Conservation Reserve Program (CRP) Final Rule

[Federal Register: February 19, 1997 (Volume 62, Number 33)
Rules and Regulations, Page 7601-7635]

Conservation Reserve Program--
Long-Term Policy; Final Rule

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-million-acre scenario), improved water quality ($350 million and $455 million, respectively), and increased consumptive and non-consumptive uses of wildlife ($1.5 billion and $2.0 billion, respectively). The sum of these 3 categories, which would only be a partial accounting of the environmental benefits, is $2.0 billion per year and $2.7 billion per year, for the 28.0-million-acre and 36.4-million-acre scenarios, respectively.

Enrollment of 28.0 million acres and 36.4 million acres is expected to increase annual net farm income from production of feedgrains, wheat, cotton, and soybeans, CRP payments, and production flexibility contract payments by about $5.8 billion and $7.6 billion, respectively, compared with the no CRP continuation scenario. The increased net farm income results from higher commodity prices, reduced production expenses, and higher CRP rental payments to participants. Compared with the no continuation scenario, corn, wheat, and soybean prices each average about 9 percent, 8 percent, and 11 percent higher, respectively under the 28.0-million-acre scenario, and about 12 percent, 15 percent, and 13 percent higher under the 36.4-million-acre scenario.

Average annual CRP outlays under the 28.0-million-acre and 36.4-million-acre options average about $1.1 billion and $1.2 billion, respectively, higher than under the no continuation scenario.

Because enrollment in CRP reduces planted acreage and commodity production and increases commodity prices, projected annual expenditures for feedgrains, wheat, cotton, and soybeans are estimated to be $3.7 billion and $4.9 billion higher with enrollment at the 28.0-million-acre and 36.4-million-acre levels, respectively, relative to the no continuation scenario for domestic purchasers. For foreign purchasers, average annual expenditures are $1.9 billion and $2.6 billion higher. Thus, impacts on commodity expenditures for all purchasers is about $5.6 billion and $7.5 billion annually. Consequently, the net economic costs of a 28.0-million-acre and a 36.4-million-acre program, compared with no continuation are $0.9 billion and $1.5 billion per year, respectively. The net economic cost is the sum of the impacts of the positive change to society in farm income, the negative impact to society of the increased expense for taxpayers from the CRP outlays, and the negative impact of the increased expenditures for a smaller quantity of commodities.

Comparison of the rough approximations of environmental benefits derived from the estimates for currently enrolled acreage, with the economic cost estimates derived from the analysis of projected enrollment under the 1996 Act provisions, results in total estimated annual benefits to society that exceed costs by $1.1 billion and $1.2 billion, respectively, for the 28.0-million-acre and 36.4-million-acre scenarios. The uncertainty of the magnitude of errors of the environmental benefits estimates, and to a lesser extent those of the economic costs estimates, makes evaluation of this preliminary comparison difficult. Making the comparison even more difficult is the incompleteness of the environmental estimates (e.g., values of increased wetland conservation, endangered species habitat, trees and open spaces, and reduced nutrients and pesticides in the environment). If the environmental estimates were more complete, it is likely that the estimated net impacts to society of maintaining enrollment of both 28.0 million and 36.4 million acres would be higher, and the difference in benefits between the 28.0-million-acre option and the 36.4-million-acre option would be greater.

Risk Assessment

A risk assessment and related benefit-cost analysis are required to accompany proposed major rules, as defined under section 304 of Public Law (P.L.) 103-354. Because agricultural producers needed to know long-term objectives of the CRP as soon as possible in order to formulate production plans for 1997 and because completion of the regulatory analysis required by section 304 of Public Law 103-354 to accompany a proposed regulation was not practicable in the time available, the Director, Office of Risk Assessment and Cost-Benefit Analysis (ORACBA), concluded that it was appropriate to extend the time allowed for completion of the required analyses. A general time line for conducting the required analyses developed by the Director, ORACBA, and the FSA involves a two-phase approach.

Phase 1. Available upon request are (a) an environmental assessment, and (b) an environmental risk assessment, (c) an outline of a benefit/cost analysis of mitigation measures, (d) a comparison of the relative risks managed by CRP and by other programs in the Department which address similar risks resulting from comparable activities, and (e) a plan for monitoring the risk reduction expected to occur as a result of the CRP in accordance with Public Law 104-127. Evaluation and monitoring would allow completion of a meaningful cost-benefit analysis of the current and potential enrollment practices compared to measured environmental benefits.

Phase 2. One year after the final rule is promulgated, the benefit-cost analysis of mitigation measures will be completed. This benefit-cost analysis will address the costs associated with implementation and compliance with the regulation and the qualitative and quantitative benefits of the regulation.

Initially, the principal focus of the CRP was to address the excessive erosion problems of highly erodible cropland. However, the development and widespread adoption of improved tillage systems have significantly increased producers' ability to control erosion on much of U.S. cropland at levels that do not cause substantial environmental degradation. Consequently, the focus of the program has been broadened to include those situations where long-term conversion of cropland to non-cropping uses is required to solve significant agriculture-related environmental problems.

The purposes of the risk assessment are to (1) identify and characterize the major production activities occurring on U.S. cropland that create stresses on the elements of the natural environment that CRP must protect under its legislative mandate, (2) identify the stresses that are created by these activities, (3) describe the adverse relationships between the stresses and the affected elements of the environment, and (4) estimate the amount of the adverse impacts.

Specific resource concerns or values to be protected that are defined in the 1985 Act include (1) soil erosion (including cropland productivity), (2) ground water and surface water quality, (3) habitat for wildlife (including threatened and endangered species), (4) wetland functions and values, and (5) compliance with Federal and State environmental laws including air quality.

The major agricultural cropping practices connected to the environmental risks include (1) disturbance of soil and land, (2) application of irrigation water, (3) application of pesticides, and (4) application of nutrients. Enrollment of cropland in CRP largely eliminates these activities as well as the stresses and adverse impacts.

The objective of the CRP risk assessment is to provide information that can assist program managers in developing guidelines, requirements, and policies that will lead to enrollment of acreage that addresses the most severe resource situations in the most cost-effective manner.

From the information reviewed, it is clear (and well recognized) that crop production activities can sometimes have adverse impacts on one or more elements of the natural resource base. The significance and severity of these impacts can vary significantly among geographic areas.

For example, soil and land disturbance can create excessive erosion that lead to reductions in the quality and productivity of soils, creates sediment that pollutes water bodies and destroys wetland, and becomes airborne and creates human health and safety problems. Land disturbance, especially land conversion to intensive row cropping uses (or conversions of wetlands) can also degrade important wildlife habitats.

Productivity losses resulting from soil erosion will likely average about 1 percent over the next 100 years for all U.S. cropland if erosion continues at the levels occurring in 1992. However, potential productivity losses are much greater for different commodities in different areas, e.g., more than 3 percent for corn and soybeans in the Lake States, and 2.3 percent for cotton in the Southern Plains.

Projected levels of sediment loadings from cropland total about 350 million tons per year, nearly 30 percent of total annual sheet and rill erosion. About two-fifths of the sedimentation occurs in the Corn Belt, but the Northern Plains and Appalachian regions also have significant sedimentation problems. Wind erosion resulting from cropping practices are projected to be about 940 million tons per year in the United States. Most occurs in the Great Plains, Mountain, and northern portions of the Pacific region. Airborne dust particulate matter problems are most significant in the Columbia Plateau area of southeast Washington State and the southern high plains region of Texas and New Mexico.

Conversion of grasslands and wetlands to cropping uses has contributed to a significant decline in habitat for many grassland and wetland bird and animal species, particularly in portions of the Corn Belt and Northern and Southern Plains regions. CRP can be useful in reducing threats to species population declines and in maintaining stable populations of wildlife.

Other significant problems include the contamination of surface and ground water supplies by nutrients (primarily nitrogen and phosphorous) and pesticides. Nutrient (fertilizer) use and runoff appear to be highest in the Corn Belt and Northern Plains regions, areas along the Mississippi River, and the eastern Coastal Plain.

Pesticide use is highest in the Corn Belt and the Northern Plains, while pesticide runoff potential is greatest in the Corn Belt, the southern portion of the Lake States, and along the Mississippi River in the Delta region. Areas with potential problems of pesticides leaching into ground water area are primarily located in the Southeast region, portions of the Corn Belt, and along the Mississippi River in the Delta region.

Regulatory Flexibility Act

It has been determined that the Regulatory Flexibility Act is not applicable to this final rule because CCC is not required by 5 U.S.C. 553 or any other provision of law to publish a notice of proposed rulemaking with respect to the subject matter of this rule.

Environmental Evaluation

It has been determined by an environmental assessment that this rule does not have a significant adverse impact on the environmental, historical, social or economic resources of the Nation. Therefore, it has been determined that these actions will not require an Environmental Impact Statement.

Executive Order 12372

This program is not subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials. See the notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115 (June 24, 1983).

Unfunded Mandates

Title II of the Unfunded Mandate Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, CCC generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with ``Federal mandates'' that may result in expenditures to State, local, or tribal governments, in the aggregate, or the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires CCC to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.

Federal Domestic Assistance Program

The title and number of the Federal Domestic Assistance Program, as found in the Catalog of Federal Domestic Assistance, to which this rule applies, are the Conservation Program-10.069.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule has been determined to be major under the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). It has been determined that, pursuant to section 808 of SBREFA, it is impracticable, unnecessary, and contrary to the public interest to delay the effective date of this rule. Making this final rule effective immediately will permit CCC to conduct a general sign-up period for the program in advance of this spring's planting season. Delay of the sign-up period beyond that time would unduly limit the supply of land available for enrollment in the CRP by not allowing for enrollment and planning in sufficient time for new contracts to be in effect on October 1 and thereby inhibit the ability of the program to achieve the important public benefits which were the purpose of the recent amendments to the CRP and the other provisions of the 1996 Act dealing with conservation. Accordingly, this rule is effective upon publication in the Federal Register.

Paperwork Reduction Act

Information collections contained in this rule have been previously cleared by OMB under 0560-0125.

Executive Order 12988

This final rule has been reviewed in accordance with Executive Order 12988. The provisions of this rule are not retroactive and preempt State and local laws to the extent such laws are inconsistent with the provisions of this rule. Before any action may be brought in a Federal court of competent jurisdiction, the administrative appeal rights afforded program participants at 7 CFR parts 11, 624, and 780 must be exhausted.

Background

The purpose of CRP is to cost-effectively assist owners and operators in conserving and improving soil, water, and wildlife resources by converting highly erodible and other environmentally sensitive acreage normally devoted to the production of agricultural commodities to a long-term resource-conserving cover. CRP participants enroll contracts for periods from 10- to 15-years in exchange for annual rental payments and cost-share assistance for installing certain conservation practices. Applicants submit offers in such a manner as the Secretary prescribes.

The CRP is authorized by the 1985 Act. The Code of Federal Regulations (CFR) has contained two parts for the CRP: 7 CFR part 704 has contained provisions regarding the CRP acreage enrolled from 1986 through 1990 and 7 CFR part 1410 has contained provisions regarding the CRP acreage enrolled since 1991 under the amendments to the 1985 Act made by the Food, Agriculture, Conservation, and Trade Act of 1990.

An interim rule was published on August 27, 1996 (61 FR 43943), implementing provisions of the 1996 Act amendments.

The 1996 Act amended the 1985 Act to provide for extension of enrollment authority for up to 36.4 million acres at any one time through 2002 and a desire to improve the program, prompted development of a proposed rule which was published on September 23, 1996 (61 FR 49697), that sought comment on long-term CRP policies. The comment period ended November 7, 1996.

Proposed Rule Summary

Among other proposals, with respect to land eligibility, CCC proposed to change, in Sec. 1410.6, the existing CRP land eligibility criteria to include, as eligible lands, wetlands and their appropriate associated acreage, as determined by CCC, certain acreage enrolled in the Water Bank Program (WBP) administered by the Natural Resource Conservation Service (NRCS), and certain cropland associated to noncropped wetlands, as determined appropriate by CCC. Wetlands are intrinsically valuable natural resources that provide important benefits to people and the environment. Wetlands improve water quality, reduce flood and storm damage, help control soil erosion, and provide important fish and wildlife habitat. Certain wetlands provide particularly important filtering functions because of their location between land and water. It was proposed for WBP land that certain WBP acreage, to the extent it otherwise meets statutory CRP criteria, would be eligible to be enrolled in the CRP during the final year of the WBP agreement.

Also, the 1985 Act authorized the watershed areas of the Chesapeake Bay Region, the Great Lakes Region, the Long Island Sound Region, and other areas of special environmental sensitivity to be designated as conservation priority areas for a period of 5 years, subject to redesignation. A number of these areas are approaching the expiration of their initial designation. The 1996 Act further amended the provisions regarding conservation priority areas under Environmental Conservation Acreage Reserve Program. The proposed rule set out proposed amendments to Sec. 1410.8 to reflect the new provisions.

Further, CCC proposed to generally restrict the total cropland in a State that could be designated as a conservation priority area to no more than 10 percent. The rule proposed certain procedures for priority designations. With respect to wetland enrollment, CCC proposed allowing additional incentives for such enrollments.

CCC also proposed to offer enhanced financial incentives, to obtain enrollments of filter strips, riparian buffers, field windbreaks, grass waterways, and acreage located in wellhead protection areas designated by the applicable State Agency or the Environmental Protection Agency (EPA).

The 1985 Act generally provided that no commercial use can be made of the enrolled CRP acreage but permits haying or grazing during droughts or similar emergencies. CCC also sought comment generally on haying and grazing of CRP land.

CCC noted that as a result of provisions in the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriation Act, 1997 (the 1997 Appropriations Act), contract extensions would not be available in Fiscal Year (FY) 1997 and proposed that acreage already enrolled in the CRP could be offered for re-enrollment based on the same criteria applicable to other offers.

With respect to the unilateral early contract termination provisions for certain acreage authorized by the 1996 Act amendments, CCC proposed to expand the list of acreage not eligible for early termination to include: (1) All wetlands, not just those enrolled under signup 8 and 9 criteria; (2) land subject to frequent flooding, as determined by CCC; (3) EPA-designated wellhead protection areas; and (4) any wetland buffers that may be required according to the conservation plan to protect the functions and values of wetland acreage.

The proposed rule also proposed that the CRP would be carried out by CCC through the Farm Service Agency (FSA) using State and county FSA offices and that CCC intended to rank, competitively, all offers based on the environmental benefits index taking into account the Government cost of the contract except for those contracts the acceptance of which are known to provide especially high environmental benefits.

CCC proposed to use a system that considers, for indexing purposes, soil erosion, water quality, wildlife habitat, and cost while also considering other technical factors such as, but not limited to, recommendations of State technical committee, conservation priority areas, permanent wildlife habitat, tree plantings, wetlands functions and values, and conservation compliance requirements.

Additionally, there were four issues for which CCC sought comment but which were not the subject of proposed amendment to existing regulations: (1) Whether and in what manner CRP acreage could be devoted to the production of biomass crops and whether such use would be consistent with the policy and provisions of the 1985 Act; (2) periodic nonemergency haying or grazing of CRP acreage; (3) the relationship of priority designations for the CRP, Wetlands Reserve Program (WRP), and Environmental Quality Incentives Program (EQIP); and (4) the methodology of making priority designations. Further, the proposed rule, by consolidating parts 704 and 1410, set out the entirety of the program regulations for review and comment in preparing the program for future enrollments.

Summary of Comments

CCC received 3,467 comments concerning the proposed rule. Entities responding included individuals, State governments, local governments, State farm organizations, national conservation organizations, national farm and commodity organizations, and Members of Congress. Comments came from all States except Delaware, Maine, Nevada, and West Virginia, and comments came from the District of Columbia and Canada.

In addition to the comments received in Washington, D.C., USDA conducted public listening forums in each State where comments on the CRP proposed rule were made for inclusion in the administrative record. These comments were included in the development of this final rule.

Changes in this final rule from the proposed rule of September 23, 1996, are based upon CCC's experience in implementing CRP since 1986 and on consideration of the comments received. Numerous minor editorial and other changes have been made in the text and order of the regulations for clarity and to facilitate the application of the regulations.

General Comments

Many comments were not directed to the proposed rule itself, but to related matters such as the enrollment level of the program, program development, and geographical distribution of the enrolled acreage. There were other comments which were not germane to CRP, were vague, or were not submitted timely; those comments were not considered.

There were 487 comments supporting the implementation of the CRP and citing the individual or collective conservation, environmental, or other benefits of the program obtained as a result of CRP. These benefits included reduced soil erosion, improved air quality, enhanced wildlife habitat, surface and ground water conservation, commodity price and supply stabilization, and enhanced personal and community economies.

One comment suggested that any program changes should be made gradually rather than immediately as indicated in the proposed rule. If the proposed rule had proposed dramatic changes or shifts in policy, such a suggestion would have merit. However, since 1987, when the use of an Erodibility Index (EI) was initiated, CRP has evolved to a more environmentally-sensitive program. The proposed rule has merely continued these prior incremental changes and the changes set forth in the proposed rule are not as dramatic in nature as prior amendments.

Three comments suggested that no funding shifts occur between CRP and other farm programs. As a result of the 1996 Act, CRP is now funded through CCC's borrowing authority and implementation of the CRP will not affect CCC's ability to carry out other programs.

One comment suggested that more field personnel are needed to inspect and monitor producers who are receiving Government subsidies. FSA has a thorough compliance program which includes the annual review of contract compliance on a statistically significant sample.

Three comments suggested that the deadline for comments be extended and eight comments recommended timely approval of the final rule or no delays in signup. The comment deadline will not be extended due to the need to finalize this rule in a timely manner as set out above. Four comments suggested that the current program be extended for another year to fully assess the environmental and economic costs of the proposed rule. However, as indicated in the Program Changes section of the proposed rule, Congressional provisions contained in the 1997 Appropriations Act effectively precluded the extension of any CRP contract expiring in FY 1997. CCC is very concerned that to delay action further could disrupt the farming and ranching community where planning is already underway for the upcoming cropping season. CCC intends to conduct a signup as soon as possible to alleviate any planning difficulties.

Four comments opposed the CRP because they suggested it was paid for by taxes, hurts new farmers, benefits foreign countries, or because of its 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-emergency haying or grazing of CRP acreage.

With respect to issues concerning implementation of the conservation priority area authority applicable to CRP, EQIP, and WRP and the manner in which to consider redesignation of soon-to-expire conservation priority area designations, respectively, these issues are addressed in the discussion of Sec. 1410.8.

Sec. 1410.1 Administration.

Four comments supported the inclusion of specific reference to the U.S. Forest Service and State forestry agencies for consultation on tree planting practices. However, three of the comments suggest making consultation with the Forest Service or State forestry agencies a requirement rather than an option. This recommendation will not be adopted because there are areas in the country where these services are not available.

Eighteen comments suggested that Sec. 1410.1 be amended to provide that: ``CCC may consult with the U.S. Fish and Wildlife Service (FWS) or the State wildlife agency for assistance as is determined by CCC to be necessary for developing and implementing conservation plans and practices in a manner to optimize benefits to wildlife habitat.'' Several comments specifically stated that wildlife agencies should also be consulted on tree planting practices in addition to consultation with forestry agencies. Two comments suggest that FSA should take every opportunity to work with wildlife professionals to ensure that the USDA-mandated wildlife benefits of this new CRP are incorporated into contracts whenever possible. The FWS and State wildlife agencies are represented on State Technical Committees and the FWS is a member of a national multi-agency team established to provide recommendations to the Secretary on CRP policy. The Department also consulted with various wildlife agencies when formulating CRP policies. CCC and FWS will work together on as needed basis. Therefore, this suggestion was adopted.

There were several comments supporting the State and county FSA committees as the proper authorities to implement CRP including bid ranking, rulemaking, eligibility criteria, ranking plans and contract approval. CCC has delegated substantial authority to State committees which, acting upon recommendations from the State Technical Committees (see 7 CFR part 610) chaired by NRCS, assist in CRP operations within a State. Field level representatives of FSA and NRCS also participated in the development of issues prior to the preparation of the final rule.

One comment suggested that the rule should be amended to clearly identify the role of the State Technical Committees. The role of the State Technical Committees is defined in 7 CFR part 610.

One comment suggested that the local NRCS field office, along with local conservation districts, should have the ability to accept applications and approve contracts. Conservation districts are not federal agencies and, therefore, cannot obligate federal funds. During continuous signup, both NRCS and FSA have the ability to take requests for enrolling acreage in CRP. In order to maintain the fiscal integrity and consistency of the program, however, only one agency, FSA, will be responsible for approving contracts on behalf of CCC.

Five comments suggested that State ranking plans be reviewed by NRCS and FSA national offices to ensure all objectives of the program are met. The national offices of NRCS and FSA, acting on behalf of CCC, will review all proposed State ranking plans.

One comment suggested that rules for developing and applying an approved State ranking plan should be clear and available to those who will be affected by them and also suggests that offers in States with ranking plans should not be subject to ranking according to the national ranking plan. Another comment stated that national ranking was not desirable and that contracts should be approved at the local level. All State ranking plans will be public information and provided to interested applicants when requested. The national ranking process will only be used to determine the number of acres allocated to a State when State ranking plans are used. All offers will then be ranked according to the State plan. CRP contracts will be all approved in local FSA offices.

There were a number of comments suggesting that drainage districts be afforded special authority to approve or deny a producer's request or otherwise limit a request for enrollment to protect the mission of the drainage district. There is no authority for a district to control program benefits. However, they are free to make their concerns about particular practices known.

One comment suggested that contract approval be delegated to the local office level and implied that national ranking for acceptability is not desirable. CRP contracts are approved locally. The national office does not approve contracts. State FSA Committees, based on recommendations from State Technical Committees, determine whether a State or national ranking process is implemented. In States that use a national ranking plan, the national office uses an objective ranking process. In States that use a State ranking plan, the ranking process is used to determine the number of acres accepted in that State. In all cases, the CCC is attempting to achieve the maximum benefit for the nation as a whole.

Sec. 1410.2 Definitions.

Some commenters suggested that ``permanent wildlife habitat'' and ``wildlife corridor'' were used interchangeably in the rule. The permanent wildlife habitat was amended to make clear that it includes wildlife corridors.

One comment suggested the definition of permanent wildlife habitat is not adequate because it does not take into consideration fish habitat. As ``wildlife'' can include both terrestrial and aquatic species, this recommendation has not been adopted.

Three comments opposed the definition of ``predominately highly erodible field'' with no suggested change provided. Twelve comments suggested that because the definition of highly erodible land is land that has an erosion rate greater than ``T,'' it appears to penalize landowners who are doing a good job by preventing them from enrolling, while rewarding those who are doing a poor job of soil conservation. Another comment opposed the defining of highly erodible land as ``erosion rate greater than T.'' Two comments suggested that the NRCS definition for ``predominantly highly erodible'' be set to use a predominance percentage of 33\1/3\ if this definition is going to be used to determine CRP program eligibility. Another comment suggests changing the definition for ``predominantly highly erodible field'' by replacing ``66\2/3\ percent of the land'' with ``75 percent of the land.'' One comment suggested that in the definition of ``predominantly highly erodible field'' the special allowance for the participants who agree to plant trees be expanded to include, also, those who will plant native grasses or create shallow water area for wildlife. Three comments suggested changing the fourth sentence defining HEL to read ``having an erodibility index equal to or greater than 8 for both wind and water erosion and an erosion rate greater than T.'' One comment suggested adding ``or a combination of both'' in the definition of highly erodible land after the word ``erosion.'' One comment suggested replacing the word ``and'' with ``or'' in subparagraph (4)(i) in the definition of highly erodible land. One comment suggested the definition of soil loss tolerance was inconsistent with the definition in the current highly erodible land regulations. The land eligibility provisions have been revised to be consistent with those published in 7 CFR part 12. Those standards are known and there is no need for an inconsistency for CRP eligibility determinations. Therefore, those lands basically eligible for CRP will include acreage which is subject to the conservation compliance provisions of 7 CFR part 12. Differences in erosion can be accounted for by ranking.

Two comments suggested that the definition of conservation district be amended to use the more generic reference ``State or territorial conservation district law, or tribal law.'' Another comment suggests the definition of conservation district include the term natural resources district. The definition in the proposed rule already included these terms and is consistent with the definition of conservation district in other USDA programs.

One comment suggested adding a definition for ``conservation priority area.'' This recommendation was adopted.

Six comments suggested that for purposes of this rule a shelterbelt renovation be included in the definition of ``field windbreak, shelterbelt and living snow fence.'' However, there is no need to modify the definition. Any windbreak, shelterbelt, or living snow fence that is no longer functioning properly for the intended purpose is eligible to be enhanced or restored.

Four comments suggested the creation and definition of ``State wildlife priority areas'' that could also be determined eligible as conservation priority areas and that these areas should be designated in consultation with State NRCS technical committee and state wildlife agency. The definition of conservation priority areas is sufficiently flexible to include this recommendation.

One comment suggested changing the definition of agricultural commodity in the CRP rule to the definition used in other 1996 Act programs. The term ``agricultural commodity'' is defined for CRP purposes by the 1985 Act.

Two comments suggested the definition of agricultural commodity be clarified to take into consideration tillage under crop residue management practices. The 1985 Act's definition is sufficiently flexible to consider tillage operations under crop residue management practices.

One comment suggested that the definition of ``agricultural commodity'' should treat crops produced by so-called ``no-till'' practices in the same manner as crops produced normally. This recommendation will not be adopted as it is unnecessary. So called ``no-till'' crops, as the term is normally used, do involve sufficient tilling for these purposes.

One comment suggested USDA add tall prairie grass windbreaks in the definition of ``windbreaks.'' This recommendation will not be adopted because there is no assurance that the longevity of the practice can be assured.

Several comments were received regarding definitions of ``cropped wetlands.'' One comment suggested adding a new definition of ``cropped wetland'' to mean ``any wetland farmed under natural conditions, any wetland designated a farmed wetland, or any restorable areas designated as prior converted cropland according to part 12 of this title.'' Another comment suggested defining ``cropped wetland'' to mean ``any wetland, farmed wetland or restored prior-converted wetland within a field that has been annually planted or considered planted to an agricultural commodity in two of the 5 most recent crop years.'' A third comment recommended adding language to the ``cropped wetland'' definition to include wetlands farmed under natural conditions, without manipulation. To provide for consistently with 7 CFR part 12, new definitions have been to the CRP rules for ``cropped wetlands,'' ``farmed wetlands'' and ``wetlands farmed under natural conditions.'' Those definitions draw on part 12.

One comment suggested adding a new definition for ``vegetative cover'' to mean native grasses or favorable introduced warm-season grasses, preferably multiple species and including some species of annual vegetation in planting mixtures. It is not appropriate to restrict vegetative cover as suggested. However, additional consideration may be awarded in the bidding process for more desirable covers.

One comment suggested that ``reducing water erosion'' needs to be added to the purposes included in the definition for ``field windbreak, shelterbelt, and living snowfence.'' The proposal is inconsistent with the windbreak standards and specifications and could cause rill and/or ephemeral gully erosion if a grassed waterway filter strip, or some other practice is not established along side of the windbreak.

Four comments suggested defining the term ``environmental benefits index'' to include the factors which comprise the ranking process. The recommendation was adopted.

One comment suggested the definition of a conservation plan should clearly indicate that the definition only applies to the CRP or, alternatively, that the requirement for vegetative cover should be modified. The definition has been modified to read ``Conservation plan means a record of the participant's decisions, and supporting information, for treatment of a unit of land or water, and includes a schedule of operations, activities, and estimated expenditures needed to solve identified natural resource problems by devoting eligible land to permanent vegetative cover, trees, water, or other comparable measures.''

One comment suggested the exception for land in terraces that are no longer capable of being cropped be removed from the definition of ``cropland.'' The purpose of CRP is to cost-effectively assist owners and operators in conserving and improving soil, water, and wildlife resources by converting highly erodible and other environmentally sensitive acreage normally devoted to the production of agricultural commodities to a long-term, resource-conserving cover. Acreage that is no longer capable of being cropped has already been removed from crop production. Therefore, this suggestion is not being adopted.

One comment suggested the definition of a ``field'' is inconsistent with the 1985 Act. No basis was provided, or found, for the suggestion. Therefore, the recommendation was not adopted.

One comment suggested the term ``vegetation'' be defined and include woody vegetation in the definition. Vegetation is included in the final rule definition of ``permanent vegetative cover'' as ``perennial stands of approved combinations of certain grasses, legumes, forbs, and shrubs with a lifespan of 10 or more years, or trees.''

Eight comments suggested changing the 3.0 acre minimum requirement in determining a manageable unit. On review, the manageable unit provision was determined to be unnecessary and removed.

Sec. 1410.3 General description.

One comment suggested CRP regulations should target environmentally sensitive acreage while returning quality land back to production. This rule has been published consistent with CCC's goals to retarget CRP to more environmentally sensitive acreage. This includes a minimum erodibility index level to help ensure that CRP does not remove from production land that is not environmentally sensitive. It is a goal of CCC to only retire land from agricultural production where the benefits to the Nation are greater from enrollment than in keeping land in continued agricultural production.

Sec. 1410.4 Maximum county acreage.

Some commenters suggested that there should be no exceptions to the 25 percent of a county's cropland enrollment prohibition and suggested setting an administrative limit of generally between 10 percent to 15 percent as a maximum. Section 1243(b)(1) of the 1985 Act provides that ``The Secretary shall not enroll more than 25 percent of the cropland in any county in the programs administered under the conservation reserve and wetlands reserve programs. . . .'' Accordingly, the reduction of the limitation would be inconsistent with the 1985 Act and would unduly limit CCC's options. As to any exceptions, CCC has heretofore not approved a recommendation for an exception unless NRCS, conservation districts, the Extension Service, and the Forest Service (FS) have made a favorable recommendation and only after local producers, agricultural-related businesses, and others were polled.

Regarding county and State acreage limitations, some suggested that a limitation should be implemented on land that can be placed in CRP by counties and States. Each State should have a minimum and maximum number of acres allotted to be maintained and the regulatory limits on total designated acreage should be flexible where there are direct and serious considerations for protecting sources for drinking water. Arbitrarily establishing limits for enrollment by State inhibits CCC from maximizing environmental benefits achieved per federal dollar expended.

Sec. 1410.5 Eligible person.

One comment suggested the term ``calendar'' be removed because the requirement is for one year not one calendar year. Another comment suggested the one year requirement be removed. Two comments suggested that the land ownership time requirement be eliminated if the goal of the program is erosion control and water quality. One comment concerned producers who assume CRP contracts who may not have owned the land to meet the necessary 1-year ownership requirement prior to the next CRP signup. After careful review, the term ``calendar year'' has been removed and replaced with the term ``12 months.'' The ownership eligibility requirement is a 1985 Act requirement and cannot be administratively eliminated. The proposed and final rule do not preclude those producers who succeeded to existing contracts within 12 months of the next CRP signup period from reoffering such acreage.

One comment supported reducing the land ownership requirement from three years to one year. This change is consistent with the 1996 Act amendments to the 1985 Act.

One comment suggested adding ``and grazing land'' following all references to cropland in Sec. 1410.5. The term ``cropland'' has been replaced with the term ``eligible land'' now that certain marginal pasture land has been made eligible for CRP.

One comment suggested that if a landowner receives government money for their CRP land, the landowner should fit some sort of definition of a farmer. The 1985 Act does not restrict participation in the program to ``farmers.'' Eligible producers include owners and operators of eligible land; therefore, this suggestion will not be adopted.

Sec. 1410.6 Land Eligibility.

Cropping History Requirement

Nine comments suggested changes to the cropping eligibility requirement such as allowing flexibility to consider crop rotations or only requiring that acreage be planted or considered planted in two of the last ten crop years. Ten comments suggested that the cropping eligibility requirement be waived under emergency situations or for certain practices, such as filter strips and riparian buffers, or for certain land, such as land that has the potential to create erosion concerns, land subject to long term flooding, and land already devoted to waterways. The CRP is a voluntary program with the purpose of cost-effectively assisting eligible owners and operators in conserving and improving soil, water, and wildlife resources by converting highly erodible land and other environmentally sensitive acreage normally devoted to the production of agricultural commodities to an approved long-term resource-conserving cover. The current cropping history requirement is necessary to obtain and maintain the purpose of the CRP consistent with the 1985 Act which, except for very limited situations dealing with marginal pasture lands, limits CRP eligibility to ``cropland.'' Therefore, these suggestions will not be adopted.

One comment supported the current cropland eligibility base period.

One comment suggested that land coming out of CRP should not automatically be eligible to re-enroll. Two comments suggest that land known to be going out of agricultural production should not be allowed to be offered for CRP. These suggestions have not produced a rule change as the relative value of offers is taken into account in the ranking process and there is no automatic eligibility for old CRP lands.

Two comments suggested that information be released to clarify whether land under CRP contract during the cropping eligibility base period would be considered as meeting the cropping eligibility requirements. Current CRP land may be offered for re-enrollment if its meets the new eligibility criteria. The Deputy Administrator of FSA may develop further refinements on this issue as needed to deal with delays in re-enrollment.

Erodibility Index

Several hundred comments were received regarding the provisions relating to the EI of 8. There was little agreement among respondents regarding the appropriate minimum eligibility standard.

Fourteen comments supported maintaining the EI enrollment eligibility level of 8 to make more acres of productive land available for farmers. One comment supported using a weighted average EI for eligibility.

Seventy-six comments generally opposed the erodibility criteria and suggest that land with an EI of less than 8 be eligible to be enrolled in the CRP. Some comments suggested eligibility levels ranging from 5 to 7 as an alternative. Four comments suggested that the EI of greater than 8 level be used as a guideline while allowing flexibility to enroll land with an EI of less than 8 when environmental or economic benefits justify such a decision. Eight comments suggest using the same EI level to determine both HEL compliance and CRP eligibility.

Sixty-four comments supported the concept of targeting only environmentally sensitive land and placing more productive land in production. Of the 64 comments, 39 comments suggested that an EI eligibility level of 15 or greater be established.

Thirty comments suggested giving more consideration to increasing land terrain as a qualifying factor. The concern is that previously eligible land does not qualify and is highly erodible from snow melt, rain, and wind. The erodibility index will be retained in the final rule including the present minimum value of 8. At this level, a majority of the lands that have a serious erosion problem without adequate erosion protection will be basically eligible for enrollment in the program. Further, it is a natural break point consistent with HEL determinations under the conservation compliance provisions in 7 CFR part 12. Specifically, acreage that is considered HEL under the regulations at part 12 will be basically eligible to be offered for CRP. Acreage within a field that has been redefined will have to meet the weighted average EI of 8 criteria. In order to implement the program in a reasonable manner, some cut-off value which is consistent with the program's purpose must be used. The breakpoint value of 8 or greater has been determined to be the level which is most consistent with these purposes.

Water Bank Program

Four comments suggested that eligibility criteria be expanded to include lands no longer enrolled in the WBP or that were never enrolled in the WBP if the land is type 3 through 7 wetlands which are not naturally occurring. That is, if eligibility criteria are met, allow the land to be enrolled regardless of WBP status or relationship. Neither the proposed nor final rule precludes the enrollment of eligible acreage not previously enrolled in the WBP.

One comment suggested including an associated wetland buffer with any WBP contract acreage converted to the CRP. Neither the proposed nor the final rule preclude the enrollment of eligible acreage as wetland buffers. In addition, a substantial portion of acreage enrolled in the WBP included associated buffer acres.

Four comments suggested adding type 4 wetlands to the WBP acreage eligible to be converted to the CRP. Neither the proposed nor the final rule preclude WBP acreage which is type 4 wetlands that are normally artificially flooded from eligibility for the CRP. Such wetlands that are not normally artificially flooded should not be enrolled in the CRP because such enrollments would tend to defeat the purpose of the program because such lands are naturally permanently under water, which is not consistent with the eligibility criteria and purposes of the CRP.

Three comments suggested that artificially flooded WBP wetlands and wetlands with a history of cropping before WBP should be eligible for conversion to the CRP. Two comments suggested that eligibility for conversion from the WBP to the CRP apply to ``managed wetlands where water is intentionally applied to increase and/or enhance wetland functions and values and are classified as types 3 through 7 wetlands.'' Neither the proposed nor the final rule preclude types 3 through 7 wetlands that are normally artificially flooded from eligibility.

Three comments supported the eligibility of WBP acres for CRP. One comment suggests not limiting WBP acreage eligibility to just the final WBP year. The Department has determined that to enroll acreage that is currently enrolled in a land retirement program is not a cost-effective use of the CRP and defeats the purpose of the program. Accordingly, the suggestion is not adopted.

Cropped Wetlands

One comment suggested that allowing farmed wetlands into the CRP will lessen the incentive for farmers to enroll wetlands into long-term or permanent easements in the WRP. The CRP final rule allows the enrollment of cropped wetlands and appropriate associated upland acreage to restore and protect wetland functions and values without unduly competing with existing programs like WRP. The 1997 Appropriations Act limited fiscal year 1997 WRP enrollment to 130,000 acres. Permitting the enrollment of cropped wetlands in CRP allows CCC to obtain significant wildlife habitat, water quality, erosion control, and flood control benefits. The proposed rule inadvertently listed ``farmed wetlands'' as eligible for enrollment. Beyond ``farmed wetlands,'' cropped wetlands also includes ``wetlands farmed under natural conditions.'

Forty-four comments suggested that uplands associated with cropped wetlands be included as eligible land. Several comments provided suggested language for eligible land under the cropped wetlands provision: ``Acreage designated a farmed wetland or a wetland farmed under natural conditions by NRCS according to part 12 of this title, together with the appropriate amount of associated upland, as determined by the State Technical Committee to be necessary to protect the wetland and meet wildlife habitat needs.'' Most of these comments suggest a ratio of six upland acres per wetland acre or six upland acres per wetland basin; however, one of these comments suggested the upland acres should be kept to a minimum to balance the needs of the landowner. The final rule has been amended to provide that cropped wetlands and appropriate associated cropland will be basically eligible for CRP. In addition, appropriate associated cropland with noncropped wetlands will also be basically eligible to be enrolled providing the acreage meets other cropland eligibility requirements. The NRCS will determine the associated acreage that is necessary to maintain the viability of the wetland area not to exceed a 6 acre of cropland to 1 acre of wetland ratio.

Sixty comments suggested including wetlands as eligible land for the CRP. The purpose of the CRP is to cost-effectively assist eligible owners and operators in conserving and improving soil, water, and wildlife resources by converting highly erodible land and other environmentally sensitive acreage normally devoted to the production of agricultural commodities to an approved long term resource conserving cover. The Department has determined that to enroll such acreage is not a cost effective use of the CRP and is not consistent with the purpose of the program. Accordingly, the suggestion is not adopted.

One comment opposed provisions making all cropped wetlands eligible for CRP. Cropped wetlands are a vital natural resource which provide significant environmental benefits. Therefore, this suggestion was not adopted.

Two comments suggested that the ``type 1-20'' wetland classification system be replaced with the Department of Interior's Classification of Wetlands and Deepwater Habitats of the United States. For example, ``type 3 through 7'' land would be reclassified as ``semipermanently flooded, permanently flooded, scrub, shrub, and wooded wetlands.'' The WBP authorizing legislation, however, bases WBP eligibility on the old classification system and that system should, therefore, for consistency and ease of administration, continue to be the standard used in this rule for types 3 through 7 wetlands. One comment suggested that FSA be assigned responsibility for delineating wetlands. Neither the proposed nor the final rule delineates wetlands or changes any wetland classifications. The final rule allows cropped wetlands, as determined by the NRCS, to be basically eligible for enrollment in the CRP. Accordingly, these suggestions are not adopted.

One comment suggested that opportunities for wetland conservation and restoration should remain available through both the WRP and the CRP. Neither the proposed nor the final rule restrict the opportunity for producers to enroll in the WRP. One comment supported eligibility of wetlands but suggested that the need for regulatory reform not be replaced by what should only be an option similar to mitigation. It does not appear that permitting cropped wetlands to be enrolled in the CRP impacts any options available to producers regarding mitigation.

Air Quality

Four comments suggested that air quality be considered adequately for eligibility and evaluation. Two comments suggested that the purpose of the CRP be expanded to include air quality for lands contributing to an EPA designated PM<10 non-attainment area and went on to suggest that lands contributing to the air quality problem in such an area should be automatically eligible for the CRP. A factor has been added to the ranking process to evaluate air quality improvements from reducing airborne dust and particulate from cropland wind erosion. In addition, State FSA Committees have the authority to request conservation priority areas to target wind erosion concerns.

Wind Erosion

One hundred thirty four comments suggested that failing to adequately consider wind erosion as an eligibility or evaluation factor would unfairly exclude too many erodible acres from CRP eligibility. Several of the 134 comments suggested combining wind and water erosion when calculating the EI of a field. The EI measures soil erosion caused by both wind as well as water. The EI of a field is established based on the higher of the two indexes. Wind erosion receives equal weighting with water erosion in determining eligibility for enrollment in CRP. Furthermore NRCS has indicated that the EI values for wind erosion and water erosion should not be combined. While wind and water erosion may occur on the same field, both erosion types do not necessarily occur on the same acre nor do both types of erosion occur at the same time of the year. Thus, whatever is the most prevalent type of erosion, either wind or water, will be used to establish the EI value. Accordingly, these suggestions are not adopted.

Scour Erosion

One comment suggested that scour erosion eligibility criteria be flexible to allow scoured areas not adjacent to the water body to be eligible. One comment suggested that lands eligible under the scour erosion provisions of Sec. 1410.6(c) should be planted to an appropriate tree species or mixed species of trees. Neither the proposed nor the final rule require land to be adjacent to a waterbody to meet the requirements of the scour erosion eligibility criteria. The proposed and final rule requires that cropland approved for enrollment under the scour erosion criteria to be planted to an appropriate tree species unless NRCS or FS certify that the site is not suitable for trees.

Wildlife

One comment suggested wildlife benefits not be an eligibility consideration for enrollment in the program. Five comments suggested that wildlife habitat should not be a sole criteria for CRP eligibility. Seventy comments suggested that a wildlife exemption or wildlife criteria be developed for determining eligibility. One comment suggested that a natural heritage eligibility criterion be developed for wildlife habitat.

Wildlife habitat will be positively benefitted from the inclusion of cropped wetlands, certain WBP acreage, special practices offered in the continuous signup provisions such as riparian buffers, and potentially through State and national conservation priority areas. Therefore, these suggestions will not be adopted.

One comment suggested that any permanent vegetative cover be acceptable wildlife cover as determined by the State wildlife agency in consultation with the State Technical Committee. It is the applicant's decision as to which practice and acreage to offer for enrollment. Certain practices requested by applicants are not intended for wildlife or do not provide wildlife benefits. Therefore, this recommendation is not being adopted.

Filter Strips and Riparian Buffers

Several comments were received regarding the size of filter strips and riparian buffers and the eligibility of such practices on certain land. Four comments suggested that a minimum width for filter strips be established. Four comments suggested 33 feet instead of 66 feet as was printed in a previous Agency directive. Nine comments suggested that the State FSA Committee or other local officials should be responsible for determining the size of filter strips and riparian buffers. One comment suggested filter strips and riparian buffers need to be clearly defined so farmers will have a quick snapshot of what these terms mean.

The size requirement of filter strips and riparian buffers is not incorporated as part of the CRP proposed or final rule. Previous versions of 7 CFR part 1410 included minimum and maximum size requirements for filter strips. The Conference Report accompanying the 1996 Act provided that the Managers intend for the Secretary, to the extent practicable, to consider local conditions when determining minimum required widths for vegetative strips in CRP. Complaints were received from the public that the regulation was not flexible enough to meet the needs of intended CRP sites in all States. Therefore, determinations on size requirements will continue to be made at the local level utilizing the NRCS office Field Office Technical Guide (FOTG).

Two comments suggested making riparian buffers on marginal pasture land eligible for CRP. Two comments suggested allowing filter strips and riparian buffers along dry streams, swales, sod waterways, and riparian buffer areas around feedlots. Ten comments suggested allowing filter strips along intermittent streams and drainage ditches, and making field end rows and headlands eligible for filter strips during continuous signup. Riparian buffers on eligible marginal pasture land may be offered for enrollment in the CRP but only for planting to trees, as is provided for in the 1985 Act. Filter strips and riparian buffers along dry streams, swales, feedlots and waterways do not obtain the benefits, goals, and objectives of such practices and is not consistent with the 1985 Act. Neither the proposed nor the final rule preclude filter strips adjacent to seasonal streams and drainage ditches.

Wellhead Protection Areas

Several comments suggested expanding or changing which agency's designation of wellhead protection areas will be used to determine CRP eligibility. After careful review, the final rule has been amended to provide that ``wellhead protection areas'' will mean those approved by appropriate State agencies or the EPA.

One comment suggested that wellhead protection provisions support local communities, but do nothing for rural areas. Wellhead protection areas may be designated in areas served by rural water lines and enrollment of surrounding land in the CRP can provide substantial water quality benefits.

One comment supported the inclusion of wellhead protection areas as environmentally sensitive lands eligible for the CRP.

Trees

One comment suggested that established pine stands on CRP land be renewed and remain in the CRP program to prevent conversion of the land back to crop production. Four comments suggested that CRP contracts planted to loblolly or slash pine should not be re-enrolled because of projected high retention rates, economic returns, and limited wildlife benefits. Any acreage currently in the CRP, is considered to be capable of being planted. Any untimely tree destruction could be accounted for in the ranking process. That process may also take other relevant factors into account.

Enrolling Existing Contracts

Sixty-six comments opposed the land eligibility requirements because land currently enrolled in the CRP may not be eligible to be re-enrolled. Several comments suggested allowing at least 50 percent of all land currently enrolled in the CRP to be re-enrolled regardless of the eligibility requirements. Several other comments suggested allowing at least 50 percent of all land enrolled in the CRP to be re-enrolled if wildlife benefits will be enhanced. As indicated in the proposed rule, the 1997 Appropriations Act effectively precludes the extension of any CRP contract in FY 1997. The eligibility criteria is designed to assure maximum achievement of the program's goals.

One comment supported the requirement for re-enrolled bids to compete with new bids.

Other Issues

One comment suggested no restrictive eligibility criteria be used to determine enrollment in the CRP. While this recommendation allows all acreage to compete based on the ranking process, it unnecessarily increases workload to a point that it may become unmanageable. Accordingly, this suggestion will not be adopted.

Six comments suggested that whole farm enrollment not be allowed. The 1985 Act does not direct that we deny enrollment of otherwise eligible acreage based on the size of the field and adding such a requirement would unduly limit CCC's options. Therefore, this suggestion will not be adopted.

Two comments suggested that land subject to flooding during one year out of ten years be eligible for the CRP even if there is no evidence of scour erosion. There are other Federal programs available to address these concerns. The CRP is not a flood risk reduction program. The final rule does not preclude such land from enrollment if it meets one of the land eligibility criteria.

Two comments suggested that a new eligibility criterion for ``Lands adjacent to existing CRP land, wildlife management areas, national wildlife refuges and other natural areas.'' Eligibility for such land is not necessary and may not be a cost-effective use of the CRP; however, CCC recognizes the benefits of such contiguity and such land will be appropriately considered under the ranking process. Therefore, these suggestions will not be adopted.

One comment suggested changing Sec. 1410.6(h)(4) to include ``emergency priority areas'' as eligible areas along with designated conservation priority areas. The commenter was not clear as to what was intended as ``emergency priority areas;'' therefore, this comment will not be adopted.

One comment suggested clarifying the text of Sec. 1410.6 by creating three lists that clearly define (1) all provisions which must be met if land is to be eligible, (2) exceptions under which those lands not meeting those provisions will still be eligible, and (3) conditions under which no lands will be eligible. Another comment suggests that the practices listed under Sec. 1410.6(b) and Sec. 1410.6(h)(5) be the same and include all those practices listed in Sec. 1410.6(b). The final rule amends Sec. 1410.6 to clarify these provisions.

Two comments suggested that wildlife habitat, riparian buffer, and contour grass strips be added to the list of special practices for which eligibility for otherwise eligible land is prescribed in Sec. 1410.6(h)(5). Both the proposed and final rule provide eligibility for otherwise eligible land determined suitable for such practices. However, Sec. 1410.6 has been amended for clarity.

Two comments suggested that references to acreage protected by easements or mortgage restrictions be removed or clarified. One comment suggested permanent conservation easements for either the entire farm or those portions being retired from cropping. These recommendations will not be adopted because there does not appear to be a substantial program benefit from enrolling limited lands, there is no authority in the 1985 Act to require conservation easements on new CRP contracts, and such easements could discourage enrollment and raise costs. On review, in addition, the provision appears to be sufficiently clear.

One comment suggested that language in Sec. 1410.6(d)(1) be changed regarding the provision for the ineligibility of land where the water quality objectives can be obtained in another program if the CRP eligibility determination to be was unduly delayed. This has been accomplished by inserting the words ``in a reasonable and timely fashion'' after the word ``obtained'' in the regulation.

One comment suggested not allowing early termination if the intent is to re-offer the same land at a higher rental rate. The 1985 Act does not restrict early termination to only those persons who intend not to re-offer the acreage. The 1985 Act provides that such acreage may be re-offered during a subsequent signup period. Therefore, this suggestion will not be adopted. It should be further noted that the early termination provisions only apply to contracts initially enrolled prior to January 1, 1995. Accordingly, all contracts enrolled after that time regardless of whether the acreage was under an earlier contract will not contain the unilateral early termination authority.

One comment suggested that highly erodible land that can be farmed should be left in crop production, especially where technology has been improved to control erosion. The CRP is a voluntary program with the objective of cost-effectively assisting eligible owners and operators in conserving and improving soil, water, and wildlife resources by converting highly erodible land and other environmentally sensitive acreage normally devoted to the production of agricultural commodities to an approved long term resource conserving cover. The CRP can be used to assist owners and operators to meet conservation compliance requirements and improve farming practices. To exclude highly erodible land that can be farmed from the program would limit CCC's ability to assist such land owners and operators and remove a valuable tool used to conserve the nations'' resources. However, CCC will endeavor to not enroll land which is better put to agricultural production. Accordingly, this suggestion is not adopted.

Two comments suggested that flooded pasture land and acres currently under water which has been cropped in the past should be eligible to enroll into CRP. Enrolling acreage not capable of being cropped is not cost-effective and tends to defeat the purpose of the program.

Sec. 1410.7 Duration of contracts.

Several comments suggested the Department should consider a shorter contract period for contracts that have already been extended or should allow contracts to be extended rather than be re-offered for enrollment or allowed to exit CRP in an orderly fashion. The 1985 Act provides that contracts can be no less than 10 nor more than 15 years. Further, the 1997 Appropriations Act effectively precluded the extension of existing contracts in FY 1997.

Several comments suggested establishing varying years of duration of contracts between 10 and 15 years for various reasons, such as to lessen the effects of returning vast acres to crop production; for wellhead protection areas; tree planting; in return for contracting with Federal, State or local government to lengthen the term of the contract or for a permanent easement; or when landowners voluntarily commit to maintain the conservation measures for several years following contract expiration. In accordance with the requirements of the 1985 Act, the final rule provides that contracts devoted to hardwood trees, shelterbelts, windbreaks, or wildlife corridors may be for the length specified by the producer, so long as the contract is not less than 10, and not more than 15, years in length. Otherwise, however, the contracts will be 10 years to preserve CCC's flexibility and reduce CCC's financial exposure.

Sec. 1410.8 Conservation priority areas.

One hundred ten comments were received recommending a specific area be identified as a conservation priority area. One comment supported the cropped wetland exemption but stated that for the Prairie Pothole region a wildlife exemption should be established to reaffirm the longstanding, successful relationship CRP has developed between sportsmen and farms. Another comment suggested the local conservation district be the lead agency responsible for nominating conservation priority areas in a State. The following have been designated as national conservation priority areas: Chesapeake Bay, Long Island Sound, Great Lakes region, and the Prairie Pothole region. Recommendations for State-designated conservation priority areas may be submitted by State FSA Committees based on recommendations from State Technical Committees to the Deputy Administrator for Farm Programs, FSA (Deputy Administrator). Land located within a designated CRP conservation priority area is eligible to be offered for enrollment, although the acreage still must compete with all other offers for actual enrollment.

Seventy-five comments were received regarding the proposed 10 percent cropland limitation per State. Several comments suggested that the limitation was too low or should be otherwise adjusted such as allowing designation of an additional 10 percent for a wildlife conservation priority area or allowing State FSA Committees to exceed the 10-percent limit to meet Federal clear air standards. Other comments supported the limitation, or suggested it was too high or was arbitrary. After reviewing the public comments, CCC has determined to maintain the 10-percent limitation. Providing a limitation ensures the strength of the priority area concept by allowing designation of only the highest priority needs within a State. States will designate the purpose of the priority area as enhancing either water quality, wildlife habitat, or other environmental concerns. The 10-percent limitation could be exceeded for extraordinary circumstances, if approved by the Deputy Administrator. All recommendations for State-designated conservation priority areas will be reviewed by a national interagency team to ensure that the purpose is clearly defined and to ensure consistency among States and with the intent of the program.

Several comments suggested that a conservation priority area may need to be designated exclusively for wildlife or wildlife habitat plantings or should be used to protect lands from wind and water erosion, while others suggested that a priority area should not be established based on wildlife habitat alone. Several emphasized major watersheds for conservation priority areas especially where drinking water is impacted, and a few comments suggested that Soil and Water Conservation Districts or the State Technical Committee be given the authority to designate conservation priority areas. A few comments suggested priority areas be based on improving water quality and wildlife habitat that cannot be achieved through other programs or suggested that State wildlife agencies be allowed to designate conservation priority areas for wildlife. Several comments suggested that designation of conservation priority areas be allowed for the mitigation of natural resource emergencies or to give priority to those contracts already established. State FSA committees, based on their review of the recommendations of the State Technical Committee, will have the opportunity to recommend designation of conservation priority areas based on actual adverse impacts of agricultural activities on water quality, wildlife habitat, or other environmental concerns. Recommendations will be required to define the conservation and environmental objectives and analyze how CRP can cost-effectively address such objectives. The scarcity of a habitat or wildlife species is a key factor in establishing a wildlife habitat-based conservation priority area so the CRP can be effective as a means to avoid wildlife species population declines and preserve rare or disappearing habitat. The CRP is not an emergency program; other USDA programs exist to address emergencies affecting natural resources. Giving priority to contracts already established would decrease the Department's ability to achieve its goal of cost-effectively enrolling the most environmentally sensitive acreage.

Some comments suggested conservation priority areas should provide preference to but not automatic eligibility of lands offered within an area, or that location within a conservation priority area should become a part of an environmental benefits index for ranking rather than eligibility. Other comments suggested allowing a certain type of land to be considered as a conservation priority area rather than a specific geographic area. One suggested land type was center pivot corners. Another comment suggested geographically balancing the conservation priority areas, targeting areas with diverse conservation needs. Other respondents suggested that USDA should guard against conservation priority areas enrolling land which would not normally qualify under other criteria, or opposed establishment of conservation priority areas due to unspecified adverse impacts. One comment suggested the review of accomplishments within designated conservation priority areas at the time of redesignation.

Land located within a CRP conservation priority area is eligible to be offered for enrollment, although the acreage still must compete with all other offers for actual enrollment. Location within a conservation priority area will be considered in the ranking process. State FSA committees have the authority, based on recommendations from State Technical Committees, to recommend a conservation priority area based upon a specific, identifiable land quality provided the priority area still serves the purpose of water quality, air quality, or wildlife habitat concerns and the State can provide a map indicating the location of the priority area. State FSA committees in all 50 States are eligible to submit recommendations for conservation priority areas. All existing CRP conservation priority areas have expired or have been withdrawn. State FSA committees must submit new recommendations for any conservation priority area to be effective. Each recommendation must include an evaluation and monitoring plan before the priority area can be approved. Several comments addressed the issue of utilizing the same conservation priority areas for the CRP, WRP, and EQIP. Some stated that the conservation priority areas should be cross-referenced or coordinated so that benefits from multiple programs could apply; for example, CRP could be used in a WRP priority area to stop erosion from filling in a protected or restored wetland. One comment suggested including EQIP State-designated conservation priority areas for CRP. Another suggested that conservation priority areas should be implemented by receiving a percentage of the funding, with the remainder of the funds going to general disbursement. Others suggested it would be unwise to closely link the conservation priority areas for the different programs and that all three programs should have conservation priority areas. A respondent suggested, for example, that EQIP conservation priority areas will likely result in very little incentive for tree planting, but that the CRP has valuable tree planting incentives. Some comments suggested that it would not be possible to put CRP conservation priority areas in tandem with the other programs because EQIP and WRP are locally based and it is hard to set priorities at the national level, and that conservation priority areas set, for example, for the WRP should be used only for WRP, with the goal of permanent restoration of diverse wetland functions and values. One comment suggested that the implementation of conservation priority area authority should be limited to noninvasive technical assistance from USDA, and several comments suggested that the State or State FSA committee should establish conservation priority areas, not the Federal government.

State FSA committees, based on the recommendation of State Technical Committees, recommend conservation priority areas based on State specific environmental needs and objectives. The Deputy Administrator reviews State recommendations and makes approvals that are consistent with the goals and objectives of the CRP. Land located within a CRP conservation priority area is eligible to be offered for enrollment, although the acreage still must compete with all other offers for actual enrollment. CRP funding is not determined based upon location inside or outside of a priority area but upon actual enrollment. Further, the CRP is available for all eligible acreage, including that located within WRP or EQIP conservation priority areas. State FSA committees, based on recommendations from State Technical Committees, may submit EQIP conservation priority areas as CRP conservation priority areas. The recommendation, however, must meet the requirements established for CRP, such as the 10-percent cropland limitation.

The Department agrees that the purposes of the CRP, WRP, and EQIP differ, but believes that the determination of conservation priority areas may be coordinated in the future.

Sec. 1410.9 Alley-cropping.

One comment suggested that alley-cropping not be limited to contracts requiring the planting of hardwood trees. That limit is consistent with the 1985 Act.

Sec. 1410.10 Conversion to trees.

Several comments suggested that the special provisions for converting CRP land to hardwood trees and for allowing three years, with certain limits and in certain cases, to plant the trees be extended to softwood trees. The limitation with respect to hardwood trees in both cases is statutory. Also it was suggested that site-specific selection of tree species for tree planting purposes be made by professional foresters. Such consultation can be obtained if needed.

Two comments suggested that the requirement to reduce the cost-share payment by the amount of the original cost-share payment be eliminated and a bonus equal to 25 percent of the cost of establishing these new covers be provided. The comments cannot be adopted. The 1985 Act provides that the Secretary will not incur any additional expense for the acres converted, including the expense involved in the original establishment of the vegetative cover, that would result in cost share for costs in excess of the costs that would have been subject to cost share for the new practice had that practice been the original practice.

Three respondents commented on the requirement that for conversions made under this section, the CRP participant must agree to also agree to participate in the Forest Stewardship Program. One supports the requirement while another suggests elimination and a third suggests that participants only be encouraged to participate when converting to trees. The required participation in the Forest Stewardship Program is statutory.

A few comments suggested that riparian corridors containing hardwood trees be added to the list of special to which the conversion provisions apply, and that the Deputy Administrator offer 15-year contracts on all CRP lands to be planted to hardwoods. Areas devoted to hardwood trees or which can be considered as wildlife corridors are already eligible under the proposed rule. Also, the rule provided that contracts for hardwood tree plantings could be for 10- to 15-years at the producer's discretion. Requiring that the producer always take a 15-year contract does not appear to be necessary or cost-effective.

One comment suggested that trees be harvested on acres that were converted to such plantings. The 1985 Act prohibits the harvesting of the trees during the contract period and prohibits any commercial use of trees on land that is subject to a CRP contract unless it is expressly permitted in the contract. Participants are, however, allowed to conduct pruning, thinning, stand improvement, or other activities consistent with customary forestry practices on land that is planted to trees. The landowner may harvest the trees only after the contract expires.

Sec. 1410.11 Restoration of wetlands.

Comments generally supported the restoration of eligible wetlands in the CRP but discouraged competition with the WRP. Comments varied on the administrative mechanism used to accomplish restoration. Two comments suggested that wetlands enrolled in CRP be required to be restored with no mention of incentives or additional compensation. Several comments related to incentives offered to landowners. One comment suggested a 25-percent bonus be added to the annual payment rate and two others support unspecified additions. Other incentives to be implemented should accomplish this objective at much lower cost to the program.

Two comments suggested that wetlands enrolled in CRP, regardless of initial enrollment date, either be restored with a 25-percent cost-share incentive or be transferred to WRP. The date restriction in the regulation is required by the 1985 Act. One comment suggested that the highest quality wetlands, regardless of size, be directed to the WRP for long-term protection. However, program requirements differ between CRP and WRP, making transfer an issue for landowner consideration. Inclusion of bonus points in the criteria are supported in two comments as a method of encouraging restoration.

One comment recommended limiting CRP enrollment to only wetlands so that land coming out would be available for production. The 1985 Act as it relates to CRP is directed at highly erodible lands, as well as other sensitive lands, and a limitation to wetland enrollment would, accordingly, not be appropriate. Another comment suggested that land coming out of CRP contract should reflect the land use prior to enrollment, including wetlands. Once a contract expires, the participant is under no further obligation to abide by any terms or conditions of the CRP contract except as may be required to meet conservation compliance or wetland conservation provisions of 7 CFR part 12 to obtain benefits for certain other USDA programs. Such a change, in addition, would be cost-effective even if undertaken for a limited time.

One comment suggested that drained lands be eligible for CRP without requiring that ditches be plugged or tile broken. Although CCC will provide financial incentives to restore wetlands and additional consideration is provided in the ranking process for acceptance into the program, wetland restoration will only occur by voluntary agreement. Accordingly, this suggestion has not been adopted.

Sec. 1410.20 Obligations of participant.

Four comments suggested the reduction of allotments and quotas for tobacco and peanuts interferes with the economic soundness of the family farm and is too harsh on tobacco and peanut quota holders because they no longer have the ability to reduce their crop acreage bases. The respondents suggested that tobacco and peanut allotments and quotas be exempt from reduction. This recommendation is not adopted because the reduction is required by the 1985 Act. Crop acreage bases, for other crops which had deficiency programs, ceased being used after enactment of the 1996 Act.

The majority of comments on this section dealt with weed control. Two comments suggested that weed control should be mandatory. One of the two comments suggested that those not complying should be penalized only on those acres affected, not the entire contract acres and not to exceed one year's payment. The other comment suggests that NRCS and FSA accept and seek information and assistance from landowners or the general public without creating a contract compliance issue. CRP participants are required to maintain the acreage according to the conservation plan of operation developed by NRCS. Participants who do not comply with the plan are assessed payment reductions or the applicable contract acreage is terminated. Noxious weeds must be controlled in accordance with local laws on all contracts at all times. It is not necessary to file a complaint to have CRP acreage checked for compliance with the plan.

Eleven comments suggested weed control should be targeted only to those weeds officially listed as ``noxious weeds'' by the applicable State. Three comments suggest that the requirement for general control of weeds be eliminated. CRP practices are installed to meet a particular environmental or conservation objective. Plants that impede that particular objective must be controlled. CCC believes that it is important to control weeds that are detrimental to the purpose of the selected cover. Therefore, this recommendation will not be adopted. However, CCC will work with CRP participants to preserve the environmental benefits including, where appropriate, spot mowing and other spot treatments.

Sec. 1410.21 Obligations of the Commodity Credit Corporation.

One comment suggested that the meaning of ``subject to the availability of funds'' is unclear, given that rental payments will be made under the authority of the CCC. CCC is now authorized to use its borrowing authority to fund the CRP. However, it is necessary to maintain this language since CCC funds will not be earmarked in advance.

Nineteen comments were received in support of the incidental gleaning of certain CRP acreage and one comment was in opposition. Incidental grazing associated with gleaning of crop residues is authorized by the 1985 Act and can provide a worthwhile additional incentive for participants without a significant effect on other parties; such gleaning is limited both by the regulations and the conservation plan.

One comment suggested that should funds cease to be available, land enrolled in CRP would be freed from the contract obligations without causing default on the part of the landowner, and that the landowner would be provided at least 12 months' notice of USDA's termination. Another comment suggested that CRP contracts must be considered legally binding on both the landowner and the CCC and rental payments should be made to landowners in a timely manner as provided in the contract. Since inception, all CRP rental payments have been made, subject to statutory constraints. That should continue to be the case.

Two respondents suggested that any bases being protected should not be released because it would only reduce farm program payments. This recommendation will not be adopted. Once the CRP contract expires there is no authority to protect allotments or quotas in accordance with the 1985 Act. The eligibility of current holders of CRP contracts to participate in the production flexibility contracts authorized by the 1996 Act is statutory. However, CRP acreage that is reenrolled will be considered to be under a new contract and will lose any ``base'' protection for production flexibility contracts that otherwise applied since such bases were terminated by the 1996 Act. If a farm with tobacco quotas or allotments or peanut quotas is enrolled in the CRP, such allotments and quotas must be reduced but will be restored in accordance with the statutory provisions in effect when the CRP contract is terminated.

Two comments suggest the quota for peanuts or tobacco on land being enrolled in CRP should not be reduced. This recommendation will not be adopted because the reduction is required by 1985 Act.

Sec. 1410.22 Conservation plan.

One comment suggested wildlife habitat creation be included as a requirement in the conservation plan. Another comment suggested that FSA and NRCS, in conjunction with wildlife managers, work to ensure that partial field practices also provide habitat benefits for wildlife. This recommendation will not be adopted. It would be inappropriate to require wildlife provisions if the purpose of the practice is not wildlife.

One comment suggested that the local weed control representatives be requested to participate in developing a plan for evaluating noxious weed control on contracts requesting extension and for assuring adequate noxious weed control on active contracts. Participants are required to control noxious and other weeds to protect the cover and the conservation plan will include any control techniques. CCC relies on local weed officials to enforce State laws regarding the existence of any noxious weeds on CRP acreage.

Three comments opposed the requirement that landowners control all weeds, insects, and pests because some weeds being controlled in most cases offer the highest wildlife values and places unnecessary constraints on program participants. This requirement applies only when the approved cover has been damaged by the existence of weeds, insects, or pests.

One comment suggested that contracts allow for spot mowing and spot treatment of weeds. Procedure will encourage this provision where technically appropriate. However, disturbance of the cover will not be permitted during the primary nesting period.

Five comments supported NRCS supervision to create firebreaks with light tillage on CRP land and would like the issue addressed in the regulations. This recommendation will not be adopted. However, firebreaks are allowed on CRP acreage when required by State and local units of government to include barren firebreaks where erosion is not a hazard and documented in the conservation plan.

One comment suggested that in order to create and enhance wildlife habitat, pine plantations and fescue monocultures should be eligible for reenrollment only if they are improved substantially for wildlife through habitat diversification. This recommendation will not be adopted as the indexing system will allow for taking those factors into account, along with others, to maximize achievement of the program's objectives. However, improving cover for the benefit of wildlife will enhance the likelihood of acceptance in the program.

Regarding native plant species, five comments suggested that native plant species be required for cover plantings. Two comments suggested the use of seeds on CRP land represent the type of vegetative communities native to that area. Three comments suggested that a stronger emphasis be placed on diversifying cover plantings on CRP contracts to include native species where applicable. One comment suggested that the regulations should provide, generally, that land cover should use vegetation native to the region and include as diverse a mixture as is environmentally valuable and cost effective. Two comments suggested that eligible practices should state a clear preference for establishing native species of grasses, legumes, shrubs, and trees and to the extent practicable, landowners should be encouraged to plant locally derived plant materials. Two comments suggested that the regulations require the use of native warm season grasses on lands enrolled CRP where grassland is the desired cover type.

The CRP has multiple purposes and it is a voluntary program. A producer selects the practices most desirable for his or her farming operation. If the producer's objective requires an introduced species, it would be inappropriate and inefficient for CCC to require that a native species be used.

One respondent suggested that Sec. 1410.22(b) should be amended to replace ``or'' with ``and'' when listing the purposes of the practices to be included in the conservation plan. Conservation plans are drafted according to the primary purpose of the practice. To modify such a plan to include all objectives may unnecessarily compromise the environmental benefits to be obtained.

One comment suggested the choice of the species to be planted should be an option of the landowner and professional forester as determined by both to be best suitable for the site and the owner objectives. Flexibility on this issue reflects current CCC policy. However, species will be considered when evaluating offers.

One comment suggested the local NRCS offices have the flexibility to develop grass roots maintenance plans that would achieve the overall CRP objectives, which would include determining stocking rates and time of implementation based on local conditions, climate and topography. The conservation plan is written to include appropriate maintenance provisions. Therefore, this recommendation will not be adopted.

Eight comments suggested that the conservation plan should allow landowners to irrigate crops from water cover located on the CRP acres with an appropriate reduction in the rental rate. Generally, acreage accepted with water as an approved cover was done so for water quality and wildlife purposes. To drain such acreage for crop production could adversely impact the land directly counter to the purposes for which the acreage was accepted. Further, such activities could be destructive to the cover and do not appear to be needed or cost-effective.

One comment suggested that the conservation plan should allow appropriate maintenance of permanent cover and should not have required management of anything other than CRP contract acreage unless the producer requests a more comprehensive plan. The CRP conservation plan does make allowance for the appropriate maintenance for only the cover.

One comment opposed eliminating the minimum widths for the strip practices and suggests, in all cases, the area of the strips should be computer based on the average width, not the minimum. Other comments suggested a minimum width. The Conference Report accompanying the 1996 Act suggested that, to the extent practicable, that local conditions should be considered when determining minimum required widths for vegetative strips in CRP. Further, complaints were received from the public that previous regulations were not flexible to meet the needs of intended CRP sites in all States. Accordingly, it has been determined that decisions on these size requirements will be made at the local level.

One comment suggested that the conservation plan should take into account any abnormal weather patterns and should the cover fail through no fault of the contract holder, NRCS should work with the producer in order to assure that the cover is replaced in the most cost-efficient manner. It is unclear how a technician can develop a plan for abnormal weather patterns. However, NRCS will work closely with a participant in such circumstances. Similarly, USDA will work with landowners so that all options for land use and Federal and State assistance are known.

One comment suggested that NRCS cooperate with producers who put land back into production and organizations or agencies cooperating in the funding of the program must diligently respect private property rights. The Conference Report accompanying the 1996 Act suggested that lands exiting the CRP under the early termination provisions of the 1985 Act not be held to a higher conservation compliance standard than similar cropland in the area. NRCS will work with a landowner in providing technical assistance on potential conservation compliance problems and to provide an appropriate conservation plan.

Several comments suggested that silvaculture thinning from 8 to 10 years of age and subsequently every 3 to 5 years thereafter until final harvest be allowed with a reduced payment during the years of commercial activity. The final rule has been amended in Sec. 1410.21 to provide for normal forestry maintenance activities consistent with the 1985 Act.

One comment suggested that filter strips and riparian buffers should be allowed to be contracted anywhere determined necessary, not just along permanent streams and that minimum widths for all the strip practices not be eliminated with ephemeral waterways allowed to flow through the middle of the strip. This recommendation did not reflect the 1985 Act limitations on eligible land such as the enrollment of cropland and marginal pasture lands. Accordingly, this comment can not been adopted.

One comment suggested prioritizing between filter strips and riparian buffers when there is an adjacent water course involved. The filter strip and riparian buffer standards provides the needed flexibility for NRCS to make these eligibility determinations. Accordingly, this comment has not been adopted.

One comment suggested that fields should not be considered a qualified established stand unless a majority of the specified and drilled grasses are present and flourishing. This is already a requirement for practice certification.

One comment suggested that the conservation plan should allow for the addition of structures, grassed waterways, terraces, and settlement ponds on land enrolled in CRP which will be returning to production. CRP's purposes do not include preparing land for a return to production. Therefore, this recommendation has not been adopted.

Two comments suggest the terms, conditions, and requirements of CRP maintenance contracts be made known to farmers prior to commitment. The required maintenance provisions are included in the conservation plan and are reviewed and discussed with CRP participants by NRCS prior to contract approval.

Sec. 1410.23 Eligible practices.

One comment supported sound conservation practices such as filter strips, waterways, headlands, and riparian buffers but did not support an annual payment from CCC to maintain them. CCC provides a nominal additional rental rate incentive, up to $5 per acre as part of the maximum rental rate calculation, to ensure that participants are willing to enroll land for those practices and then properly maintain them. Actual cost-share rates are set in accordance with the 1985 Act. CCC will continue to set rental rates in a way that reflects true costs and which achieve the intended environmental goals of the program. These additional incentives, because of the special nature of the contracts, are needed and warranted. Offering a lesser amount, however, enhance the ranking of the offer.

One comment suggested riparian criteria include flooded and scour areas rather than be set in terms of the number of feet from the water course. The current rule and this final rule already provide for establishing such criteria in either manner.

Three comments suggested that eligible practices include naturally occurring grasses and other covers. The rule allows for such action by CCC so no change was made from the proposed rule.

Two comments suggested that tree planting should be a priority in areas subject to scour erosion and also in riparian areas. Tree planting is a requirement in scour erosion areas. Sec. 1410.6 provides that cropland approved for enrollment under scour erosion criteria must be planted to an appropriate tree species or mix thereof according to the FOTG, unless NRCS, in consultation with FS, determines that tree planting is not appropriate. Trees or shrubs are required for the riparian buffer practice.

One comment suggested that riparian corridors containing hardwood trees should be added to the eligible practices. The final rule has been amended to remove references to specific eligible practices.

One comment suggested that FSA, NRCS, and wildlife managers should strive to ensure whole field practices are considered. This is not precluded under the final rule.

One comment suggested the State FSA committee include the implementation of practices which will benefit successful native field habitats. The final rule allows such a priority if deemed appropriate in particular cases.

Three comments suggested that the regulations allow the use of native vegetation/natural succession on lands enrolled in CRP and cost-share periodic maintenance, for example, by light discing. Cost-share payments are made as authorized in the 1985 Act and incentives may be included in rental payments to reflect special burdens. Such incentives will be added as needed. Acreage with covers already established are permitted to be enrolled provided all other eligibility criteria are met.

One comment suggested that for lands planted to trees there be a maximum of 436 trees per acre, a minimum of 30 foot unplanted buffer of natural vegetation or wildlife plantings along the edge of fields, a minimum of 10 percent of the former agricultural field maintained in wildlife openings (includes acreage in unplanted buffer), and cost-share on seeding of up to 25 percent of the field with perennial or reseeding legumes (when site conditions are appropriate). This recommendation will not be adopted. These are specific practice requirements that are more appropriate for the FOTG.

Five comments supported a new practice for wildlife habitat. Two comments suggested forest trees be an acceptable permanent vegetative cover. There is no need to create a new practice. CRP already has two practices for wildlife habitat. Both hardwood and softwood trees are acceptable covers.

Two comments stated that the proposed rule does not adequately address prairie wildlife protection. The final rule continues the provisions for establishing grassland cover that has benefitted prairie wildlife species and resulted in habitat that has assisted in the population recovery of water fowl and other migratory bird species in the Great Plains States.

Two comments suggested the wildlife water cover restrictions placed in the 1985 Act should not apply to this section. This recommendation can not be adopted due to the provisions of the 1985 Act.

One comment suggested that annually planted wind strips be an eligible practice. The purpose of CRP is to cost-effectively assist owners and operators in conserving and improving soil, water, and wildlife resources by converting highly erodible and other environmentally sensitive acreage normally devoted to the production of agricultural commodities to a long-term resource conserving cover. Therefore, this recommendation will not be adopted.

Sec. 1410.30 Signup.

The comments received suggested including agricultural drainage wells, field border strips, center pivot circle corners, grassed terraces, linear grass strips, shrub plantings arranged in irregular blocks, and land currently enrolled in WBP. The practices eligible for continuous signup may be implemented on field borders and center pivot corners if such land is determined eligible and suitable for the intended practice. As to the other suggestions, their adoption would not be cost-effective uses of the CRP. The land and practices eligible for continuous signup generally provide benefits to large areas when compared to the acreage on which the practice is implemented.

One comment suggested all lands USDA intends to be eligible for the continuous enrollment process should be listed in the regulations. Specific practice eligibility determinations will not be included in the regulations so as to provide the needed flexibility to be able to modify the available practices to respond to agricultural, environmental, and economical changes. Therefore, this suggestion is not being adopted.

Twenty-seven comments supported the new continuous signup implemented in 1996.

Several comments were received regarding the CRP enrollment period. Two comments suggest the State FSA committee establish the enrollment period and one comment suggests a constant annual enrollment period be established through 2002. The CRP acreage limitation is a national limitation allowing CCC the discretionary authority to determine the maximum acreage level up to 36.4 million acres. The desired maximum acreage limit determines when enrollment periods are announced considering the number of acres currently enrolled and the schedule for acres exiting the program. The maximum acreage level at any time can be dependent upon market conditions, farm financial conditions, and national and local environmental concerns that must be evaluated nationally, with other factors. A rigid schedule would unduly limit CCC's options and would not allow adjustments to changed circumstances.

One comment suggested participants be allowed to choose any year to be the effective year of the contract. To allow producers to pick any effective year for the contract prevents from CCC maintaining current acreage levels. However, producers, who enroll acreage under the continuous signup provisions, choose when to enroll acreage and are permitted to defer the effective date of the contract for up to six months.

Several comments suggested the strip practices, ``contour grass strips'' and ``wildlife corridors'' be made eligible for immediate enrollment under the continuous signup provisions. Like the permanent wildlife habitat practice, wildlife corridors are eligible for the continuous sign-up when located in wellhead protection areas. Contour grass strips are eligible. The rule, however, will continue to allow complete flexibility for CCC on determining which practices are chosen for continuous signup.

One comment suggested there should be no discrimination against smaller acre bids when they provide big benefits. CCC recognizes the value of certain practices which generally enroll small acres in providing significant benefits by allowing otherwise eligible offers for these practices to be enrolled without further evaluation.

Sec. 1410.31 Acceptability of offers.

General

Four comments suggested that the ranking structure was one of few Federal programs that ``helps our citizens and wildlife.'' Two comments suggested that expiring contracts not be allowed any advantage in subsequent enrollment. Each offer will be evaluated on its own merits. Existing CRP offers that will use current covers will have reduced costs and would have, in that sense, some advantage.

Another comment suggested that the bidding process should be replaced with a set amount of $25.00 to $35.00 per acre. The report accompanying the 1997 Appropriations Act reaffirmed previous Congressional direction that CRP rates should not exceed the prevailing rental rates for comparable land in the local area. Establishing arbitrary values would be inconsistent with this directive.

Four comments requested an opportunity to review and comment on the ranking process. The ranking process, as set forth in the proposed rule, was developed by an interagency task force consisting of several USDA Agencies, the Environmental Protection Agency, and the U.S. Fish and Wildlife Service. The ranking process, moreover, is not a rigid schedule but may be adjusted depending on the progress of the enrollments, or changed priorities. Interested parties have been, and may continue, to make their views on priorities known.

Another comment suggested that more of the matters now set forth in technical manuals should be incorporated into the proposed rule. This is not a CRP rule issue. Section 343 of the 1996 Act requires that any future revisions to NRCS technical guides be made available for public notice and comment.

Process

Nine comments suggested that producers currently enrolled in the CRP should not be required to rebid if their land qualifies for enrollment. The comment was not clear on the basis on why existing acreage should be considered differently from acreage seeking enrollment for the first time. Requiring all expiring CRP acreage to be rebid will allow CCC to treat all eligible owners and operators on the same basis. Accordingly, this recommendation will not be accepted.

Fourteen comments suggested that clear guidelines for acceptance be published in advance to make the approval process observable and more predictable. CCC intends to continue its efforts ensuring that the public is fully informed and will make available programmatic information prior to enrollment. CCC also intends an element of competition between bids to increase the cost-effectiveness of the program.

Five comments suggested the conservation priority areas be taken out of the eligibility criteria and placed in the ranking process. The conservation priority areas allow acreage that does not meet the regular eligibility criteria but that meets some other identified environmental need to be offered for the program but to ensure maximum environmental benefits the offered acreage will compete with other acreage being offered. The ranking process contains credit for being located in a conservation priority area to account for the cumulative environmental benefit that accrues within the CPA.

One comment supported the use of a ran