# Conservation Reserve ProgramLong-Term Policy

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URL: https://www.frixlaw.com/law-library/documents/fr%3A97-3861

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** February 19, 1997
- **Citation:** 62 FR 7602

## Text

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

[[Page 7603]]

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

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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 off

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A97-3861. Public record. Not legal advice.