Conservation Reserve ProgramLong-Term Policy

SUMMARY: This final rule amends the Conservation Reserve Program (CRP)

regulations to: Revise the terms and conditions for enrolling acreage

in the CRP; update other program eligibility requirements; consolidate

and reorganize all existing CRP regulations into one regulation; and

eliminate unnecessary provisions. This action is being taken to cost-

effectively target the CRP to more environmentally sensitive acreage.

This action is also part of the National Performance Review Initiative

to eliminate unnecessary regulations and improve those that remain in

force.

EFFECTIVE DATE: This regulation is effective February 12, 1997.

FOR FURTHER INFORMATION CONTACT: Ms. Cheryl Zavodny, 202-720-7333, or

via E-mail at [email protected] or on the FSA home page at

http://www.fsa.usda.gov/.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

This final rule has been determined to be Economically Significant

and was reviewed by the Office of Management and Budget (OMB) under

Executive Order 12866.

Benefit/Cost Analysis

To comply with Executive Order 12866, USDA prepared a benefit/cost

analysis for the final rule. It analyzes the economic, environmental,

and budgetary impacts of three alternative CRP enrollment scenarios.

The first scenario assumes the maximum permitted enrollment level, 36.4

million acres. The second scenario assumes an enrollment level of 28.0

million acres. This level corresponds to the enrollment scenario

included in the FY 1997 President's Budget Baseline that was published

prior to enactment of the 1996 Act. The final scenario presents

estimates of the enrollment situation that would occur if enrollment

authority for new acreage had not been provided in amendments to the

Food Security Act of 1985 (the 1985 Act) by the 1996 Act and no

existing contracts are extended. Under this scenario, the expiration of

existing contracts would result in an estimated decline in enrollment

to 1.7 million acres by 2002.

Establishment of long-term vegetative cover on cropland reduces

soil erosion and the quantity of soil and other agricultural pollutants

that may reach water bodies and impair water uses. Proper CRP cover

practices in certain areas of the Northern Plains and Mountain regions

are extremely important to waterfowl and grassland bird species, both

of which have experienced significant reductions in numbers until

recent years. Enrollment of environmentally sensitive areas such as

flood-prone and riparian acres benefits wildlife and water quality by

providing cover for protection, moderation of the temperatures of

streams and other water bodies, food sources for wildlife, and

protection of waterbodies from sediment, pesticide, and nutrient

pollution. Environmental benefits are also enhanced by enrollment of

wetlands and associated uplands, and enrollment of habitats important

to threatened and endangered species.

Comprehensive measures of the value of the environmental benefits

obtained from enrolling environmentally sensitive acreage do not

currently exist. Estimates reported in the literature for acreage

currently enrolled in the program are mostly based on indirect measures

or secondary sources. Such estimates could be used to provide rough

approximations of the potential value of the benefits to be realized

from the alternative enrollment level scenarios, but must be discussed

with a great deal of caution and qualification. Some of the

environmental benefits that have been estimated and applied to the CRP

enrollment scenarios include: soil productivity ($150 million annually

for the 28.0-million-acre scenario and $195 million annually for the

36.4-million-acre scenario), improved water quality ($350 million and

$455 million, respectively), and increased consumptive and non-

consumptive uses of wildlife ($1.5 billion and $2.0 billion,

respectively). The sum of these 3 categories, which would only be a

partial accounting of the environmental benefits, is $2.0 billion per

year and $2.7 billion per year, for the 28.0-million-acre and 36.4-

million-acre scenarios, respectively.

Enrollment of 28.0 million acres and 36.4 million acres is expected

to increase annual net farm income from production of feedgrains,

wheat, cotton, and soybeans, CRP payments, and production flexibility

contract payments by about $5.8 billion and $7.6 billion, respectively,

compared with the no CRP continuation scenario. The increased net farm

income results from higher commodity prices, reduced production

expenses, and higher CRP rental payments to participants. Compared with

the no continuation scenario, corn, wheat, and soybean prices each

average about 9 percent, 8 percent, and 11 percent higher, respectively

under the 28.0-million-acre scenario, and about 12 percent, 15 percent,

and 13 percent higher under the 36.4-million-acre scenario.

Average annual CRP outlays under the 28.0-million-acre and 36.4-

million-acre options average about $1.1 billion and $1.2 billion,

respectively, higher than under the no continuation scenario.

Because enrollment in CRP reduces planted acreage and commodity

production and increases commodity prices, projected annual

expenditures for feedgrains, wheat, cotton, and soybeans are estimated

to be $3.7 billion and $4.9 billion higher with enrollment at the 28.0-

million-acre and 36.4-million-acre levels, respectively, relative to

the no continuation scenario for domestic purchasers. For foreign

purchasers, average annual expenditures are $1.9 billion and $2.6

billion higher. Thus, impacts on commodity expenditures for all

purchasers is about $5.6 billion and $7.5 billion annually.

Consequently, the net economic costs of a 28.0-million-acre and a 36.4-

million-acre program, compared with no continuation are $0.9 billion

and $1.5 billion per year, respectively. The net economic cost is the

sum of the impacts of the positive change to society in farm income,

the negative impact to society of the increased expense for taxpayers

from the CRP outlays, and the negative impact of the increased

expenditures for a smaller quantity of commodities.

Comparison of the rough approximations of environmental benefits

derived from the estimates for currently enrolled acreage, with the

economic cost estimates derived from the analysis of projected

enrollment under the 1996 Act provisions, results in total estimated

annual benefits to society that exceed costs by $1.1 billion and $1.2

billion, respectively, for the 28.0-million-acre and 36.4-million-acre

scenarios. The uncertainty of the magnitude of errors of the

environmental benefits estimates, and to a lesser extent those of the

economic costs estimates, makes evaluation of this preliminary

comparison difficult. Making the comparison even more difficult is the

incompleteness of the environmental estimates (e.g., values of

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increased wetland conservation, endangered species habitat, trees and

open spaces, and reduced nutrients and pesticides in the environment).

If the environmental estimates were more complete, it is likely that

the estimated net impacts to society of maintaining enrollment of both

28.0 million and 36.4 million acres would be higher, and the difference

in benefits between the 28.0-million-acre option and the 36.4-million-

acre option would be greater.

Risk Assessment

A risk assessment and related benefit-cost analysis are required to

accompany proposed major rules, as defined under section 304 of Public

Law (P.L.) 103-354. Because agricultural producers needed to know long-

term objectives of the CRP as soon as possible in order to formulate

production plans for 1997 and because completion of the regulatory

analysis required by section 304 of Public Law 103-354 to accompany a

proposed regulation was not practicable in the time available, the

Director, Office of Risk Assessment and Cost-Benefit Analysis (ORACBA),

concluded that it was appropriate to extend the time allowed for

completion of the required analyses. A general time line for conducting

the required analyses developed by the Director, ORACBA, and the FSA

involves a two-phase approach.

Phase 1. Available upon request are (a) an environmental

assessment, and (b) an environmental risk assessment, (c) an outline of

a benefit/cost analysis of mitigation measures, (d) a comparison of the

relative risks managed by CRP and by other programs in the Department

which address similar risks resulting from comparable activities, and

(e) a plan for monitoring the risk reduction expected to occur as a

result of the CRP in accordance with Public Law 104-127. Evaluation and

monitoring would allow completion of a meaningful cost-benefit analysis

of the current and potential enrollment practices compared to measured

environmental benefits.

Phase 2. One year after the final rule is promulgated, the benefit-

cost analysis of mitigation measures will be completed. This benefit-

cost analysis will address the costs associated with implementation and

compliance with the regulation and the qualitative and quantitative

benefits of the regulation.

Initially, the principal focus of the CRP was to address the

excessive erosion problems of highly erodible cropland. However, the

development and widespread adoption of improved tillage systems have

significantly increased producers' ability to control erosion on much

of U.S. cropland at levels that do not cause substantial environmental

degradation. Consequently, the focus of the program has been broadened

to include those situations where long-term conversion of cropland to

non-cropping uses is required to solve significant agriculture-related

environmental problems.

The purposes of the risk assessment are to (1) identify and

characterize the major production activities occurring on U.S. cropland

that create stresses on the elements of the natural environment that

CRP must protect under its legislative mandate, (2) identify the

stresses that are created by these activities, (3) describe the adverse

relationships between the stresses and the affected elements of the

environment, and (4) estimate the amount of the adverse impacts.

Specific resource concerns or values to be protected that are

defined in the 1985 Act include (1) soil erosion (including cropland

productivity), (2) ground water and surface water quality, (3) habitat

for wildlife (including threatened and endangered species), (4) wetland

functions and values, and (5) compliance with Federal and State

environmental laws including air quality.

The major agricultural cropping practices connected to the

environmental risks include (1) disturbance of soil and land, (2)

application of irrigation water, (3) application of pesticides, and (4)

application of nutrients. Enrollment of cropland in CRP largely

eliminates these activities as well as the stresses and adverse

impacts.

The objective of the CRP risk assessment is to provide information

that can assist program managers in developing guidelines,

requirements, and policies that will lead to enrollment of acreage that

addresses the most severe resource situations in the most cost-

effective manner.

From the information reviewed, it is clear (and well recognized)

that crop production activities can sometimes have adverse impacts on

one or more elements of the natural resource base. The significance and

severity of these impacts can vary significantly among geographic

areas.

For example, soil and land disturbance can create excessive erosion

that lead to reductions in the quality and productivity of soils,

creates sediment that pollutes water bodies and destroys wetland, and

becomes airborne and creates human health and safety problems. Land

disturbance, especially land conversion to intensive row cropping uses

(or conversions of wetlands) can also degrade important wildlife

habitats.

Productivity losses resulting from soil erosion will likely average

about 1 percent over the next 100 years for all U.S. cropland if

erosion continues at the levels occurring in 1992. However, potential

productivity losses are much greater for different commodities in

different areas, e.g., more than 3 percent for corn and soybeans in the

Lake States, and 2.3 percent for cotton in the Southern Plains.

Projected levels of sediment loadings from cropland total about 350

million tons per year, nearly 30 percent of total annual sheet and rill

erosion. About two-fifths of the sedimentation occurs in the Corn Belt,

but the Northern Plains and Appalachian regions also have significant

sedimentation problems. Wind erosion resulting from cropping practices

are projected to be about 940 million tons per year in the United

States. Most occurs in the Great Plains, Mountain, and northern

portions of the Pacific region. Airborne dust particulate matter

problems are most significant in the Columbia Plateau area of southeast

Washington State and the southern high plains region of Texas and New

Mexico.

Conversion of grasslands and wetlands to cropping uses has

contributed to a significant decline in habitat for many grassland and

wetland bird and animal species, particularly in portions of the Corn

Belt and Northern and Southern Plains regions. CRP can be useful in

reducing threats to species population declines and in maintaining

stable populations of wildlife.

Other significant problems include the contamination of surface and

ground water supplies by nutrients (primarily nitrogen and phosphorous)

and pesticides. Nutrient (fertilizer) use and runoff appear to be

highest in the Corn Belt and Northern Plains regions, areas along the

Mississippi River, and the eastern Coastal Plain.

Pesticide use is highest in the Corn Belt and the Northern Plains,

while pesticide runoff potential is greatest in the Corn Belt, the

southern portion of the Lake States, and along the Mississippi River in

the Delta region. Areas with potential problems of pesticides leaching

into ground water area are primarily located in the Southeast region,

portions of the Corn Belt, and along the Mississippi River in the Delta

region.

Regulatory Flexibility Act

It has been determined that the Regulatory Flexibility Act is not

applicable to this final rule because CCC is not required by 5 U.S.C.

553 or any other provision of law to publish a

[[Page 7604]]

notice of proposed rulemaking with respect to the subject matter of

this rule.

Environmental Evaluation

It has been determined by an environmental assessment that this

rule does not have a significant adverse impact on the environmental,

historical, social or economic resources of the Nation. Therefore, it

has been determined that these actions will not require an

Environmental Impact Statement.

Executive Order 12372

This program is not subject to the provisions of Executive Order

12372, which requires 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), Public

Law 104-4, establishes requirements for Federal agencies to assess the

effects of their regulatory actions on State, local, and tribal

governments and the private sector. Under section 202 of the UMRA, CCC

generally must prepare a written statement, including a cost-benefit

analysis, for proposed and final rules with ``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. When such a statement is needed for a rule, section 205 of

the UMRA generally requires CCC to identify and consider a reasonable

number of regulatory alternatives and adopt the least costly, more

cost-effective or least burdensome alternative that achieves the

objectives of the rule. This rule contains no Federal mandates (under

the regulatory provisions of Title II of the UMRA) for State, local,

and tribal governments or the private sector. Therefore, this rule is

not subject to the requirements of 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, are the Conservation Program-10.069.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule has been determined to be major under the Small Business

Regulatory Enforcement Fairness Act of 1996 (SBREFA). It has been

determined that, pursuant to section 808 of SBREFA, it is

impracticable, unnecessary, and contrary to the public interest to

delay the effective date of this rule. Making this final rule effective

immediately will permit CCC to conduct a general sign-up period for the

program in advance of this spring's planting season. Delay of the sign-

up period beyond that time would unduly limit the supply of land

available for enrollment in the CRP by not allowing for enrollment and

planning in sufficient time for new contracts to be in effect on

October 1 and thereby inhibit the ability of the program to achieve the

important public benefits which were the purpose of the recent

amendments to the CRP and the other provisions of the 1996 Act dealing

with conservation. Accordingly, this rule is effective upon publication

in the Federal Register.

Paperwork Reduction Act

Information collections contained in this rule have been previously

cleared by OMB under 0560-0125.

Executive Order 12988

This final rule has been reviewed in accordance with Executive

Order 12988. The provisions of this rule are not retroactive and

preempt State and local laws to the extent such laws are inconsistent

with the provisions of this rule. Before any action may be brought in a

Federal court of competent jurisdiction, the administrative appeal

rights afforded program participants at 7 CFR parts 11, 624, and 780

must be exhausted.

Background

The purpose of CRP is to cost-effectively assist owners and

operators in conserving and improving soil, water, and wildlife

resources by converting highly erodible and other environmentally

sensitive acreage normally devoted to the production of agricultural

commodities to a long-term resource-conserving cover. CRP participants

enroll contracts for periods from 10- to 15-years in exchange for

annual rental payments and cost-share assistance for installing certain

conservation practices. Applicants submit offers in such a manner as

the Secretary prescribes.

The CRP is authorized by the 1985 Act. The Code of Federal

Regulations (CFR) has contained two parts for the CRP: 7 CFR part 704

has contained provisions regarding the CRP acreage enrolled from 1986

through 1990 and 7 CFR part 1410 has contained provisions regarding the

CRP acreage enrolled since 1991 under the amendments to the 1985 Act

made by the Food, Agriculture, Conservation, and Trade Act of 1990.

An interim rule was published on August 27, 1996 (61 FR 43943),

implementing provisions of the 1996 Act amendments.

The 1996 Act amended the 1985 Act to provide for extension of

enrollment authority for up to 36.4 million acres at any one time

through 2002 and a desire to improve the program, prompted development

of a proposed rule which was published on September 23, 1996 (61 FR

49697), that sought comment on long-term CRP policies. The comment

period ended November 7, 1996.

Proposed Rule Summary

Among other proposals, with respect to land eligibility, CCC

proposed to change, in Sec. 1410.6, the existing CRP land eligibility

criteria to include, as eligible lands, wetlands and their appropriate

associated acreage, as determined by CCC, certain acreage enrolled in

the Water Bank Program (WBP) administered by the Natural Resource

Conservation Service (NRCS), and certain cropland associated to

noncropped wetlands, as determined appropriate by CCC. Wetlands are

intrinsically valuable natural resources that provide important

benefits to people and the environment. Wetlands improve water quality,

reduce flood and storm damage, help control soil erosion, and provide

important fish and wildlife habitat. Certain wetlands provide

particularly important filtering functions because of their location

between land and water. It was proposed for WBP land that certain WBP

acreage, to the extent it otherwise meets statutory CRP criteria, would

be eligible to be enrolled in the CRP during the final year of the WBP

agreement.

Also, the 1985 Act authorized the watershed areas of the Chesapeake

Bay Region, the Great Lakes Region, the Long Island Sound Region, and

other areas of special environmental sensitivity to be designated as

conservation priority areas for a period of 5 years, subject to

redesignation. A number of these areas are approaching the expiration

of their initial designation. The 1996 Act further amended the

provisions regarding conservation priority areas under Environmental

Conservation Acreage Reserve Program. The proposed rule set out

proposed amendments to Sec. 1410.8 to reflect the new provisions.

Further, CCC proposed to generally restrict the total cropland in a

State that could be designated as a conservation priority area to no

more than 10 percent. The rule proposed certain procedures for priority

designations.

[[Page 7605]]

With respect to wetland enrollment, CCC proposed allowing

additional incentives for such enrollments.

CCC also proposed to offer enhanced financial incentives, to obtain

enrollments of filter strips, riparian buffers, field windbreaks, grass

waterways, and acreage located in wellhead protection areas designated

by the applicable State Agency or the Environmental Protection Agency

(EPA).

The 1985 Act generally provided that no commercial use can be made

of the enrolled CRP acreage but permits haying or grazing during

droughts or similar emergencies. CCC also sought comment generally on

haying and grazing of CRP land.

CCC noted that as a result of provisions in the Agriculture, Rural

Development, Food and Drug Administration, and Related Agencies

Appropriation Act, 1997 (the 1997 Appropriations Act), contract

extensions would not be available in Fiscal Year (FY) 1997 and proposed

that acreage already enrolled in the CRP could be offered for re-

enrollment based on the same criteria applicable to other offers.

With respect to the unilateral early contract termination

provisions for certain acreage authorized by the 1996 Act amendments,

CCC proposed to expand the list of acreage not eligible for early

termination to include: (1) All wetlands, not just those enrolled under

signup 8 and 9 criteria; (2) land subject to frequent flooding, as

determined by CCC; (3) EPA-designated wellhead protection areas; and

(4) any wetland buffers that may be required according to the

conservation plan to protect the functions and values of wetland

acreage.

The proposed rule also proposed that the CRP would be carried out

by CCC through the Farm Service Agency (FSA) using State and county FSA

offices and that CCC intended to rank, competitively, all offers based

on the environmental benefits index taking into account the Government

cost of the contract except for those contracts the acceptance of which

are known to provide especially high environmental benefits.

CCC proposed to use a system that considers, for indexing purposes,

soil erosion, water quality, wildlife habitat, and cost while also

considering other technical factors such as, but not limited to,

recommendations of State technical committee, conservation priority

areas, permanent wildlife habitat, tree plantings, wetlands functions

and values, and conservation compliance requirements.

Additionally, there were four issues for which CCC sought comment

but which were not the subject of proposed amendment to existing

regulations: (1) Whether and in what manner CRP acreage could be

devoted to the production of biomass crops and whether such use would

be consistent with the policy and provisions of the 1985 Act; (2)

periodic nonemergency haying or grazing of CRP acreage; (3) the

relationship of priority designations for the CRP, Wetlands Reserve

Program (WRP), and Environmental Quality Incentives Program (EQIP); and

(4) the methodology of making priority designations. Further, the

proposed rule, by consolidating parts 704 and 1410, set out the

entirety of the program regulations for review and comment in preparing

the program for future enrollments.

Summary of Comments

CCC received 3,467 comments concerning the proposed rule. Entities

responding included individuals, State governments, local governments,

State farm organizations, national conservation organizations, national

farm and commodity organizations, and Members of Congress. Comments

came from all States except Delaware, Maine, Nevada, and West Virginia,

and comments came from the District of Columbia and Canada.

In addition to the comments received in Washington, D.C., USDA

conducted public listening forums in each State where comments on the

CRP proposed rule were made for inclusion in the administrative record.

These comments were included in the development of this final rule.

Changes in this final rule from the proposed rule of September 23,

1996, are based upon CCC's experience in implementing CRP since 1986

and on consideration of the comments received. Numerous minor editorial

and other changes have been made in the text and order of the

regulations for clarity and to facilitate the application of the

regulations.

General Comments

Many comments were not directed to the proposed rule itself, but to

related matters such as the enrollment level of the program, program

development, and geographical distribution of the enrolled acreage.

There were other comments which were not germane to CRP, were vague, or

were not submitted timely; those comments were not considered.

There were 487 comments supporting the implementation of the CRP

and citing the individual or collective conservation, environmental, or

other benefits of the program obtained as a result of CRP. These

benefits included reduced soil erosion, improved air quality, enhanced

wildlife habitat, surface and ground water conservation, commodity

price and supply stabilization, and enhanced personal and community

economies.

One comment suggested that any program changes should be made

gradually rather than immediately as indicated in the proposed rule. If

the proposed rule had proposed dramatic changes or shifts in policy,

such a suggestion would have merit. However, since 1987, when the use

of an Erodibility Index (EI) was initiated, CRP has evolved to a more

environmentally-sensitive program. The proposed rule has merely

continued these prior incremental changes and the changes set forth in

the proposed rule are not as dramatic in nature as prior amendments.

Three comments suggested that no funding shifts occur between CRP

and other farm programs. As a result of the 1996 Act, CRP is now funded

through CCC's borrowing authority and implementation of the CRP will

not affect CCC's ability to carry out other programs.

One comment suggested that more field personnel are needed to

inspect and monitor producers who are receiving Government subsidies.

FSA has a thorough compliance program which includes the annual review

of contract compliance on a statistically significant sample.

Three comments suggested that the deadline for comments be extended

and eight comments recommended timely approval of the final rule or no

delays in signup. The comment deadline will not be extended due to the

need to finalize this rule in a timely manner as set out above. Four

comments suggested that the current program be extended for another

year to fully assess the environmental and economic costs of the

proposed rule. However, as indicated in the Program Changes section of

the proposed rule, Congressional provisions contained in the 1997

Appropriations Act effectively precluded the extension of any CRP

contract expiring in FY 1997. CCC is very concerned that to delay

action further could disrupt the farming and ranching community where

planning is already underway for the upcoming cropping season. CCC

intends to conduct a signup as soon as possible to alleviate any

planning difficulties.

Four comments opposed the CRP because they suggested it was paid

for by taxes, hurts new farmers, benefits foreign countries, or because

of its

[[Page 7606]]

economic impact. Twenty comments suggested that the need to subsidize

the agricultural community has passed and that the land with expiring

CRP contracts should be returned to production. Several comments

opposed unspecified program changes. Congress has, in the 1996 Act,

reauthorized the CRP, and the CRP continues to provide environmental

benefits as was outlined in the proposed rule.

One comment opposed the CRP being used as the all-purpose

conservation program. CRP is operated in compliance with the 1985 Act.

Another comment suggested that stricter regulations be implemented for

people who have contracts for real estate investment purposes. The CRP

regulations are designed to in fact assure the maximum benefit to the

public for money spent in the program. The proposed regulations

accomplish that function.

One comment suggested that deed restrictions may be placed

subsequent to enrollment to maintain desirable environmental benefits.

Post-contract deed restrictions are not prohibited by the 1985 Act.

Another comment suggested that the cost of returning CRP acreage to

production would be a hardship. However, there are no CRP requirements

as to the use of acreage after a CRP contract has matured.

One comment suggested that the proposed rule was too complex

without offering any suggestions to simplify the final rule. CCC has

endeavored to limit this rulemaking to ensure that it does not

overreach its legislated authority in implementing the program while

informing the public of CRP goals and policies. The final rule has been

reviewed extensively for simplification wherever possible.

One comment suggested that CCC follow National Environmental Policy

Act (NEPA) requirements regarding the impacts of the proposed rule. The

proposed rule indicated that an environmental assessment had been

completed with a finding that the proposed rule did not have a

significant adverse impact on the environmental, historical, or social

resources of the Nation, as required by NEPA.

Another comment suggested that the proposed rule imposes an

unfunded mandate on conservation districts. While conservation

districts perform a vital function in the development and

implementation of CRP, the regulations for the CRP impose no mandates

on anyone. The decision of a conservation districts to assist in CRP

enrollments is purely voluntary.

Program Development

Seven comments opposed a perceived shift in emphasis from soil

erosion to improvement of water quality. One comment supported a

perceived change in CRP's emphasis from protecting individual's farms

to protecting the ``public water.'' Three comments supported the

expanded eligibility requirements and asked that erosion control

remains a priority objective of the CRP. The water quality provisions

under CRP are not new. Eligibility was expanded beginning in 1988 to

include filter strips. In 1989, eligibility criteria was expanded to

include cropped wetlands and areas subject to scour erosion.

Another comment suggested that CRP could be used to tie programs

together and that there should be cooperation between local, State, and

Federal Governments to provide innovative opportunities in ways that

maximize private participation and flexible utilization for perennial

crops, biomass production, or other creative initiatives. CCC continues

to be responsive to initiatives that can be demonstrated to cost-

effectively develop new uses and technologies consistent with the 1985

Act.

Two comments suggested pilot programs to implement provisions of

the proposed rule. However, the 1985 Act provides no authority to

conduct pilot programs.

Enrollment Level

Fifty-nine comments supported a program level of 36.4 million

acres. Four comments opposed the projected decline of the CRP to 28.1

million acres by 2002, which was an estimate contained in the cost-

benefit assessment section of the proposed rule. Another comment

suggested any references to downsizing CRP be removed from the rule.

However, neither the proposed nor final rules contain any reference to

an authorized level. CCC intends to enroll up to 36.4 million acres by

accepting the acreage that maximizes environmental benefits but must be

able to adjust to changing circumstances.

One comment indicated that idling 36.4 million acres is not prudent

but offered no concrete suggestions. Another comment suggested that the

program be terminated over a three year period by terminating contracts

now or agreeing to accept reduced rental payments with greater haying

and grazing privileges. However, this is not consistent with the 1996

Act amendments. CCC will carefully consider the amount of acreage to

enroll by maximizing environmental benefits and cost.

Two comments suggested that sufficient acreage remain available for

enrollment for conservation priority areas or practices. CCC intends to

continue its continuous signup of certain highly beneficial

environmental practices.

Geographic Distribution

Five comments suggested that the enrollment distribution among

States and regions of the country should not change. One comment was in

favor of a geographical balance. However, CCC intends to enroll the

most environmentally sensitive acreage to obtain the greatest

nationwide benefit.

Other Issues

Fifty-seven comments generally favored the production of biomass

crops on CRP. Fifty comments were generally opposed and of those, 29

comments were opposed because of potential harm to wildlife. CCC has

adopted the policy outlined in the Conference Report accompanying the

1996 Act, which indicated that biomass production be considered an

acceptable cover crop practice ``provided that no harvesting is allowed

until after the contract is completed or terminated.'' In addition, the

1985 Act generally prohibits the commercial use of CRP acreage.

With respect to the periodic nonemergency haying or grazing of CRP

acreage, three hundred and twenty-five comments were received. While

the majority of respondents favored periodic nonemergency haying and

grazing, there was a lack of consensus regarding how the process should

be implemented. A number of comments were in support of some form of

haying and grazing and a smaller number opposed the provision.

One comment suggested a forage reserve program with haying in

blocks and not strips to preserve habitat. Another comment suggested a

grass bank so that one producer could rest native grass by grazing CRP

owned by another person. Three comments recommended that CRP contract

holders be limited as to any profit earned from hay produced on CRP

acreage.

In view of the divergence of opinions expressed by respondents on

how the provision should be implemented, CCC will seek legislative

amendments to modify the existing provisions relating to haying and

grazing of CRP acreage and obtain specific authority for periodic

managed haying and grazing. However, existing provisions of the 1985

Act generally prohibit the non-

[[Page 7607]]

emergency haying or grazing of CRP acreage.

With respect to issues concerning implementation of the

conservation priority area authority applicable to CRP, EQIP, and WRP

and the manner in which to consider redesignation of soon-to-expire

conservation priority area designations, respectively, these issues are

addressed in the discussion of Sec. 1410.8.

Sec. 1410.1 Administration.

Four comments supported the inclusion of specific reference to the

U.S. Forest Service and State forestry agencies for consultation on

tree planting practices. However, three of the comments suggest making

consultation with the Forest Service or State forestry agencies a

requirement rather than an option. This recommendation will not be

adopted because there are areas in the country where these services are

not available.

Eighteen comments suggested that Sec. 1410.1 be amended to provide

that: ``CCC may consult with the U.S. Fish and Wildlife Service (FWS)

or the State wildlife agency for assistance as is determined by CCC to

be necessary for developing and implementing conservation plans and

practices in a manner to optimize benefits to wildlife habitat.''

Several comments specifically stated that wildlife agencies should also

be consulted on tree planting practices in addition to consultation

with forestry agencies. Two comments suggest that FSA should take every

opportunity to work with wildlife professionals to ensure that the

USDA-mandated wildlife benefits of this new CRP are incorporated into

contracts whenever possible. The FWS and State wildlife agencies are

represented on State Technical Committees and the FWS is a member of a

national multi-agency team established to provide recommendations to

the Secretary on CRP policy. The Department also consulted with various

wildlife agencies when formulating CRP policies. CCC and FWS will work

together on as needed basis. Therefore, this suggestion was adopted.

There were several comments supporting the State and county FSA

committees as the proper authorities to implement CRP including bid

ranking, rulemaking, eligibility criteria, ranking plans and contract

approval. CCC has delegated substantial authority to State committees

which, acting upon recommendations from the State Technical Committees

(see 7 CFR part 610) chaired by NRCS, assist in CRP operations within a

State. Field level representatives of FSA and NRCS also participated in

the development of issues prior to the preparation of the final rule.

One comment suggested that the rule should be amended to clearly

identify the role of the State Technical Committees. The role of the

State Technical Committees is defined in 7 CFR part 610.

One comment suggested that the local NRCS field office, along with

local conservation districts, should have the ability to accept

applications and approve contracts. Conservation districts are not

federal agencies and, therefore, cannot obligate federal funds. During

continuous signup, both NRCS and FSA have the ability to take requests

for enrolling acreage in CRP. In order to maintain the fiscal integrity

and consistency of the program, however, only one agency, FSA, will be

responsible for approving contracts on behalf of CCC.

Five comments suggested that State ranking plans be reviewed by

NRCS and FSA national offices to ensure all objectives of the program

are met. The national offices of NRCS and FSA, acting on behalf of CCC,

will review all proposed State ranking plans.

One comment suggested that rules for developing and applying an

approved State ranking plan should be clear and available to those who

will be affected by them and also suggests that offers in States with

ranking plans should not be subject to ranking according to the

national ranking plan. Another comment stated that national ranking was

not desirable and that contracts should be approved at the local level.

All State ranking plans will be public information and provided to

interested applicants when requested. The national ranking process will

only be used to determine the number of acres allocated to a State when

State ranking plans are used. All offers will then be ranked according

to the State plan. CRP contracts will be all approved in local FSA

offices.

There were a number of comments suggesting that drainage districts

be afforded special authority to approve or deny a producer's request

or otherwise limit a request for enrollment to protect the mission of

the drainage district. There is no authority for a district to control

program benefits. However, they are free to make their concerns about

particular practices known.

One comment suggested that contract approval be delegated to the

local office level and implied that national ranking for acceptability

is not desirable. CRP contracts are approved locally. The national

office does not approve contracts. State FSA Committees, based on

recommendations from State Technical Committees, determine whether a

State or national ranking process is implemented. In States that use a

national ranking plan, the national office uses an objective ranking

process. In States that use a State ranking plan, the ranking process

is used to determine the number of acres accepted in that State. In all

cases, the CCC is attempting to achieve the maximum benefit for the

nation as a whole.

Sec. 1410.2 Definitions.

Some commenters suggested that ``permanent wildlife habitat'' and

``wildlife corridor'' were used interchangeably in the rule. The

permanent wildlife habitat was amended to make clear that it includes

wildlife corridors.

One comment suggested the definition of permanent wildlife habitat

is not adequate because it does not take into consideration fish

habitat. As ``wildlife'' can include both terrestrial and aquatic

species, this recommendation has not been adopted.

Three comments opposed the definition of ``predominately highly

erodible field'' with no suggested change provided. Twelve comments

suggested that because the definition of highly erodible land is land

that has an erosion rate greater than ``T,'' it appears to penalize

landowners who are doing a good job by preventing them from enrolling,

while rewarding those who are doing a poor job of soil conservation.

Another comment opposed the defining of highly erodible land as

``erosion rate greater than T.'' Two comments suggested that the NRCS

definition for ``predominantly highly erodible'' be set to use a

predominance percentage of 33\1/3\ if this definition is going to be

used to determine CRP program eligibility. Another comment suggests

changing the definition for ``predominantly highly erodible field'' by

replacing ``66\2/3\ percent of the land'' with ``75 percent of the

land.'' One comment suggested that in the definition of ``predominantly

highly erodible field'' the special allowance for the participants who

agree to plant trees be expanded to include, also, those who will plant

native grasses or create shallow water area for wildlife. Three

comments suggested changing the fourth sentence defining HEL to read

``having an erodibility index equal to or greater than 8 for both wind

and water erosion and an erosion rate greater than T.'' One comment

suggested adding ``or a combination of both'' in the definition of

highly erodible land after the word ``erosion.'' One comment suggested

replacing the word ``and'' with ``or'' in subparagraph (4)(i) in the

definition of highly erodible land. One comment

[[Page 7608]]

suggested the definition of soil loss tolerance was inconsistent with

the definition in the current highly erodible land regulations. The

land eligibility provisions have been revised to be consistent with

those published in 7 CFR part 12. Those standards are known and there

is no need for an inconsistency for CRP eligibility determinations.

Therefore, those lands basically eligible for CRP will include acreage

which is subject to the conservation compliance provisions of 7 CFR

part 12. Differences in erosion can be accounted for by ranking.

Two comments suggested that the definition of conservation district

be amended to use the more generic reference ``State or territorial

conservation district law, or tribal law.'' Another comment suggests

the definition of conservation district include the term natural

resources district. The definition in the proposed rule already

included these terms and is consistent with the definition of

conservation district in other USDA programs.

One comment suggested adding a definition for ``conservation

priority area.'' This recommendation was adopted.

Six comments suggested that for purposes of this rule a shelterbelt

renovation be included in the definition of ``field windbreak,

shelterbelt and living snow fence.'' However, there is no need to

modify the definition. Any windbreak, shelterbelt, or living snow fence

that is no longer functioning properly for the intended purpose is

eligible to be enhanced or restored.

Four comments suggested the creation and definition of ``State

wildlife priority areas'' that could also be determined eligible as

conservation priority areas and that these areas should be designated

in consultation with State NRCS technical committee and state wildlife

agency. The definition of conservation priority areas is sufficiently

flexible to include this recommendation.

One comment suggested changing the definition of agricultural

commodity in the CRP rule to the definition used in other 1996 Act

programs. The term ``agricultural commodity'' is defined for CRP

purposes by the 1985 Act.

Two comments suggested the definition of agricultural commodity be

clarified to take into consideration tillage under crop residue

management practices. The 1985 Act's definition is sufficiently

flexible to consider tillage operations under crop residue management

practices.

One comment suggested that the definition of ``agricultural

commodity'' should treat crops produced by so-called ``no-till''

practices in the same manner as crops produced normally. This

recommendation will not be adopted as it is unnecessary. So called

``no-till'' crops, as the term is normally used, do involve sufficient

tilling for these purposes.

One comment suggested USDA add tall prairie grass windbreaks in the

definition of ``windbreaks.'' This recommendation will not be adopted

because there is no assurance that the longevity of the practice can be

assured.

Several comments were received regarding definitions of ``cropped

wetlands.'' One comment suggested adding a new definition of ``cropped

wetland'' to mean ``any wetland farmed under natural conditions, any

wetland designated a farmed wetland, or any restorable areas designated

as prior converted cropland according to part 12 of this title.''

Another comment suggested defining ``cropped wetland'' to mean ``any

wetland, farmed wetland or restored prior-converted wetland within a

field that has been annually planted or considered planted to an

agricultural commodity in two of the 5 most recent crop years.'' A

third comment recommended adding language to the ``cropped wetland''

definition to include wetlands farmed under natural conditions, without

manipulation. To provide for consistently with 7 CFR part 12, new

definitions have been to the CRP rules for ``cropped wetlands,''

``farmed wetlands'' and ``wetlands farmed under natural conditions.''

Those definitions draw on part 12.

One comment suggested adding a new definition for ``vegetative

cover'' to mean native grasses or favorable introduced warm-season

grasses, preferably multiple species and including some species of

annual vegetation in planting mixtures. It is not appropriate to

restrict vegetative cover as suggested. However, additional

consideration may be awarded in the bidding process for more desirable

covers.

One comment suggested that ``reducing water erosion'' needs to be

added to the purposes included in the definition for ``field windbreak,

shelterbelt, and living snowfence.'' The proposal is inconsistent with

the windbreak standards and specifications and could cause rill and/or

ephemeral gully erosion if a grassed waterway filter strip, or some

other practice is not established along side of the windbreak.

Four comments suggested defining the term ``environmental benefits

index'' to include the factors which comprise the ranking process. The

recommendation was adopted.

One comment suggested the definition of a conservation plan should

clearly indicate that the definition only applies to the CRP or,

alternatively, that the requirement for vegetative cover should be

modified. The definition has been modified to read ``Conservation plan

means a record of the participant's decisions, and supporting

information, for treatment of a unit of land or water, and includes a

schedule of operations, activities, and estimated expenditures needed

to solve identified natural resource problems by devoting eligible land

to permanent vegetative cover, trees, water, or other comparable

measures.''

One comment suggested the exception for land in terraces that are

no longer capable of being cropped be removed from the definition of

``cropland.'' The purpose of CRP is to cost-effectively assist owners

and operators in conserving and improving soil, water, and wildlife

resources by converting highly erodible and other environmentally

sensitive acreage normally devoted to the production of agricultural

commodities to a long-term, resource-conserving cover. Acreage that is

no longer capable of being cropped has already been removed from crop

production. Therefore, this suggestion is not being adopted.

One comment suggested the definition of a ``field'' is inconsistent

with the 1985 Act. No basis was provided, or found, for the suggestion.

Therefore, the recommendation was not adopted.

One comment suggested the term ``vegetation'' be defined and

include woody vegetation in the definition. Vegetation is included in

the final rule definition of ``permanent vegetative cover'' as

``perennial stands of approved combinations of certain grasses,

legumes, forbs, and shrubs with a lifespan of 10 or more years, or

trees.''

Eight comments suggested changing the 3.0 acre minimum requirement

in determining a manageable unit. On review, the manageable unit

provision was determined to be unnecessary and removed.

Sec. 1410.3 General description.

One comment suggested CRP regulations should target environmentally

sensitive acreage while returning quality land back to production. This

rule has been published consistent with CCC's goals to retarget CRP to

more environmentally sensitive acreage. This includes a minimum

erodibility index level to help ensure that CRP does not remove from

[[Page 7609]]

production land that is not environmentally sensitive. It is a goal of

CCC to only retire land from agricultural production where the benefits

to the Nation are greater from enrollment than in keeping land in

continued agricultural production.

Sec. 1410.4 Maximum county acreage.

Some commenters suggested that there should be no exceptions to the

25 percent of a county's cropland enrollment prohibition and suggested

setting an administrative limit of generally between 10 percent to 15

percent as a maximum. Section 1243(b)(1) of the 1985 Act provides that

``The Secretary shall not enroll more than 25 percent of the cropland

in any county in the programs administered under the conservation

reserve and wetlands reserve programs. . . .'' Accordingly, the

reduction of the limitation would be inconsistent with the 1985 Act and

would unduly limit CCC's options. As to any exceptions, CCC has

heretofore not approved a recommendation for an exception unless NRCS,

conservation districts, the Extension Service, and the Forest Service

(FS) have made a favorable recommendation and only after local

producers, agricultural-related businesses, and others were polled.

Regarding county and State acreage limitations, some suggested that

a limitation should be implemented on land that can be placed in CRP by

counties and States. Each State should have a minimum and maximum

number of acres allotted to be maintained and the regulatory limits on

total designated acreage should be flexible where there are direct and

serious considerations for protecting sources for drinking water.

Arbitrarily establishing limits for enrollment by State inhibits CCC

from maximizing environmental benefits achieved per federal dollar

expended.

Sec. 1410.5 Eligible person.

One comment suggested the term ``calendar'' be removed because the

requirement is for one year not one calendar year. Another comment

suggested the one year requirement be removed. Two comments suggested

that the land ownership time requirement be eliminated if the goal of

the program is erosion control and water quality. One comment concerned

producers who assume CRP contracts who may not have owned the land to

meet the necessary 1-year ownership requirement prior to the next CRP

signup. After careful review, the term ``calendar year'' has been

removed and replaced with the term ``12 months.'' The ownership

eligibility requirement is a 1985 Act requirement and cannot be

administratively eliminated. The proposed and final rule do not

preclude those producers who succeeded to existing contracts within 12

months of the next CRP signup period from reoffering such acreage.

One comment supported reducing the land ownership requirement from

three years to one year. This change is consistent with the 1996 Act

amendments to the 1985 Act.

One comment suggested adding ``and grazing land'' following all

references to cropland in Sec. 1410.5. The term ``cropland'' has been

replaced with the term ``eligible land'' now that certain marginal

pasture land has been made eligible for CRP.

One comment suggested that if a landowner receives government money

for their CRP land, the landowner should fit some sort of definition of

a farmer. The 1985 Act does not restrict participation in the program

to ``farmers.'' Eligible producers include owners and operators of

eligible land; therefore, this suggestion will not be adopted.

Sec. 1410.6 Land Eligibility.

Cropping History Requirement

Nine comments suggested changes to the cropping eligibility

requirement such as allowing flexibility to consider crop rotations or

only requiring that acreage be planted or considered planted in two of

the last ten crop years. Ten comments suggested that the cropping

eligibility requirement be waived under emergency situations or for

certain practices, such as filter strips and riparian buffers, or for

certain land, such as land that has the potential to create erosion

concerns, land subject to long term flooding, and land already devoted

to waterways. The CRP is a voluntary program with the purpose of cost-

effectively assisting eligible owners and operators in conserving and

improving soil, water, and wildlife resources by converting highly

erodible land and other environmentally sensitive acreage normally

devoted to the production of agricultural commodities to an approved

long-term resource-conserving cover. The current cropping history

requirement is necessary to obtain and maintain the purpose of the CRP

consistent with the 1985 Act which, except for very limited situations

dealing with marginal pasture lands, limits CRP eligibility to

``cropland.'' Therefore, these suggestions will not be adopted.

One comment supported the current cropland eligibility base period.

One comment suggested that land coming out of CRP should not

automatically be eligible to re-enroll. Two comments suggest that land

known to be going out of agricultural production should not be allowed

to be offered for CRP. These suggestions have not produced a rule

change as the relative value of offers is taken into account in the

ranking process and there is no automatic eligibility for old CRP

lands.

Two comments suggested that information be released to clarify

whether land under CRP contract during the cropping eligibility base

period would be considered as meeting the cropping eligibility

requirements. Current CRP land may be offered for re-enrollment if its

meets the new eligibility criteria. The Deputy Administrator of FSA may

develop further refinements on this issue as needed to deal with delays

in re-enrollment.

Erodibility Index

Several hundred comments were received regarding the provisions

relating to the EI of 8. There was little agreement among respondents

regarding the appropriate minimum eligibility standard.

Fourteen comments supported maintaining the EI enrollment

eligibility level of 8 to make more acres of productive land available

for farmers. One comment supported using a weighted average EI for

eligibility.

Seventy-six comments generally opposed the erodibility criteria and

suggest that land with an EI of less than 8 be eligible to be enrolled

in the CRP. Some comments suggested eligibility levels ranging from 5

to 7 as an alternative. Four comments suggested that the EI of greater

than 8 level be used as a guideline while allowing flexibility to

enroll land with an EI of less than 8 when environmental or economic

benefits justify such a decision. Eight comments suggest using the same

EI level to determine both HEL compliance and CRP eligibility.

Sixty-four comments supported the concept of targeting only

environmentally sensitive land and placing more productive land in

production. Of the 64 comments, 39 comments suggested that an EI

eligibility level of 15 or greater be established.

Thirty comments suggested giving more consideration to increasing

land terrain as a qualifying factor. The concern is that previously

eligible land does not qualify and is highly erodible from snow melt,

rain, and wind.

[[Page 7610]]

The erodibility index will be retained in the final rule including

the present minimum value of 8. At this level, a majority of the lands

that have a serious erosion problem without adequate erosion protection

will be basically eligible for enrollment in the program. Further, it

is a natural break point consistent with HEL determinations under the

conservation compliance provisions in 7 CFR part 12. Specifically,

acreage that is considered HEL under the regulations at part 12 will be

basically eligible to be offered for CRP. Acreage within a field that

has been redefined will have to meet the weighted average EI of 8

criteria. In order to implement the program in a reasonable manner,

some cut-off value which is consistent with the program's purpose must

be used. The breakpoint value of 8 or greater has been determined to be

the level which is most consistent with these purposes.

Water Bank Program

Four comments suggested that eligibility criteria be expanded to

include lands no longer enrolled in the WBP or that were never enrolled

in the WBP if the land is type 3 through 7 wetlands which are not

naturally occurring. That is, if eligibility criteria are met, allow

the land to be enrolled regardless of WBP status or relationship.

Neither the proposed nor final rule precludes the enrollment of

eligible acreage not previously enrolled in the WBP.

One comment suggested including an associated wetland buffer with

any WBP contract acreage converted to the CRP. Neither the proposed nor

the final rule preclude the enrollment of eligible acreage as wetland

buffers. In addition, a substantial portion of acreage enrolled in the

WBP included associated buffer acres.

Four comments suggested adding type 4 wetlands to the WBP acreage

eligible to be converted to the CRP. Neither the proposed nor the final

rule preclude WBP acreage which is type 4 wetlands that are normally

artificially flooded from eligibility for the CRP. Such wetlands that

are not normally artificially flooded should not be enrolled in the CRP

because such enrollments would tend to defeat the purpose of the

program because such lands are naturally permanently under water, which

is not consistent with the eligibility criteria and purposes of the

CRP.

Three comments suggested that artificially flooded WBP wetlands and

wetlands with a history of cropping before WBP should be eligible for

conversion to the CRP. Two comments suggested that eligibility for

conversion from the WBP to the CRP apply to ``managed wetlands where

water is intentionally applied to increase and/or enhance wetland

functions and values and are classified as types 3 through 7

wetlands.'' Neither the proposed nor the final rule preclude types 3

through 7 wetlands that are normally artificially flooded from

eligibility.

Three comments supported the eligibility of WBP acres for CRP. One

comment suggests not limiting WBP acreage eligibility to just the final

WBP year. The Department has determined that to enroll acreage that is

currently enrolled in a land retirement program is not a cost-effective

use of the CRP and defeats the purpose of the program. Accordingly, the

suggestion is not adopted.

Cropped Wetlands

One comment suggested that allowing farmed wetlands into the CRP

will lessen the incentive for farmers to enroll wetlands into long-term

or permanent easements in the WRP. The CRP final rule allows the

enrollment of cropped wetlands and appropriate associated upland

acreage to restore and protect wetland functions and values without

unduly competing with existing programs like WRP. The 1997

Appropriations Act limited fiscal year 1997 WRP enrollment to 130,000

acres. Permitting the enrollment of cropped wetlands in CRP allows CCC

to obtain significant wildlife habitat, water quality, erosion control,

and flood control benefits. The proposed rule inadvertently listed

``farmed wetlands'' as eligible for enrollment. Beyond ``farmed

wetlands,'' cropped wetlands also includes ``wetlands farmed under

natural conditions.'

Forty-four comments suggested that uplands associated with cropped

wetlands be included as eligible land. Several comments provided

suggested language for eligible land under the cropped wetlands

provision: ``Acreage designated a farmed wetland or a wetland farmed

under natural conditions by NRCS according to part 12 of this title,

together with the appropriate amount of associated upland, as

determined by the State Technical Committee to be necessary to protect

the wetland and meet wildlife habitat needs.'' Most of these comments

suggest a ratio of six upland acres per wetland acre or six upland

acres per wetland basin; however, one of these comments suggested the

upland acres should be kept to a minimum to balance the needs of the

landowner. The final rule has been amended to provide that cropped

wetlands and appropriate associated cropland will be basically eligible

for CRP. In addition, appropriate associated cropland with noncropped

wetlands will also be basically eligible to be enrolled providing the

acreage meets other cropland eligibility requirements. The NRCS will

determine the associated acreage that is necessary to maintain the

viability of the wetland area not to exceed a 6 acre of cropland to 1

acre of wetland ratio.

Sixty comments suggested including wetlands as eligible land for

the CRP. The purpose of the CRP is to cost-effectively assist eligible

owners and operators in conserving and improving soil, water, and

wildlife resources by converting highly erodible land and other

environmentally sensitive acreage normally devoted to the production of

agricultural commodities to an approved long term resource conserving

cover. The Department has determined that to enroll such acreage is not

a cost effective use of the CRP and is not consistent with the purpose

of the program. Accordingly, the suggestion is not adopted.

One comment opposed provisions making all cropped wetlands eligible

for CRP. Cropped wetlands are a vital natural resource which provide

significant environmental benefits. Therefore, this suggestion was not

adopted.

Two comments suggested that the ``type 1-20'' wetland

classification system be replaced with the Department of Interior's

Classification of Wetlands and Deepwater Habitats of the United States.

For example, ``type 3 through 7'' land would be reclassified as

``semipermanently flooded, permanently flooded, scrub, shrub, and

wooded wetlands.'' The WBP authorizing legislation, however, bases WBP

eligibility on the old classification system and that system should,

therefore, for consistency and ease of administration, continue to be

the standard used in this rule for types 3 through 7 wetlands. One

comment suggested that FSA be assigned responsibility for delineating

wetlands. Neither the proposed nor the final rule delineates wetlands

or changes any wetland classifications. The final rule allows cropped

wetlands, as determined by the NRCS, to be basically eligible for

enrollment in the CRP. Accordingly, these suggestions are not adopted.

One comment suggested that opportunities for wetland conservation

and restoration should remain available through both the WRP and the

CRP. Neither the proposed nor the final rule restrict the opportunity

for producers to enroll in the WRP.

[[Page 7611]]

One comment supported eligibility of wetlands but suggested that

the need for regulatory reform not be replaced by what should only be

an option similar to mitigation. It does not appear that permitting

cropped wetlands to be enrolled in the CRP impacts any options

available to producers regarding mitigation.

Air Quality

Four comments suggested that air quality be considered adequately

for eligibility and evaluation. Two comments suggested that the purpose

of the CRP be expanded to include air quality for lands contributing to

an EPA designated PM<10 non-attainment area and went on to suggest that

lands contributing to the air quality problem in such an area should be

automatically eligible for the CRP. A factor has been added to the

ranking process to evaluate air quality improvements from reducing

airborne dust and particulate from cropland wind erosion. In addition,

State FSA Committees have the authority to request conservation

priority areas to target wind erosion concerns.

Wind Erosion

One hundred thirty four comments suggested that failing to

adequately consider wind erosion as an eligibility or evaluation factor

would unfairly exclude too many erodible acres from CRP eligibility.

Several of the 134 comments suggested combining wind and water erosion

when calculating the EI of a field. The EI measures soil erosion caused

by both wind as well as water. The EI of a field is established based

on the higher of the two indexes. Wind erosion receives equal weighting

with water erosion in determining eligibility for enrollment in CRP.

Furthermore NRCS has indicated that the EI values for wind erosion and

water erosion should not be combined. While wind and water erosion may

occur on the same field, both erosion types do not necessarily occur on

the same acre nor do both types of erosion occur at the same time of

the year. Thus, whatever is the most prevalent type of erosion, either

wind or water, will be used to establish the EI value. Accordingly,

these suggestions are not adopted.

Scour Erosion

One comment suggested that scour erosion eligibility criteria be

flexible to allow scoured areas not adjacent to the water body to be

eligible. One comment suggested that lands eligible under the scour

erosion provisions of Sec. 1410.6(c) should be planted to an

appropriate tree species or mixed species of trees. Neither the

proposed nor the final rule require land to be adjacent to a waterbody

to meet the requirements of the scour erosion eligibility criteria. The

proposed and final rule requires that cropland approved for enrollment

under the scour erosion criteria to be planted to an appropriate tree

species unless NRCS or FS certify that the site is not suitable for

trees.

Wildlife

One comment suggested wildlife benefits not be an eligibility

consideration for enrollment in the program. Five comments suggested

that wildlife habitat should not be a sole criteria for CRP

eligibility. Seventy comments suggested that a wildlife exemption or

wildlife criteria be developed for determining eligibility. One comment

suggested that a natural heritage eligibility criterion be developed

for wildlife habitat.

Wildlife habitat will be positively benefitted from the inclusion

of cropped wetlands, certain WBP acreage, special practices offered in

the continuous signup provisions such as riparian buffers, and

potentially through State and national conservation priority areas.

Therefore, these suggestions will not be adopted.

One comment suggested that any permanent vegetative cover be

acceptable wildlife cover as determined by the State wildlife agency in

consultation with the State Technical Committee. It is the applicant's

decision as to which practice and acreage to offer for enrollment.

Certain practices requested by applicants are not intended for wildlife

or do not provide wildlife benefits. Therefore, this recommendation is

not being adopted.

Filter Strips and Riparian Buffers

Several comments were received regarding the size of filter strips

and riparian buffers and the eligibility of such practices on certain

land. Four comments suggested that a minimum width for filter strips be

established. Four comments suggested 33 feet instead of 66 feet as was

printed in a previous Agency directive. Nine comments suggested that

the State FSA Committee or other local officials should be responsible

for determining the size of filter strips and riparian buffers. One

comment suggested filter strips and riparian buffers need to be clearly

defined so farmers will have a quick snapshot of what these terms mean.

The size requirement of filter strips and riparian buffers is not

incorporated as part of the CRP proposed or final rule. Previous

versions of 7 CFR part 1410 included minimum and maximum size

requirements for filter strips. The Conference Report accompanying the

1996 Act provided that the Managers intend for the Secretary, to the

extent practicable, to consider local conditions when determining

minimum required widths for vegetative strips in CRP. Complaints were

received from the public that the regulation was not flexible enough to

meet the needs of intended CRP sites in all States. Therefore,

determinations on size requirements will continue to be made at the

local level utilizing the NRCS office Field Office Technical Guide

(FOTG).

Two comments suggested making riparian buffers on marginal pasture

land eligible for CRP. Two comments suggested allowing filter strips

and riparian buffers along dry streams, swales, sod waterways, and

riparian buffer areas around feedlots. Ten comments suggested allowing

filter strips along intermittent streams and drainage ditches, and

making field end rows and headlands eligible for filter strips during

continuous signup. Riparian buffers on eligible marginal pasture land

may be offered for enrollment in the CRP but only for planting to

trees, as is provided for in the 1985 Act. Filter strips and riparian

buffers along dry streams, swales, feedlots and waterways do not obtain

the benefits, goals, and objectives of such practices and is not

consistent with the 1985 Act. Neither the proposed nor the final rule

preclude filter strips adjacent to seasonal streams and drainage

ditches.

Wellhead Protection Areas

Several comments suggested expanding or changing which agency's

designation of wellhead protection areas will be used to determine CRP

eligibility. After careful review, the final rule has been amended to

provide that ``wellhead protection areas'' will mean those approved by

appropriate State agencies or the EPA.

One comment suggested that wellhead protection provisions support

local communities, but do nothing for rural areas. Wellhead protection

areas may be designated in areas served by rural water lines and

enrollment of surrounding land in the CRP can provide substantial water

quality benefits.

One comment supported the inclusion of wellhead protection areas as

environmentally sensitive lands eligible for the CRP.

[[Page 7612]]

Trees

One comment suggested that established pine stands on CRP land be

renewed and remain in the CRP program to prevent conversion of the land

back to crop production. Four comments suggested that CRP contracts

planted to loblolly or slash pine should not be re-enrolled because of

projected high retention rates, economic returns, and limited wildlife

benefits. Any acreage currently in the CRP, is considered to be capable

of being planted. Any untimely tree destruction could be accounted for

in the ranking process. That process may also take other relevant

factors into account.

Enrolling Existing Contracts

Sixty-six comments opposed the land eligibility requirements

because land currently enrolled in the CRP may not be eligible to be

re-enrolled. Several comments suggested allowing at least 50 percent of

all land currently enrolled in the CRP to be re-enrolled regardless of

the eligibility requirements. Several other comments suggested allowing

at least 50 percent of all land enrolled in the CRP to be re-enrolled

if wildlife benefits will be enhanced. As indicated in the proposed

rule, the 1997 Appropriations Act effectively precludes the extension

of any CRP contract in FY 1997. The eligibility criteria is designed to

assure maximum achievement of the program's goals.

One comment supported the requirement for re-enrolled bids to

compete with new bids.

Other Issues

One comment suggested no restrictive eligibility criteria be used

to determine enrollment in the CRP. While this recommendation allows

all acreage to compete based on the ranking process, it unnecessarily

increases workload to a point that it may become unmanageable.

Accordingly, this suggestion will not be adopted.

Six comments suggested that whole farm enrollment not be allowed.

The 1985 Act does not direct that we deny enrollment of otherwise

eligible acreage based on the size of the field and adding such a

requirement would unduly limit CCC's options. Therefore, this

suggestion will not be adopted.

Two comments suggested that land subject to flooding during one

year out of ten years be eligible for the CRP even if there is no

evidence of scour erosion. There are other Federal programs available

to address these concerns. The CRP is not a flood risk reduction

program. The final rule does not preclude such land from enrollment if

it meets one of the land eligibility criteria.

Two comments suggested that a new eligibility criterion for ``Lands

adjacent to existing CRP land, wildlife management areas, national

wildlife refuges and other natural areas.'' Eligibility for such land

is not necessary and may not be a cost-effective use of the CRP;

however, CCC recognizes the benefits of such contiguity and such land

will be appropriately considered under the ranking process. Therefore,

these suggestions will not be adopted.

One comment suggested changing Sec. 1410.6(h)(4) to include

``emergency priority areas'' as eligible areas along with designated

conservation priority areas. The commenter was not clear as to what was

intended as ``emergency priority areas;'' therefore, this comment will

not be adopted.

One comment suggested clarifying the text of Sec. 1410.6 by

creating three lists that clearly define (1) all provisions which must

be met if land is to be eligible, (2) exceptions under which those

lands not meeting those provisions will still be eligible, and (3)

conditions under which no lands will be eligible. Another comment

suggests that the practices listed under Sec. 1410.6(b) and

Sec. 1410.6(h)(5) be the same and include all those practices listed in

Sec. 1410.6(b). The final rule amends Sec. 1410.6 to clarify these

provisions.

Two comments suggested that wildlife habitat, riparian buffer, and

contour grass strips be added to the list of special practices for

which eligibility for otherwise eligible land is prescribed in

Sec. 1410.6(h)(5). Both the proposed and final rule provide eligibility

for otherwise eligible land determined suitable for such practices.

However, Sec. 1410.6 has been amended for clarity.

Two comments suggested that references to acreage protected by

easements or mortgage restrictions be removed or clarified. One comment

suggested permanent conservation easements for either the entire farm

or those portions being retired from cropping. These recommendations

will not be adopted because there does not appear to be a substantial

program benefit from enrolling limited lands, there is no authority in

the 1985 Act to require conservation easements on new CRP contracts,

and such easements could discourage enrollment and raise costs. On

review, in addition, the provision appears to be sufficiently clear.

One comment suggested that language in Sec. 1410.6(d)(1) be changed

regarding the provision for the ineligibility of land where the water

quality objectives can be obtained in another program if the CRP

eligibility determination to be was unduly delayed. This has been

accomplished by inserting the words ``in a reasonable and timely

fashion'' after the word ``obtained'' in the regulation.

One comment suggested not allowing early termination if the intent

is to re-offer the same land at a higher rental rate. The 1985 Act does

not restrict early termination to only those persons who intend not to

re-offer the acreage. The 1985 Act provides that such acreage may be

re-offered during a subsequent signup period. Therefore, this

suggestion will not be adopted. It should be further noted that the

early termination provisions only apply to contracts initially enrolled

prior to January 1, 1995. Accordingly, all contracts enrolled after

that time regardless of whether the acreage was under an earlier

contract will not contain the unilateral early termination authority.

One comment suggested that highly erodible land that can be farmed

should be left in crop production, especially where technology has been

improved to control erosion. The CRP is a voluntary program with the

objective of cost-effectively assisting eligible owners and operators

in conserving and improving soil, water, and wildlife resources by

converting highly erodible land and other environmentally sensitive

acreage normally devoted to the production of agricultural commodities

to an approved long term resource conserving cover. The CRP can be used

to assist owners and operators to meet conservation compliance

requirements and improve farming practices. To exclude highly erodible

land that can be farmed from the program would limit CCC's ability to

assist such land owners and operators and remove a valuable tool used

to conserve the nations'' resources. However, CCC will endeavor to not

enroll land which is better put to agricultural production.

Accordingly, this suggestion is not adopted.

Two comments suggested that flooded pasture land and acres

currently under water which has been cropped in the past should be

eligible to enroll into CRP. Enrolling acreage not capable of being

cropped is not cost-effective and tends to defeat the purpose of the

program.

Sec. 1410.7 Duration of contracts.

Several comments suggested the Department should consider a shorter

contract period for contracts that have already been extended or should

allow contracts to be extended rather than be re-offered for enrollment

or allowed to exit CRP in an orderly fashion. The 1985 Act provides

that contracts can be no

[[Page 7613]]

less than 10 nor more than 15 years. Further, the 1997 Appropriations

Act effectively precluded the extension of existing contracts in FY

1997.

Several comments suggested establishing varying years of duration

of contracts between 10 and 15 years for various reasons, such as to

lessen the effects of returning vast acres to crop production; for

wellhead protection areas; tree planting; in return for contracting

with Federal, State or local government to lengthen the term of the

contract or for a permanent easement; or when landowners voluntarily

commit to maintain the conservation measures for several years

following contract expiration. In accordance with the requirements of

the 1985 Act, the final rule provides that contracts devoted to

hardwood trees, shelterbelts, windbreaks, or wildlife corridors may be

for the length specified by the producer, so long as the contract is

not less than 10, and not more than 15, years in length. Otherwise,

however, the contracts will be 10 years to preserve CCC's flexibility

and reduce CCC's financial exposure.

Sec. 1410.8 Conservation priority areas.

One hundred ten comments were received recommending a specific area

be identified as a conservation priority area. One comment supported

the cropped wetland exemption but stated that for the Prairie Pothole

region a wildlife exemption should be established to reaffirm the

longstanding, successful relationship CRP has developed between

sportsmen and farms. Another comment suggested the local conservation

district be the lead agency responsible for nominating conservation

priority areas in a State. The following have been designated as

national conservation priority areas: Chesapeake Bay, Long Island

Sound, Great Lakes region, and the Prairie Pothole region.

Recommendations for State-designated conservation priority areas may be

submitted by State FSA Committees based on recommendations from State

Technical Committees to the Deputy Administrator for Farm Programs, FSA

(Deputy Administrator). Land located within a designated CRP

conservation priority area is eligible to be offered for enrollment,

although the acreage still must compete with all other offers for

actual enrollment.

Seventy-five comments were received regarding the proposed 10

percent cropland limitation per State. Several comments suggested that

the limitation was too low or should be otherwise adjusted such as

allowing designation of an additional 10 percent for a wildlife

conservation priority area or allowing State FSA Committees to exceed

the 10-percent limit to meet Federal clear air standards. Other

comments supported the limitation, or suggested it was too high or was

arbitrary. After reviewing the public comments, CCC has determined to

maintain the 10-percent limitation. Providing a limitation ensures the

strength of the priority area concept by allowing designation of only

the highest priority needs within a State. States will designate the

purpose of the priority area as enhancing either water quality,

wildlife habitat, or other environmental concerns. The 10-percent

limitation could be exceeded for extraordinary circumstances, if

approved by the Deputy Administrator. All recommendations for State-

designated conservation priority areas will be reviewed by a national

interagency team to ensure that the purpose is clearly defined and to

ensure consistency among States and with the intent of the program.

Several comments suggested that a conservation priority area may

need to be designated exclusively for wildlife or wildlife habitat

plantings or should be used to protect lands from wind and water

erosion, while others suggested that a priority area should not be

established based on wildlife habitat alone. Several emphasized major

watersheds for conservation priority areas especially where drinking

water is impacted, and a few comments suggested that Soil and Water

Conservation Districts or the State Technical Committee be given the

authority to designate conservation priority areas. A few comments

suggested priority areas be based on improving water quality and

wildlife habitat that cannot be achieved through other programs or

suggested that State wildlife agencies be allowed to designate

conservation priority areas for wildlife. Several comments suggested

that designation of conservation priority areas be allowed for the

mitigation of natural resource emergencies or to give priority to those

contracts already established. State FSA committees, based on their

review of the recommendations of the State Technical Committee, will

have the opportunity to recommend designation of conservation priority

areas based on actual adverse impacts of agricultural activities on

water quality, wildlife habitat, or other environmental concerns.

Recommendations will be required to define the conservation and

environmental objectives and analyze how CRP can cost-effectively

address such objectives. The scarcity of a habitat or wildlife species

is a key factor in establishing a wildlife habitat-based conservation

priority area so the CRP can be effective as a means to avoid wildlife

species population declines and preserve rare or disappearing habitat.

The CRP is not an emergency program; other USDA programs exist to

address emergencies affecting natural resources. Giving priority to

contracts already established would decrease the Department's ability

to achieve its goal of cost-effectively enrolling the most

environmentally sensitive acreage.

Some comments suggested conservation priority areas should provide

preference to but not automatic eligibility of lands offered within an

area, or that location within a conservation priority area should

become a part of an environmental benefits index for ranking rather

than eligibility. Other comments suggested allowing a certain type of

land to be considered as a conservation priority area rather than a

specific geographic area. One suggested land type was center pivot

corners. Another comment suggested geographically balancing the

conservation priority areas, targeting areas with diverse conservation

needs. Other respondents suggested that USDA should guard against

conservation priority areas enrolling land which would not normally

qualify under other criteria, or opposed establishment of conservation

priority areas due to unspecified adverse impacts. One comment

suggested the review of accomplishments within designated conservation

priority areas at the time of redesignation.

Land located within a CRP conservation priority area is eligible to

be offered for enrollment, although the acreage still must compete with

all other offers for actual enrollment. Location within a conservation

priority area will be considered in the ranking process. State FSA

committees have the authority, based on recommendations from State

Technical Committees, to recommend a conservation priority area based

upon a specific, identifiable land quality provided the priority area

still serves the purpose of water quality, air quality, or wildlife

habitat concerns and the State can provide a map indicating the

location of the priority area. State FSA committees in all 50 States

are eligible to submit recommendations for conservation priority areas.

All existing CRP conservation priority areas have expired or have been

withdrawn. State FSA committees must submit new recommendations for any

conservation priority area to be effective. Each recommendation must

include an evaluation and monitoring plan before the priority area can

be approved.

[[Page 7614]]

Several comments addressed the issue of utilizing the same

conservation priority areas for the CRP, WRP, and EQIP. Some stated

that the conservation priority areas should be cross-referenced or

coordinated so that benefits from multiple programs could apply; for

example, CRP could be used in a WRP priority area to stop erosion from

filling in a protected or restored wetland. One comment suggested

including EQIP State-designated conservation priority areas for CRP.

Another suggested that conservation priority areas should be

implemented by receiving a percentage of the funding, with the

remainder of the funds going to general disbursement. Others suggested

it would be unwise to closely link the conservation priority areas for

the different programs and that all three programs should have

conservation priority areas. A respondent suggested, for example, that

EQIP conservation priority areas will likely result in very little

incentive for tree planting, but that the CRP has valuable tree

planting incentives. Some comments suggested that it would not be

possible to put CRP conservation priority areas in tandem with the

other programs because EQIP and WRP are locally based and it is hard to

set priorities at the national level, and that conservation priority

areas set, for example, for the WRP should be used only for WRP, with

the goal of permanent restoration of diverse wetland functions and

values. One comment suggested that the implementation of conservation

priority area authority should be limited to noninvasive technical

assistance from USDA, and several comments suggested that the State or

State FSA committee should establish conservation priority areas, not

the Federal government.

State FSA committees, based on the recommendation of State

Technical Committees, recommend conservation priority areas based on

State specific environmental needs and objectives. The Deputy

Administrator reviews State recommendations and makes approvals that

are consistent with the goals and objectives of the CRP. Land located

within a CRP conservation priority area is eligible to be offered for

enrollment, although the acreage still must compete with all other

offers for actual enrollment. CRP funding is not determined based upon

location inside or outside of a priority area but upon actual

enrollment. Further, the CRP is available for all eligible acreage,

including that located within WRP or EQIP conservation priority areas.

State FSA committees, based on recommendations from State Technical

Committees, may submit EQIP conservation priority areas as CRP

conservation priority areas. The recommendation, however, must meet the

requirements established for CRP, such as the 10-percent cropland

limitation.

The Department agrees that the purposes of the CRP, WRP, and EQIP

differ, but believes that the determination of conservation priority

areas may be coordinated in the future.

Sec. 1410.9 Alley-cropping.

One comment suggested that alley-cropping not be limited to

contracts requiring the planting of hardwood trees. That limit is

consistent with the 1985 Act.

Sec. 1410.10 Conversion to trees.

Several comments suggested that the special provisions for

converting CRP land to hardwood trees and for allowing three years,

with certain limits and in certain cases, to plant the trees be

extended to softwood trees. The limitation with respect to hardwood

trees in both cases is statutory. Also it was suggested that site-

specific selection of tree species for tree planting purposes be made

by professional foresters. Such consultation can be obtained if needed.

Two comments suggested that the requirement to reduce the cost-

share payment by the amount of the original cost-share payment be

eliminated and a bonus equal to 25 percent of the cost of establishing

these new covers be provided. The comments cannot be adopted. The 1985

Act provides that the Secretary will not incur any additional expense

for the acres converted, including the expense involved in the original

establishment of the vegetative cover, that would result in cost share

for costs in excess of the costs that would have been subject to cost

share for the new practice had that practice been the original

practice.

Three respondents commented on the requirement that for conversions

made under this section, the CRP participant must agree to also agree

to participate in the Forest Stewardship Program. One supports the

requirement while another suggests elimination and a third suggests

that participants only be encouraged to participate when converting to

trees. The required participation in the Forest Stewardship Program is

statutory.

A few comments suggested that riparian corridors containing

hardwood trees be added to the list of special to which the conversion

provisions apply, and that the Deputy Administrator offer 15-year

contracts on all CRP lands to be planted to hardwoods. Areas devoted to

hardwood trees or which can be considered as wildlife corridors are

already eligible under the proposed rule. Also, the rule provided that

contracts for hardwood tree plantings could be for 10- to 15-years at

the producer's discretion. Requiring that the producer always take a

15-year contract does not appear to be necessary or cost-effective.

One comment suggested that trees be harvested on acres that were

converted to such plantings. The 1985 Act prohibits the harvesting of

the trees during the contract period and prohibits any commercial use

of trees on land that is subject to a CRP contract unless it is

expressly permitted in the contract. Participants are, however, allowed

to conduct pruning, thinning, stand improvement, or other activities

consistent with customary forestry practices on land that is planted to

trees. The landowner may harvest the trees only after the contract

expires.

Sec. 1410.11 Restoration of wetlands.

Comments generally supported the restoration of eligible wetlands

in the CRP but discouraged competition with the WRP. Comments varied on

the administrative mechanism used to accomplish restoration. Two

comments suggested that wetlands enrolled in CRP be required to be

restored with no mention of incentives or additional compensation.

Several comments related to incentives offered to landowners. One

comment suggested a 25-percent bonus be added to the annual payment

rate and two others support unspecified additions. Other incentives to

be implemented should accomplish this objective at much lower cost to

the program.

Two comments suggested that wetlands enrolled in CRP, regardless of

initial enrollment date, either be restored with a 25-percent cost-

share incentive or be transferred to WRP. The date restriction in the

regulation is required by the 1985 Act. One comment suggested that the

highest quality wetlands, regardless of size, be directed to the WRP

for long-term protection. However, program requirements differ between

CRP and WRP, making transfer an issue for landowner consideration.

Inclusion of bonus points in the criteria are supported in two comments

as a method of encouraging restoration.

One comment recommended limiting CRP enrollment to only wetlands so

that land coming out would be available for production. The 1985 Act as

it relates to CRP is directed at highly erodible lands, as well as

other sensitive lands, and a limitation to wetland enrollment would,

[[Page 7615]]

accordingly, not be appropriate. Another comment suggested that land

coming out of CRP contract should reflect the land use prior to

enrollment, including wetlands. Once a contract expires, the

participant is under no further obligation to abide by any terms or

conditions of the CRP contract except as may be required to meet

conservation compliance or wetland conservation provisions of 7 CFR

part 12 to obtain benefits for certain other USDA programs. Such a

change, in addition, would be cost-effective even if undertaken for a

limited time.

One comment suggested that drained lands be eligible for CRP

without requiring that ditches be plugged or tile broken. Although CCC

will provide financial incentives to restore wetlands and additional

consideration is provided in the ranking process for acceptance into

the program, wetland restoration will only occur by voluntary

agreement. Accordingly, this suggestion has not been adopted.

Sec. 1410.20 Obligations of participant.

Four comments suggested the reduction of allotments and quotas for

tobacco and peanuts interferes with the economic soundness of the

family farm and is too harsh on tobacco and peanut quota holders

because they no longer have the ability to reduce their crop acreage

bases. The respondents suggested that tobacco and peanut allotments and

quotas be exempt from reduction. This recommendation is not adopted

because the reduction is required by the 1985 Act. Crop acreage bases,

for other crops which had deficiency programs, ceased being used after

enactment of the 1996 Act.

The majority of comments on this section dealt with weed control.

Two comments suggested that weed control should be mandatory. One of

the two comments suggested that those not complying should be penalized

only on those acres affected, not the entire contract acres and not to

exceed one year's payment. The other comment suggests that NRCS and FSA

accept and seek information and assistance from landowners or the

general public without creating a contract compliance issue. CRP

participants are required to maintain the acreage according to the

conservation plan of operation developed by NRCS. Participants who do

not comply with the plan are assessed payment reductions or the

applicable contract acreage is terminated. Noxious weeds must be

controlled in accordance with local laws on all contracts at all times.

It is not necessary to file a complaint to have CRP acreage checked for

compliance with the plan.

Eleven comments suggested weed control should be targeted only to

those weeds officially listed as ``noxious weeds'' by the applicable

State. Three comments suggest that the requirement for general control

of weeds be eliminated. CRP practices are installed to meet a

particular environmental or conservation objective. Plants that impede

that particular objective must be controlled. CCC believes that it is

important to control weeds that are detrimental to the purpose of the

selected cover. Therefore, this recommendation will not be adopted.

However, CCC will work with CRP participants to preserve the

environmental benefits including, where appropriate, spot mowing and

other spot treatments.

Sec. 1410.21 Obligations of the Commodity Credit Corporation.

One comment suggested that the meaning of ``subject to the

availability of funds'' is unclear, given that rental payments will be

made under the authority of the CCC. CCC is now authorized to use its

borrowing authority to fund the CRP. However, it is necessary to

maintain this language since CCC funds will not be earmarked in

advance.

Nineteen comments were received in support of the incidental

gleaning of certain CRP acreage and one comment was in opposition.

Incidental grazing associated with gleaning of crop residues is

authorized by the 1985 Act and can provide a worthwhile additional

incentive for participants without a significant effect on other

parties; such gleaning is limited both by the regulations and the

conservation plan.

One comment suggested that should funds cease to be available, land

enrolled in CRP would be freed from the contract obligations without

causing default on the part of the landowner, and that the landowner

would be provided at least 12 months' notice of USDA's termination.

Another comment suggested that CRP contracts must be considered legally

binding on both the landowner and the CCC and rental payments should be

made to landowners in a timely manner as provided in the contract.

Since inception, all CRP rental payments have been made, subject to

statutory constraints. That should continue to be the case.

Two respondents suggested that any bases being protected should not

be released because it would only reduce farm program payments. This

recommendation will not be adopted. Once the CRP contract expires there

is no authority to protect allotments or quotas in accordance with the

1985 Act. The eligibility of current holders of CRP contracts to

participate in the production flexibility contracts authorized by the

1996 Act is statutory. However, CRP acreage that is reenrolled will be

considered to be under a new contract and will lose any ``base''

protection for production flexibility contracts that otherwise applied

since such bases were terminated by the 1996 Act. If a farm with

tobacco quotas or allotments or peanut quotas is enrolled in the CRP,

such allotments and quotas must be reduced but will be restored in

accordance with the statutory provisions in effect when the CRP

contract is terminated.

Two comments suggest the quota for peanuts or tobacco on land being

enrolled in CRP should not be reduced. This recommendation will not be

adopted because the reduction is required by 1985 Act.

Sec. 1410.22 Conservation plan.

One comment suggested wildlife habitat creation be included as a

requirement in the conservation plan. Another comment suggested that

FSA and NRCS, in conjunction with wildlife managers, work to ensure

that partial field practices also provide habitat benefits for

wildlife. This recommendation will not be adopted. It would be

inappropriate to require wildlife provisions if the purpose of the

practice is not wildlife.

One comment suggested that the local weed control representatives

be requested to participate in developing a plan for evaluating noxious

weed control on contracts requesting extension and for assuring

adequate noxious weed control on active contracts. Participants are

required to control noxious and other weeds to protect the cover and

the conservation plan will include any control techniques. CCC relies

on local weed officials to enforce State laws regarding the existence

of any noxious weeds on CRP acreage.

Three comments opposed the requirement that landowners control all

weeds, insects, and pests because some weeds being controlled in most

cases offer the highest wildlife values and places unnecessary

constraints on program participants. This requirement applies only when

the approved cover has been damaged by the existence of weeds, insects,

or pests.

One comment suggested that contracts allow for spot mowing and spot

treatment of weeds. Procedure will

[[Page 7616]]

encourage this provision where technically appropriate. However,

disturbance of the cover will not be permitted during the primary

nesting period.

Five comments supported NRCS supervision to create firebreaks with

light tillage on CRP land and would like the issue addressed in the

regulations. This recommendation will not be adopted. However,

firebreaks are allowed on CRP acreage when required by State and local

units of government to include barren firebreaks where erosion is not a

hazard and documented in the conservation plan.

One comment suggested that in order to create and enhance wildlife

habitat, pine plantations and fescue monocultures should be eligible

for reenrollment only if they are improved substantially for wildlife

through habitat diversification. This recommendation will not be

adopted as the indexing system will allow for taking those factors into

account, along with others, to maximize achievement of the program's

objectives. However, improving cover for the benefit of wildlife will

enhance the likelihood of acceptance in the program.

Regarding native plant species, five comments suggested that native

plant species be required for cover plantings. Two comments suggested

the use of seeds on CRP land represent the type of vegetative

communities native to that area. Three comments suggested that a

stronger emphasis be placed on diversifying cover plantings on CRP

contracts to include native species where applicable. One comment

suggested that the regulations should provide, generally, that land

cover should use vegetation native to the region and include as diverse

a mixture as is environmentally valuable and cost effective. Two

comments suggested that eligible practices should state a clear

preference for establishing native species of grasses, legumes, shrubs,

and trees and to the extent practicable, landowners should be

encouraged to plant locally derived plant materials. Two comments

suggested that the regulations require the use of native warm season

grasses on lands enrolled CRP where grassland is the desired cover

type.

The CRP has multiple purposes and it is a voluntary program. A

producer selects the practices most desirable for his or her farming

operation. If the producer's objective requires an introduced species,

it would be inappropriate and inefficient for CCC to require that a

native species be used.

One respondent suggested that Sec. 1410.22(b) should be amended to

replace ``or'' with ``and'' when listing the purposes of the practices

to be included in the conservation plan. Conservation plans are drafted

according to the primary purpose of the practice. To modify such a plan

to include all objectives may unnecessarily compromise the

environmental benefits to be obtained.

One comment suggested the choice of the species to be planted

should be an option of the landowner and professional forester as

determined by both to be best suitable for the site and the owner

objectives. Flexibility on this issue reflects current CCC policy.

However, species will be considered when evaluating offers.

One comment suggested the local NRCS offices have the flexibility

to develop grass roots maintenance plans that would achieve the overall

CRP objectives, which would include determining stocking rates and time

of implementation based on local conditions, climate and topography.

The conservation plan is written to include appropriate maintenance

provisions. Therefore, this recommendation will not be adopted.

Eight comments suggested that the conservation plan should allow

landowners to irrigate crops from water cover located on the CRP acres

with an appropriate reduction in the rental rate. Generally, acreage

accepted with water as an approved cover was done so for water quality

and wildlife purposes. To drain such acreage for crop production could

adversely impact the land directly counter to the purposes for which

the acreage was accepted. Further, such activities could be destructive

to the cover and do not appear to be needed or cost-effective.

One comment suggested that the conservation plan should allow

appropriate maintenance of permanent cover and should not have required

management of anything other than CRP contract acreage unless the

producer requests a more comprehensive plan. The CRP conservation plan

does make allowance for the appropriate maintenance for only the cover.

One comment opposed eliminating the minimum widths for the strip

practices and suggests, in all cases, the area of the strips should be

computer based on the average width, not the minimum. Other comments

suggested a minimum width. The Conference Report accompanying the 1996

Act suggested that, to the extent practicable, that local conditions

should be considered when determining minimum required widths for

vegetative strips in CRP. Further, complaints were received from the

public that previous regulations were not flexible to meet the needs of

intended CRP sites in all States. Accordingly, it has been determined

that decisions on these size requirements will be made at the local

level.

One comment suggested that the conservation plan should take into

account any abnormal weather patterns and should the cover fail through

no fault of the contract holder, NRCS should work with the producer in

order to assure that the cover is replaced in the most cost-efficient

manner. It is unclear how a technician can develop a plan for abnormal

weather patterns. However, NRCS will work closely with a participant in

such circumstances. Similarly, USDA will work with landowners so that

all options for land use and Federal and State assistance are known.

One comment suggested that NRCS cooperate with producers who put

land back into production and organizations or agencies cooperating in

the funding of the program must diligently respect private property

rights. The Conference Report accompanying the 1996 Act suggested that

lands exiting the CRP under the early termination provisions of the

1985 Act not be held to a higher conservation compliance standard than

similar cropland in the area. NRCS will work with a landowner in

providing technical assistance on potential conservation compliance

problems and to provide an appropriate conservation plan.

Several comments suggested that silvaculture thinning from 8 to 10

years of age and subsequently every 3 to 5 years thereafter until final

harvest be allowed with a reduced payment during the years of

commercial activity. The final rule has been amended in Sec. 1410.21 to

provide for normal forestry maintenance activities consistent with the

1985 Act.

One comment suggested that filter strips and riparian buffers

should be allowed to be contracted anywhere determined necessary, not

just along permanent streams and that minimum widths for all the strip

practices not be eliminated with ephemeral waterways allowed to flow

through the middle of the strip. This recommendation did not reflect

the 1985 Act limitations on eligible land such as the enrollment of

cropland and marginal pasture lands. Accordingly, this comment can not

been adopted.

One comment suggested prioritizing between filter strips and

riparian buffers when there is an adjacent water course involved. The

filter strip and riparian buffer standards provides the needed

flexibility for NRCS to make these

[[Page 7617]]

eligibility determinations. Accordingly, this comment has not been

adopted.

One comment suggested that fields should not be considered a

qualified established stand unless a majority of the specified and

drilled grasses are present and flourishing. This is already a

requirement for practice certification.

One comment suggested that the conservation plan should allow for

the addition of structures, grassed waterways, terraces, and settlement

ponds on land enrolled in CRP which will be returning to production.

CRP's purposes do not include preparing land for a return to

production. Therefore, this recommendation has not been adopted.

Two comments suggest the terms, conditions, and requirements of CRP

maintenance contracts be made known to farmers prior to commitment. The

required maintenance provisions are included in the conservation plan

and are reviewed and discussed with CRP participants by NRCS prior to

contract approval.

Sec. 1410.23 Eligible practices.

One comment supported sound conservation practices such as filter

strips, waterways, headlands, and riparian buffers but did not support

an annual payment from CCC to maintain them. CCC provides a nominal

additional rental rate incentive, up to $5 per acre as part of the

maximum rental rate calculation, to ensure that participants are

willing to enroll land for those practices and then properly maintain

them. Actual cost-share rates are set in accordance with the 1985 Act.

CCC will continue to set rental rates in a way that reflects true costs

and which achieve the intended environmental goals of the program.

These additional incentives, because of the special nature of the

contracts, are needed and warranted. Offering a lesser amount, however,

enhance the ranking of the offer.

One comment suggested riparian criteria include flooded and scour

areas rather than be set in terms of the number of feet from the water

course. The current rule and this final rule already provide for

establishing such criteria in either manner.

Three comments suggested that eligible practices include naturally

occurring grasses and other covers. The rule allows for such action by

CCC so no change was made from the proposed rule.

Two comments suggested that tree planting should be a priority in

areas subject to scour erosion and also in riparian areas. Tree

planting is a requirement in scour erosion areas. Sec. 1410.6 provides

that cropland approved for enrollment under scour erosion criteria must

be planted to an appropriate tree species or mix thereof according to

the FOTG, unless NRCS, in consultation with FS, determines that tree

planting is not appropriate. Trees or shrubs are required for the

riparian buffer practice.

One comment suggested that riparian corridors containing hardwood

trees should be added to the eligible practices. The final rule has

been amended to remove references to specific eligible practices.

One comment suggested that FSA, NRCS, and wildlife managers should

strive to ensure whole field practices are considered. This is not

precluded under the final rule.

One comment suggested the State FSA committee include the

implementation of practices which will benefit successful native field

habitats. The final rule allows such a priority if deemed appropriate

in particular cases.

Three comments suggested that the regulations allow the use of

native vegetation/natural succession on lands enrolled in CRP and cost-

share periodic maintenance, for example, by light discing. Cost-share

payments are made as authorized in the 1985 Act and incentives may be

included in rental payments to reflect special burdens. Such incentives

will be added as needed. Acreage with covers already established are

permitted to be enrolled provided all other eligibility criteria are

met.

One comment suggested that for lands planted to trees there be a

maximum of 436 trees per acre, a minimum of 30 foot unplanted buffer of

natural vegetation or wildlife plantings along the edge of fields, a

minimum of 10 percent of the former agricultural field maintained in

wildlife openings (includes acreage in unplanted buffer), and cost-

share on seeding of up to 25 percent of the field with perennial or

reseeding legumes (when site conditions are appropriate). This

recommendation will not be adopted. These are specific practice

requirements that are more appropriate for the FOTG.

Five comments supported a new practice for wildlife habitat. Two

comments suggested forest trees be an acceptable permanent vegetative

cover. There is no need to create a new practice. CRP already has two

practices for wildlife habitat. Both hardwood and softwood trees are

acceptable covers.

Two comments stated that the proposed rule does not adequately

address prairie wildlife protection. The final rule continues the

provisions for establishing grassland cover that has benefitted prairie

wildlife species and resulted in habitat that has assisted in the

population recovery of water fowl and other migratory bird species in

the Great Plains States.

Two comments suggested the wildlife water cover restrictions placed

in the 1985 Act should not apply to this section. This recommendation

can not be adopted due to the provisions of the 1985 Act.

One comment suggested that annually planted wind strips be an

eligible practice. The purpose of CRP is to cost-effectively assist

owners and operators in conserving and improving soil, water, and

wildlife resources by converting highly erodible and other

environmentally sensitive acreage normally devoted to the production of

agricultural commodities to a long-term resource conserving cover.

Therefore, this recommendation will not be adopted.

Sec. 1410.30 Signup.

The comments received suggested including agricultural drainage

wells, field border strips, center pivot circle corners, grassed

terraces, linear grass strips, shrub plantings arranged in irregular

blocks, and land currently enrolled in WBP. The practices eligible for

continuous signup may be implemented on field borders and center pivot

corners if such land is determined eligible and suitable for the

intended practice. As to the other suggestions, their adoption would

not be cost-effective uses of the CRP. The land and practices eligible

for continuous signup generally provide benefits to large areas when

compared to the acreage on which the practice is implemented.

One comment suggested all lands USDA intends to be eligible for the

continuous enrollment process should be listed in the regulations.

Specific practice eligibility determinations will not be included in

the regulations so as to provide the needed flexibility to be able to

modify the available practices to respond to agricultural,

environmental, and economical changes. Therefore, this suggestion is

not being adopted.

Twenty-seven comments supported the new continuous signup

implemented in 1996.

Several comments were received regarding the CRP enrollment period.

Two comments suggest the State FSA committee establish the enrollment

period and one comment suggests a constant annual enrollment period be

established through 2002. The CRP acreage limitation is a national

limitation allowing CCC the discretionary authority to determine the

[[Page 7618]]

maximum acreage level up to 36.4 million acres. The desired maximum

acreage limit determines when enrollment periods are announced

considering the number of acres currently enrolled and the schedule for

acres exiting the program. The maximum acreage level at any time can be

dependent upon market conditions, farm financial conditions, and

national and local environmental concerns that must be evaluated

nationally, with other factors. A rigid schedule would unduly limit

CCC's options and would not allow adjustments to changed circumstances.

One comment suggested participants be allowed to choose any year to

be the effective year of the contract. To allow producers to pick any

effective year for the contract prevents from CCC maintaining current

acreage levels. However, producers, who enroll acreage under the

continuous signup provisions, choose when to enroll acreage and are

permitted to defer the effective date of the contract for up to six

months.

Several comments suggested the strip practices, ``contour grass

strips'' and ``wildlife corridors'' be made eligible for immediate

enrollment under the continuous signup provisions. Like the permanent

wildlife habitat practice, wildlife corridors are eligible for the

continuous sign-up when located in wellhead protection areas. Contour

grass strips are eligible. The rule, however, will continue to allow

complete flexibility for CCC on determining which practices are chosen

for continuous signup.

One comment suggested there should be no discrimination against

smaller acre bids when they provide big benefits. CCC recognizes the

value of certain practices which generally enroll small acres in

providing significant benefits by allowing otherwise eligible offers

for these practices to be enrolled without further evaluation.

Sec. 1410.31 Acceptability of offers.

General

Four comments suggested that the ranking structure was one of few

Federal programs that ``helps our citizens and wildlife.'' Two comments

suggested that expiring contracts not be allowed any advantage in

subsequent enrollment. Each offer will be evaluated on its own merits.

Existing CRP offers that will use current covers will have reduced

costs and would have, in that sense, some advantage.

Another comment suggested that the bidding process should be

replaced with a set amount of $25.00 to $35.00 per acre. The report

accompanying the 1997 Appropriations Act reaffirmed previous

Congressional direction that CRP rates should not exceed the prevailing

rental rates for comparable land in the local area. Establishing

arbitrary values would be inconsistent with this directive.

Four comments requested an opportunity to review and comment on the

ranking process. The ranking process, as set forth in the proposed

rule, was developed by an interagency task force consisting of several

USDA Agencies, the Environmental Protection Agency, and the U.S. Fish

and Wildlife Service. The ranking process, moreover, is not a rigid

schedule but may be adjusted depending on the progress of the

enrollments, or changed priorities. Interested parties have been, and

may continue, to make their views on priorities known.

Another comment suggested that more of the matters now set forth in

technical manuals should be incorporated into the proposed rule. This

is not a CRP rule issue. Section 343 of the 1996 Act requires that any

future revisions to NRCS technical guides be made available for public

notice and comment.

Process

Nine comments suggested that producers currently enrolled in the

CRP should not be required to rebid if their land qualifies for

enrollment. The comment was not clear on the basis on why existing

acreage should be considered differently from acreage seeking

enrollment for the first time. Requiring all expiring CRP acreage to be

rebid will allow CCC to treat all eligible owners and operators on the

same basis. Accordingly, this recommendation will not be accepted.

Fourteen comments suggested that clear guidelines for acceptance be

published in advance to make the approval process observable and more

predictable. CCC intends to continue its efforts ensuring that the

public is fully informed and will make available programmatic

information prior to enrollment. CCC also intends an element of

competition between bids to increase the cost-effectiveness of the

program.

Five comments suggested the conservation priority areas be taken

out of the eligibility criteria and placed in the ranking process. The

conservation priority areas allow acreage that does not meet the

regular eligibility criteria but that meets some other identified

environmental need to be offered for the program but to ensure maximum

environmental benefits the offered acreage will compete with other

acreage being offered. The ranking process contains credit for being

located in a conservation priority area to account for the cumulative

environmental benefit that accrues within the CPA.

One comment supported the use of a ranking process that does not

favor one habitat or environmental factor. However, the commenter also

suggested some kind of additional consideration be given for a number

of categories of acreage predominantly related to current CRP

contracts. The ranking process contains credit for acreage where the

appropriate cover is already established. Other comments suggested that

additional credit be given for State and federal endangered,

threatened, or candidate species. This comment was adopted.

One comment opposes the proposed rule's emphasis on tree plantings.

However, the 1985 Act establishes, as a goal, not less than one-eighth

of the land enrolled during 1991 through 2002 being established to

trees and other specified covers. The ranking process will contain

criteria that will encourage tree planting and other practices that

have long-term retention after the contract expires.

One comment suggested the rule concentrate more on water quality

than air quality. The overlapping nature of the natural resource

factors yields multiple benefits that can rarely be accorded to one

factor. For example, substantial air quality benefits have been

obtained in the Great Plains States for land which was enrolled under

earlier soil erosion criteria. The commenter also suggested the EI of 8

will overlook land that yields substantial benefits while it may have

an EI of less than 8. The standard used to define highly erodible land

provides a rational break for enrollment. Land with an EI of less than

8 which provides identified environmental benefits may be eligible

under the conservation priority area authorized under Sec. 1410.8. The

ranking process will contain criteria that includes both water and air

quality along with other factors. Lands with an EI less than 8 that

contribute to air quality problems could be recommended as a

conservation priority area.

Three comments suggested that land offered within national and

State conservation priority areas should receive consideration in the

ranking process. This comment was adopted.

Ranking Plans

One comment suggested the bid against each other process be

eliminated and that the local FSA offices have the control of the

selection of suitable CRP

[[Page 7619]]

land. This recommendation did not alternatively describe how the

maximum environmental benefits could be obtained under the recommended

scenario and will not be adopted.

A number of comments suggested that FSA work with State and local

resource professionals. State FSA committees, in consultation with

State Technical Committees will be afforded an opportunity prior to

signup to develop a State ranking plan consistent with stated broad

natural resource goals. Members of the State Technical Committees

include Federal and State resource professionals and others.

One commenter suggested that the State Technical Committee, not

CCC, should establish ranking factors, conservation priority areas, and

priority purposes. However, the statutory mandate for State Technical

Committees limits its authority to recommendations.

Natural Resource Factors

There were a number of comments suggesting that land under contract

should be afforded some special status. Provided an appropriate cover

is established, the ranking process will make an allowance because of

the reduced establishment cost. However, it would be inappropriate and

unduly complex to establish separate types of acreage to be evaluated

for enrollment.

Another comment suggested that the natural resource factors should

be feasible for all geographical regions. Enhancement of wildlife

habitat, water quality, and air quality; reduction of erosion, and

benefits from establishing longer term practices are goals applicable

throughout the country. The ranking process incorporates all of these

natural resource factors.

Other comments suggested that priority be given to acres that are

within several miles of lakes, rivers, marshes, woody areas, greatest

acreage of wetlands, to large blocks of land, and to upland acreage

near wetlands. The ranking process will consider similar factors. The

ranking process will consider areas within proximity of protected

acreage. CRP in proximity to lakes, rivers, and marshes will also be

considered.

Two comments suggested the ranking process needs to give better

recognition and greater benefits to restoration of native vegetation or

prairies and to mixed species of trees. The ranking process will take

into account these comments.

One comment suggested that the playa basins be given a high

ranking. Restoration of wetlands or land adjacent to playa basins will

be considered in the ranking process.

One comment suggests that CRP eligibility should be designed to fit

into all agricultural ecosystems and not be based solely on erosion

index factors or designated conservation priority areas. The ranking

process is designed to be a broad natural resource based formula to

assist CCC in ranking offers.

Seventeen comments suggested that the final rule should include

language that recognizes wildlife habitat as a co-objective of CRP and

lands should be ranked based on wildlife objectives. Sec. 1410.3 lists

wildlife habitat as one of the objectives of CRP.

Comments relating to specific factors follow.

Wildlife Habitat Benefits

Eleven comments suggested that the final rule exclude wildlife

habitat benefits from being considered as a separate criteria. Since

CRP can prevent decline of wildlife populations thus avoiding the

listing of a species under the Endangered Species Act and enhancing the

recovery of an already listed species, CCC considers wildlife an

appropriate factor. Other comments suggested that additional emphasis

be placed on the enrollment of wildlife habitat benefits including

higher priority, larger tracts, or requiring wildlife improvements.

Vast improvements in the recovery of various wildlife have been

attributed to CRP and will continue to be an integral part of CRP's

purpose with reduction of soil erosion and improvement in water

quality. CRP provides significant environmental and economic benefits

through the enhancement of wildlife habitat.

Other comments suggested that consideration be given to large

contiguous blocks of land. The relative size of acreage offered for CRP

is considered during the ranking process. In general, for most

terrestrial and bird species, large blocks of land are more valuable

for wildlife.

Water Quality Benefits

One comment recommended the ranking process incorporate water

conservation benefits. To the extent that improved water quality

includes the conservation of water resources, this recommendation was

adopted. It is otherwise unclear how an assurance can be obtained that

the conserved water would not be devoted to other uses.

Two comments suggest that ``drinking water quality'' should be

specifically mentioned as one of the factors for prioritizing offers.

``Drinking water quality'' is an inherent subset of the water quality

factor.

Reduced Erosion

One comment suggested that soil erosion be changed to soil loss.

The commenter did not make clear the basis upon which the comment was

offered. Accordingly, the comment was not adopted.

Another comment suggested that enrollment priority be given to land

that cannot be farmed under a conservation plan without using

alternative conservation systems. There is a direct connection between

the amount of credit awarded under the ranking process and the EI of

the acreage offered which is consistent with the suggestion.

Likely Long-Term Benefits

Two comments recommended the elimination of tree planting and one

of those comments recommended creating a prairie restoration practice

and the establishment of native grasses will continue to be permitted

in CRP.

Another comment suggested that grassland establishment rather than

tree planting be a priority. The 1985 Act, however, establishes tree

planting as a goal of the program. Accordingly, this recommendation

will not be adopted.

Another comment suggested there was a ``penalty'' for the Great

Plains associated with tree planting. However, there was no ``penalty''

or other reduction applicable to the Great Plains or any other

geographic area proposed except that, of course, the cost of tree

planting can differ in different regions and those costs must be taken

into account.

Air Quality Benefits

Two comments suggested that wind erosion should be considered more

heavily. A new natural resource factor for air quality was added to

reflect the benefits from reduced wind erosion.

Cost Factor

A number of comments suggested a cost bonus factor that takes into

account the reduced expenditures necessary on lands already in CRP with

established cover. This comment was adopted.

One comment suggested not considering the rental rates in the next

CRP signup. However, rental rates are key to the cost-effectiveness of

the program. Therefore, this suggestion can not be adopted.

Five comments suggested that the renewal of present contracts

should be considered first for re-enrollment because there would not be

any cost-share expense for seeding. Because the goal of the CRP is to

achieve specified conservation benefits, CCC does not believe it

appropriate to consider a differentiation in classes of acreage.

[[Page 7620]]

However, the ranking process will consider whether the appropriate

cover has been established.

Sec. 1410.32 CRP contract.

There were six comments that suggested the CRP contract not be

binding, be revocable before contract approval at producer election, be

subject to drainage district concurrence, or not have terms to require

the refund of payments or interest upon termination. All of these

suggested actions would diminish the value of the contract, would be

contrary to 1985 Act, and, accordingly, have not been adopted.

Another comment suggested that the ``Super Sod Buster'' provisions

be eliminated from contracts enrolled since 1991 because it is not

consistent with earlier enrolled contracts. This provision and limit

are required by the 1985 Act.

Nine comments suggested that various contract lengths be

considered, including those with five-year increments starting at ten

years as a minimum and going to at least 20 or 25-years. However, 1985

Act establishes the time period as 10 to 15-years. Accordingly, this

suggestion was not adopted.

One comment suggested that extensions of existing CRP contracts

should be allowed for wildlife benefits if the owner should choose this

option. However, as indicated in the proposed rule, Congressional

directives contained in the 1997 Appropriations Act effectively

precluded the extension of any CRP contracts in FY 1997. Accordingly,

this suggestion was not adopted.

One comment suggested more specific guidance regarding when

production of an agricultural commodity on CRP land would be

authorized. CCC is committed to the release of acreage under CRP

contract only in severe circumstances, and consistent with 1985 Act. As

such, it would not be appropriate to speculate as to what set of

consequences would trigger the release of acreage for agricultural

production.

Early Termination

Eleven comments supported the early termination provisions

including those practices that are ineligible for early termination. Of

those, one comment recommended a reduction in the minimum average width

required to remain in CRP near a permanent water body. However, that

reduction may not be environmentally appropriate in all areas of the

country.

One comment suggested that filter strips may not need to be as wide

as presently required. This recommendation was adopted. The appropriate

width of a filter strip will be determined by referring to the

applicable FOTG.

Eleven comments suggested an expansion of the early-termination

list of ineligible acres to include other grass or forested areas in

reducing erosion, areas of high wildlife value, areas likely to have an

impact on drinking water, or within 100 feet or adjacent to any

temporary, semi-permanent or permanent stream, wetland, or other water

body. However, early termination was authorized by the 1996 Act

amendments to the 1985 Act. It is likely that the recommendations,

taken collectively, would result in substantial acreage made ineligible

for early termination, which is not consistent with the purpose of the

early termination provision as authorized by the 1985 Act.

Two comments were not supportive of either the early termination

proposal generally or the exemption of certain practices. However, the

allowance, its limits, and the exemption of the particular practices

mentioned, are all statutory.

Sec. 1410.33 Contract modifications.

The majority of comments received on this section pertained to

contract extensions. However, the 1997 Appropriations Act effectively

precluded the extension of any CRP contract in FY 1997.

One comment suggested using the expiration date of the original

contract as the starting point for ten-year re-enrollments. Contracts

for acreage accepted for new enrollment would not begin until the

original contract expired.

Another comment suggested that CRP contracts should not be

terminated when grain prices are high. The CRP still provides a reserve

and CCC must maintain all of its options. Further, before any contract

termination, CCC will carefully review the environmental impacts and

net benefits.

Sec. 1410.34 Extended program protection.

Four comments suggested an extension of the existing program

preservation agreement for five to ten years. The final rule reflects,

consistent with the 1985 Act, that program preservation agreements will

initially be effective for 5 years with an option to renew every five

years. As indicated earlier, however, the importance of this provision

has been changed by the change in the nature of commodity programs.

Sec. 1410.40 Cost-share payments.

Comments relating to cost-share payments generally involved

suggestions on increasing or limiting rates, liberalizing

applicability, or clarifying terminology. Four comments suggested

modifying Sec. 1410.40(g) in order to limit federal cost-share rates,

in combination, to 50 percent. This comment is not adopted since except

for special cases identified in the rule, the 1985 Act limits the

program cost share to 50 percent. One comment suggested increasing

cost-share rates for native grass establishment. Eight comments

supported additional cost-sharing for wildlife habitat restoration,

maintenance of plantings for wildlife corridors, eligible practices

such as shallow water areas for wildlife and permanent wildlife

habitat, and restoration of wetland hydrology. The 50 percent limit, as

indicated, is statutory. As for rental rates, those rates can be

adjusted as needed, consistent with statutory law.

Several comments suggested liberalized eligibility. Two comments

suggested adding riparian buffers consisting mainly of woody plantings

to the list for cost sharing of maintenance for two to four years. CCC

provides a nominal amount in the annual rental payment for maintenance

requirements associated with the conservation plan. Two comments

suggested allowing cost-share to increase species diversity of cover

plantings. Eight comments supported cost-share for replacing or

restoring practices as needed to achieve adequate wildlife habitat.

Cost-share for diversifying cover previously established and for

replacing covers that do not become established is generally

authorized. One comment suggested cost-share for fencing and water

impoundment on CRP acres. This provision is available for certain

practices. One comment suggested providing cost-share for prescribed

burning in young longleaf pine plantings. Habitat disturbance such as

fire is often an important part of the maintenance of healthy

biological systems. By statute, cost-share is not available on

maintenance of existing practices except in very limited cases.

However, rental incentives are used as needed to encourage enrollment

of these activities. One comment suggested that language should be

added that State wildlife agencies and other nonprofit conservation

organizations should be eligible for cost-share assistance not to

exceed 100 percent of the cost. Another comment suggested that CRP land

should not be excluded from the benefits of other Federal cost-share

[[Page 7621]]

programs. These comments raise the same statutory issue and have not

been adopted.

One comment suggested allowing a three-year establishment period

for softwood plantings and 50-percent cost-share for hardwood planting.

A three-year establishment period for softwood planting is not

necessary because the planting effectiveness for such trees is

generally greater than for hardwood species. The three year allowance

for hardwood trees is established by the 1985 Act and the cost-share

rates are set in accordance with that Act. Another comment suggested

that maintenance on tree projects should be kept to the minimum needed

to establish the trees. Forest management plans stipulate maintenance

needs and are not addressed by the proposed rule. One comment suggested

that a maintenance allowance be included in the law to eradicate

noxious weeds and that payment reductions for noncompliance should stay

in the State to pay for weed control. No provisions exist in the 1985

Act for payments to States for control of noxious weeds or for specific

payments for weed control in general. Rental rates, however, will

provide incentives for farmers to comply with all CRP provisions.

One comment requested clarification between cost-share payments and

rental incentives. A cost-share payment is required by the 1985 Act to

assist participants in establishing all eligible conservation

practices, and is based on actual costs at a specific site. Rental

incentives are designed to encourage particular enrollments and do not,

as such, involve a percentage share of particular costs incurred. With

a rental incentive, any special costs will be strictly the burden of

the participant.

Sec. 1410.41 Levels and rates for cost-share payments.

Comments on cost-share levels and rates generally recommended

either limiting or increasing practice eligibility or rates made

available to producers. Two comments suggest a $3,500 limit on the

total cost-share available to any landowner and another suggests

limiting cost-share to 50 percent regardless of the source of the cost.

Rate suggestions included one comment that recommended increasing cost-

share assistance to 75 percent for limited resource producers and one

that recommended a 50 percent incentive payment be paid to cover all

costs of wetland restoration. The 50 percent cost-share rate is

statutory and the suggested $3,500 limit would unduly limit

participation in the program. However, participants may receive

additional funding through State or private organizations. Five

comments supported the use of cost-share assistance to encourage

restoration. In addition to eligible wetlands, restoration activities

on other lands may also be included by CCC after carefully reviewing

all environmental factors and cost.

Sec. 1410.42 Annual rental payments.

Ninety-seven respondents supported the proposal to base the

schedule of rates that FSA will pay for different soil types within a

county on the local average dryland cash rental estimate or similar

concept. Of those, 12 comments suggested using a crop share or the cash

equivalent rather than cash rent. Six other comments suggested basing

the rental payments on the market value or sale price of the ground.

One respondent stated rates in counties influenced by urban areas

should be higher and another comment urged that rates be lowered so

that ground will return to production.

Ninety-four respondents indicated opposition to the manner in which

CRP rental rates were proposed to be established. Of those, 36

suggested that because the more erodible and fragile type soils will

have a lower rental rate, they may be less likely to be bid into CRP or

more likely to be removed by the producer than more productive soils.

Three of the comments simply stated that the new price structure would

be devastating or would not work but offered no basis for the comments

or suggestion for improvements. CCC will not be constrained to using

only a dryland basis in order in establishing maximum payment rates to

meet program and environmental goals and requirements.

Fifty-two respondents urged that rental rates remain at the current

contract rate. A few urged the same rate for five years or to use the

current CRP contract rates unless the cash rental equivalent were

higher. Forty-six respondents recommended that current CRP rental rates

simply be reduced with suggested amounts ranging from 60 to 90 percent

reduction. A few also suggested reducing payments for participants who

used cover for haying and grazing or to thin tree plantings.

Several comments suggested using other methods for setting the

rental payments such as using either the average county cash rental

rate or the average CRP annual rental payment from signups one through

13; using a simple, valid formula for each county developed by the

Economic Research Service; setting rates equivalent to the WBP rates;

setting a single minimum rental rate for all soils in the State of

North Dakota; using the estimated CCC program payment yield; reducing

existing contract rates by 10 percent per year until optimum levels are

reached; or using a five-year rolling average of an unspecified

calculation. Several respondents suggested that rates be increased to

provide for taxes and inflation or to take into consideration CCC

production flexibility contracts, and two comments recommended local

conservation districts have a role in estimating payment rates. Twenty-

one respondents urged that rental payments be set at a fair rate that

is high enough to keep ground in the CRP, but made no comment regarding

the efficacy of the proposed method. One comment suggested that rates

provide for calculations to reflect fair market values in riparian

areas.

As indicated previously, the report accompanying the 1997

Appropriations Act reaffirmed previous Congressional direction that CRP

contract rates should not exceed the prevailing rental rates for

comparable land in the local area. Various methodologies for

determining CRP payment rates equivalent to the prevailing local rental

rates were reviewed by an interagency workgroup and the determination

was made that the local average cash rental rate as determined by the

county FSA committees, adjusted for the relative productivity of the

soil, would provide the most accurate and uniform methodology.

Instructions to county FSA committees for establishing the payment

rates provided that in areas where share rents are most common they use

the cash equivalent of share rents. Instructions further provided for

taking into consideration, where necessary, hydric soils whose

productivity is impacted by the presence or absence of drainage

systems. The county average cash rental rate, or equivalent, as

established by county FSA committees would inherently reflect distance

to market and other conditions affecting rental rates in the county.

The county FSA committees received recommendations from local teams.

Participants who are approved to hay and graze established long-

term vegetative cover under emergency conditions in accordance with an

approved conservation plan are subject to a reduction of their CRP

annual payment. Similar provisions will be implemented for participants

that conduct normal forestry maintenance in accordance with an approved

conservation plan.

A few comments addressed the soil rental rate methodology. One

[[Page 7622]]

respondent recommended that a single predominant soil type be used per

participant rather than multiple soil types in a field. Three comments

suggested that rates on similar soil types should be the same from

State to State, and another recommended that the same rates be used in

a county for all producers having the same soil type. One respondent

suggested allowing different soil rental rates for the same soil within

the same county based on different distances to markets and other

conditions. Another comment recommended adding a premium based on the

erodibility index of the soil. A few comments suggested that prices be

set to save the time and expense of bidding.

CRP operating procedure provides that up to three predominant soils

in a field be used in determining the soil rental rate. This approach

is designed to help ensure the equivalent treatment of fields having

more than one soil type. Interested applicants may make offers to

enroll acreage in the CRP during an announced signup period. The offers

will compete for enrollment. The maximum amount that CCC will pay for

an offer is determined and made known to the applicant at the time of

application. Although the same soil type may occur in more than one

county or State, other market factors may the soil rental rate to

differ. Soil rental rates for the same soil type within the same

county, however, are expected to be consistent.

Forty-one comments suggested financial incentives be provided for

various purposes. The majority of comments encouraged financial

incentives to promote installation of various practices considered of

high environmental value. Two comments suggested the State Technical

Committee should have flexibility to establish practice and incentives

of the greatest value in their State. One comment strongly opposed

incentives.

Based on the comments received, CCC has determined to continue to

offer incentives through an increased annual rental payment for certain

practices of high environmental value, including but not limited to

field windbreaks, grassed waterways, filter strips, riparian buffers,

and acreage located with an approved EPA wellhead protection area.

Incentives and practices available will continue to be determined at

the national level; eligibility and technical suitability of the

appropriate practice will continue to be determined for each offer at

the local level.

Several comments were received regarding other aspects of the

annual rental payments. Eight comments suggested that the $50,000

payment limitation is too strict. Seven comments urged that interest be

paid if payments are more than 30 days past due. Other respondents

suggested that CRP payments be considered rental income for tax

purposes, that the three entity rule, used in applying the payment

limit, be eliminated, and that the lifetime payment limitation may

limit the amount of targeted land in previous signups. Two comments

recommended providing compensation to participants for practice

maintenance, and one respondent suggested dividing payments for land

sold at public auction according to State law.

Section 1234(f) of the 1985 Act requires the $50,000 payment

limitation. CCC has implemented the provisions of the limitation

consistent with the implementation of other CCC programs with similar

payment limitation requirements. Provided the participant has otherwise

met all requirements for payment, if the CRP payment is not issued to

the participant within 30 days after the date county FSA offices

receive notification to make annual rental payments, the participant

may be eligible to receive interest in accordance with existing

procedures. Program payments issued are reported to the Internal

Revenue Service; determination of the treatment of income for tax

purposes is the responsibility of the participant. Regarding the

lifetime original contract limitation of $50,000, this provision would

not allow farmers who had transferred land with CRP contracts to

acquire new contracts if the total of the old and new payments would

exceed $50,000 per year even though the farmer would currently only be

receiving the new payments of under $50,000 per year. This provision

was designed to avoid circumvention of the three-year ownership rule.

CCC has removed this provision from the final rule because the three-

year ownership rule has been modified by the 1985 Act to be a one-year

ownership rule. The maintenance suggestion has been addressed earlier.

For land sold at auction, CRP payments, if due, will be divided in

accordance with current rules so as to allow for uniform practice. CCC

payment are not subject to the requirements imposed by State law.

Sec. 1410.50 State enhancement program.

Seven comments supported the conservation reserve enhancement

program including a detailed proposal outlining minimum requirements

for eligibility. State Governments may develop conservation reserve

enhancement program proposals and submit to their respective State FSA

office. An ideal use of such proposals would be to address Endangered

Species Act concerns; however, proposals addressing conservation and

environmental objectives of the State and nation will also be

considered.

Two comments suggested that the waiver of the $50,000 payment

limitation be applied to private and nonprofit conservation

organizations in addition to a State, a political subdivision, or

agency thereof. The 1985 Act limits the waiver of the $50,000 payment

limitation only for States, a political subdivision, or agency.

Therefore, this recommendation can not be adopted.

One comment suggested that efforts be made to protect

environmentally sensitive lands in States that are able to provide

additional funds to secure longer term or permanent easements. The

final rule does not preclude such a program.

One comment suggested that CCC work with States to provide cost-

share assistance with respect to conservation efforts such as the

control of noxious weeds on CRP land. Control of noxious weeds is

already required as a condition for enrollment in CRP. Maintenance

costs are the responsibility of the participant. There is no authority

for the suggested additional payments.

Sec. 1410.51 Transfer of land.

Four comments were received concerning this section. Two comments

suggested the same provisions in this section for lands acquired by

Federal agencies also be applied when a State or local agency or

private organization acquires a property or interest in CRP acreage

with the intent of keeping it in a conservation use. Another comment

suggested that consideration should be given to maintaining a contract

for environmentally sensitive land even though the ownership may be

transferred.

Any State or local agency or private organization participating in

CRP would be subject to the provisions in this section. The special

provisions for acquisitions by Federal agencies reflect that other

Federal agencies cannot be contract participants and have a special

opportunity for cooperation with the operating agency. With respect to

the other comments, the CRP contract is an agreement with the owner or

operator and does not attach any restrictions to property titles.

Accordingly, once ownership transfers the new owner is not obligated to

the terms and conditions of the contract unless the new owner decides

to become a participant as a successor in interest.

[[Page 7623]]

One comment suggested that maximum flexibility be allowed for

Federal, State, or local agencies or private organizations or

individuals to purchase lands enrolled in CRP if it is likely that the

land will remain in a cover similar to that established under the CRP.

It is unclear how this comment relates to the proposed rule. Landowners

who enroll acreage in CRP maintain their ownership interest. The

decision to transfer ownership remains with the landowner. Particular

proposals for enhancing the program through agreements with other

agencies can be handled as they arise.

Sec. 1410.52 Violations.

Four comments were received regarding violation provisions. Three

comments suggested that an explicit provision for relief in the case of

a good-faith violation, similar to the HEL good-faith provisions, is

appropriate. The comments also suggested the loss of all payments

should only apply to those found using a scheme or device. Another

comment suggests violations should result in more severe penalties to

promote active annual control of all weeds.

This section conforms with the provisions of the 1985 Act. CCC may,

in its discretion, reduce a demand for a refund to the extent CCC

determines that such relief would be appropriate and will not deter the

accomplishment of the goals of the program.

Sec. 1410.56 Division of program payments and provisions relating to

tenants and sharecroppers.

Four comments supported and 11 comments opposed the landlord/tenant

provisions of the proposed rule. Of those supporting the provisions,

three suggested that landowners be allowed to discharge the tenant on

land with expiring CRP contract acres being rebid into the program. Of

those opposing the provisions, four suggested that the removal of

tenants from the CRP contract would adversely impact the local economy

and one expressed concern about the lack of protection for tenants,

particularly with absentee landowners. Another comment expressed

concern about the operator receiving a share of the payment. None of

the recommendations were adopted except with respect to the issue of

tenants on farms with existing CRP contracts re-bid into the program.

Tenants are required to be on new CRP contracts if the tenant has an

interest in the acreage being offered for enrollment. For land which is

subject of a re-bid, the tenant must also be expected to have an

interest when the new contract is begun. If at some time during the

life of the contract the tenant fails to maintain tenancy, under

applicable State laws, the tenant can be removed from such contract.

These rules attempt to strike a balance between the interests of

landlords and tenants by protecting active tenants but not

unnecessarily extending that protection to two full CRP periods when

the relationship between the landlord and tenant has effectively ended.

The new rules encourage landlords and tenants to have a firm

understanding of their relationship with respect to each other with

respect to the CRP for the full CRP period and allow greater

flexibility in handling these situations by allowing a greater

opportunity for taking the facts of a particular case into account.

One comment suggested the relationship and share of payments may be

somewhat different for re-enrolled land. The comment suggests the issue

be addressed very carefully and clarified in the final rule. Re-

enrolled CRP acreage will be subject to a new contract. If the interest

of the participants in the farming operation has changed their share of

the payment on the new contract would, presumably, be different than on

the expiring contract.

Sec. 1410.60 Scheme or device.

One comment suggested the proposed wording was too harsh and

suggested that if a prima facie case can be made then payments should

be made if the issue is not fully resolved by the administrative

appeals process and, in emergencies, the funds should be held in

escrow. The terms of the rule are intended to ensure that the integrity

of the program is maintained and that language is needed. Given the

severity of the prior instances involving schemes or devices to defeat

the objectives of the program, CCC believes that the remedy provided

for in the rule is appropriate. Holding funds in escrow is not needed

and would be administratively burdensome. Therefore, this

recommendation was not adopted.

Sec. 1410.61 Filing of false claims.

The proposed rule provided that when a false claim is filed the CRP

contract may be terminated. One comment suggested a requirement that

the contract be terminated. However, to do so could unnecessarily

restrict CCC's options in handling special cases. Therefore, this

recommendation was not adopted.

Sec. 1410.62 Miscellaneous.

Several comments were received regarding: requiring CRP acreage to

meet conservation compliance requirements before being used for crop

production; demonstration or research project areas; cropland

classification with crop acreage bases remaining intact; providing

incentives for contour strips to reduce wind erosion; and special

mitigation provisions for emergency natural resource problems or

wetland banking. The final rule has not been revised to require that

CRP acreage meet conservation compliance requirements before being used

for crop production. There is no statutory authority to enforce such a

provision. CRP acreage meets the conservation compliance requirements

while it is under contract providing the conservation plan is being

followed. In addition, no substantive revisions were made regarding

demonstration or research projects because paragraph (g) of this

section authorizes the approval of such projects. Further, the 1996 Act

eliminated crop acreage bases; therefore, for new contracts, there are

no bases to preserve. However, cropland status will continue to be

maintained through the CRP contract period. The final rule did not need

to be revised to incorporate incentives for contour strips because

Sec. 1410.42 already allows for incentives for various practices.

However, the final rule has been revised, in paragraph (h) of this

section, to provide for wetland mitigation banking.

One comment suggested that in paragraph (f), with respect to

cropland status, the following be inserted after the word

``classification'': ``except as provided in Sec. 1410.34.'' It is

unnecessary to add this language because acreage subject to the

provisions in Sec. 1410.34 is still governed by the terms and

conditions of the contract including the cropland classification

provision.

Four comments recommended practices for land coming out of CRP. CRP

practices provide for long term resource conservation or protection.

Land coming out of the CRP will be subject to the provisions of 7 CFR

part 12. Requiring more would be contrary to the temporary term of the

CRP contract and would not be cost-effective. USDA will continue its

information efforts about options available under USDA and other

programs regarding conserving uses.

One comment suggested that field visits be required for all CRP

land that is reoffered in future signups before the acreage is

accepted. This recommendation has not been adopted due to the cost-

prohibitive nature of the volume of work associated with enrolling up

to 24 million acres.

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Sec. 1410.63 Permissive uses.

Thirteen comments were received for this section. Of those, one

comment suggested that participants be allowed to do anything

This text is long and has been trimmed here. Open the source document for the complete record.