7602 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations

DEPARTMENT OF AGRICULTURE

Farm Service Agency

Commodity Credit Corporation

7 CFR Parts 704 and 1410

RIN 0560–AE95

Conservation Reserve Program—

Long-Term Policy

AGENCY: Farm Service Agency and

Commodity Credit Corporation, USDA.

ACTION: Final rule.

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 webmaster@wdc.fsa.usda.gov

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-millionacre 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-millionacre 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
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations 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 benefitcost 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 CostBenefit 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 agriculturerelated 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
7604 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations

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 costeffectively 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 § 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 § 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.
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations 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 environmentallysensitive 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
7606 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations

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-
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations 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

§ 1410.8.

§ 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

§ 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.

§ 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

331⁄3 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 ‘‘662⁄3

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
7608 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations

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 socalled ‘‘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.

§ 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
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations 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.

§ 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.

§ 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 § 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.

§ 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 reenrollment 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 reenrollment.

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.
7610 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations

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 costeffectively 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.
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations 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 § 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.
7612 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations

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

§ 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 § 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

§ 1410.6(b) and § 1410.6(h)(5) be the

same and include all those practices

listed in § 1410.6(b). The final rule

amends § 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 § 1410.6(h)(5). Both the proposed and

final rule provide eligibility for

otherwise eligible land determined

suitable for such practices. However,

§ 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 § 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 reoffer 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 costeffectively 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.

§ 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
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations 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.

§ 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 Statedesignated 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.
7614 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations

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.

§ 1410.9 Alley-cropping.

One comment suggested that alleycropping not be limited to contracts

requiring the planting of hardwood

trees. That limit is consistent with the

1985 Act.

§ 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 costeffective.

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.

§ 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,
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations 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.

§ 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.

§ 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.

§ 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
7616 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations

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

§ 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

§ 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
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations 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.

§ 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.

§ 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 costeffectively 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.

§ 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
7618 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations

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.

§ 1410.31 Acceptability of offers.

General

Four comments suggested that the

ranking structure was one of few

Federal programs that ‘‘helps our

citizens and wildlife.’’ Two comments

suggested that expiring contracts not be

allowed any advantage in subsequent

enrollment. Each offer will be evaluated

on its own merits. Existing CRP offers

that will use current covers will have

reduced costs and would have, in that

sense, some advantage.

Another comment suggested that the

bidding process should be replaced with

a set amount of $25.00 to $35.00 per

acre. The report accompanying the 1997

Appropriations Act reaffirmed previous

Congressional direction that CRP rates

should not exceed the prevailing rental

rates for comparable land in the local

area. Establishing arbitrary values

would be inconsistent with this

directive.

Four comments requested an

opportunity to review and comment on

the ranking process. The ranking

process, as set forth in the proposed

rule, was developed by an interagency

task force consisting of several USDA

Agencies, the Environmental Protection

Agency, and the U.S. Fish and Wildlife

Service. The ranking process, moreover,

is not a rigid schedule but may be

adjusted depending on the progress of

the enrollments, or changed priorities.

Interested parties have been, and may

continue, to make their views on

priorities known.

Another comment suggested that

more of the matters now set forth in

technical manuals should be

incorporated into the proposed rule.

This is not a CRP rule issue. Section 343

of the 1996 Act requires that any future

revisions to NRCS technical guides be

made available for public notice and

comment.

Process

Nine comments suggested that

producers currently enrolled in the CRP

should not be required to rebid if their

land qualifies for enrollment. The

comment was not clear on the basis on

why existing acreage should be

considered differently from acreage

seeking enrollment for the first time.

Requiring all expiring CRP acreage to be

rebid will allow CCC to treat all eligible

owners and operators on the same basis.

Accordingly, this recommendation will

not be accepted.

Fourteen comments suggested that

clear guidelines for acceptance be

published in advance to make the

approval process observable and more

predictable. CCC intends to continue its

efforts ensuring that the public is fully

informed and will make available

programmatic information prior to

enrollment. CCC also intends an

element of competition between bids to

increase the cost-effectiveness of the

program.

Five comments suggested the

conservation priority areas be taken out

of the eligibility criteria and placed in

the ranking process. The conservation

priority areas allow acreage that does

not meet the regular eligibility criteria

but that meets some other identified

environmental need to be offered for the

program but to ensure maximum

environmental benefits the offered

acreage will compete with other acreage

being offered. The ranking process

contains credit for being located in a

conservation priority area to account for

the cumulative environmental benefit

that accrues within the CPA.

One comment supported the use of a

ranking process that does not favor one

habitat or environmental factor.

However, the commenter also suggested

some kind of additional consideration

be given for a number of categories of

acreage predominantly related to

current CRP contracts. The ranking

process contains credit for acreage

where the appropriate cover is already

established. Other comments suggested

that additional credit be given for State

and federal endangered, threatened, or

candidate species. This comment was

adopted.

One comment opposes the proposed

rule’s emphasis on tree plantings.

However, the 1985 Act establishes, as a

goal, not less than one-eighth of the land

enrolled during 1991 through 2002

being established to trees and other

specified covers. The ranking process

will contain criteria that will encourage

tree planting and other practices that

have long-term retention after the

contract expires.

One comment suggested the rule

concentrate more on water quality than

air quality. The overlapping nature of

the natural resource factors yields

multiple benefits that can rarely be

accorded to one factor. For example,

substantial air quality benefits have

been obtained in the Great Plains States

for land which was enrolled under

earlier soil erosion criteria. The

commenter also suggested the EI of 8

will overlook land that yields

substantial benefits while it may have

an EI of less than 8. The standard used

to define highly erodible land provides

a rational break for enrollment. Land

with an EI of less than 8 which provides

identified environmental benefits may

be eligible under the conservation

priority area authorized under § 1410.8.

The ranking process will contain criteria

that includes both water and air quality

along with other factors. Lands with an

EI less than 8 that contribute to air

quality problems could be

recommended as a conservation priority

area.

Three comments suggested that land

offered within national and State

conservation priority areas should

receive consideration in the ranking

process. This comment was adopted.

Ranking Plans

One comment suggested the bid

against each other process be eliminated

and that the local FSA offices have the

control of the selection of suitable CRP
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations 7619

land. This recommendation did not

alternatively describe how the

maximum environmental benefits could

be obtained under the recommended

scenario and will not be adopted.

A number of comments suggested that

FSA work with State and local resource

professionals. State FSA committees, in

consultation with State Technical

Committees will be afforded an

opportunity prior to signup to develop

a State ranking plan consistent with

stated broad natural resource goals.

Members of the State Technical

Committees include Federal and State

resource professionals and others.

One commenter suggested that the

State Technical Committee, not CCC,

should establish ranking factors,

conservation priority areas, and priority

purposes. However, the statutory

mandate for State Technical Committees

limits its authority to recommendations.

Natural Resource Factors

There were a number of comments

suggesting that land under contract

should be afforded some special status.

Provided an appropriate cover is

established, the ranking process will

make an allowance because of the

reduced establishment cost. However, it

would be inappropriate and unduly

complex to establish separate types of

acreage to be evaluated for enrollment.

Another comment suggested that the

natural resource factors should be

feasible for all geographical regions.

Enhancement of wildlife habitat, water

quality, and air quality; reduction of

erosion, and benefits from establishing

longer term practices are goals

applicable throughout the country. The

ranking process incorporates all of these

natural resource factors.

Other comments suggested that

priority be given to acres that are within

several miles of lakes, rivers, marshes,

woody areas, greatest acreage of

wetlands, to large blocks of land, and to

upland acreage near wetlands. The

ranking process will consider similar

factors. The ranking process will

consider areas within proximity of

protected acreage. CRP in proximity to

lakes, rivers, and marshes will also be

considered.

Two comments suggested the ranking

process needs to give better recognition

and greater benefits to restoration of

native vegetation or prairies and to

mixed species of trees. The ranking

process will take into account these

comments.

One comment suggested that the

playa basins be given a high ranking.

Restoration of wetlands or land adjacent

to playa basins will be considered in the

ranking process.

One comment suggests that CRP

eligibility should be designed to fit into

all agricultural ecosystems and not be

based solely on erosion index factors or

designated conservation priority areas.

The ranking process is designed to be a

broad natural resource based formula to

assist CCC in ranking offers.

Seventeen comments suggested that

the final rule should include language

that recognizes wildlife habitat as a coobjective of CRP and lands should be

ranked based on wildlife objectives.

§ 1410.3 lists wildlife habitat as one of

the objectives of CRP.

Comments relating to specific factors

follow.

Wildlife Habitat Benefits

Eleven comments suggested that the

final rule exclude wildlife habitat

benefits from being considered as a

separate criteria. Since CRP can prevent

decline of wildlife populations thus

avoiding the listing of a species under

the Endangered Species Act and

enhancing the recovery of an already

listed species, CCC considers wildlife an

appropriate factor. Other comments

suggested that additional emphasis be

placed on the enrollment of wildlife

habitat benefits including higher

priority, larger tracts, or requiring

wildlife improvements. Vast

improvements in the recovery of various

wildlife have been attributed to CRP and

will continue to be an integral part of

CRP’s purpose with reduction of soil

erosion and improvement in water

quality. CRP provides significant

environmental and economic benefits

through the enhancement of wildlife

habitat.

Other comments suggested that

consideration be given to large

contiguous blocks of land. The relative

size of acreage offered for CRP is

considered during the ranking process.

In general, for most terrestrial and bird

species, large blocks of land are more

valuable for wildlife.

Water Quality Benefits

One comment recommended the

ranking process incorporate water

conservation benefits. To the extent that

improved water quality includes the

conservation of water resources, this

recommendation was adopted. It is

otherwise unclear how an assurance can

be obtained that the conserved water

would not be devoted to other uses.

Two comments suggest that ‘‘drinking

water quality’’ should be specifically

mentioned as one of the factors for

prioritizing offers. ‘‘Drinking water

quality’’ is an inherent subset of the

water quality factor.

Reduced Erosion

One comment suggested that soil

erosion be changed to soil loss. The

commenter did not make clear the basis

upon which the comment was offered.

Accordingly, the comment was not

adopted.

Another comment suggested that

enrollment priority be given to land that

cannot be farmed under a conservation

plan without using alternative

conservation systems. There is a direct

connection between the amount of

credit awarded under the ranking

process and the EI of the acreage offered

which is consistent with the suggestion.

Likely Long-Term Benefits

Two comments recommended the

elimination of tree planting and one of

those comments recommended creating

a prairie restoration practice and the

establishment of native grasses will

continue to be permitted in CRP.

Another comment suggested that

grassland establishment rather than tree

planting be a priority. The 1985 Act,

however, establishes tree planting as a

goal of the program. Accordingly, this

recommendation will not be adopted.

Another comment suggested there

was a ‘‘penalty’’ for the Great Plains

associated with tree planting. However,

there was no ‘‘penalty’’ or other

reduction applicable to the Great Plains

or any other geographic area proposed

except that, of course, the cost of tree

planting can differ in different regions

and those costs must be taken into

account.

Air Quality Benefits

Two comments suggested that wind

erosion should be considered more

heavily. A new natural resource factor

for air quality was added to reflect the

benefits from reduced wind erosion.

Cost Factor

A number of comments suggested a

cost bonus factor that takes into account

the reduced expenditures necessary on

lands already in CRP with established

cover. This comment was adopted.

One comment suggested not

considering the rental rates in the next

CRP signup. However, rental rates are

key to the cost-effectiveness of the

program. Therefore, this suggestion can

not be adopted.

Five comments suggested that the

renewal of present contracts should be

considered first for re-enrollment

because there would not be any costshare expense for seeding. Because the

goal of the CRP is to achieve specified

conservation benefits, CCC does not

believe it appropriate to consider a

differentiation in classes of acreage.
7620 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations

However, the ranking process will

consider whether the appropriate cover

has been established.

§ 1410.32 CRP contract.

There were six comments that

suggested the CRP contract not be

binding, be revocable before contract

approval at producer election, be subject

to drainage district concurrence, or not

have terms to require the refund of

payments or interest upon termination.

All of these suggested actions would

diminish the value of the contract,

would be contrary to 1985 Act, and,

accordingly, have not been adopted.

Another comment suggested that the

‘‘Super Sod Buster’’ provisions be

eliminated from contracts enrolled since

1991 because it is not consistent with

earlier enrolled contracts. This

provision and limit are required by the

1985 Act.

Nine comments suggested that various

contract lengths be considered,

including those with five-year

increments starting at ten years as a

minimum and going to at least 20 or 25-

years. However, 1985 Act establishes

the time period as 10 to 15-years.

Accordingly, this suggestion was not

adopted.

One comment suggested that

extensions of existing CRP contracts

should be allowed for wildlife benefits

if the owner should choose this option.

However, as indicated in the proposed

rule, Congressional directives contained

in the 1997 Appropriations Act

effectively precluded the extension of

any CRP contracts in FY 1997.

Accordingly, this suggestion was not

adopted.

One comment suggested more specific

guidance regarding when production of

an agricultural commodity on CRP land

would be authorized. CCC is committed

to the release of acreage under CRP

contract only in severe circumstances,

and consistent with 1985 Act. As such,

it would not be appropriate to speculate

as to what set of consequences would

trigger the release of acreage for

agricultural production.

Early Termination

Eleven comments supported the early

termination provisions including those

practices that are ineligible for early

termination. Of those, one comment

recommended a reduction in the

minimum average width required to

remain in CRP near a permanent water

body. However, that reduction may not

be environmentally appropriate in all

areas of the country.

One comment suggested that filter

strips may not need to be as wide as

presently required. This

recommendation was adopted. The

appropriate width of a filter strip will be

determined by referring to the

applicable FOTG.

Eleven comments suggested an

expansion of the early-termination list

of ineligible acres to include other grass

or forested areas in reducing erosion,

areas of high wildlife value, areas likely

to have an impact on drinking water, or

within 100 feet or adjacent to any

temporary, semi-permanent or

permanent stream, wetland, or other

water body. However, early termination

was authorized by the 1996 Act

amendments to the 1985 Act. It is likely

that the recommendations, taken

collectively, would result in substantial

acreage made ineligible for early

termination, which is not consistent

with the purpose of the early

termination provision as authorized by

the 1985 Act.

Two comments were not supportive

of either the early termination proposal

generally or the exemption of certain

practices. However, the allowance, its

limits, and the exemption of the

particular practices mentioned, are all

statutory.

§ 1410.33 Contract modifications.

The majority of comments received on

this section pertained to contract

extensions. However, the 1997

Appropriations Act effectively

precluded the extension of any CRP

contract in FY 1997.

One comment suggested using the

expiration date of the original contract

as the starting point for ten-year reenrollments. Contracts for acreage

accepted for new enrollment would not

begin until the original contract expired.

Another comment suggested that CRP

contracts should not be terminated

when grain prices are high. The CRP

still provides a reserve and CCC must

maintain all of its options. Further,

before any contract termination, CCC

will carefully review the environmental

impacts and net benefits.

§ 1410.34 Extended program protection.

Four comments suggested an

extension of the existing program

preservation agreement for five to ten

years. The final rule reflects, consistent

with the 1985 Act, that program

preservation agreements will initially be

effective for 5 years with an option to

renew every five years. As indicated

earlier, however, the importance of this

provision has been changed by the

change in the nature of commodity

programs.

§ 1410.40 Cost-share payments.

Comments relating to cost-share

payments generally involved

suggestions on increasing or limiting

rates, liberalizing applicability, or

clarifying terminology. Four comments

suggested modifying § 1410.40(g) in

order to limit federal cost-share rates, in

combination, to 50 percent. This

comment is not adopted since except for

special cases identified in the rule, the

1985 Act limits the program cost share

to 50 percent. One comment suggested

increasing cost-share rates for native

grass establishment. Eight comments

supported additional cost-sharing for

wildlife habitat restoration,

maintenance of plantings for wildlife

corridors, eligible practices such as

shallow water areas for wildlife and

permanent wildlife habitat, and

restoration of wetland hydrology. The

50 percent limit, as indicated, is

statutory. As for rental rates, those rates

can be adjusted as needed, consistent

with statutory law.

Several comments suggested

liberalized eligibility. Two comments

suggested adding riparian buffers

consisting mainly of woody plantings to

the list for cost sharing of maintenance

for two to four years. CCC provides a

nominal amount in the annual rental

payment for maintenance requirements

associated with the conservation plan.

Two comments suggested allowing costshare to increase species diversity of

cover plantings. Eight comments

supported cost-share for replacing or

restoring practices as needed to achieve

adequate wildlife habitat. Cost-share for

diversifying cover previously

established and for replacing covers that

do not become established is generally

authorized. One comment suggested

cost-share for fencing and water

impoundment on CRP acres. This

provision is available for certain

practices. One comment suggested

providing cost-share for prescribed

burning in young longleaf pine

plantings. Habitat disturbance such as

fire is often an important part of the

maintenance of healthy biological

systems. By statute, cost-share is not

available on maintenance of existing

practices except in very limited cases.

However, rental incentives are used as

needed to encourage enrollment of these

activities. One comment suggested that

language should be added that State

wildlife agencies and other nonprofit

conservation organizations should be

eligible for cost-share assistance not to

exceed 100 percent of the cost. Another

comment suggested that CRP land

should not be excluded from the

benefits of other Federal cost-share
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations 7621

programs. These comments raise the

same statutory issue and have not been

adopted.

One comment suggested allowing a

three-year establishment period for

softwood plantings and 50-percent costshare for hardwood planting. A threeyear establishment period for softwood

planting is not necessary because the

planting effectiveness for such trees is

generally greater than for hardwood

species. The three year allowance for

hardwood trees is established by the

1985 Act and the cost-share rates are set

in accordance with that Act. Another

comment suggested that maintenance on

tree projects should be kept to the

minimum needed to establish the trees.

Forest management plans stipulate

maintenance needs and are not

addressed by the proposed rule. One

comment suggested that a maintenance

allowance be included in the law to

eradicate noxious weeds and that

payment reductions for noncompliance

should stay in the State to pay for weed

control. No provisions exist in the 1985

Act for payments to States for control of

noxious weeds or for specific payments

for weed control in general. Rental rates,

however, will provide incentives for

farmers to comply with all CRP

provisions.

One comment requested clarification

between cost-share payments and rental

incentives. A cost-share payment is

required by the 1985 Act to assist

participants in establishing all eligible

conservation practices, and is based on

actual costs at a specific site. Rental

incentives are designed to encourage

particular enrollments and do not, as

such, involve a percentage share of

particular costs incurred. With a rental

incentive, any special costs will be

strictly the burden of the participant.

§ 1410.41 Levels and rates for cost-share

payments.

Comments on cost-share levels and

rates generally recommended either

limiting or increasing practice eligibility

or rates made available to producers.

Two comments suggest a $3,500 limit

on the total cost-share available to any

landowner and another suggests

limiting cost-share to 50 percent

regardless of the source of the cost. Rate

suggestions included one comment that

recommended increasing cost-share

assistance to 75 percent for limited

resource producers and one that

recommended a 50 percent incentive

payment be paid to cover all costs of

wetland restoration. The 50 percent

cost-share rate is statutory and the

suggested $3,500 limit would unduly

limit participation in the program.

However, participants may receive

additional funding through State or

private organizations. Five comments

supported the use of cost-share

assistance to encourage restoration. In

addition to eligible wetlands, restoration

activities on other lands may also be

included by CCC after carefully

reviewing all environmental factors and

cost.

§ 1410.42 Annual rental payments.

Ninety-seven respondents supported

the proposal to base the schedule of

rates that FSA will pay for different soil

types within a county on the local

average dryland cash rental estimate or

similar concept. Of those, 12 comments

suggested using a crop share or the cash

equivalent rather than cash rent. Six

other comments suggested basing the

rental payments on the market value or

sale price of the ground. One

respondent stated rates in counties

influenced by urban areas should be

higher and another comment urged that

rates be lowered so that ground will

return to production.

Ninety-four respondents indicated

opposition to the manner in which CRP

rental rates were proposed to be

established. Of those, 36 suggested that

because the more erodible and fragile

type soils will have a lower rental rate,

they may be less likely to be bid into

CRP or more likely to be removed by the

producer than more productive soils.

Three of the comments simply stated

that the new price structure would be

devastating or would not work but

offered no basis for the comments or

suggestion for improvements. CCC will

not be constrained to using only a

dryland basis in order in establishing

maximum payment rates to meet

program and environmental goals and

requirements.

Fifty-two respondents urged that

rental rates remain at the current

contract rate. A few urged the same rate

for five years or to use the current CRP

contract rates unless the cash rental

equivalent were higher. Forty-six

respondents recommended that current

CRP rental rates simply be reduced with

suggested amounts ranging from 60 to

90 percent reduction. A few also

suggested reducing payments for

participants who used cover for haying

and grazing or to thin tree plantings.

Several comments suggested using

other methods for setting the rental

payments such as using either the

average county cash rental rate or the

average CRP annual rental payment

from signups one through 13; using a

simple, valid formula for each county

developed by the Economic Research

Service; setting rates equivalent to the

WBP rates; setting a single minimum

rental rate for all soils in the State of

North Dakota; using the estimated CCC

program payment yield; reducing

existing contract rates by 10 percent per

year until optimum levels are reached;

or using a five-year rolling average of an

unspecified calculation. Several

respondents suggested that rates be

increased to provide for taxes and

inflation or to take into consideration

CCC production flexibility contracts,

and two comments recommended local

conservation districts have a role in

estimating payment rates. Twenty-one

respondents urged that rental payments

be set at a fair rate that is high enough

to keep ground in the CRP, but made no

comment regarding the efficacy of the

proposed method. One comment

suggested that rates provide for

calculations to reflect fair market values

in riparian areas.

As indicated previously, the report

accompanying the 1997 Appropriations

Act reaffirmed previous Congressional

direction that CRP contract rates should

not exceed the prevailing rental rates for

comparable land in the local area.

Various methodologies for determining

CRP payment rates equivalent to the

prevailing local rental rates were

reviewed by an interagency workgroup

and the determination was made that

the local average cash rental rate as

determined by the county FSA

committees, adjusted for the relative

productivity of the soil, would provide

the most accurate and uniform

methodology. Instructions to county

FSA committees for establishing the

payment rates provided that in areas

where share rents are most common

they use the cash equivalent of share

rents. Instructions further provided for

taking into consideration, where

necessary, hydric soils whose

productivity is impacted by the

presence or absence of drainage

systems. The county average cash rental

rate, or equivalent, as established by

county FSA committees would

inherently reflect distance to market and

other conditions affecting rental rates in

the county. The county FSA committees

received recommendations from local

teams.

Participants who are approved to hay

and graze established long-term

vegetative cover under emergency

conditions in accordance with an

approved conservation plan are subject

to a reduction of their CRP annual

payment. Similar provisions will be

implemented for participants that

conduct normal forestry maintenance in

accordance with an approved

conservation plan.

A few comments addressed the soil

rental rate methodology. One
7622 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations

respondent recommended that a single

predominant soil type be used per

participant rather than multiple soil

types in a field. Three comments

suggested that rates on similar soil types

should be the same from State to State,

and another recommended that the

same rates be used in a county for all

producers having the same soil type.

One respondent suggested allowing

different soil rental rates for the same

soil within the same county based on

different distances to markets and other

conditions. Another comment

recommended adding a premium based

on the erodibility index of the soil. A

few comments suggested that prices be

set to save the time and expense of

bidding.

CRP operating procedure provides

that up to three predominant soils in a

field be used in determining the soil

rental rate. This approach is designed to

help ensure the equivalent treatment of

fields having more than one soil type.

Interested applicants may make offers to

enroll acreage in the CRP during an

announced signup period. The offers

will compete for enrollment. The

maximum amount that CCC will pay for

an offer is determined and made known

to the applicant at the time of

application. Although the same soil type

may occur in more than one county or

State, other market factors may the soil

rental rate to differ. Soil rental rates for

the same soil type within the same

county, however, are expected to be

consistent.

Forty-one comments suggested

financial incentives be provided for

various purposes. The majority of

comments encouraged financial

incentives to promote installation of

various practices considered of high

environmental value. Two comments

suggested the State Technical

Committee should have flexibility to

establish practice and incentives of the

greatest value in their State. One

comment strongly opposed incentives.

Based on the comments received, CCC

has determined to continue to offer

incentives through an increased annual

rental payment for certain practices of

high environmental value, including but

not limited to field windbreaks, grassed

waterways, filter strips, riparian buffers,

and acreage located with an approved

EPA wellhead protection area.

Incentives and practices available will

continue to be determined at the

national level; eligibility and technical

suitability of the appropriate practice

will continue to be determined for each

offer at the local level.

Several comments were received

regarding other aspects of the annual

rental payments. Eight comments

suggested that the $50,000 payment

limitation is too strict. Seven comments

urged that interest be paid if payments

are more than 30 days past due. Other

respondents suggested that CRP

payments be considered rental income

for tax purposes, that the three entity

rule, used in applying the payment

limit, be eliminated, and that the

lifetime payment limitation may limit

the amount of targeted land in previous

signups. Two comments recommended

providing compensation to participants

for practice maintenance, and one

respondent suggested dividing

payments for land sold at public auction

according to State law.

Section 1234(f) of the 1985 Act

requires the $50,000 payment

limitation. CCC has implemented the

provisions of the limitation consistent

with the implementation of other CCC

programs with similar payment

limitation requirements. Provided the

participant has otherwise met all

requirements for payment, if the CRP

payment is not issued to the participant

within 30 days after the date county

FSA offices receive notification to make

annual rental payments, the participant

may be eligible to receive interest in

accordance with existing procedures.

Program payments issued are reported

to the Internal Revenue Service;

determination of the treatment of

income for tax purposes is the

responsibility of the participant.

Regarding the lifetime original contract

limitation of $50,000, this provision

would not allow farmers who had

transferred land with CRP contracts to

acquire new contracts if the total of the

old and new payments would exceed

$50,000 per year even though the farmer

would currently only be receiving the

new payments of under $50,000 per

year. This provision was designed to

avoid circumvention of the three-year

ownership rule. CCC has removed this

provision from the final rule because the

three-year ownership rule has been

modified by the 1985 Act to be a oneyear ownership rule. The maintenance

suggestion has been addressed earlier.

For land sold at auction, CRP payments,

if due, will be divided in accordance

with current rules so as to allow for

uniform practice. CCC payment are not

subject to the requirements imposed by

State law.

§ 1410.50 State enhancement program.

Seven comments supported the

conservation reserve enhancement

program including a detailed proposal

outlining minimum requirements for

eligibility. State Governments may

develop conservation reserve

enhancement program proposals and

submit to their respective State FSA

office. An ideal use of such proposals

would be to address Endangered

Species Act concerns; however,

proposals addressing conservation and

environmental objectives of the State

and nation will also be considered.

Two comments suggested that the

waiver of the $50,000 payment

limitation be applied to private and

nonprofit conservation organizations in

addition to a State, a political

subdivision, or agency thereof. The 1985

Act limits the waiver of the $50,000

payment limitation only for States, a

political subdivision, or agency.

Therefore, this recommendation can not

be adopted.

One comment suggested that efforts

be made to protect environmentally

sensitive lands in States that are able to

provide additional funds to secure

longer term or permanent easements.

The final rule does not preclude such a

program.

One comment suggested that CCC

work with States to provide cost-share

assistance with respect to conservation

efforts such as the control of noxious

weeds on CRP land. Control of noxious

weeds is already required as a condition

for enrollment in CRP. Maintenance

costs are the responsibility of the

participant. There is no authority for the

suggested additional payments.

§ 1410.51 Transfer of land.

Four comments were received

concerning this section. Two comments

suggested the same provisions in this

section for lands acquired by Federal

agencies also be applied when a State or

local agency or private organization

acquires a property or interest in CRP

acreage with the intent of keeping it in

a conservation use. Another comment

suggested that consideration should be

given to maintaining a contract for

environmentally sensitive land even

though the ownership may be

transferred.

Any State or local agency or private

organization participating in CRP would

be subject to the provisions in this

section. The special provisions for

acquisitions by Federal agencies reflect

that other Federal agencies cannot be

contract participants and have a special

opportunity for cooperation with the

operating agency. With respect to the

other comments, the CRP contract is an

agreement with the owner or operator

and does not attach any restrictions to

property titles. Accordingly, once

ownership transfers the new owner is

not obligated to the terms and

conditions of the contract unless the

new owner decides to become a

participant as a successor in interest.
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations 7623

One comment suggested that

maximum flexibility be allowed for

Federal, State, or local agencies or

private organizations or individuals to

purchase lands enrolled in CRP if it is

likely that the land will remain in a

cover similar to that established under

the CRP. It is unclear how this comment

relates to the proposed rule.

Landowners who enroll acreage in CRP

maintain their ownership interest. The

decision to transfer ownership remains

with the landowner. Particular

proposals for enhancing the program

through agreements with other agencies

can be handled as they arise.

§ 1410.52 Violations.

Four comments were received

regarding violation provisions. Three

comments suggested that an explicit

provision for relief in the case of a goodfaith violation, similar to the HEL goodfaith provisions, is appropriate. The

comments also suggested the loss of all

payments should only apply to those

found using a scheme or device.

Another comment suggests violations

should result in more severe penalties to

promote active annual control of all

weeds.

This section conforms with the

provisions of the 1985 Act. CCC may, in

its discretion, reduce a demand for a

refund to the extent CCC determines

that such relief would be appropriate

and will not deter the accomplishment

of the goals of the program.

§ 1410.56 Division of program payments

and provisions relating to tenants and

sharecroppers.

Four comments supported and 11

comments opposed the landlord/tenant

provisions of the proposed rule. Of

those supporting the provisions, three

suggested that landowners be allowed to

discharge the tenant on land with

expiring CRP contract acres being rebid

into the program. Of those opposing the

provisions, four suggested that the

removal of tenants from the CRP

contract would adversely impact the

local economy and one expressed

concern about the lack of protection for

tenants, particularly with absentee

landowners. Another comment

expressed concern about the operator

receiving a share of the payment. None

of the recommendations were adopted

except with respect to the issue of

tenants on farms with existing CRP

contracts re-bid into the program.

Tenants are required to be on new CRP

contracts if the tenant has an interest in

the acreage being offered for enrollment.

For land which is subject of a re-bid, the

tenant must also be expected to have an

interest when the new contract is begun.

If at some time during the life of the

contract the tenant fails to maintain

tenancy, under applicable State laws,

the tenant can be removed from such

contract. These rules attempt to strike a

balance between the interests of

landlords and tenants by protecting

active tenants but not unnecessarily

extending that protection to two full

CRP periods when the relationship

between the landlord and tenant has

effectively ended. The new rules

encourage landlords and tenants to have

a firm understanding of their

relationship with respect to each other

with respect to the CRP for the full CRP

period and allow greater flexibility in

handling these situations by allowing a

greater opportunity for taking the facts

of a particular case into account.

One comment suggested the

relationship and share of payments may

be somewhat different for re-enrolled

land. The comment suggests the issue be

addressed very carefully and clarified in

the final rule. Re-enrolled CRP acreage

will be subject to a new contract. If the

interest of the participants in the

farming operation has changed their

share of the payment on the new

contract would, presumably, be

different than on the expiring contract.

§ 1410.60 Scheme or device.

One comment suggested the proposed

wording was too harsh and suggested

that if a prima facie case can be made

then payments should be made if the

issue is not fully resolved by the

administrative appeals process and, in

emergencies, the funds should be held

in escrow. The terms of the rule are

intended to ensure that the integrity of

the program is maintained and that

language is needed. Given the severity

of the prior instances involving schemes

or devices to defeat the objectives of the

program, CCC believes that the remedy

provided for in the rule is appropriate.

Holding funds in escrow is not needed

and would be administratively

burdensome. Therefore, this

recommendation was not adopted.

§ 1410.61 Filing of false claims.

The proposed rule provided that

when a false claim is filed the CRP

contract may be terminated. One

comment suggested a requirement that

the contract be terminated. However, to

do so could unnecessarily restrict CCC’s

options in handling special cases.

Therefore, this recommendation was not

adopted.

§ 1410.62 Miscellaneous.

Several comments were received

regarding: requiring CRP acreage to meet

conservation compliance requirements

before being used for crop production;

demonstration or research project areas;

cropland classification with crop

acreage bases remaining intact;

providing incentives for contour strips

to reduce wind erosion; and special

mitigation provisions for emergency

natural resource problems or wetland

banking. The final rule has not been

revised to require that CRP acreage meet

conservation compliance requirements

before being used for crop production.

There is no statutory authority to

enforce such a provision. CRP acreage

meets the conservation compliance

requirements while it is under contract

providing the conservation plan is being

followed. In addition, no substantive

revisions were made regarding

demonstration or research projects

because paragraph (g) of this section

authorizes the approval of such projects.

Further, the 1996 Act eliminated crop

acreage bases; therefore, for new

contracts, there are no bases to preserve.

However, cropland status will continue

to be maintained through the CRP

contract period. The final rule did not

need to be revised to incorporate

incentives for contour strips because

§ 1410.42 already allows for incentives

for various practices. However, the final

rule has been revised, in paragraph (h)

of this section, to provide for wetland

mitigation banking.

One comment suggested that in

paragraph (f), with respect to cropland

status, the following be inserted after

the word ‘‘classification’’: ‘‘except as

provided in § 1410.34.’’ It is

unnecessary to add this language

because acreage subject to the

provisions in § 1410.34 is still governed

by the terms and conditions of the

contract including the cropland

classification provision.

Four comments recommended

practices for land coming out of CRP.

CRP practices provide for long term

resource conservation or protection.

Land coming out of the CRP will be

subject to the provisions of 7 CFR part

12. Requiring more would be contrary to

the temporary term of the CRP contract

and would not be cost-effective. USDA

will continue its information efforts

about options available under USDA

and other programs regarding

conserving uses.

One comment suggested that field

visits be required for all CRP land that

is reoffered in future signups before the

acreage is accepted. This

recommendation has not been adopted

due to the cost-prohibitive nature of the

volume of work associated with

enrolling up to 24 million acres.
7624 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations

§ 1410.63 Permissive uses.

Thirteen comments were received for

this section. Of those, one comment

suggested that participants be allowed

to do anything with CRP acres as long

as erosion is controlled. Another

suggested producers be allowed to

harvest grass seed on CRP acres. These

recommendations were not adopted.

According to the 1985 Act, producers

must agree that there will be no haying

or grazing of the CRP acreage and that

there be no use of the CRP acreage for

commercial purposes, except under

specified conditions. There are

additional, but limited, allowances for

the production of trees on CRP acreage.

In addition, the purposes of CRP

include more than just soil erosion. To

only focus on one purpose may

unnecessarily damage wildlife, water

quality, or other important natural

resource goals. Further, there is no

authority to use the CRP for producers

seeking an opportunity to farm.

One comment suggested the rule

should encourage the injection of

animal waste on CRP acres without

prior approval from the county

committee. This recommendation will

not be adopted. County FSA committees

have the responsibility to ensure that

the integrity of CCC programs is

maintained. The injection of animal

waste could cause significant

environmental damage. To ensure the

objectives of the CRP are met, county

FSA committees will continue

monitoring activities on CRP acreage.

One comment suggested contract

holders be required to participate

financially if block spraying programs

are implemented. The 1985 Act

provides no authority to implement this

suggestion. Participants are required to

follow a conservation plan of operation

that includes maintenance provisions

for the length of the contract period.

Those who fail to comply with the plan

are subject to payment reductions or

termination of the contract. Therefore,

the final rule has not been revised to

adopt this recommendation.

Several comments suggested that

landowners should allow the public

open access to enrolled acres for

hunting. Another comment suggested

hunters be required to purchase a

wildlife stamp. The funds received from

the sale would be used to enroll

additional acreage in the program. The

CRP is a contractual relationship

between CCC and producers. The 1985

Act does not provide any authority for

requiring public hunting on CRP

acreage.

One comment suggested allowing

burning as a permissive use. Burning is

currently permitted in areas where

NRCS determines the practice is normal,

customary, needed, and in compliance

with all applicable environmental rules

for the CRP acreage.

Substantive Changes Compared to the

Proposed Rule

Substantive changes compared to the

proposed rule include:

§ 1410.2 Definitions.

The proposed rule defined Highly

Erodible Land (HEL) as certain acreage

enrolled in CRP before January 1, 1995,

which is classified by NRCS as:

(1) Being predominantly Land

Capability Classes II, III, IV, and V with:

(i) An average annual erosion rate of

at least 2T or;

(ii) A serious gully erosion problem as

determined by the Deputy

Administrator;

(2) Being predominantly Land

Capability Classes VI, VII, or VIII;

(3) If trees are to be planted under the

conservation plan, eroding at the rate of

at least 2T; or

(4) Having:

(i) An erodibility index equal to or

greater than 8 for either wind or water

erosion; and

(ii) An erosion rate greater than T.

The proposed rule defined

predominantly highly erodible field as:

(1) a field in which at least 662⁄3

percent of the land in such field is

highly erodible; or

(2) a field on which the participant

agrees to plant trees, as determined

necessary by the Deputy Administrator

to achieve overall program goals, which

is at least 331⁄3 percent highly erodible

land.

The definitions of HEL and

predominantly highly erodible field

were amended in the final rule to be

consistent with the definitions found in

7 CFR part 12. The Department

determined to use, to the extent

practicable, the same criteria for the

CRP as is used for conservation

compliance when determining if acreage

is HEL and if a field is predominately

highly erodible. Except for redefined

fields, in order to avoid abuse, the

change will allow land that is subject to

conservation compliance to be basically

eligible for the CRP and will provide

consistency between the two programs.

§ 1410.6 Eligible land.

§ 1410.6 was rewritten for the final

rule to provide clearer, more concise

provisions regarding land eligibility for

the CRP. In addition, the final rule

amended § 1410.6 by:

(1) removing the minimum acreage for

a manageable unit requirement. Such

requirements were better determined at

the local level by approved local

technical authorities based on the actual

site;

(2) adding marginal pasture land that

is suitable for use as a riparian buffer so

long as it is planted to trees, as

determined by NRCS. CRP could costeffectively provide substantial water

quality, erosion, wildlife, and other

environmental benefits by enrolling

such acreage.

(3) changing the manner in which the

EI is calculated, except for redefined

fields, to be consistent with the

conservation compliance provisions

found in 7 CFR part 12. The proposed

rule required an EI of 8 or greater,

calculated by using the weighted

average of the EI’s of Soil Map Units

within a field, to determine if land was

basically eligible for enrollment in the

CRP. The final rule uses the same EI

value of 8 or greater to determine if land

is basically eligible for enrollment in the

CRP; however, the EI is calculated

according to the conservation

compliance provisions in 7 CFR part 12

if the field has not been redefined. The

change will allow most land that is

subject to conservation compliance to be

basically eligible for the CRP and will

provide consistency between the two

programs. For redefined fields, the EI of

8 will continue to be calculated by using

the weighted average of the EI’s of Soil

Map Units within the field;

(4) generally making acreage

associated with noncropped wetlands,

as determined by the Deputy

Administrator, eligible for enrollment in

the CRP if such acreage meets the

cropping requirements. Such acreage

provides high environmental benefits,

such as erosion control, wetland

protection, wildlife habitat, and water

quality, and can be a cost-effective use

of the CRP;

(5) changing the term ‘‘farmed

wetlands’’ to ‘‘cropped wetlands.’’ The

proposed rule inadvertently listed

‘‘farmed wetlands’’ as eligible for

enrollment in the CRP. The final rule

has been amended to correct this

oversight.

(6) making eligible field margins

which are incidental to the planting of

crops as determined appropriate by the

Deputy Administrator.

§ 1410.31 Acceptability of offers.

The final rule amended § 1410.31 to

add ‘‘air quality’’ as a possible factor

that may be included in the evaluation

of contract offers. Air quality was not

included in the proposed rule. The CRP

has proven to be an efficient tool in

improving the air quality throughout the

nation by reducing the amount of air

pollution caused by blowing dust from
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations 7625

cropland production. Accordingly, it

has been determined that air quality is

an appropriate factor to be used in the

evaluation of contract offers.

§ 1410.41 Levels and rates for cost-share

payments.

The final rule amends § 1410.41 to

add language clarifying that participants

may not receive or retain CRP cost-share

assistance if other Federal cost-share

assistance is provided for such acreage

under any other provision of law. The

1985 Act prohibits participants from

receiving or retaining CRP cost-share

assistance in such instances. However,

other non-Federal cost-share assistance

may be available.

§ 1410.42 Annual rental payments.

The proposed rule provided that CCC

may reject any and all offers received

from applicants who had previously

entered into CRP contracts with CCC if

the total annual rental payments due

under such prior contracts (excluding

contracts entered into in accordance

with the provisions of § 1410.51 plus

the total annual rental payments called

for in the offer) exceed $50,000. This

applied regardless of the current level of

payments received by the participants.

The final rule amends § 1410.42 to

remove this provision. CCC determined

that changes in the 1985 Act made this

provision unnecessary. It is important to

note this is does not affect the $50,000

annual payment limitation for all

current payments provided for in the

1985 Act and as explained earlier.

List of Subjects in 7 CFR Parts 704 and

1410

Administrative practices and

procedures, Base protection,

Conservation plan, Contracts,

Environmental indicators, Natural

resources, and Technical assistance.

Accordingly, 7 CFR part 704 is

removed and part 1410 is revised as

follows:

PART 704—[REMOVED]

1. Part 704 is removed.

2. Part 1410 is revised to read as

follows:

PART 1410—CONSERVATION

RESERVE PROGRAM

Sec.

1410.1 Administration.

1410.2 Definitions.

1410.3 General description.

1410.4 Maximum county average.

1410.5 Eligible persons.

1410.6 Eligible land.

1410.7 Duration of contracts.

1410.8 Conservation priority areas.

1410.9 Alley-cropping.

1410.10 Conversion to trees.

1410.11 Restoration of wetlands.

1410.12–1410.19 [Reserved].

1410.20 Obligations of participant.

1410.21 Obligations of the Commodity

Credit Corporation.

1410.22 Conservation plan.

1410.23 Eligible practices.

1410.24–1410.29 [Reserved].

1410.30 Signup.

1410.31 Acceptability of offers.

1410.32 CRP contract.

1410.33 Contract modifications.

1410.34 Extended program protection.

1410.35–1410.39 [Reserved].

1410.40 Cost-share payments.

1410.41 Levels and rates for cost-share

payments.

1410.42 Annual rental payments.

1410.43 Method of payment.

1410.44–1410.49 [Reserved].

1410.50 State enhancement program.

1410.51 Transfer of land.

1410.52 Violations.

1410.53 Executed CRP contract not in

conformity with regulations.

1410.54 Performance based upon advice or

action of the Department.

1410.55 Access to land under contract.

1410.56 Division of program payments and

provisions relating to tenants and

sharecroppers.

1410.57 Payments not subject to claims.

1410.58 Assignments.

1410.59 Appeals.

1410.60 Scheme or device.

1410.61 Filing of false claims.

1410.62 Miscellaneous.

1410.63 Permissive uses.

1410.64 Paperwork Reduction Act assigned

numbers.

Authority: 15 U.S.C. 714b and 714c; 16

U.S.C. 3801–3847.

§ 1410.1 Administration.

(a) The regulations in this part will be

administered under the general

supervision and direction of the

Executive Vice President, Commodity

Credit Corporation (CCC), and the

Administrator, Farm Service Agency

(FSA), through the Deputy

Administrator. In the field, the

regulations in this part will be

administered by the State and county

FSA committees (‘‘State committees’’

and ‘‘county committees,’’ respectively).

(b) State executive directors, county

executive directors, and State and

county committees do not have the

authority to modify or waive any of the

provisions in this part unless

specifically authorized by the Deputy

Administrator.

(c) The State committee may take any

action authorized or required by this

part to be taken by the county

committee which has not been taken by

such committee, such as:

(1) Correct or require a county

committee to correct any action taken by

such county committee which is not in

accordance with this part; or

(2) Require a county committee to

withhold taking any action which is not

in accordance with this part.

(d) No delegation herein to a State or

county committee shall preclude the

Executive Vice President, CCC, the

Administrator, FSA, or a designee, or

the Deputy Administrator from

determining any question arising under

this part or from reversing or modifying

any determination made by a State or

county committee.

(e) Data furnished by the applicants

will be used to determine eligibility for

program benefits. Furnishing the data is

voluntary; however, the failure to

provide data could result in program

benefits being withheld or denied.

(f) Notwithstanding other provisions

of the preceding paragraphs of this

section, the EI, suitability of land for

permanent vegetative or water cover,

factors for determining the likelihood of

improved water quality and adequacy of

the planned practice to achieve desired

objectives shall be determined by the

Natural Resource Conservation Service

(NRCS) or any other non-USDA source

approved by NRCS, in accordance with

the Field Office Technical Guide of

NRCS or other guidelines deemed

appropriate by the NRCS, except that no

such determination by NRCS shall

compel CCC to execute a contract which

CCC does not believe will serve the

purposes of the program established by

this part.

(g) State committees, with NRCS, may

develop a State evaluation process to

rank acreage based on State-specific

goals and objectives where such an

evaluation process would further the

goals of CRP. Such State committees

may choose between developing a State

ranking system or using the national

ranking system. States’ ranking

processes shall be developed based on

recommendations from State Technical

Committees, follow national guidelines,

and be approved by the Deputy

Administrator.

(h) CCC may consult with the Forest

Service (FS), a State forestry agency, or

other organization for such assistance as

is determined by CCC to be necessary

for developing and implementing

conservation plans which include tree

planting as the appropriate practice or

as a component of a practice.

(i) CCC may consult with the

Cooperative State Research, Education,

and Extension Service to coordinate a

related information and education

program as deemed appropriate to

implement the Conservation Reserve

Program (CRP).

(j) CCC may consult with the U.S.

Fish and Wildlife Service (FWS) or State

wildlife agencies for such assistance as
7626 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations

is determined necessary by CCC to

implement the CRP.

(k) The regulations governing the CRP

as of February 11, 1997, shall continue

to be applicable to contracts in effect as

of that date. The regulations set forth in

this part as of February 12, 1997, shall

be applicable to contracts executed on

or after that date.

§ 1410.2 Definitions.

The following definitions shall be

applicable to this part:

Agricultural commodity means any

crop planted and produced by annual

tilling of the soil or on an annual basis

by one-trip planters or sugar cane

planted or produced in a State or alfalfa

and other multi year grasses and

legumes in rotation as approved by the

Secretary. For purposes of determining

crop history, as relevant to eligibility to

enroll land in the program, land shall be

considered planted to an agricultural

commodity during a crop year if, as

determined by CCC, an action of the

Secretary prevented land from being

planted to the commodity during the

crop year.

Alley-cropping means the practice of

planting rows of trees surrounded by a

strip of vegetative cover, alternated with

wider strips of agricultural commodities

planted in accordance with a

conservation plan approved by the local

conservation district and CCC.

Allotment means an acreage for a

commodity allocated to a farm in

accordance with the Agricultural

Adjustment Act of 1938, as amended.

Alternative perennials means woody

species of plants grown on certain CRP

acres, including, but not limited to

shrubs, bushes, and vines.

Annual rental payment means, unless

the context indicates otherwise, the

annual payment specified in the CRP

contract which, subject to the

availability of funds, is made to a

participant to compensate such

participant for placing eligible land in

the CRP.

Applicant means a person who

submits an offer to CCC to enter into a

CRP contract.

Arid area means acreage located west

of the 100th meridian that receives less

than 25 inches of average annual

precipitation.

Bid or offer means, unless the context

indicates otherwise, if required by CCC,

the per-acre rental payment requested

by the owner or operator in such

owner’s or operator’s request to

participate in the CRP.

Conservation district means a political

subdivision of a State, Native American

Tribe, or territory, organized pursuant to

the State or territorial soil conservation

district law, or Tribal law. The

subdivision may be a conservation

district, soil conservation district, soil

and water conservation district,

resource conservation district, natural

resource district, land conservation

committee, or similar legally constituted

body.

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.

Conservation priority area means

areas so designated by the Deputy

Administrator with actual and adverse

water quality or habitat impacts related

to agricultural production activities or

to assist agricultural producers to

comply with Federal and State

environmental laws and to meet other

conservation needs, such as for air

quality, as determined by the Deputy

Administrator.

Contour grass strip means a

vegetation area that follows the contour

of the land, the width of which is

determined using the appropriate FOTG

and which is so designated by a

conservation plan developed under this

part.

Contract period means the term of the

contract which shall be not less than 10,

nor more than 15, years.

Cost-share payment means the

payment made by CCC to assist program

participants in establishing the practices

required in a contract.

Cropland means land defined as

cropland in accordance with the

provisions of part 718 of this title,

except for land in terraces that are no

longer capable of being cropped.

Cropped wetlands means farmed

wetlands and wetlands farmed under

natural conditions.

Deputy Administrator means the

Deputy Administrator for Farm

Programs, FSA, or a designee.

Environmental Quality Incentives

Program (EQIP) means the program

authorized by the Food Security Act of

1985, as amended, in which eligible

persons enter into contracts with CCC to

address threats to soil, water, and

related natural resources and for other

purposes.

Erodibility index (EI) means the

factor, as calculated by NRCS, used to

determine the inherent erodibility of a

soil by dividing the potential average

annual rate of erosion without

management for each soil by the

predetermined T value for the soil.

Farmed wetlands means land defined

as farmed wetlands in accordance with

the provisions of part 12 of this title.

Federally owned land means land

owned by the Federal Government or

any department, instrumentality,

bureau, or agency thereof, or any

corporation whose stock is wholly

owned by the Federal Government.

Field means a part of a farm which is

separated from the balance of the farm

by permanent boundaries such as

fences, roads, permanent waterways,

woodlands, other similar features, or

croplines, as determined by CCC.

Field Office Technical Guide (FOTG)

means the official NRCS guidelines,

criteria, and standards for planning and

applying conservation treatments and

conservation management systems. It

contains detailed information on the

conservation of soil, water, air, plant,

and animal resources applicable to the

local area for which it is prepared.

Field windbreak, shelterbelt, and

living snowfence mean a vegetative

barrier with a linear configuration

composed of trees, shrubs, or other

vegetation, as determined by CCC,

which are designated as such practices

in a conservation plan and which are

planted for the purpose of reducing

wind erosion, snow control, wildlife

habitat, and energy conservation.

Filter strip means a strip or area of

vegetation the purpose of which is to

remove nutrients, sediment, organic

matter, pesticides, and other pollutants

from surface runoff and subsurface flow

by deposition, absorption, plant uptake,

and other processes, thereby reducing

pollution and protecting surface water

and subsurface water quality and of a

width determined appropriate for the

purpose by the applicable FOTG.

Highly erodible land (HEL) means that

land determined to be HEL in

accordance with the provisions of part

12 of this title.

Landlord means a person who rents or

leases acreage to another person.

Local FSA office means the FSA office

serving the area in which the FSA

records are located for the farm or

ranch.

Operator means a person who is in

general control of the farming operation

on the farm, as determined by CCC.

Owner means a person or entity who

is determined by FSA to have sufficient

legal ownership of the land, including a

person who is buying the acreage under

a purchase agreement; each spouse in a

community property State; each spouse

when spouses own property jointly and

a person who has life-estate in a

property.
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations 7627

Participant means an owner or

operator or tenant who has entered into

a contract.

Payment period means the 10- to 15-

year contract period for which the

participant receives an annual rental

payment.

Permanent vegetative cover means

perennial stands of approved

combinations of certain grasses,

legumes, forbs, and shrubs with a life

span of 10 or more years, or trees.

Permanent wildlife habitat means a

permanent vegetative cover with the

specific purpose of providing habitat,

food, or cover for wildlife and

protecting other environmental

concerns.

Practice means a conservation,

wildlife habitat, or water quality

measure with appropriate operations

and management as agreed to in the

conservation plan to accomplish the

desired program objectives according to

CRP and NRCS standards and

specifications as a part of a conservation

management system.

Predominantly highly erodible field

means that land defined has a

predominantly highly field in

accordance with the provisions of part

12 of this title.

Quota means the pounds of tobacco or

peanuts or other commodity allocated to

a farm for commodity support purposes

or control pursuant to the terms of the

Agricultural Adjustment Act of 1938, as

amended.

Riparian buffer means a strip or area

of vegetation of a width determined

appropriate by the applicable FOTG the

purpose of which is to remove nutrients,

sediment, organic matter, pesticides,

and other pollutants from surface runoff

and subsurface flow by deposition,

absorption, plant uptake, and other

processes, thereby reducing pollution

and protecting surface water and

subsurface water quality which are also

intended to provide shade to reduce

water temperature for improved habitat

for aquatic organisms and supply large

woody debris for aquatic organisms and

habitat for wildlife.

Soil loss tolerance (T) means the

maximum average annual erosion rate

specified in the FOTG that will not

adversely impact the long term

productivity of the soil.

State Technical Committee means

that committee established pursuant to

16 U.S.C. 3861 to provide information,

analysis, and recommendations to the

U.S. Department of Agriculture.

State water quality priority areas

means any area so designated by the

State committee and NRCS, in

consultation with the State Technical

Committee where agricultural nonpoint

source pollutants or agricultural point

source pollutants contribute or create

the potential for failure to meet

applicable water quality standards or

the goals and requirements of Federal or

State water quality laws. These areas

may include areas designated under

section 319 of the Federal Water

Pollution Control Act (33 U.S.C. 1329)

as water quality protection areas, sole

source aquifers or other designated areas

that result from agricultural nonpoint

sources of pollution. Acreage in these

areas may be determined eligible as

conservation priority areas.

Technical assistance means the

assistance provided in connection with

the CRP to owners or operators by

NRCS, FS, or another source as

approved by the NRCS or FS, as

appropriate, in classifying cropland,

developing conservation plans,

determining the eligibility of land, and

implementing and certifying practices,

and forestry issues.

Water bank program (WBP) means the

program authorized by the Water Bank

Act of 1970, as amended, in which

eligible persons enter into 10-year

agreements to preserve, restore, and

improve wetlands.

Water cover means flooding of land by

water either to develop or restore

shallow water areas for wildlife or

wetlands, or as a result of a natural

disaster.

Wellhead protection area means the

area designated by the appropriate State

agency with an Environmental

Protection Agency approved Wellhead

Protection Program for water being

drawn for public use, as defined for

public use by the Safe Drinking Water

Act, as amended.

Wetland means land defined as

wetland in accordance with provisions

of part 12 of this title.

Wetlands farmed under natural

conditions means land defined as

wetlands farmed under natural

conditions in accordance with

provisions of part 12 of this title.

Wetlands Reserve Program (WRP)

means the program authorized by the

Food Security Act of 1985, as amended,

in which eligible persons enter into

long-term agreements to restore and

protect wetlands.

§ 1410.3 General description.

(a) Under the CRP, CCC will enter into

contracts with eligible participants to

convert eligible land to a conserving use

for a period of time of not less than 10

nor more than 15 years in return for

financial and technical assistance.

(b) A conservation plan for eligible

acreage must be obtained by a

participant which must be approved by

the conservation district in which the

lands are located unless the

conservation district declines to review

the plan in which case NRCS may take

such further action as is needed to

account for lack of such review.

(c) The objectives of the CRP are to

cost-effectively reduce water and wind

erosion, protect the Nation’s long-term

capability to produce food and fiber,

reduce sedimentation, improve water

quality, create and enhance wildlife

habitat, and other objectives including

encouraging more permanent

conservation practices and tree planting.

(d) Except as otherwise provided, a

participant may, in addition to any

payment under this part, receive costshare assistance, rental or easement

payments, or tax benefits from a State,

subdivision of such State, or a private

organization in return for enrolling

lands in CRP. However, a participant

may not receive or retain CRP cost-share

assistance if other Federal cost-share

assistance is provided for such acreage

under any other provision of law, as

determined by the Deputy

Administrator. Further, under no

circumstances may the cost-share

payments received under this part, or

otherwise, exceed the cost of the

practice, as determined by CCC.

§ 1410.4 Maximum county acreage.

The maximum acreage which may be

placed in the CRP and the WRP may not

exceed 25 percent of the total cropland

in the county of which no more than 10

percent of the cropland in the county

may be subject, in the aggregate, to a

CRP or WRP easement, unless CCC

determines that such action would not

adversely affect the local economy of

the county. This restriction on

participation shall be in addition to any

other restriction imposed by law.

§ 1410.5 Eligible persons.

(a) In order to be eligible to enter into

a CRP contract in accordance with this

part, a person must be an owner,

operator, or tenant of eligible land and:

(1) If an operator of eligible land,

seeking to participate without the

owner, must have operated such land

for at least 12 months prior to the close

of the applicable signup period and

must provide satisfactory evidence that

such operator will be in control of such

eligible land for the full term of the CRP

contract period;

(2) If an owner of eligible land, must

have owned such land for at least 12

months prior to the close of the

applicable signup period, unless:

(i) The new owner acquired such land

by will or succession as a result of the

death of the previous owner;
7628 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations

(ii) The only ownership change in the

12 month period occurred due to

foreclosure on the land and the owner

of the land, immediately before the

foreclosure, exercises a timely right of

redemption from the mortgage holder in

accordance with State law;

(iii) As determined by the Deputy

Administrator, the circumstances of the

acquisition are such that present

adequate assurance that the new owner

of such eligible land did not acquire

such land for the purpose of placing it

in the CRP; or

(3) If a tenant, the tenant is a

participant with an eligible owner or

operator.

(b) Notwithstanding paragraph (a) of

this section, under continuous signup

provisions authorized by § 1410.30, an

otherwise eligible person must have

owned or operated, as appropriate, the

eligible land for at least 12 months prior

to submission of an offer.

§ 1410.6 Eligible land.

(a) In order to be eligible to be placed

in the CRP, land:

(1) Must be cropland that:

(i) Has been annually planted or

considered planted to an agricultural

commodity in 2 of the 5 most recent

crop years, as determined by the Deputy

Administrator, provided further that

field margins which are incidental to

the planting of crops may also be

considered qualifying cropland to the

extent determined appropriate by the

Deputy Administrator; and

(ii) Is physically and legally capable

of being planted in a normal manner to

an agricultural commodity, as

determined by the Deputy

Administrator.

(2) Must be marginal pasture land, as

determined by the Deputy

Administrator, that:

(i) Is enrolled or has recently been

enrolled in the WBP provided:

(A) The acreage is in the final year of

the WBP agreement or, if not in the final

year of the WBP agreement and only for

enrollments in the CRP for FY 1997, is

acreage for which the WBP agreement

expired on December 31, 1996, where

the land would be considered in

compliance if such agreement was still

in effect, as determined by the Deputy

Administrator;

(B) The acreage is not classified as

naturally occurring type 3 through 7

wetlands, as determined by the Deputy

Administrator regardless of whether the

acreage is or is not protected by a

Federal agency easement or mortgage

restriction (types 3 through 7 wetlands

that are normally artificially flooded

shall not be precluded from eligibility),

and;

(C) Enrollment in CRP would enhance

the environmental benefits of the site, as

determined by Deputy Administrator; or

(ii) Is determined to be suitable for

use as a riparian buffer. A field or

portion of a field of marginal pasture

land may be considered to be suitable

for use as a riparian buffer only if, as

determined by NRCS, it:

(A) Is located adjacent to permanent

stream corridors excluding corridors

that are considered gullies or sod

waterways; and

(B) Is capable, when permanent grass,

forbs, shrubs or trees are grown, of

substantially reducing sediment that

otherwise would be delivered to the

adjacent stream or waterbody; or

(3) Must be acreage currently enrolled

in the CRP provided the scheduled

expiration date of the current CRP

contract is to occur before the available

effective date of a new CRP contract, as

determined by the Deputy

Administrator, provided the acreage is

otherwise eligible according to this part,

as determined by the Deputy

Administrator.

(b) Any land qualifying under the

provisions of paragraph (a)(1) must also,

to be eligible for a contract:

(1) Be a field or portion of a field

determined to be suitable for use as a

permanent wildlife habitat, filter strip,

riparian buffer, contour grass strip, grass

waterway, field windbreak, shelterbelt,

living snowfence, other uses as may be

determined by the Deputy

Administrator, vegetation on salinity

producing areas, including any

applicable recharge area, or any area

determined eligible for CRP based on

wetland or wellhead protection area

criteria to be eligible to be placed in the

CRP. A field or portion of a field may

be considered to be suitable for use as

a filter strip or riparian buffer only if it,

as determined by NRCS:

(i) Is located adjacent to a stream,

other waterbody of a permanent nature

(such as a lake, pond, or sinkhole), or

wetland excluding such areas as gullies

or sod waterways; and

(ii) Is capable, when permanent grass,

forbs, shrubs or trees are grown, of

substantially reducing sediment that

otherwise would be delivered to the

adjacent stream or waterbody; or

(2) (i) Be a field which has evidence

of scour erosion caused by out-of-bank

flows of water, as determined by NRCS.

In addition such land must:

(A) Be expected to flood a minimum

of once every 10 years; and

(B) Have evidence of scour erosion as

a result of such flooding.

(ii) To the extent practicable, be the

actual affected cropland areas of a field;

however, the entire cropland area of an

eligible field may be enrolled if:

(A) The size of the field is 9 acres or

less; or

(B) More than one third of the

cropland in the field is land which lies

between the water source and the inland

limit of the scour erosion.

(iii) If the full field is not eligible for

enrollment under this paragraph (b)(2),

be that portion of the cropland between

the waterbody and the inland limit of

the scour erosion together with, as

determined by the Deputy

Administrator, additional areas which

would otherwise be unmanageable and

would be isolated by the eligible areas.

(iv) Be planted to an appropriate tree

species according to the FOTG, unless

tree planting is determined to be

inappropriate by NRCS, in consultation

with Forest Service, in which case the

eligible cropland shall be devoted to

another acceptable permanent

vegetative cover in accordance with the

FOTG; or

(3) Be contributing to the degradation

of water quality or posing an on-site or

off-site environmental threat to water

quality if such land remains in

production so long as water quality

objectives, with respect to such land,

cannot be obtained under other Federal

programs, including but not limited to

EQIP authorized under part 1466 of this

chapter; or

(4) Be devoted to certain covers, as

determined by the Deputy

Administrator, which are established

and maintained according to the FOTG

provided such acreage is not required to

be maintained as such under any lifespan obligations, as determined by the

Deputy Administrator; or

(5) Be non-irrigated or irrigated

cropland which produces or serves as

the recharge area, as determined by the

Deputy Administrator, for saline seeps,

or acreage which is functionally related

to such saline seeps, or where a rising

water table contributes to increased

levels of salinity at or near the ground

surface; or

(6) Be considered HEL according to

conservation compliance provisions

under part 12 of this chapter; or

(7) For redefined fields, have an EI of

greater than or equal to 8, calculated by

using the weighted average of the EI’s of

soil map units within the field; or

(8) Be within a public wellhead

protection area or in an approved

Hydrologic Unit Area; or

(9) Be within a designated

conservation priority area; or

(10) Be designated as a cropped

wetland and appropriate associated

acreage, as determined by the Deputy

Administrator; or
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations 7629

(11) Be cropland which, as

determined by the Deputy

Administrator, is associated with

noncropped wetlands and would

provide significant environmental

benefits; or

(c) Notwithstanding paragraphs (a)

and (b) of this section, land shall be

ineligible for enrollment if, as

determined by the Deputy

Administrator, land is:

(1) Federally owned land unless the

applicant has a lease for the contract

period;

(2) Land on which the use of the land

is restricted through deed or other

restriction prior to enrollment in CRP

prohibiting the production of

agricultural commodities except for

eligible land under paragraph (a)(2) of

this section; or

(3) Land already enrolled in the CRP

unless the scheduled expiration date of

the current contract is to occur before

the available effective date of a new CRP

contract, as determined by the Deputy

Administrator.

§ 1410.7 Duration of contracts.

(a) Except as provided in paragraph

(b) of this section, contracts under this

part shall be for a term of 10 years.

(b) In the case of land devoted to

riparian buffers, filter strips, restoration

of wetlands, hardwood trees,

shelterbelts, windbreaks, wildlife

corridors, or other practices deemed

appropriate by CCC under the original

terms of a contract subject to this part

or for land devoted to eligible practices

under a contract modified under

§ 1410.10, the participant may specify

the duration of the contract provided

that such contracts must be at least 10

years and no more than a total of 15

years in length.

(c) All contracts shall expire on

September 30 of the appropriate year.

§ 1410.8 Conservation priority areas.

(a) CCC may designate National

conservation priority areas according to

paragraph (c) of this section.

(b) State FSA committees, in

consultation with NRCS and State

Technical Committees, may submit a

recommendation to the Deputy

Administrator within guidelines

established by the Deputy Administrator

for designation of conservation priority

areas. Such recommendations should

contain clearly defined conservation

and environmental objectives and

analysis of how CRP can cost-effectively

address such objectives. The purpose of

the conservation priority area

designation is to enhance the CRP by

better addressing conservation and

environmental issues in a planned and

coordinated manner within a State.

Generally, the total acreage of

conservation priority areas, in aggregate,

shall not total more than 10 percent of

the cropland in a State unless there are

identified and documented

extraordinary environmental needs, as

determined by Deputy Administrator.

(c) A region shall be eligible for

designation as a priority area only if the

region has actual significant adverse

water quality or wildlife habitat impacts

related to activities of agricultural

production or if the designation helps

agricultural producers to comply with

Federal and State environmental laws.

(d) Conservation priority area

designations shall expire after 5 years

unless redesignated, except they may be

withdrawn:

(1) Upon application by the

appropriate State water quality agency;

or

(2) By the Deputy Administrator.

(e) In those areas designated as

conservation priority areas, under this

section, special emphasis will be placed

on identified environmental concerns.

These concerns may include water

quality, such as assisting agricultural

producers to comply with nonpoint

source pollution requirements, air

quality, or wildlife habitat (especially

for currently listed threatened and

endangered species or to prevent other

species from becoming threatened and

endangered), as determined by the

Deputy Administrator.

§ 1410.9 Alley-cropping.

(a) Alley-cropping on CRP land may

be permitted by CCC if:

(1) The land is planted to, or

converted to, hardwood trees in

accordance with § 1410.10;

(2) Agricultural commodities are

planted in accordance with a prior, sitespecific and NRCS approved

conservation plan in close proximity to

such hardwood trees; and

(3) The owner and operator of such

land agree to implement appropriate

conservation measures on such land.

(b) CCC may solicit bids for alleycropping permission for CRP land.

Annual rental payments for the term of

any contract modified under this section

shall be reduced by at least 50 percent

of the original amount of the total rental

payment in the original contract and, in

the case of any contract modified to

change from another cover crop, the

total annual rental payments over the

term of any such contract may not

exceed the total annual rental payments

specified in the original contract.

(c) The actual reduction in rental

payment will be determined by CCC,

based upon criteria, such as percentage

of the total acreage that will be available

for cropping and projected returns to the

producer from such cropping.

(d) The area available for cropping

will be chosen according to the FOTG

and will be farmed in accordance with

an approved conservation plan so as to

minimize erosion and degradation of

water quality during those years when

the areas are devoted to an agricultural

commodity.

§ 1410.10 Conversion to trees.

An owner or operator who has

entered into a contract prior to

November 28, 1990, may elect to

convert areas of highly erodible

cropland, subject to such contract,

which is devoted to permanent

vegetative cover, from such cover to

hardwood trees (including alley

cropping and riparian buffers limited to

hardwood trees where permitted by

CCC), windbreaks, shelterbelts, or

wildlife corridors.

(a) With respect to any contract

modified under this section, the

participant may elect to extend such

contract in accordance with the

provisions of § 1410.7(b).

(b) With respect to any contract

modified under this section in which

such areas are converted to windbreaks,

shelterbelts, or wildlife corridors, the

owner of such land must agree to

maintain such plantings for a time

period established by the Deputy

Administrator.

(c) CCC shall, as it determines

appropriate, pay up to 50 percent of the

eligible cost of establishing new

conservation measures authorized under

this section, except that the total costshare paid with respect to such contract,

including cost-share assistance paid

when the original cover was established,

may not exceed the amount by which

CCC would have paid had such land

been originally devoted to such new

conservation measures.

(d) With respect to any contract

modified under this section, the

participant must participate in the

Forest Stewardship Program (16 U.S.C.

2103a).

§ 1410.11 Restoration of wetlands.

(a) An owner or operator who entered

into a CRP contract on land that is

suitable for restoration to wetlands or

that was restored to wetlands while

under such contract, may, if approved

by CCC, subject to any restrictions as

may be imposed by law, apply to

transfer such eligible acres subject to

such contract that are devoted to an

approved cover from the CRP to the

WRP. Transferred acreage shall be

terminated from the CRP effective the
7630 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations

day a WRP easement is filed.

Participants will receive a prorated CRP

annual payment for that part of the year

the acreage was enrolled in the CRP

according to § 1410.42. Refunds of costshare payments or any applicable

incentive payments need not be

required unless specified by the Deputy

Administrator.

(b) An owner or operator who has

enrolled acreage in the CRP may, as

determined and approved by CCC,

restore suitable acres to wetlands with

cost-share assistance provided that

Federal cost-share assistance has not

been previously provided specifically

for wetland restoration on the proposed

restoration site. In addition to the costshare limitation in § 1410.41 of this part,

an additional one time financial

incentive may be provided to encourage

restoration of the hydrology of the site.

§ 1410.12—§ 1410.19 [Reserved]

§ 1410.20 Obligations of participant.

(a) All participants subject to a CRP

contract must agree to:

(1) Carry out the terms and conditions

of such CRP contract;

(2) Implement the conservation plan,

which is part of such contract, in

accordance with the schedule of dates

included in such conservation plan

unless the Deputy Administrator

determines that the participant cannot

fully implement the conservation plan

for reasons beyond the participant’s

control and CCC agrees to a modified

plan;

(3) Establish temporary vegetative

cover when required by the

conservation plan or, as determined by

the Deputy Administrator, if the

permanent vegetative cover cannot be

timely established;

(4)(i) A reduction in the aggregate

total quotas and acreage allotments for

the contract period for each farm which

contains land subject to such CRP

contract by an amount based upon the

ratio between the acres in the CRP

contract and the total cropland acreage

on such farm. Quotas and acreage

allotments reduced during the contract

period shall be returned at the end of

the contract period in the same amounts

as would apply had the land not been

enrolled in the CRP unless CCC

approves, in accordance with the

provisions of § 1410.34, an extension of

such protection; and

(ii) reduce production flexibility

contract acres enrolled under part 1412

of this chapter or CRP acres enrolled

under this part so that the total of such

acres does not exceed the total cropland

on the farm;

(5) Not produce an agricultural

commodity on highly erodible land, in

a county which has not met or exceeded

the acreage limitation under § 1410.4,

which was acquired on or after

November 28, 1990, unless such land, as

determined by CCC, has a history in the

most recent five-year period of

producing an agricultural commodity

other than forage crops;

(6) Comply with all requirements of

part 12 of this title;

(7) Not allow grazing, harvesting, or

other commercial use of any crop from

the cropland subject to such contract

except for those periods of time

approved in accordance with

instructions issued by the Deputy

Administrator;

(8) Establish and maintain the

required vegetative or water cover and

the required practices on the land

subject to such contract and take other

actions that may be required by CCC to

achieve the desired environmental

benefits and to maintain the productive

capability of the soil throughout the

CRP contract period;

(9) Comply with noxious weed laws

of the applicable State or local

jurisdiction on such land;

(10) Control on land subject to such

contract all weeds, insects, pests and

other undesirable species to the extent

necessary to ensure that the

establishment and maintenance of the

approved cover is adequately protected

and to provide such maintenance as

necessary, or may be specified in the

CRP conservation plan, to avoid an

adverse impact on surrounding land,

taking into consideration water quality,

wildlife, and other needs, as determined

by the Deputy Administrator; and

(11) Be jointly and severally

responsible, if the participant has a

share of the payment greater than zero,

with the other contract participants for

compliance with such contract and the

provisions of this part and for any

refunds or payment adjustments which

may be required for violations of any of

the terms and conditions of the CRP

contract and provisions of this part.

§ 1410.21 Obligations of the Commodity

Credit Corporation.

CCC shall, subject to the availability

of funds:

(a) Share the cost with participants of

establishing eligible practices specified

in the conservation plan at the levels

and rates of cost-sharing determined in

accordance with the provisions of this

part;

(b) Pay to the participant for a period

of years not in excess of the contract

period an annual rental payment in

such amounts as may be specified in the

CRP contract;

(c) Provide such technical assistance

as may be necessary to assist the

participant in carrying out the CRP

contract; and

(d) Permit grazing on CRP land to the

extent determined appropriate by the

Deputy Administrator where the grazing

is incidental to the gleaning of crop

residues on fields where the contracted

land is located. Such incidental

gleaning shall be limited to the 7-month

period in which grazing of conservation

use acreage was previously allowed, as

determined by CCC, in a State under the

provisions of the Agricultural Act of

1949, as amended, or after the producer

harvests the grain crop of the

surrounding field. Further, CCC may

provide approval of the incidental

grazing of the CRP, but only in exchange

for an applicable reduction in the

annual rental payment, as determined

appropriate by the Deputy

Administrator.

(e) Provide approval of normal

forestry maintenance such as pruning,

thinning, and timber stand

improvement on lands converted to

forestry use only in accordance with a

conservation plan in exchange for an

applicable reduction in the annual

rental payment as determined

appropriate by the Deputy

Administrator.

§ 1410.22 Conservation plan.

(a) The applicant shall develop and

submit a conservation plan which is

acceptable to NRCS and is approved by

the conservation district for the land to

be entered in the CRP. If the

conservation district declines to review

the conservation plan, such approval by

the conservation district may be waived.

(b) The practices included in the

conservation plan and agreed to by the

participant must cost-effectively reduce

erosion necessary to maintain the

productive capability of the soil,

improve water quality, protect wildlife

or wetlands, protect a public well head,

or achieve other environmental benefits

as applicable.

(c) If applicable, a tree planting plan

shall be developed and included in the

conservation plan. Such tree planting

plan may allow up to 3 years to

complete plantings if 10 or more acres

of hardwood trees are to be established.

(d) If applicable, the conservation

plan shall address the goals included in

the conservation priority designation

authorized under § 1410.8 of this part.

(e) All conservation plans and

revisions of such plans shall be subject

to the approval of CCC and NRCS.
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations 7631

§ 1410.23 Eligible practices.

(a) Eligible practices are those

practices specified in the conservation

plan that meet all standards needed to

cost-effectively:

(1) Establish permanent vegetative or

water cover, including introduced or

native species of grasses and legumes,

forest trees, and permanent wildlife

habitat;

(2) Meet other environmental benefits,

as applicable, for the contract period;

and

(3) Accomplish other purposes of the

program.

(b) Water cover is eligible cover for

purposes of paragraph (a) of this section

only if approved by the Deputy

Administrator for purposes such as the

enhancement of wildlife or the

improvement of water quality. Such

water cover shall not include ponds for

the purpose of watering livestock,

irrigating crops, or raising for

commercial purposes.

§ 1410.24–§ 1410.29 [Reserved]

§ 1410.30 Signup.

Offers for contracts shall be submitted

only during signup periods as

announced periodically by the Deputy

Administrator, except that CCC may

hold a continuous signup for land to be

devoted to particular uses, as CCC

deems desirable.

§ 1410.31 Acceptability of offers.

(a) Except as provided in paragraph

(c) of this section, producers may

submit bids for the amounts they are

willing to accept as rental payments to

enroll their acreage in the CRP. The bids

shall, to the extent practicable, be

evaluated on a competitive basis in

which the bids selected will be those

where the greatest environmental

benefits relative to cost are generated,

provided the bid is not in excess of the

maximum acceptable payment rate

established for the for the area offered

by or for the Deputy Administrator.

(b) In evaluating contract offers,

different factors, as determined by CCC,

may be considered from time to time for

priority purposes to accomplish the

goals of the program. Such factors may

include, but are not limited to:

(1) Soil erosion;

(2) Water quality (both surface and

ground water);

(3) Wildlife benefits;

(4) Conservation priority area

designations;

(5) Soil productivity;

(6) Conservation compliance

considerations;

(7) Likelihood that enrolled land will

remain in conserving uses beyond the

contract period, which may be indicated

by, for example, tree planting,

permanent wildlife habitat, or

commitments by a participant to a State

or other entity to extend the

conservation plan;

(8) Air quality; and

(9) Cost of enrolling acreage in the

program.

(c) Acreage determined eligible for

continuous signup, as provided in

§ 1410.30, shall be automatically

accepted in the program if the:

(1) Land is eligible in accordance with

the applicable provisions of § 1410.6, as

determined by the Deputy

Administrator;

(2) Applicant is eligible in accordance

with the provisions of § 1410.5; and

(3) Applicant accepts either the

maximum payment rate CCC is willing

to offer to enroll the acreage in the

program or a lesser rate.

§ 1410.32 CRP contract.

(a) In order to enroll land in the CRP,

the participant must enter into a

contract with CCC.

(b) The CRP contract will be

comprised of:

(1) The terms and conditions for

participation in the CRP;

(2) The conservation plan; and

(3) Any other materials or agreements

determined necessary by CCC.

(c)(1) In order to enter into a CRP

contract, the applicant must submit an

offer to participate as provided in

§ 1410.30;

(2) An offer to enroll land in the CRP

shall be irrevocable for such period as

is determined and announced by CCC.

The applicant shall be liable to CCC for

liquidated damages if the applicant

revokes an offer during the period in

which the offer is irrevocable as

determined by the Deputy

Administrator. CCC may waive payment

of such liquidated damages if CCC

determines that the assessment of such

damages, in a particular case, is not in

the best interest of CCC and the

program.

(d) The CRP contract must, within the

dates established by CCC, be signed by:

(1) The applicant; and

(2) The owners of the cropland to be

placed in the CRP, if applicable.

(e) The Deputy Administrator is

authorized to approve CRP contracts on

behalf of CCC.

(f) CRP contracts may be terminated

by CCC before the full term of the

contract has expired if:

(1) The owner loses control of or

transfers all or part of the acreage under

contract and the new owner does not

wish to continue the contract;

(2) The participant voluntarily

requests in writing to terminate the

contract and obtains the approval of

CCC according to terms and conditions

as determined by CCC;

(3) The participant is not in

compliance with the terms and

conditions of the contract;

(4) Acreage is enrolled in another

State, Federal or local conservation

program;

(5) The CRP practice fails after a

certain time period, as determined by

the Deputy Administrator, and the

county committee determines the cost of

restoring the practice outweighs the

benefits received from the restoration;

(6) The CRP contract was approved

based on erroneous eligibility

determinations; or

(7) It is determined by CCC that such

a release is needed in the public

interest.

(g)(1) Contracts for land enrolled in

CRP before January 1, 1995, which have

been in effect for at least 5 years may be

unilaterally terminated by all CRP

participants on a contract except for

contract acreage:

(i) Located within a width determined

appropriate by the applicable FOTG of

a perennial stream or other permanent

waterbody to reduce pollution and to

protect surface and subsurface water

quality;

(ii) On which a CRP easement is filed;

(iii) That is considered to be a

wetland by NRCS;

(iv) Located within a wellhead

protection area;

(v) That is subject to frequent

flooding, as determined by the Deputy

Administrator;

(vi) That may be required to serve as

a wetland buffer according to the FOTG

to protect the functions and values of a

wetland; or

(vii) On which there exist one or more

of the following practices, installed or

developed as a result of participation in

the CRP or as otherwise required by the

conservation plan:

(A) Grass waterways;

(B) Filter strips;

(C) Shallow water areas for wildlife;

(D) Bottom land timber established on

wetlands;

(E) Field windbreaks; and

(F) Shelterbelts.

(2) With respect to terminations under

this paragraph:

(i) Any land for which an early

termination is sought must have an EI

of 15 or less;

(ii) The termination shall become

effective 60 days from the date the

participant submits notification to CCC

of the participant’s desire to terminate

the contract;

(iii) Acreage terminated under this

provision is eligible to be re-offered for
7632 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations

CRP during future signup periods,

provided that the acreage otherwise

meets the current eligibility criteria; and

(iv) Participants shall be required to

meet conservation compliance

requirements of part 12 of this title to

the extent applicable to other land.

(h) Except as allowed and approved

by CCC where the new owner of land

enrolled in CRP is a Federal agency that

agrees to abide by the terms and

conditions of the terminated contract,

the participant in a contract that has

been terminated must refund all or part

of the payments made with respect to

the contract plus interest thereon, as

determined by CCC, and shall pay

liquidated damages as provided for in

the contract. CCC, in its discretion, may

permit the amount to be repaid to be

reduced to the extent that such a

reduction will not impair the purposes

of the program. Further, a refund of an

annual rental and cost-share payment

need not be required from a participant

who is otherwise in full compliance

with the CRP contract when the land is

purchased by or for the United States,

as determined by CCC.

§ 1410.33 Contract modifications.

(a) By mutual agreement between CCC

and the participant, a CRP contract may

be modified in order to:

(1) Decrease acreage in the CRP;

(2) Permit the production of an

agricultural commodity under

extraordinary circumstances during a

crop year on all or part of the land

subject to the CRP contract as

determined by the Deputy

Administrator;

(3) Facilitate the practical

administration of the CRP; or

(4) Accomplish the goals and

objectives of the CRP, as determined by

the Deputy Administrator.

(b) CCC may modify CRP contracts to

add, delete, or substitute practices

when:

(1) The installed practice failed to

adequately provide for the desired

environmental benefit through no fault

of the participant; or

(2) The installed measure deteriorated

because of conditions beyond the

control of the participant; and

(3) Another practice will achieve at

least the same level of environmental

benefit.

(c) Offers to extend contracts may be

made available to the extent otherwise

allowed by law.

(d) CCC may terminate a CRP contract

if the participant agrees to such

termination and CCC determines such

termination to be in the public interest.

§ 1410.34 Extended program protection.

(a) In the final year of the contract,

participants may, subject to the terms

and conditions announced by CCC

request to extend the preservation of

quota and acreage allotment history for

5 years (and, if announced by CCC, in

successive 5-year increments). Such

approval may be given by CCC only if

the participant agrees to continue for

that period, but without payment, to

abide by the terms and conditions

which applied to the relevant contract

relating to the conservation of the

property for the term in which

payments were to be made.

(b) Where such an extension is

approved, no additional cost-share,

annual rental, or other payment shall be

made.

(c) Haying and grazing of the acreage

subject to such an extension may be

permitted during the extension period,

except during any consecutive 5-month

period between April 1 and October 31

of any year as established by the State

committee. In the event of a natural

disaster, CCC may permit unlimited

haying and grazing of such acreage.

(d) In the event of a violation of any

CRP contract extended under this

section, CCC may reduce or terminate,

retroactively, prospectively, or both, the

amount of quota, and acreage allotment

history otherwise preserved under the

extended contract.

§ 1410.35–§ 1410.39 [Reserved]

§ 1410.40 Cost-share payments.

(a) Cost-share payments shall be made

available upon a determination by CCC

that an eligible practice, or an

identifiable unit thereof, has been

established in compliance with the

appropriate standards and

specifications.

(b) Except as otherwise provided for

in this part, cost-share payments may be

made under the CRP only for the costeffective establishment or installation of

an eligible practice.

(c) Except as provided in paragraph

(d) of this section, cost-share payments

shall not be made to the same owner or

operator on the same acreage for any

eligible practices which have been

previously established, or for which

such owner or operator has received

cost-share assistance from any Federal

agency.

(d) Except as provided for under

§ 1410.10(c), cost-share payments may

be authorized for the replacement or

restoration of practices for which costshare assistance has been previously

allowed under the CRP, only if:

(1) Replacement or restoration of the

practice is needed to achieve adequate

erosion control, enhanced water quality,

wildlife habitat, or increased protection

of public wellheads; and

(2) The failure of the original practice

was due to reasons beyond the control

of the participant.

(e) The cost-share payment made to a

participant shall not exceed the

participant’s actual contribution to the

cost of establishing the practice and the

amount of the cost-share may not be an

amount which, when added to

assistance from other sources, exceeds

the cost of the practices.

(f) CCC shall not make cost-share

payments with respect to a CRP contract

if any other Federal cost-share

assistance has been, or is being, made

with respect to the establishment of the

cover crop on land subject to such

contract.

§ 1410.41 Levels and rates for cost-share

payments.

(a) As determined by the Deputy

Administrator, CCC shall not pay more

than 50 percent of the actual or average

cost of establishing eligible practices

specified in the conservation plan,

except that CCC may allow cost-share

payments for maintenance costs to the

extent required by § 1410.40 and CCC

may determine the period and amount

of such cost-share payments.

(b) The average cost of performing a

practice may be determined by CCC

based on recommendations from the

State Technical Committee. Such cost

may be the average cost in a State, a

county, or a part of a State or county,

as determined by the Deputy

Administrator.

(c) A one-time financial incentive,

may be offered to participants who

restore the hydrology of eligible

wetlands in accordance with the

provisions of § 1410.11(b) or other lands

as determined by the Deputy

Administrator; such incentives will not

be greater than 25 percent of the cost of

restoring such wetlands or other lands,

as determined by CCC.

(d) Except as otherwise provided, a

participant may, in addition to any

payment under this part, receive costshare assistance, rental payments, or tax

benefits from a State, subdivision of

such State, or a private organization in

return for enrolling lands in CRP.

However, as provided under § 1410.40(f)

of this part, a participant may not

receive or retain CRP cost-share

assistance if other Federal cost-share

assistance is provided for such acreage,

as determined by the Deputy

Administrator. Further, under no

circumstances may the cost-share

payments received under this part, or
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations 7633

otherwise, exceed the cost of the

practice, as determined by CCC.

§ 1410.42 Annual rental payments.

(a) Subject to the availability of funds,

annual rental payments shall be made in

such amount and in accordance with

such time schedule as may be agreed

upon and specified in the CRP contract.

(b) The annual rental payment shall

be divided among the participants on a

single contract in the manner agreed

upon in such contract.

(c) The maximum amount of rental

payments which a person may receive

under the CRP for any fiscal year shall

not exceed $50,000. The regulations set

forth at part 1400 of this chapter shall

be applicable in making eligibility and

‘‘person’’ determinations as they apply

to payment limitations under this part.

(d) In the case of a contract

succession, annual rental payments

shall be divided between the

predecessor and the successor

participants as agreed to among the

participants and approved by CCC. If

there is no agreement among the

participants, annual rental payments

shall be divided in such manner

deemed appropriate by the Deputy

Administrator and such distribution

may be based on the actual days of

ownership of the property.

(e) CCC shall, when appropriate,

prepare a schedule for each county that

shows the maximum soil rental rate

CCC may pay which may be

supplemented to reflect special contract

requirements. As determined by the

Deputy Administrator, such schedule

will be calculated based on the relative

productivity of soils within the county

using NRCS data and local FSA average

cash rental estimates. The schedule will

be posted in the local FSA office. As

determined by the Deputy

Administrator, the schedule shall

indicate, when appropriate, that:

(1) Contracts offered by producers

who request rental payments greater

than the schedule for their soil(s) will be

rejected;

(2) Offers of contracts that are

expected to provide especially high

environmental benefits, as determined

by the Deputy Administrator, may be

accepted without further evaluation

when the requested rental rate is less

than or equal to the corresponding soil

schedule; and

(3) Otherwise qualifying offers shall

be ranked competitively based on

factors established under § 1410.31 of

this part in order to provide the most

cost-effective environmental benefits, as

determined by the Deputy

Administrator.

(f) Additional financial incentives

may be provided to producers offering

contracts expected to provide especially

high environmental benefits through an

increased annual rental payment or

incentive payment as determined by the

Deputy Administrator.

§ 1410.43 Method of payment.

Except as provided in § 1410.50,

payments made by CCC under this part

may be made in cash or other methods

of payment in accordance with part

1401 of this chapter, unless otherwise

specified by CCC.

§ 1410.44–§ 1410.49 [Reserved]

§ 1410.50 State enhancement program.

(a) For contracts to which a State,

political subdivision, or agency thereof

has succeeded in connection with an

approved conservation reserve

enhancement program, payments shall

be made in the form of cash only. The

provisions that limit the amount of

payments per year that a person may

receive under this part shall not be

applicable to payments received by such

State, political subdivision, or agency

thereof in connection with agreements

entered into under such enhancement

programs carried out by such State,

political subdivision, or agency thereof

which has been approved for that

purpose by CCC.

(b) CCC may enter into other

agreements in accordance with terms

deemed appropriate by CCC, with States

to use the CRP to cost-effectively further

specific conservation and

environmental objectives of that State

and the nation.

§ 1410.51 Transfer of land.

(a)(1) If a new owner or operator

purchases or obtains the right and

interest in, or right to occupancy of, the

land subject to a CRP contract, as

determined by the Deputy

Administrator, such new owner or

operator, upon the approval of CCC,

may become a participant to a new CRP

contract with CCC with respect to such

transferred land.

(2) With respect to the transferred

land, if the new owner or operator

becomes a successor to the existing CRP

contract, the new owner or operator

shall assume all obligations under the

CRP contract of the previous

participant.

(3) If the new owner or operator

becomes a successor to a CRP contract

with CCC, then, except as otherwise

determined appropriate by the Deputy

Administrator:

(i) Cost-share payments shall be made

to the participant, past or present, who

established the practice; and

(ii) Annual rental payments to be paid

during the fiscal year when the land was

transferred shall be divided between the

new participant and the previous

participant in the manner specified in

§ 1410.42.

(b) If a participant transfers all or part

of the right and interest in, or right to

occupancy of, land subject to a CRP

contract and the new owner or operator

does not become a successor to such

contract within 60 days of such transfer,

such contract shall be terminated with

respect to the affected portion of such

land and the original participant:

(1) Must forfeit all rights to any future

payments with respect to such acreage;

(2) Shall comply with the provisions

of § 1410.32(h); and

(3) Refund all previous payments

received under the contract by the

participant or prior participants, plus

interest, except as otherwise specified

by the Deputy Administrator.

(c) Federal agencies acquiring

property, by foreclosure or otherwise,

that contains CRP contract acreage

cannot be a party to the contract by

succession. However, through an

addendum to the CRP contract, if the

current operator of the property is one

of the participants on such contract,

such operator may, as permitted by

CCC, continue to receive payments

provided for in such contract so long as:

(1) The property is maintained in

accordance with the terms of the

contract;

(2) Such operator continues to be the

operator of the property; and

(3) Ownership of the property remains

with such federal agency.

§ 1410.52 Violations.

(a)(1) If a participant fails to carry out

the terms and conditions of a CRP

contract, CCC may terminate the CRP

contract.

(2) If the CRP contract is terminated

by CCC in accordance with this

paragraph:

(i) The participant shall forfeit all

rights to further payments under such

contract and refund all payments

previously received together with

interest; and

(ii) Pay liquidated damages to CCC in

such amount as specified in such

contract.

(b) If the Deputy Administrator

determines such failure does not

warrant termination of such contract,

the Deputy Administrator may authorize

relief as the Deputy Administrator

deems appropriate.

(c) CCC may reduce a demand for a

refund under this section to the extent

CCC determines that such relief would

be appropriate and will not deter the
7634 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations

accomplishment of the goals of the

program.

§ 1410.53 Executed CRP contract not in

conformity with regulations.

If, after a CRP contract is approved by

CCC, it is discovered that such CRP

contract is not in conformity with the

provisions of this part, the provisions of

the regulations shall prevail.

§ 1410.54 Performance based upon advice

or action of the Department.

The provisions of § 718.8 of this title

relating to performance based upon the

action or advice of a representative of

the Department shall be applicable to

this part.

§ 1410.55 Access to land under contract.

(a) Any representative of the

Department, or designee thereof, shall

be provided by the applicant or

participant as the case may be, with

access to land which is:

(1) The subject of an application for

a contract under this part; or

(2) Under contract or otherwise

subject to this part.

(b) With respect to such land

identified in paragraph (a) of this

section, the participant or applicant

shall provide such representatives with

access to examine records with respect

to such land for the purpose of

determining land classification and

erosion rates and for the purpose of

determining whether there is

compliance with the terms and

conditions of the CRP contract.

§ 1410.56 Division of program payments

and provisions relating to tenants and

sharecroppers.

(a) Payments received under this part

shall be divided in the manner specified

in the applicable contract or agreement

and CCC shall ensure that producers

who would have an interest in acreage

being offered receive treatment which

CCC deems to be equitable, as

determined by the Deputy

Administrator. CCC may refuse to enter

into a contract when there is a

disagreement among persons seeking

enrollment as to a person’s eligibility to

participate in the contract as a tenant

and there is insufficient evidence to

indicate whether the person seeking

participation as a tenant does or does

not have an interest in the acreage

offered for enrollment in the CRP.

(b) CCC may remove an operator or

tenant from a CRP contract when the

operator or tenant:

(1) Requests, in writing to be removed

from the CRP contract;

(2) Files for bankruptcy and the

trustee or debtor in possession fails to

affirm the contract, to the extent

permitted by the provisions of

applicable bankruptcy laws;

(3) Dies during the contract period

and the Administrator of the estate fails

to succeed to the contract within a

period of time determined by the

Deputy Administrator; or

(4) Is the subject of an order of a court

of competent jurisdiction requiring the

removal from the CRP contract of the

operator or tenant and such order is

received by FSA, as determined by the

Deputy Administrator.

(c) In addition to the provisions in

paragraph (b) of this section, tenants

shall maintain their tenancy throughout

the contract period in order to remain

on a contract. Tenants who fail to

maintain tenancy on the acreage under

contract, including failure to comply

with provisions under applicable State

law, may be removed from a contract by

CCC. CCC shall assume the tenancy is

being maintained unless notified

otherwise by a CRP participant specified

in the applicable contract.

§ 1410.57 Payments not subject to claims.

Subject to part 1403 of this chapter,

any cost-share or annual payment or

portion thereof due any person under

this part shall be allowed without regard

to questions of title under State law, and

without regard to any claim or lien in

favor of any creditor, except agencies of

the United States Government.

§ 1410.58 Assignments.

Any participant who may be entitled

to any cash payment under this program

may assign the right to receive such

cash payments, in whole or in part, as

provided in part 1404 of this chapter.

§ 1410.59 Appeals.

(a) Except as provided in paragraph

(b) of this section, a participant or

person seeking participation may appeal

or request reconsideration of an adverse

determination rendered with regard to

such participation in accordance with

the administrative appeal regulations at

parts 11 and 780 of this title.

(b) Determinations by NRCS

concerning land classification, erosion

rates, water quality ratings or other

technical determinations may be

appealed in accordance with procedures

established under part 614 of this title

or otherwise established by NRCS.

§ 1410.60 Scheme or device.

(a) If it is determined by CCC that a

person has employed a scheme or

device to defeat the purposes of this

part, any part of any program payment

otherwise due or paid such person

during the applicable period may be

required to be refunded with interest

thereon as determined appropriate by

CCC.

(b) A scheme or device includes, but

is not limited to, coercion, fraud,

misrepresentation, depriving any other

person of cost-share assistance or

annual rental payments, or obtaining a

payment that otherwise would not be

payable.

(c) A new owner or operator or tenant

of land subject to this part who succeeds

to the responsibilities under this part

shall report in writing to CCC any

interest of any kind in the land subject

to this part that is retained by a previous

participant. Such interest shall include

a present, future, or conditional interest,

reversionary interest, or any option,

future or present, with respect to such

land, and any interest of any lender in

such land where the lender has, will, or

can obtain, a right of occupancy to such

land or an interest in the equity in such

land other than an interest in the

appreciation in the value of such land

occurring after the loan was made.

Failure to fully disclose such interest

shall be considered a scheme or device

under this section.

§ 1410.61 Filing of false claims.

If it is determined by CCC that any

participant has knowingly supplied

false information or has knowingly filed

a false claim, such participant shall be

ineligible for payments under this part

with respect to the program year in

which the false information or claim

was filed and the contract may be

terminated in which case a full refund

of all prior payments may be demanded.

False information or false claims

include, but are not limited to, claims

for payment for practices which do not

meet the specifications of the applicable

conservation plan. Any amounts paid

under these circumstances shall be

refunded, together with interest as

determined by CCC, and any amounts

otherwise due such participant shall be

withheld. The remedies provided for in

this section shall be in addition to any

and all other remedies, criminal and/or

civil that may apply.

§ 1410.62 Miscellaneous.

(a) Except as otherwise provided in

this part, in the case of death,

incompetency, or disappearance of any

participant, any payment due under this

part shall be paid to the participant’s

successor in accordance with the

provisions of part 707 of this title.

(b) Unless otherwise specified in this

part, payments under this part shall be

subject to the requirements of part 12 of

this title concerning highly-erodible

land and wetland conservation and

payments that otherwise could be made
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Rules and Regulations 7635

under this part may be withheld to the

extent provided for in part 12 of this

title.

(c) Any remedies permitted CCC

under this part shall be in addition to

any other remedy, including, but not

limited to criminal remedies, or actions

for damages in favor of CCC, or the

United States, as may be permitted by

law; provided further the Deputy

Administrator may add to the contract

such additional terms as needed to

enforce these regulations which shall be

binding on the parties and may be

enforced to the same degree as

provisions of these regulations.

(d) Absent a scheme or device to

defeat the purpose of the program, when

an owner loses control of CRP acreage

due to foreclosure and the new owner

chooses not to continue the contract in

accordance with § 1410.51, refunds

shall not be required from any

participant on the contract to the extent

that the Deputy Administrator

determines that forgiving such

repayment is appropriate in order to

provide fair and equitable treatment.

(e) Crop insurance purchase

requirements in part 1405 of this

chapter apply to contracts executed in

accordance with this part.

(f) Land enrolled in CRP shall be

classified as cropland for the time

period enrolled in CRP and, after the

time period of enrollment, may be

removed from such classification upon

a determination by the county

committee that such land no longer

meets the conditions identified in part

718 of this title.

(g) Research projects may be

submitted by the State committee and

authorized by the Deputy Administrator

to further the purposes of CRP. The

research projects must include

objectives that are consistent with this

part, provide economic and

environmental information not

adversely affect local agricultural

markets, and be conducted and

monitored by a bona fide research

entity.

(h) CCC may enter into other

agreements, as approved by the Deputy

Administrator, to use the CRP to meet

authorized wetland mitigation banking

pilot projects.

§ 1410.63 Permissive uses.

Unless otherwise specified by the

Deputy Administrator, no crops of any

kind may be planted or harvested from

designated CRP acreage during the

contract period.

§ 1410.64 Paperwork Reduction Act

assigned numbers.

The Office of Management and Budget

has approved the information collection

requirements contained in these

regulations under provisions 44 U.S.C.

Chapter 35 and OMB number 0560–

0125 has been assigned.

Signed at Washington, DC, on February 11,

1997.

Grant Buntrock,

Administrator, Farm Service Agency, and

Executive Vice President, Commodity Credit

Corporation.

[FR Doc. 97–3861 Filed 2–12–97; 10:37am]

BILLING CODE 3410–05–P