[Federal Register Volume 71, Number 106 (Friday, June 2, 2006)]
[Rules and Regulations]
[Pages 31915-31918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-8527]



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  Federal Register / Vol. 71, No. 106 / Friday, June 2, 2006 / Rules 
and Regulations  

[[Page 31915]]



DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1410

RIN 0560-AH44


Conservation Reserve Program--Emergency Forestry Conservation 
Reserve Program

AGENCY: Commodity Credit Corporation, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule amends the Conservation Reserve Program (CRP) 
regulations to implement provisions of Public Law 109-148 (2006 Act) 
that provide for enrollment in the CRP of private non-industrial forest 
land that experienced a loss of 35 percent or more of merchantable 
timber in the States suffering forestry damage directly related to 
hurricanes Katrina, Ophelia, Rita, Dennis, and Wilma.

DATES: Effective Date: June 1, 2006.

FOR FURTHER INFORMATION CONTACT: Kiley Barnes, Conservation and 
Environmental Programs Division, USDA/FSA/CEPD/STOP 0513, 1400 
Independence Avenue SW., Washington, DC 20250-0513, Telephone (202) 
720-8772; e-mail: [email protected].
    Persons with disabilities who require alternative means for 
communication (Braille, large print, audio tape, etc.) should contact 
the USDA Target Center at (202) 720-2600 (voice and TDD).

Background

    Section 107 the 2006 Act amended the Food Security Act of 1985 (16 
U.S.C. 3831), which provides statutory authority for the CRP, to 
provide for the Emergency Forestry Conservation Reserve Program (EFCRP) 
to enroll in the CRP private non-industrial forest land that 
experienced a loss of 35 percent or more of merchantable timber in the 
States suffering forestry damage directly related to hurricanes 
Katrina, Ophelia, Rita, Dennis, and Wilma. Accordingly, the CRP 
regulations at 7 CFR part 1410 are changed by adding a new section 
1410.12.
    The CRP is the Nation's largest private lands conservation program. 
Compared to the broader CRP which targets certain cropland and marginal 
pastureland, the EFCRP is designed to focus on the restoration of 
private non-industrial forest land damaged by 2005 hurricanes. EFCRP 
shares with the broader CRP the authority to consider certain expected 
environmental benefits from enrollment. The 2006 Act also authorized an 
additional factor for EFCRP, mitigation of economic loss. Accordingly, 
which is discussed in greater detail later, when considering which 
offers are acceptable for enrollment, Commodity Credit Corporation 
(CCC) will consider the expected environmental benefits from soil 
erosion prevention, water quality improvement, and wildlife habitat 
restoration as well as mitigation of economic loss.
    For purposes of eligibility, this new program is available in 
counties with a Presidential-or Secretarial-declared primary disaster 
designation due to hurricanes during the 2005 calendar year. The 
eligible owners and operators may enroll applicable private non-
industrial forest land in the new EFCRP during calendar year 2006. 
Private non-industrial forest land, for purposes of EFCRP, means lands 
with existing tree cover that is owned by an individual, group, 
association, corporation, Indian tribe, or other private entity or a 
person who or entity who receives concurrence from the landowner for 
practice implementation.
    Offers for enrollment may be made at local Farm Service Agency 
(FSA) offices through November 30, 2006. The 2006 Act requires that 
eligibility for enrollment is limited to owners and operators of 
private non-industrial forest land that have experienced a loss of 35 
percent or more of merchantable timber in a county affected by 
hurricanes during the 2005 calendar year. All offers will be verified 
for eligibility. Merchantable timber is defined in the 2006 Act and in 
the regulations as timber on private non-industrial forest land on 
which the average tree has a trunk diameter of at least six inches 
measured at least four-and-one-half feet above the ground. Under EFCRP, 
contracts will be for 10 years and will become effective the first day 
of the month following the month of contract approval by the CCC. 
Therefore, EFCRP contracts will expire at the end of the month 
throughout the year, depending upon the month of the effective date, 
rather than expiring September 30 of the appropriate year as required 
by section 1410.7(c) and, accordingly, an exception to his requirement 
was made in section 1410.12(j).
    A conservation plan for forestry is a required component of an 
EFCRP contract and will include provisions for soil erosion, water 
quality, and wildlife habitat as well as provisions for site 
preparation and planting, to the maximum practicable, of native species 
or, if native species are not practicable, with similar species as 
existed prior to hurricane damage. EFCRP participants will agree to 
restore trees to the minimum silvicultural level established by the 
United States Forest Service for the purposes of the practice. As with 
all CRP contracts, no commercial use of the crop (timber) will be 
permitted during the contract period, but management activities 
customary with normal forestry practice such as pruning, thinning, and 
stand improvement will be permitted as specified in the conservation 
plan for the property. However, forestry maintenance such as pruning, 
thinning, and timber stand improvement, in accordance with a 
conservation plan and in exchange for an applicable reduction in the 
annual rental payment, as determined by the Deputy Administrator, is 
permitted.
    In determining which offers to accept, CCC will collect data on 
soil erosion, water quality, wildlife habitat, and mitigation of 
economic loss and, using a generally-applicable benefits index, CCC 
will determine the acceptability of all offers.
    Regarding the acceptability of offers for EFCRP and as previously 
indicated, the purposes of the EFCRP include soil erosion prevention, 
water quality improvement, wildlife habitat restoration, mitigation of 
economic loss. Accordingly, section 1410.12(g) provides that offers 
will be evaluated and ranked consistent with those goals. Periodically 
throughout calendar year 2006, CCC will aggregate the offers and select 
those offers deemed most desirable.

[[Page 31916]]

    A conservation plan for forestry is a required component of an 
EFCRP contract and will include provisions for soil erosion, water 
quality, and wildlife habitat as well as provisions for site 
preparation and planting, to the maximum practicable, of native 
species, or with similar species as existed prior to hurricane damages, 
as approved by CCC. For each EFCRP contract, the conservation plan will 
describe the area enrolled, how the site will be prepared, and measures 
for soil erosion prevention, water quality improvement and wildlife 
habitat restoration such as wildlife plantings and tree density 
reduction. In preparing the conservation plan, an assessment will be 
conducted of resources, environmental documentation, and a schedule 
outlining the specified dates for planning activities pertaining to the 
contract. Also included will be the maintenance requirements for the 
contract length such as weed control, tree thinning, and prescribed 
burns, if appropriate for the site. As part of the conservation plan, 
the type of soil on the acreage and acceptable plantings will also be 
considered.
    For offers that are not acceptable, those offers will be 
``grandfathered'' into the next aggregation of offers. This process of 
evaluating offers and ``grandfathering'' those offers not acceptable 
into the next aggregation to be reviewed is scheduled to occur until 
the final aggregation and offer evaluation which is scheduled to occur 
after November 30, 2006.
    The 2006 Act authorized EFCRP participants the choice of receiving 
one discounted, lump-sum payment or annual rental payments for the 
duration of the contract. Total funding is $404,100,000, which will 
remain available until expended and includes all financial, cost-share, 
and technical assistance costs.
    As previously indicated, CCC will evaluate all offers based on four 
factors: Soil erosion prevention, water quality improvement, wildlife 
habitat restoration, and mitigation of economic loss. Soil erosion 
prevention and water quality improvement are inherent in any acceptable 
cover. Wildlife habitat restoration will be evaluated based on the type 
and density of tree cover that the landowner offers to restore that may 
be more desirable as wildlife habitat, such as planting longleaf pine 
and hardwoods (bottomland and upland) as opposed to other softwood 
species (including loblolly pine). Mitigation of economic loss is an 
assessment by forestry professionals of the economic loss suffered as a 
result of the 2005 hurricanes.
    The 2006 Act provided that acreage enrolled under this provision 
does not count towards otherwise applicable limits on the number of 
acres that may be enrolled in the CRP in any one county or on CRP's 
maximum acreage enrollment authority. Therefore, the provisions of 
section 1410.4 do not apply to the new EFCRP provisions which will now 
be codified at section 1410.12.
    Lump sum payments will be calculated using the Office of Management 
and Budget's (OMB) 2006 nominal 10-year discount rate of 5 percent 
published under Circular A-94, Discount Rates to Be Used in Evaluating 
Time-Distributed Costs and Benefits. Payments, it should be noted, are 
normally issued at the end of the program year. Use of a discount means 
that one lump-sum payment issued today will be less in absolute terms 
than 10 equal annual payments issued over time but are equal given the 
time-value of money. For example, assume a producer enrolls 10 acres 
into EFCRP with a rental rate of $30 per acre. Under a lump-sum payment 
option, the payment would be $2,317 whereas, over 10 years, an annual 
rental payment of $300 would produce $3,000.
    Other programs such as the Emergency Watershed Program authorized 
under regulations at 7 CFR part 624 or the Emergency Conservation 
Program authorized under the regulations at 7 CFR part 701 may be 
available for the removal of debris, downed timber, or for other 
purposes which are consistent with the purposes of EFCRP. If another 
Federal program makes a ``cost-share'' payment, an EFCRP participant is 
not eligible to receive or retain a EFCRP cost-share payment a result 
required by the regulations at 7 CFR 1410.40(f). Also, CCC will assure 
that duplicate payments are not made for the same practice under 
different programs. Section 1410.12(k) was added to address that issue.

Cost/Benefit Analysis Summary

    In analyzing the economic effects of this rule two options have 
been examined: (1) Using of a Benefits Index that selects participants 
based on economic damages, potential gully erosion, tree species to be 
established, and wetland acres; and (2) targeting the funds to counties 
with the greatest timber damage. The full $404,100,000 appropriated 
would be exhausted under either scenario.
    FSA has chosen to use Option 1 which uses the Benefits Index to 
select participants for the EFCRP. Use of a Benefits Index to select 
participants complies with the instructions in the statute to ``* * * 
consider an equitable balance among the purposes of soil erosion 
prevention, water quality improvement, wildlife habitat restoration, 
and mitigation of economic loss.'' Under either option additional, 
qualitative environmental benefits are obtained from controlling 
invasive plant species, establishing longleaf pine stands, and 
restoring bottomland hardwood stands. Controlling invasive species 
enhances wildlife habitat, as does establishing longleaf pine and 
bottomland hardwood forests. Longleaf pine stands are a declining 
ecosystem and bottomland hardwoods restore floodplain wetlands.
    The Agency analysis found that use of the $404,100,000 appropriated 
has a 10 year discounted cost of between $353 million and $378 million. 
When adjusted for inflation, the cost ranges from $341 to $364 million. 
When the cost of EFCRP was examined under a high cost scenario, 
inflation adjusted, discounted costs increased approximately 3 percent, 
ranging from $352 to $372 million. Under the low cost scenario, 
inflation adjusted, discounted costs decreased approximately 5 percent, 
with a range between $323 million and $351 million dollars.

SUPPLEMENTARY INFORMATION:

Notice and Comment

    Section 107(a) of Division B of the 2006 Act requires that these 
regulations be promulgated and administered without regard to the 
notice and comment provisions of 5 U.S.C. 553 or the Statement of 
Policy of the Secretary of Agriculture effective July 24, 1971, (36 FR 
13804) relating to notice and comment rulemaking and public 
participation in rulemaking. These regulations are thus issued as 
final.

Executive Order 12866

    This rule is Economically Significant for the purposes of Executive 
Order 12866 and has been reviewed by the Office of Management and 
Budget (OMB). A Cost/Benefit Analysis was completed and is available 
from the person cited above.

Small Business Regulatory Enforcement Fairness Act of 1996

    Section 107(a) of Division B of the 2006 Act requires that the 
Secretary use the authority in 5 U.S.C. 808 which allows an agency to 
forgo SBREFA's usual 60-day Congressional Review delay of the effective 
date of a major regulation if the agency finds that there is a good 
cause to do so. Accordingly, this rule is effective upon the date of

[[Page 31917]]

filing for public inspection by the Office of the Federal Register.

Regulatory Flexibility Act

    It has been determined that the Regulatory Flexibility Act is not 
applicable to this rule since the Commodity Credit Corporation (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 Review

    The environmental impacts of this rule have been considered in a 
manner that is consistent with the provisions of the National 
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., the 
regulations of the Council on Environmental Quality (40 CFR parts 1500-
1508), and the FSA regulations for compliance with NEPA, 7 CFR part 
799. FSA has initiated the completion of a programmatic environmental 
assessment (PEA) to determine the potential impacts of this action upon 
the human and natural environments. A copy of the draft and final PEA 
will be made available for public comment upon their completion. No 
contracts will be approved by the Agency until all environmental review 
requirements have been completed.

Executive Order 12988

    This final rule has been reviewed in accordance with Executive 
Order 12988. This final rule is not retroactive and does not pre-empt 
State laws. Before any judicial action may be taken with respect to the 
provisions of the final rule, administrative remedies at 7 CFR parts 11 
and 780 must be exhausted.

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 that impose ``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 
1 year. This rule contains no Federal mandates 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: Conservation Reserve Program--10.069.

Paperwork Reduction Act

    Section 107(a) of Public Law 109-148 requires that these 
regulations be promulgated and administered without regard to the 
Paperwork Reduction Act. This means that the normal 60-day public 
comment period and OMB approval of the information collections required 
by this rule do not apply.

List of Subjects in 7 CFR Part 1410

    Agriculture, Disaster assistance, Forests and forest products, 
Grazing lands, Natural resources.

0
Accordingly, 7 CFR part 1410 is amended as follows:

PART 1410--CONSERVATION RESERVE PROGRAM

0
1. The authority citation for 7 CFR part 1410 continues to reads as 
follows:

    Authority: 15 U.S.C. 714b and 714c; 16 U.S.C. 3801-3847.

0
2. Amend Sec.  1410.2 by adding the following definitions in their 
appropriate alphabetical order:
    Merchantable timber means timber grown for commercial purposes on 
private non-industrial forest land on which the average tree has a 
trunk diameter of at least 6 inches measured at a point no less than 
4.5 feet above the ground.
    Present value means the value of a stream of future payments 
discounted by 5 percent in accordance with Office of Management and 
Budget Circular A-94 (revised January 2006), Discount Rates to Be Used 
in Evaluating Time-Distributed Costs and Benefits.
    Private non-industrial forest land means, for purposes of Sec.  
1410.12, lands with existing tree cover that are owned by a private 
non-industrial forest landowner and which were damaged by hurricanes 
occurring in calendar year 2005.
    Private non-industrial forest landowner means, for purposes of 
Sec.  1410.12, an individual, group, association, corporation, Indian 
Tribe, other legal private entity, or State School Trust, owning non-
industrial private forest land or who receives concurrence from the 
landowner for making the claim in lieu of the owner, and for practice 
implementation and who holds a lease on the land for a minimum of 10 
years. Corporations whose stocks are publicly traded or owners or 
lessees principally engaged in the primary processing of raw wood 
products are excluded from this definition. An owner of land leased to 
a lessee shall also be excluded who should be excluded under the 
previous sentence.
    State school trust land means land owned by a State with the 
explicit purpose of supporting public schools.

0
3. Add Sec.  1410.12, to read as follows:


Sec.  1410.12  Emergency Forestry Program.

    (a) In addition to other allowable enrollments, certain non-
industrial private forest land located in Presidential- or Secretarial-
declared primary disaster counties that suffered damage from hurricanes 
in calendar year 2005 may be enrolled through the Emergency Forestry 
Conservation Reserve Program (EFCRP) provided for in this section.
    (b) Owners and/or operators may enroll non-industrial private 
forest land, as defined in Sec.  1410.2, in the CRP provided that the 
private non-industrial forest land:
    (1) Has merchantable timber (timber on land on which the average 
tree has a trunk diameter of at least six inches measured at a point no 
less than four and one-half feet above the ground); and
    (2) Has experienced a loss of 35 percent or more of merchantable 
timber in a 2005 calendar year hurricane-affected county due to 2005 
hurricanes.
    (c) The provisions of Sec.  1410.4 do not apply to this section.
    (d) Any overall acreage enrollment limit imposed on CRP shall not 
apply to acreage enrolled under this section.
    (e) All participants subject to a CRP contract entered into 
pursuant to this section must agree:
    (1) To restore the land, through site preparation and planting of, 
to the maximum extent practicable, native species or similar species as 
existing prior to hurricane damages as may be specified in the 
contract, and comply with other requirements as may be specified in the 
contract;
    (2) To establish temporary vegetative cover; and
    (3) That the contract term shall be for a period of 10 years, 
during which time standing timber may not be harvested from the 
enrolled land except as may be approved by CCC in the conservation plan 
as part of the normal maintenance of the forest land.
    (f) Offers for contracts under this section shall be submitted 
under continuous signup provisions as authorized in Sec.  1410.30.

[[Page 31918]]

    (g) In evaluating contract offers to which this section applies, 
different factors, as determined by CCC, may be considered for priority 
purposes. These include but are not limited to soil erosion prevention, 
water quality improvement, wildlife habitat restoration, and mitigation 
of economic loss.
    (h) In return for a contract entered into under this paragraph, a 
participant may opt for:
    (1) Annual rental payments authorized by Sec.  1410.42, except that 
the payment rate shall be equal to:
    (i) The average rental rate for CRP contracts in the county in 
which the land is actually located; or
    (ii) In the case where no CRP contracts are enrolled in a county, 
the average rental rate will be the CRP rate applicable to a nearby 
similarly-situated county.
    (2) In lieu of the annual payments provided for in paragraph (h)(1) 
of this section, lump sum payment equal to the present value of the 
total amount of annual rental payments that would otherwise be paid 
under paragraph (h)(1) of this section.
    (i) Cost-share assistance authorized under Sec.  1410.40 may be 
reduced by the value of salvaged timber or timber products which are 
removed to prepare the site for replanting.
    (j) The provisions of Sec.  1410.7(c), which concern enrollment 
limits, do not apply to contracts to which this section applies.
    (k) To avoid duplicate payments, participants under this section 
are not eligible to receive EFCRP funding for land on which the 
participant has or will receive funding under any other program that 
covers the same expenses.
    (l) All other requirements of this part shall apply to enrollments 
under this section.

    Signed at Washington, DC, on May 25, 2006.
Teresa C. Lasseter,
Executive Vice President, Commodity Credit Corporation.
[FR Doc. E6-8527 Filed 6-1-06; 8:45 am]
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