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Conservation Security Program
Proposed Rules
Federal Register: Upcoming
__________________________
DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
Natural Resources Conservation Service
7 CFR Part 1470
Conservation Security Program
_____________________________________
AGENCY: Commodity Credit
Corporation and the Natural Resources Conservation Service, USDA.
ACTION: Advance notice of
proposed rulemaking and request for comments.
SUMMARY: The Conservation
Security Program (CSP) is authorized by Title XII, Chapter 2, Subchapter A, of
the Food Security Act of 1985, as amended by the Farm Security and Rural
Investment Act of 2002. The Natural Resources Conservation Service (NRCS)
administers CSP. Under CSP, NRCS is authorized to provide financial and
technical assistance to owners and operators of agricultural operations to
promote conservation and improvement of the quality of soil, water, air, energy,
plant and animal life, and other conservation purposes. NRCS is interested in
obtaining public input before developing a proposed regulation.
This advance notice is intended to give the public the opportunity to comment
on key issues that have been raised regarding the implementation of the program.
These comments will help NRCS in the agency’s development of a proposed rule.
NRCS intends to publish the proposed rule in 2003 and therefore has narrowed the
comment period for this advance notice to 30 days. The public will have another
opportunity to provide input during the comment period for the proposed rule
prior to NRCS publishing a final rule for the program.
DATES: Comments must be received
in writing by [Insert date 30 days after publication in FEDERAL REGISTER].
ADDRESSES: Send comments in writing, by mail, to Conservation Operations
Division, Natural Resources Conservation Service, P.O. Box 2890, or by e-mail to
FarmBillRules@usda.gov <mailto:FarmBillRules@usda.gov>;
Attn: Conservation Security Program. This Advance Notice of Proposed Rulemaking
may also be accessed via the Internet through the NRCS homepage, at
<http://www.nrcs.usda.gov>,
and by selecting Farm Bill 2002. All comments, including names and addresses
when provided, are placed in the record and are available for public inspection.
FOR FURTHER INFORMATION CONTACT:
Mark W. Berkland, Director, Conservation Operations Division, NRCS, P.O. Box
2890, Washington, DC 20013-2890; telephone: (202) 720-1845; fax: (202)720-4265;
submit e-mail to: mark.berkland@usda.gov
<mailto:mark.berkland@usda.gov>, Attention:
Conservation Security Program.
SUPPLEMENTARY INFORMATION:
General Information about the Conservation
Security Program
The Farm Security and Rural Investment Act of 2002 (The 2002
Act) (P.L. 107-171) amended the Food Security Act of 1985 to authorize the
Conservation Security Program (CSP). CSP is administered by USDA’s Natural
Resources Conservation Service (NRCS). CSP is a voluntary program that provides
financial and technical assistance to promote the conservation and improvement
of soil, water, air, energy, plant and animal life, and other conservation
purposes on Tribal and private working lands. Working lands include cropland,
grassland, prairie land, improved pasture, and range land, as well as forested
land that is an incidental part of an agriculture operation.
In keeping with principles outlined in the USDA publication, “Food and
Agriculture Policy - Taking Stock for the New Century”, the Secretary’s vision
for CSP’s unique role within USDA conservation programs is:
(1) To identify and meaningfully reward those farmers and ranchers
meeting the very highest standards of conservation and environmental
management on their operations, and
(2) To create powerful incentives for other producers to meet those same
standards of conservation performance on their operations.
(3) To provide public benefits for generations to come.
In short, CSP should reward the best and motivate the rest.
The intent of CSP is to support ongoing conservation stewardship of
agricultural lands by providing assistance to producers to maintain and enhance
natural resources. The program is available in all 50 States, the Caribbean Area
and the Pacific Basin area. The program provides equitable access to benefits to
all producers, regardless of size of operation, crops produced, or geographic
location.
NRCS is seeking public comment to help the agency develop a proposed rule.
The public will have the opportunity to provide additional input during the
proposed rule’s comment period prior to the publication of a final rule.
Under the statute, CSP is available on cropland, grassland, prairie land,
improved pasture, and range land, as well as certain forested land that is an
incidental part of an agriculture operation.
Background
According to statute, an inventory will be conducted to identify
resource concerns and determine the extent of conservation treatment that is
being applied and maintained on their land. Authorized payments include a base
payment determined by the treatment level, cost-share for applying conservation
practices, maintenance payments for applied conservation practices, and enhanced
payments for treatment that exceeds the minimum criteria. A three-tiered
approach is used when offering payments.
If a producer desires to move to a higher tier, cost-share payments for
needed structural practices are available through the CSP at up to 75 percent of
the cost of the new practice, or up to 90 percent in the case of beginning
farmers or ranchers. Participants may contribute to the cost of the new practice
through in-kind sources, such as personal labor, use of personal equipment,
donated labor or materials, and use of on-hand or approved used materials.
Cost-shared practices are to be maintained for the life of the practice. All
needed practices and management must be in place and maintained before a
producer can move to the next tier. Similar to other United States Department of
Agriculture (USDA) conservation programs, the 2002 Act requires that the
Conservation Security Program (CSP) provide financial incentives to agricultural
producers that undertake new conservation efforts that meet high environmental
standards. However, unlike other USDA conservation programs, the 2002 Act
requires that CSP provides financial assistance for maintaining conservation. A
clear intent of the program is to financially reward producers for significant
environmental goods and services they provide to the public through their annual
and ongoing conservation efforts. CSP, therefore, raises new and important
issues that have not been confronted previously for traditional conservation
programs.
NRCS undertook two projects to identify and better understand those elements
in the design of the program that would have the most influence on its
performance. In the first project, the firm, Plexus Marketing Group, was
retained to conduct nine focus groups to obtain inputs from representative
agricultural and stakeholder groups regarding key elements of the CSP to assist
NRCS in developing program rules. In the second project, the Soil and Water
Conservation Society (SWCS) organized five workshops to obtain feedback on CSP
and its implementation from producers and NRCS field staff.
The Plexus focus groups were held as follows:
Three (3) were conducted in various states with a representative cross
section of groups:
- November 12 Columbia, MO
- November 13 Modesto, CA
- November 14 Macon, GA
Six (6) were held in Washington, DC with specific groups:
- November 19 Agricultural Media Group
- November 19 Livestock Group
- November 20 Fruits & Vegetables Group
- November 20 Crops Group
- November 21 Wildlife and Sportsman Groups
- November 21 Environmental Groups
The composition of the groups were determined by the firm with assistance
from NRCS. The firm facilitated the participants through a series of questions
to solicit their feedback on key issues relevant to rule-making for the new
program.
The five SWCS workshops were held in the following locations:
- November 12 Billings, Montana (Montana, Wyoming)
- November 14 Fort Morgan, Colorado (Colorado, Wyoming)
- November 21 Defiance, Ohio (Ohio, Michigan, Indiana)
- December 3 Greenville, Mississippi (Mississippi, Arkansas, Louisiana)
- December 11 Fresno, California (California)
Four NRCS field staff and 12 producers participated in each workshop.
Producers were selected in an unbiased manner which assured that they were not
exclusively conservation-oriented or farm program participants. Producers were
interviewed to solicit their feedback on key issues relevant to rule-making for
the new program.
Key Issues for Comment
The results of these two projects coupled with analyses
conducted by NRCS have identified several key issues in rulemaking that will
have profound effects on the performance and effectiveness with which CSP can be
used to meet the objectives of the statute. The SWCS workshops, for example,
identified important opportunities to simultaneously streamline and enhance the
conservation performance of CSP. The focus groups, on the other hand, felt it
important to do the program “right” at the onset even if it meant slowing
initial implementation; further the participants were concerned about
flexibility and accountability. Both groups identified concerns about the
potential budget implications of the program. One of the overarching issues
identified was the tension between the demand for the program and the budget
concerns.
NRCS is currently analyzing in detail the information gathered through the
workshops and focus groups to inform its rulemaking in regard to the key issues
raised in the workshops, focus groups, and agency analyses of alternatives.
Given the importance of these issues to the performance and effectiveness of CSP,
NRCS is seeking additional public comment. NRCS is specifically interested in
receiving public input regarding how CSP can be used to meet the objectives of
the statute on the following issues:
1. The law specifies that conservation security plans address one or
more “significant” resource concerns. Resource concerns may be as general
as soil erosion or water quality or as specific as soil erosion by water
or ground water quality. Many concerns have no practical direct
measurement techniques or tools. What criteria should be used to determine
what is a resource concern and whether a resource concern is significant?
2. The law requires that NRCS establish minimum requirements for three
tiers of conservation effort. The minimum could be as specific as a list
of minimum practices or as general as bundling of conservation measures
that achieve a desired resource outcome. What should be the minimum
requirements for each tier? Should NRCS establish minimum requirements
that apply to all contracts nationally? What could some of these
requirements be?
3. The law requires NRCS to describe the particular practices to be
implemented, maintained, or improved as part of the program. What criteria
should be used to determine which practices and activities are eligible
for payment under the program? Should specific practices or activities
receive priority for payment under the program? To what extent should sets
of practices and activities be accorded priority for payment under the
program?
4. The law restricts the maximum base payment to a percentage of the
total contract cap (i.e. 25 percent for Tier I and 30 percent for Tiers II
and III). What should be the balance of the base payment, maintenance
cost-share payment and enhancement payment to reward the steward and
attain additional conservation benefits?
5. The law uses the extent of the agricultural operation covered by the
contract as a primary distinction between Tiers I and II. Tier I covers
the “enrolled portion of the agricultural operation”, while Tiers II and
III cover “the entire agricultural operation.” With the variety of
ownership and landowner-tenant relationships which change over time across
the country, how should “agricultural operation” be defined?
6. The law specifies the eligible land for payment purposes as
cropland, grassland, prairie land, and rangeland as well as forestland
that is an incidental part of the agricultural operation. Should
noncropped areas, such as turn rows or riparian areas, that are part of
the agriculture operation be included for conservation treatment? Should
farmsteads, ranch sites, barnyards, feedlots, equipment storage,
material-handling facilities, and other such developed areas be considered
part of the “agricultural operation?” What criteria should be used to
determine those areas of a farm or ranch that might legitimately be
excluded from the “agricultural operation?”
7. The law specifies that NRCS make a base payment as part of a
conservation security plan using either the 2001 national rental rate for
a specific land use or another appropriate rate that assures regional
equity. How should NRCS determine the base payment? If an alternative to
the national rental rate is used, how should it be constructed? Should the
payments be determined at the national, state or local levels?
8. The law provides for an enhanced payment if an owner or operator
does one or more of the following: (a) implements or maintains practices
that exceed minimum requirements; (b) addresses local conservation
priorities; (c) participates in on-farm research, demonstration, or pilot
projects; (d) participates in a watershed or regional resource
conservation plan; or (e) carries out assessment and evaluation activities
relating to practices included in a conservation security plan. Enhanced
payments are meant to ensure and optimize environmental benefits. How
should enhanced payments be determined and calculated?
9. The law does not limit the number of contracts held by a producer.
Should there be a limitation on the total number of contracts a producer
may have? If there is no limit on the number of contracts, should USDA set
an individual payment limitation for producers with multiple contracts?
10. The law requires that the regulations provide for adequate
safeguards to protect the interests of tenants and sharecroppers,
including provisions for sharing payments, on a fair and equitable basis.
Concerns have been raised over the impact of CSP provisions on
owner/operator relationships including changes in rental rates or changes
in operators. How can NRCS ensure that payments are shared on a fair and
equitable basis?
11. The law requires a minimum contract length in CSP of five years.
Many landlord-tenant relationships are short-term in nature, usually less
than five years. Should the applicant be required to have control of the
land for the complete CSP contract period? How should the program address
the tension between the return to management versus the return to capital?
12. The law does not prescribe a funding or acreage cap for CSP. USDA
estimates that there is a potential applicant pool of over two million
farms and ranches covering over 900 million potential eligible acres. A
primary implementation concern is the program scope. In order for this
program to accomplish the Administration’s goal of maximizing the
conservation and improvement of natural resources, it is necessary to
prioritize CSP assistance. The Department is seeking public comments on
ways to focus and prioritize CSP assistance. For example, if the program
would only fund the highest-priority applications, should there be an open
application process with all applicants competing for a limited number of
contracts? Should applications be constrained by resource concern, program
funding, tier level, owner-operator relationship, geography or other
constraint?
13. The law includes energy as a resource concern for CSP program
purposes. The NRCS Field Office Technical Guide does not recognize energy
as a natural resource concern and therefore no quality criteria or
non-degradation standard exists to compare a conservation treatment
against. NRCS is seeking comments on how energy use should be incorporated
into the program requirements. How should the benefits be assessed?
14. The law includes payment for conservation practices described as
requiring planning, implementation, management and maintenance. A concern
was raised as to whether the payment would be, in fact, a return for
equity in capital or for the engagement in intensive management. What
should the program be paying for?
15. The law provides little guidance for monitoring quality assurance
or specifics on identifying contract violations. The issue is two-fold in
nature encompassing both the measurement of outcomes from a performance
standpoint and assuring the federal funds are spent wisely and that
contracts are appropriately carried out. How should USDA ensure
accountability?
NRCS will accept all other comments on general program implementation.
Regulatory Findings
Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), USDA must
determine whether the regulatory action is ``significant'' and therefore subject
to review by the Office of Management and Budget (OMB) and the requirements of
the Executive Order. The Order defines ``significant regulatory action'' as one
that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely
affect in a material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State, local, or
Tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action
taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees,
or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been determined that
this Advanced Notice of Proposed Rulemaking is a ``significant regulatory
action'' in light of the provisions of paragraph (4) above as it raises novel
legal or policy issues. As such, this action was submitted to OMB for review.
Signed in Washington, DC, on ________________________, 2003.
BRUCE I. KNIGHT
Chief
Natural Resources Conservation Service
and
Vice President
Commodity Credit Corporation
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