http://www.fsa.usda.gov/dafp/cepd/epb/nepa.htm
.
Executive Order 12372
This program is not subject to the provisions of Executive Order
12372, which require intergovernmental consultation with State and
local officials. See the Notice related to 7 CFR part 3015, subpart V,
published at 48 FR 29115 (June 24, 1983).
Unfunded Mandates
Title II of the Unfunded Mandate Reform Act of 1995 (UMRA), Pub. L.
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions that impose ``Federal Mandates''
that may result in expenditures to State, local, or tribal governments,
in the aggregate, or the private sector, of $100 million or more in any
one year. This rule contains no Federal mandates as defined by Title II
of UMRA. Therefore, this rule is not subject to sections 202 and 205 of
the UMRA.
Federal Domestic Assistance Program
The title and number of the Federal Domestic Assistance Program, as
found in the Catalog of Federal Domestic Assistance, to which this rule
applies, is the Conservation Reserve Program--10.069.
Paperwork Reduction Act
The 2002 Act specified that the issuance of regulations promulgated
pursuant to this new authority would be made without regard to chapter
35 of title 44, U.S. Code (commonly known as the ``Paperwork Reduction
Act'').
Executive Order 12778
This final rule has been reviewed under Executive Order 12778. The
[[Page 26762]]
provisions of this rule are not retroactive and preempt State and local
laws that are inconsistent with this rule. Before any judicial action
may be brought concerning this rule, appeal rights afforded program
participants at 7 CFR parts 11, 624, and 780 must be exhausted.
Government Paperwork Elimination Act
FSA is working to comply with the Government Paperwork Elimination
Act (GPEA) and the Freedom to E-File Act, which require Government
agencies in general and FSA in particular to provide the public the
option of submitting information or transacting business electronically
to the maximum extent possible. The forms and other information
collection activities required for participation in CRP are not fully
implemented for the public to conduct business with FSA electronically.
Currently, four CRP forms are available electronically through the
USDA eForms Web site at http://www.sc.egov.usda.gov for downloading and regulations are available on the Internet at http://www.fsa.usda.gov/
dafp/cepd. Offers may be submitted at FSA county offices, by mail, or
by FAX. At this time, electronic submission is not available, but full
implementation of electronic submission is underway.
Summary of Cost-Benefit Assessment (CBA)
Increased Enrollment
Enrolling an additional 2.8 million acres will provide
environmental benefits, including establishment of 2.8 million acres of
wildlife habitat improving recreational benefits through increased
hunting and wildlife viewing opportunities. Soil erosion will be
reduced an estimated 27 million tons per year, increasing soil
productivity, improving surface water quality, and improving air
quality.
Total CRP outlays are estimated to increase $1.5 billion during
fiscal years 2003 through 2012, while commodity program outlays are
estimated to decline about $1.7 billion over the same period, primarily
due to a $1.5 billion estimated counter-cyclical payment decline. The
additional 2.8-million-acre enrollment is estimated to decrease
combined CRP and commodity program outlays $186 million during the 10-
year period.
Idling an additional 2.8 million acres under CRP (less than 1
percent of typically planted acreage) will have minimal impacts on the
farm sector. Net crop sector income is estimated to increase $307
million per year (1 percent) during the 2003-2012 crop years due to
increased market-based net returns ($349 million per year), decreased
commodity program payments ($186 million per year), and increased net
CRP payments ($144 million per year) over the 10-year period. Reduced
plantings will cause estimated crop prices to increase on average $0.02
per bushel for wheat, $0.02 for corn, $0.01 to $0.02 for other feed
grains, and $0.06 for soybeans per year.
Average buyers' loss for domestic users of the major crops is
estimated to increase $326 million per year when the 2.8 million acres
are enrolled. Including other estimated average annual economic
indicator changes over the 2003-2012 time period provides estimated net
economic benefits of $11 million per year, before any consideration of
the value to society of the environmental benefits. While comprehensive
measures of the value of the environmental benefits obtained from
enrolling environmentally sensitive acreage in CRP do not currently
exist, the economic value of environmental benefits is expected to be
substantial.
Eligible Land Impacts
Basic cropland eligibility options selected (and impacts):
Consider cropland in summer fallow rotation as conserving
use. (Adds 29 million acres.)
Consider cropland devoted to alfalfa or other multi-year
grasses and legumes as conserving use, but only if planted during 1996-
2001. (Adds 31 million acres and excludes 90 million acres not planted
during 1996-2001. Also excludes about 1.5 million acres previously
eligible as land in long-term crop/hay rotations.)
Consider land formerly enrolled in CRP under contracts
that expired before 1999 and still in grass as conserving use. (Adds 5
million acres, and excludes a minimal amount of acreage in trees.)
Make land used for perennial horticulture eligible, if
devoted to certain continuous sign-up practices. (Adds about 240,000
acres.)
A total of 371 million cropland acres are estimated to meet basic
crop eligibility requirements, about 8 million more than were eligible
under previous criteria.
Significant resource-based eligibility options selected (and
impacts):
Include under highly erodible land criteria cropland in
fields with weighted average Erodibility Index (EI)>=8, rather than
previous policy that included cropland in fields classified as HEL
(subject to conservation compliance requirements) and cropland with
weighted average EI>=8. (Reduces eligible land about 9 million acres.)
Add about 40 counties to the prairie pothole national CPA.
(Adds 3 million acres.)
Increase the allowable State CPA percentage from 10
percent to 33 percent of cropland acreage per State. (Adds 36 million
acres.)
About 270 million acres, or 73 percent, of cropland meeting basic
eligibility requirements are estimated to meet one or more resource-
based eligibility criteria. Eligible land includes 106 million acres of
highly erodible cropland, 120 million acres in national conservation
priority areas, and 87 million acres in State CPA's.
Managed Haying and Grazing Impacts
Allowing non-emergency managed haying and grazing, conducted in
accordance with a conservation plan, could potentially affect about 25
percent of eligible CRP grassland acreage. Haying and grazing will be
limited to no more than once every 3 years, depending on conservation
plan guidelines. Thus, around 2 million to 3 million acres could be
hayed or grazed in any year, improving wildlife habitat benefits on a
total of about 7 million acres. CRP rental payments could be reduced
$20 million to $25 million per year.
Rulemaking Exemption
Section 2702 of the 2002 Act exempts this rulemaking, the interim
rule that proceeds this affirmation, and the administration of the
program, from the application of the Paperwork Reduction Act, and the
Statement of Policy of the Secretary of Agriculture published at 36 FR
13804 (July 24, 1971). That section of the 2002 Act also provided
explicitly for allowing an interim rule to be made effective
immediately without prior notice and comment. As this final rule merely
affirms the existing interim rule, with slight amendments made for the
better administration of the CRP non-entitlement program, it would be
contrary to the public interest to delay the implementation of this
rule. Accordingly, consistent with the terms of the 2002 Act and the
public interest, this rule is effective upon publication.
List of Subjects in 7 CFR Part 1410
Administrative practices and procedures, Agriculture, Conservation
plan, Contracts, Environmental protection, Natural resources, Soil
conservation, Water resources, and Wildlife.
0
Accordingly, the interim rule revising 7 CFR part 1410 published at 68
FR
[[Page 26763]]
24830 on May 8, 2003, is adopted as final with the following changes:
PART 1410--CONSERVATION RESERVE PROGRAM
0
1. The authority citation for part 1410 continues to read as follows:
Authority: 15 U.S.C. 714b and 714c; 16, U.S.C. 3801-3847.
0
2. Amend Sec. 1410.2(b) by revising the definitions of ``Conserving
use'' and ``Perennial crop'' to read as follows:
Sec. 1410.2 Definitions.
* * * * *
(b) * * *
Conserving use means a use of land with any rotation requirements
as may be specified by the Deputy Administrator: for alfalfa and other
multi-year grasses and legumes planted during 1996 through 2001; as
summer fallow during 1996 through 2001; and in which the land was
previously enrolled in the program (for which the contract expired
during the period 1996 through 2001) and where the grass cover required
by the CRP contract continues to be maintained as though still
enrolled. Where the land use for a year qualifies as a ``conserving
use'' under this definition, then, the land for that year shall, for
purposes of eligibility under Sec. 1410.6(a)(1) be considered to have
been planted to an ``agricultural commodity.''
* * * * *
Perennial crop means a crop that is produced from the same root
structure for two or more years, as determined by CCC.
* * * * *
0
3. Amend Sec. 1410.6 by revising paragraph (a)(2)(ii) introductory
text to read as follows:
Sec. 1410.6 Eligible land.
(a) * * *
(2) * * *
(ii) Is determined to be suitable for use as a riparian buffer or
is made eligible in a CREP for similar water quality purposes as
determined by the Deputy Administrator. A field or portion of a field
of marginal pasture land may be considered to be suitable for use as a
riparian buffer only if, as determined CCC, it:
* * * * *
0
4. Amend Sec. 1410.52 by adding paragraph (d) to read as follows:
Sec. 1410.52 Violations.
* * * * *
(d) Crop insurance purchase requirements in part 1405 of this
chapter apply to contracts executed in accordance with this part.
0
5. Amend Sec. 1410.63 by revising paragraph (c) introductory text and
(c)(1)(iii) to read as follows:
Sec. 1410.63 Permissive uses.
* * * * *
(c) The following activities may be permitted on CRP enrolled land
insofar as they are consistent with the soil, water, and wildlife
conservation purposes of the program:
(1) * * *
(iii) According to an approved CRP conservation plan in accordance
with FOTG standards and ensuring that managed haying and grazing
activities occur outside the official nesting and brood rearing season
for those plans.
* * * * *
Signed at Washington, DC, on May 11, 2004.
James R. Little,
Executive Vice President, Commodity Credit Corporation.
[FR Doc. 04-10945 Filed 5-13-04; 8:45 am]
BILLING CODE 3410-05-P