[Federal Register Volume 74, Number 123 (Monday, June 29, 2009)]
[Rules and Regulations]
[Pages 30907-30912]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15305]



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  Federal Register / Vol. 74, No. 123 / Monday, June 29, 2009 / Rules 
and Regulations  

[[Page 30907]]



DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1410

RIN 0560-AH80


Conservation Reserve Program

AGENCY: Commodity Credit Corporation, USDA.

ACTION: Interim rule with request for comments.

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

SUMMARY: The Commodity Credit Corporation (CCC) amends the Conservation 
Reserve Program (CRP) regulations to update the terms and conditions of 
enrolling acreage in CRP and other eligibility requirements to 
implement certain provisions of the Food, Conservation, and Energy Act 
of 2008 (the 2008 Farm Bill). The purpose of CRP is to cost-effectively 
assist producers in conserving and improving soil, water, wildlife, and 
other natural resources by converting environmentally-sensitive acreage 
from the production of agricultural commodities to a long-term 
vegetative cover.

DATES: Effective Date: This rule is effective June 29, 2009.
    Comment Date: We will consider comments that we receive by August 
28, 2009.

ADDRESSES: We invite you to submit comments on this interim rule. In 
your comment, include the volume, date, and page number of this issue 
of the Federal Register. You may submit comments by any of the 
following methods:
     E-Mail: [email protected].
     Fax: 202-720-4619.
     Mail: CRP Interim Rule Comments, c/o PAI Consulting, 4900 
Seminary Road, Suite 360, Alexandria, Virginia 22311.
     Hand Delivery or Courier: Deliver comments to the above 
address.
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Comments may be inspected at the mail address listed above between 
8 a.m. and 4:30 p.m., Monday through Friday, except holidays. A copy of 
this interim rule is available through the Farm Service Agency (FSA) 
home page at http://www.fsa.usda.gov/.

FOR FURTHER INFORMATION CONTACT: Beverly J. Preston, CRP Program 
Manager, at USDA/FSA/CEPD/STOP 0513, 1400 Independence Avenue, SW., 
Washington, DC 20250-0513; telephone 202-720-9563; e-mail: 
[email protected]. Persons with disabilities who require 
alternative means for communication (Braille, large print, audiotape, 
etc.) should contact the USDA Target Center at 202-720-2600 (voice and 
TDD).

SUPPLEMENTARY INFORMATION: 

Background

    This rule revises CRP regulations in 7 CFR part 1410 to implement 
certain changes to CRP as required by the 2008 Farm Bill (Pub. L. 110-
246) and for other purposes. The 2008 Farm Bill, among other things, 
provided the authority to maintain up to 39.2 million acres in CRP for 
fiscal years (FY) 2008 and 2009 and, for FY 2010 through FY 2012, 
maintain up to 32.0 million acres in CRP.
    The purpose of CRP continues to be to cost-effectively assist 
producers in conserving and improving soil, water, wildlife, and other 
natural resources by converting highly erodible and other 
environmentally sensitive acreage generally devoted to the production 
of agricultural commodities to a long-term vegetative cover. CRP 
participants enroll land under contracts for 10 to 15 years in exchange 
for annual rental payments and financial assistance to install certain 
conservation practices and to maintain approved vegetative, tree, or 
other appropriate covers. That is not changing with this rule.
    The 2008 Farm Bill added an additional program purpose of 
addressing issues raised by State, regional, and national conservation 
initiatives. This interim rule amends Part 1410 accordingly. Also, 
changes in the regulations are required to implement provisions in the 
2008 Farm Bill regarding:
    (1) The Farmable Wetlands Program (FWP) (a subprogram of CRP),
    (2) Cost-sharing provisions to add provisions for thinning of trees 
to improve the condition of resources on certain enrolled land,
    (3) Adjusted gross income requirements to reflect the new limits in 
the 2008 Farm Bill,
    (4) County acreage limits,
    (5) Cropping history,
    (6) Eligible land,
    (7) Haying and grazing,
    (8) Acceptability of offers provisions to allow ``local 
preference'' as a consideration,
    (9) Payment limitation, and
    (10) Incentives for Indian tribes and for ``beginning,'' ``limited 
resource,'' and ``socially disadvantaged'' farmers and ranchers; 
incentives for pollinator habitat; and transition incentives for 
certain participants.
    The provisions included in this interim rule adopt statutory 
requirements for three items in the foregoing list; namely those 
regarding: FWP, thinning of trees to improve the condition of 
resources, and amended adjusted gross income (provisions 1 through 3 
described above). Provisions 4 through 10 listed above will be 
implemented in future rulemaking. (See the Environmental Evaluation 
section of this interim rule for additional information.) Also, this 
rule changes several sections to update dates, where appropriate, to be 
consistent with the 2008 Farm Bill. This rule also makes minor plain 
language changes to make the regulations more clear and concise.

Definitions and General Changes

    This rule amends section 1410.1, Administration, to extend the 
effective dates for the regulations, as specified in the 2008 Farm 
Bill.
    To accommodate new statutory provisions, this rule amends section 
1410.2, ``Definitions,'' to add the definition for ``commercial pond-
raised aquaculture facility.''
    The 2008 Farm Bill makes commercial pond-raised aquaculture 
facilities eligible for enrollment in FWP within CRP. Aquaculture is 
generally considered to be the production of aquatic animals and plants 
under controlled conditions for all or part of their lifecycle. U.S. 
aquaculture production is composed of the production of food fish, 
ornamental fish, baitfish, mollusks, crustaceans, aquatic

[[Page 30908]]

plants and algae, and some reptiles such as alligators and turtles. 
These organisms are grown in a wide variety of climates in either fresh 
or salt water and utilize a number of different production systems that 
are specific to the type of aquaculture. These systems have limits that 
impact the potential conservation benefit that may be achieved. 
Generally, open earthen freshwater food fish production systems are 
more suitable for restoration to wetland type ecosystems; therefore, 
they are more suitable to be enrolled in FWP. Accordingly, this rule 
adds a definition for ``commercial pond-raised aquaculture facility'' 
that makes eligible any earthen facility from which $1,000 or more of 
freshwater food fish were sold or normally would have been sold during 
a calendar year.
    This rule amends the definition of ``technical assistance'' to 
conform to the definition in the 2008 Farm Bill. This rule further 
amends the definition to include providing annual rental rate surveys. 
These surveys are required for market-based rental rates. The 2008 Farm 
Bill requires annual surveys of rental rates. Therefore, the revised 
definition includes providing annual rental rate surveys as a form of 
technical assistance.
    In addition, this rule makes clarifying changes to the definition 
of ``annual rental payment.''

Farmable Wetlands Program

    The 2008 Farm Bill expanded the eligibility criteria for FWP. 
Therefore, this rule amends section 1410.11, ``Farmable Wetlands 
Program,'' to reflect the changes. This rule expands eligibility to 
include certain constructed wetlands that are to be developed to 
provide nitrogen removal in row-crop agriculture drainage areas, land 
that is devoted to commercial pond-raised aquaculture, and land subject 
to the natural overflow of a prairie wetland during certain years. In 
the current regulations, wetlands generally excluded from FWP 
eligibility include any wetland, or land on a floodplain, that is 
adjacent to a perennial riverine system. The 2008 Farm Bill removed 
these exclusions and also increased CCC's flexibility in determining 
the size of buffers to be devoted to grass or tree covers to protect 
the wetlands; this rule amends this section of the regulations 
accordingly.
    The 2008 Farm Bill also modified the maximum size of any wetland 
enrolled in FWP from 10 to 40 contiguous acres (except for 
``aquaculture'' ponds) and added limits on the amount of land enrolled 
for constructed wetlands of 40 contiguous acres and of flooded farmland 
of 20 contiguous acres. Further, the 2008 Farm Bill removed a provision 
that limited payment to no more than five acres per tract. Land 
formerly devoted to aquaculture has no size limitations other than 
those required by technical guidelines. The 2008 Farm Bill also 
provides for a history requirement applicable for commercial pond-
raised aquaculture land, specifically that such land must have been 
devoted to commercial pond-raised aquaculture in any year between 
calendar years 2002 through 2007, and for land subject to the natural 
overflow of a prairie wetland 3 of 10 years after January 1, 1990, and 
before December 31, 2002. This rule amends section 1410.11 to reflect 
these changes.
    Acreage will continue to be limited to 100,000 acres in any one 
state.

Obligations of Participants

    The 2008 Farm Bill made a technical change, which conforms to long-
standing practice, to require CRP participants to undertake management 
on the land as needed to implement the accompanying conservation plan. 
This rule amends section 1410.22, CRP Conservation Plan, to add this 
requirement for management activities. CRP participants will need to 
implement a conservation plan providing for management of the land in 
addition to, for example, reducing erosion, improving water quality, 
protecting wildlife or wetlands, or protecting a public well head.

Cost-Share Payments--Thinning

    The 2008 Farm Bill added authority to make cost-share payments to 
conduct thinning of trees that is necessary to improve the condition of 
resources on the land, such as wildlife habitat. Therefore, this rule 
amends the regulations in section 1410.40, Cost-share Payments, to add 
a new paragraph (g) to provide that a cost-share rate of up to 50 
percent is authorized for the reasonable and necessary costs for 
thinning.

Payment Limitation and Adjusted Gross Income

    The interim rule titled ``Farm Program Payment Limitation and 
Payment Eligibility for 2009 and Subsequent Crop, Program, or Fiscal 
Years,'' published in the Federal Register on December 29, 2008 (73 FR 
79267-79284) and made effective on December 23, 2008, among other 
things, implemented the revised payment limitations and average 
adjusted gross income limitation for conservation programs. The revised 
limits are those specified in the 2008 Farm Bill. The payment 
limitations interim rule implemented the payment limitations in 7 CFR 
part 1400 and the average adjusted gross income limitations in 7 CFR 
part 1400 subpart F.
    The 2008 Farm Bill amends the payment limitation and average 
adjusted gross income provisions, effective for contracts signed for FY 
2009. Prior to the implementation of both this interim rule and the 
payment limits interim rule, the $50,000 limitation on annual rental 
payments had been applied to a ``person'' as previously defined by 
statute and determined in accordance with the existing regulations at 
that time. The regulations prior to the payment limits interim rule 
provided for the ``3-entity rule'' that allowed a ``person'' to receive 
payment indirectly through no more than 3 entities, if payment was not 
received directly, and through no more than 2 entities if payment was 
received directly. Although under the 2008 Farm Bill and the current 
regulations the payment limitation on annual rental payments under CRP 
remains at $50,000, the limitation is now applied by determining the 
amount received by each ``natural person'' and legal entity, directly 
or indirectly. The 3-entity rule was eliminated in the 2008 Farm Bill 
and removed from the regulations by the payment limits interim rule.
    As specified in 7 CFR 1400.500(d), for 2009 through 2012 
conservation programs specified in 7 CFR 1400.1, a person or legal 
entity that has an average adjusted gross nonfarm income that exceeds 
$1,000,000 will not be eligible to receive payments or benefits under 
conservation and related programs, and other programs made applicable 
by statute or regulation, unless not less than 66.66 percent of the of 
the average adjusted gross income of the person or legal entity is 
average adjusted gross farm income.
    This limitation may be waived on a case-by-case basis by the 
Administrator or NRCS Chief for the protection of environmentally 
sensitive land of special significance. Such a written waiver request 
must document that land within or adjacent to the producer's 
agricultural operation contains critical resources such as, but not 
limited to, threatened, endangered, or at-risk species; historical or 
cultural resources; unique wetlands; or critical groundwater recharge 
areas. In addition, the waiver request must either:
     Show that use of conservation program funding by an 
individual producer is critical to the success of a project that 
benefits multiple producers in a community, watershed, or other 
geographic area or

[[Page 30909]]

     Show that conservation program funding will achieve 
enduring conservation treatment through use of a long-term agreement 
that is greater than 15 years in duration or through use of a deed 
restriction on the land.
    This rule modifies the regulations in sections 1410.42, ``Annual 
Rental Payments'' (to specify payment limitations) and 1410.44, 
``Adjusted Gross Income,'' to be consistent with the 2008 Farm Bill and 
the payment limitation regulations in 7 CFR part 1400. However, these 
changes to reflect new provisions in the 2008 Farm Bill are effective 
only for FY 2009 and later contracts--that is, contracts executed after 
October 1, 2008. For contracts executed before that date, the 
regulations in the January 1, 2008 edition of the Code of Federal 
Regulations apply. That is, the rules in place when the contracts were 
executed will apply on questions of payment limits and adjusted gross 
income limits on eligibility.

Request for Comments

    The authorized purpose and scope of CRP has changed over time. 
Since CRP was originally enacted by the 1985 Farm Bill, there has been 
an evolution of the types and kinds of land enrolled. Initially, a 
substantial amount of land was enrolled which primarily met commodity 
supply goals. By the Federal Agriculture Improvement and Reform Act of 
1996 (Pub. L. 104-127, commonly known as the 1996 Farm Bill), increased 
focus was placed on environmental goals including the continuous signup 
of relatively small acreages that protected much larger acreages and 
included land devoted to buffers, filter strips, and grass waterways.
    After the passage of the 1996 Farm Bill, CCC, in addition to more 
customary enrollments, collaborated with the State governments and 
leveraged Federal and State resources to target environmental 
priorities of the State and the Nation. Since the Farm Security and 
Rural Investment Act of 2002 (Pub. L. 107-171, commonly known as the 
2002 Farm Bill), further attention has been devoted to enrollment of 
land for the benefit of quail and other upland birds, certain wetlands, 
ducks, other high priority wildlife species identified by states, and 
longleaf pine restoration.
    Under the 2008 Farm Bill, the overall CRP enrollment authority was 
reduced from 39.2 million acres to, by FY 2010, 32.0 million acres, 
which provides an opportunity to further refine and re-direct program 
resources.
    We request comments on detailed environmental and other needs and 
goals on which CRP resources should be focused or targeted to optimize 
environmental benefits consistent with program goals and purposes.
    As CRP's purpose and goals have changed over time, it is possible 
that unintended barriers to enrollment may exist. Therefore, we also 
request comments on any barriers to enrollment (outside of statutory 
provisions) and what steps should CCC take to remove such barriers to 
enrollment or to streamline program participation within the CRP 
consistent with the statutory objectives of the program.

Executive Order 12866

    This rule has been determined to be economically significant and 
was reviewed by the Office of Management and Budget (OMB) under 
Executive Order 12866. A Cost Benefit Analysis is summarized below and 
is available from the contact information listed above.

Cost Benefit Analysis

    The 2008 Farm Bill extends CRP enrollment authority through 
September 30, 2012, and requires that enrollment be reduced to no more 
than 32 million acres beginning October 1, 2009. While the 2008 Farm 
Bill authorizes additional changes, this interim rule only addresses 
certain provisions, including: (1) Changes to Farmable Wetland Pilot 
Program eligibility criteria; (2) provision of 50-percent cost-share 
for tree thinning activities; and (3) implementation of new payment 
limitation applicability and new adjusted gross income-based 
eligibility criteria. Table 1 provides additional details on the 2008 
Farm Bill changes covered by this interim rule. Other changes that 
involve discretionary authority will be covered in a separate rule and 
cost benefit analysis.
    The provisions implemented by this interim rule are statutorily-
mandated, meaning the no-action alternatives are not feasible, and are 
used only to demonstrate impacts of the new or revised provisions. The 
alternatives are:
     Implement payment limit and AGI-based eligibility 
provisions or not,
     Implement cost-sharing for tree thinning or not, or
     Implement revised Farmable Wetlands Program eligibility 
criteria or not.

                               Table 1--Changes to CRP Covered by the Interim Rule
----------------------------------------------------------------------------------------------------------------
              Provision                     2002 Farm Bill           2008 Farm Bill              Comment
----------------------------------------------------------------------------------------------------------------
                                          Conservation Reserve Program
----------------------------------------------------------------------------------------------------------------
Payment Limits.......................  $50,000 per year per     $50,000 per year per     The 2008 Farm Bill
                                        person.                  person or legal entity.  repeals ``3-entity''
                                                                                          rule and requires
                                                                                          direct attribution.
                                                                                          (Provision assessed in
                                                                                          separate CBA on
                                                                                          payment limits and AGI-
                                                                                          based eligibility.)
AGI-Based Eligibility................  3-year average AGI must  3-year average AGI must  Waivers allowed on case-
                                        not exceed $2.5          not exceed $1 million.   by-case basis.
                                        million.                 No limit if 2/3rds       (Impacts discussed in
                                                                 from farm income.        the separate payment
                                                                                          limits CBA.)
Cost-share for Tree Thinning.........  No provision...........  Authorizes 50-percent    Allows up to $100
                                                                 cost-share for           million through 2012.
                                                                 thinning activities.
----------------------------------------------------------------------------------------------------------------
                                            Farmable Wetland Program
----------------------------------------------------------------------------------------------------------------
Maximum Enrollment...................  1 million acres........  No change..............  .......................

[[Page 30910]]

 
Eligibility..........................  Small non-floodplain     Adds floodplain          Also adds buffers to
                                        wetlands and             wetlands, constructed    each category. Some
                                        associated buffers.      wetlands, former         categories are already
                                                                 aquaculture lands, and   eligible under other
                                                                 flooded formerly         CRP (non-FWP)
                                                                 farmed wetlands.         authority. Flooded
                                                                                          farmlands limited to
                                                                                          lands subject to
                                                                                          natural overflow of
                                                                                          prairie wetland.
Wetland Size Limits..................  10 acres per wetland,    40-acre-limit per        Applies only to wetland
                                        40 acres of wetland      floodplain and non-      portion, not buffer.
                                        plus buffer per tract.   floodplain wetland,
                                                                 and constructed
                                                                 wetland. 20-acre limit
                                                                 on flooded prairie
                                                                 land. No limit on
                                                                 former aquaculture
                                                                 ponds.
Buffer Size..........................  The greater of: 3 times  As determined            Applies to all
                                        the size of the          appropriate and needed   eligibility
                                        wetland or 150 feet on   by the Secretary in      categories.
                                        either side of the       consultation with
                                        wetland.                 State Technical
                                                                 Committee.
Cropping History.....................  3 of 10 years prior to   No cropping requirement  For floodplain and non-
                                        enrollment.              for aquaculture ponds    floodplain wetlands, 3
                                                                 or constructed           of 10 years prior to
                                                                 wetlands; 3 of 10        enrollment (no
                                                                 years between 1990 and   change).
                                                                 2002 for flooded
                                                                 farmland.
Payment Criteria.....................  Only 5 acres per         All wetland and buffer   All acres receive same
                                        wetland eligible for     acres eligible for       incentive payments as
                                        payment. All buffers     payment.                 filter strips under
                                        eligible.                                         continuous CRP.
----------------------------------------------------------------------------------------------------------------

    Based on estimates concerning the amount of land that will be 
eligible, assumed participation rates and annual enrollment, and 
estimated per-acre costs, the costs of implementing the changes 
considered in the interim rule are estimated to total $79.6 million 
through FY 2012 and $191.2 million through FY 2018. This averages to 
$19.1 million per year over 10 years. The estimated costs of the 
changes made by the 2008 Farm Bill and implemented in this rule are 
provided in table 2:

                              Table 2--Estimated Costs of CRP Changes in This Rule
                                                  [$1,000,000]
----------------------------------------------------------------------------------------------------------------
                                                              FY 2009-2012      FY 2013-2018      FY 2009-2018
----------------------------------------------------------------------------------------------------------------
Tree Thinning.............................................             $43.8             $16.7             $60.5
Aquaculture Ponds.........................................               7.6              22.6              30.2
Flooded Farmland..........................................              17.9              40.7              58.6
Constructed Wetlands......................................              10.3              31.6              41.9
    Total.................................................              79.6             111.6             191.2
----------------------------------------------------------------------------------------------------------------

    The extent of environmental benefits derived from this rule depends 
on participation rates and the specific conservation measures adopted. 
For example, tree thinning has the potential to enhance wildlife 
habitat, provide for carbon sequestration, and reduce the risk of 
wildfires. Enrollment of aquaculture ponds and flooded farmland and 
associated buffers can increase migratory waterfowl and other wildlife 
species populations, and potentially reduce flood damage, protect water 
quality, and provide for carbon sequestration. Constructed wetlands and 
buffers can reduce nitrate loadings, reduce down-stream flood damages, 
and increase wildlife habitat.

Regulatory Flexibility Act

    It has been determined that the Regulatory Flexibility Act is not 
applicable to this interim 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. CCC is 
authorized by section 2904 of the 2008 Farm Bill to issue an interim 
rule effective on publication with an opportunity for comment.

Environmental Evaluation

    In 2003, FSA finalized a Programmatic Environmental Impact 
Statement (PEIS) for the reauthorization of the CRP in Title II of the 
Farm Security and Rural Investment Act of 2002 (2002 Farm Bill) and 
published a Record of Decision (ROD). Consistent with provisions in 40 
CFR 1508.28, in order to focus primarily on the issues relevant to this 
specific rule and not duplicate material found in the 2003 EIS, FSA 
tiered a Programmatic Environmental Assessment (PEA) on select 
provisions of the 2008 Farm Bill for CRP to the 2003 PEIS; tiering is 
appropriate when the sequence of analysis is lesser in scope than the 
initial programmatic statement.
    The PEA incorporated by reference general discussions and analysis 
from the 2003 PEIS to assess potential environmental impacts associated 
with implementation of only those non-discretionary provisions 
identified in this rule for CRP consistent with the 2008 Farm Bill. The 
Final PEA and Finding of No Significant Impact (FONSI) for this interim 
rule were published in the Federal Register on December 16, 2008 (73 FR 
76331-76332) for public review and comment. The proposed changes 
analyzed in the PEA are separate and distinct from the

[[Page 30911]]

proposals for discretionary changes. For those 2008 Farm Bill changes 
not examined in the PEA where discretion may be exercised, FSA is 
currently developing a Supplemental Environmental Impact Statement 
(SEIS) to the 2003 Programmatic Environmental Impact Statement (PEIS) 
on CRP before any discretionary program changes are implemented. The 
implementation of the discretionary changes to CRP required by the 2008 
Farm Bill will be made in future rulemaking in conjunction with the 
planned SEIS. In accordance with 40 CFR 1501.7, a Notice of Intent 
(NOI) will be published in the Federal Register to determine the scope 
and notify the public.

Executive Order 13132

    The policies contained in this rule do not have any substantial 
direct effect on states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government. Nor does this 
rule impose substantial direct compliance costs on state and local 
governments. Therefore, consultation with the states is not required.

Executive Order 12988

    This interim rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. In accordance with that Executive Order: (1) All 
State and local laws and regulations that are in conflict with this 
rule will be preempted; (2) no retroactive effect will be given to this 
rule; and (3) before any judicial action may be brought concerning this 
rule, appeal rights afforded program participants in 7 CFR parts 11, 
624, and 780 must be exhausted.

Unfunded Mandates

    Title II of the Unfunded Mandate Reform Act of 1995 (UMRA) (Pub. L. 
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 
one year. This rule contains no Federal mandates as defined by Title II 
of UMRA for State, local, or tribal governments or for the private 
sector. Therefore, this rule is not subject to the requirements of 
sections 202 and 205 of 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, is the Conservation Reserve Program--10.069.

Paperwork Reduction Act

    Section 2904 of the 2008 Farm Bill specifies that the issuance of 
regulations required by Title II of the 2008 Farm Bill are to be 
carried out without regard to chapter 35 of title 44, U.S. Code 
(commonly known as the Paperwork Reduction Act). This interim rule 
implements sections 2101-2111 of the 2008 Farm Bill, which are in Title 
II. Accordingly, these provisions of section 2904 apply to this rule.

E-Government Act Compliance

    CCC is committed to complying with the E-Government Act, to promote 
the use of the Internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.

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, (Pub. L. 104-121) 
(SBREFA). SBREFA normally requires that an agency delay the effective 
date of a major rule for 60 days from the date of publication to allow 
for Congressional review. Section 808 of SBREFA allows an agency to 
make a major regulation effective immediately if the agency finds there 
is good cause to do so. Consistent with section 2904(c) of the 2008 
Farm Bill, FSA finds that it would be contrary to the public interest 
to delay implementation of this rule because it would significantly 
delay implementation of the program changes required by the 2008 Farm 
Bill. Therefore, this rule is effective on the date of its publication 
in the Federal Register.

List of Subjects in 7 CFR Part 1410

    Administrative practice and procedure, Agriculture, Environmental 
protection, Natural resources, Reporting and recordkeeping 
requirements, Soil conservation, Technical assistance, Water resources, 
and Wildlife.

0
For the reasons explained above, amend 7 CFR part 1410 as follows:

PART 1410--CONSERVATION RESERVE PROGRAM

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

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


0
2. Revise Sec.  1410.1(j) to read as follows:


Sec.  1410.1  Administration.

* * * * *
    (j) Except as agreed by CCC and the participant together:
    (1) The regulations in this part and others governing CRP as of 
September 30, 2008, will continue to govern contracts in effect as of 
that date (see 7 CFR part 1410 contained in the edition of 7 CFR parts 
1200 to 1599 revised as of January 1, 2008); and
    (2) Except as specified in paragraph (j)(1) of this section, this 
part will apply to all CRP contracts.

0
3. Amend Sec.  1410.2 as follows:
0
a. Revise the definitions in paragraph (b) for ``Annual rental 
payment'' and ``Technical assistance'' to read as set forth below; and
0
b. Add the definition in paragraph (b), in alphabetical order, for the 
term ``Commercial pond-raised aquaculture facility'' to read as set 
forth below.


Sec.  1410.2   Definitions.

* * * * *
    (b) * * *
    Annual rental payment means, unless the context indicates 
otherwise, the annual payment specified in the CRP contract that, 
subject to the availability of funds, is made to a participant to 
compensate a participant for placing eligible land in CRP, including 
any incentive payments that are not specifically cost-shares.
    Commercial pond-raised aquaculture facility means, as determined by 
CCC, any earthen facility from which $1,000 or more of freshwater food 
fish were sold or normally would have been sold during a calendar year.
* * * * *
    Technical assistance means assistance in regard to determining the 
eligibility of land and practices, implementing and certifying 
practices, ensuring contract performance, and providing annual rental 
rate surveys. The technical assistance provided in connection with CRP 
to owners or operators, as approved by CCC, includes technical 
expertise, information, and tools necessary for the conservation of 
natural resources on land; technical services provided directly to 
farmers, ranchers, and other eligible entities, such as conservation 
planning, technical consultation, and assistance with design and 
implementation of conservation practices; and, technical 
infrastructure, including activities, processes, tools, and agency 
functions needed to support delivery of technical services, such as 
technical standards, resource inventories, training, data, technology, 
monitoring, and effects analyses.
* * * * *

[[Page 30912]]

Sec.  1410.3   [Amended]

0
4. Amend Sec.  1410.3 in paragraph (c) by removing the words 
``including encouraging more permanent conservation practices and tree 
planting'' and adding, in their place, the words ``including, as 
appropriate, addressing issues raised by State, regional, and national 
conservation initiatives and encouraging more permanent conservation 
practices, such as, but not limited to, tree planting''.

0
5. Revise Sec.  1410.11 to read to as follows:


Sec.  1410.11   Farmable Wetlands Program.

    (a) In addition to other allowable enrollments, land may be 
enrolled in this program through the Farmable Wetlands Program (FWP) 
within the overall Conservation Reserve Program provided for in this 
part.
    (b) As determined by CCC, eligible owners and operators may enroll 
land in FWP provided that the land:
    (1) Is a wetland, including a converted wetland, as determined by 
CCC, that has been planted or considered planted to an agricultural 
commodity, as defined in Sec.  1410.2, in 3 of the 10 most recent crop 
years and that does not exceed the size limitations of this section;
    (2) Is enrolled to be a constructed wetland that is to be developed 
to receive flow from a row crop agriculture drainage system and is 
designed to provide nitrogen removal in addition to other wetland 
functions and that does not exceed the size limitations of this 
section;
    (3) Was a commercial pond-raised aquaculture facility in any year 
during the period of calendar years 2002 through 2007; or
    (4) Was cropped, after January 1, 1990, and before December 31, 
2002, at least 3 of 10 crop years, was subject to the natural overflow 
of a prairie wetland, and does not exceed the size limitations of this 
section.
    (c) In addition, land may be enrolled in FWP if the land is buffer 
acreage that provides protection for and is contiguous to land 
otherwise eligible under paragraphs (b)(1), (b)(2), or (b)(4) of this 
section, subject to other provisions of this section.
    (d) Total enrollment in CRP under this section may not exceed 1 
million acres. In addition, the maximum size of a land enrolled under 
this section may not exceed, as determined by CCC:
    (1) 40 contiguous acres for land made eligible by paragraph (b)(1) 
of this section;
    (2) 40 contiguous acres for land made eligible by paragraph (b)(2) 
of this section;
    (3) 20 contiguous acres for land made eligible by paragraph (b)(4) 
of this section; or
    (4) A suitable buffer as determined by the Deputy Administrator for 
lands added under paragraph (c) of this section.
    (e) All participants subject to a CRP contract under this section 
must agree to establish and maintain, as appropriate, the practice 
described in paragraph (b) of this section to the maximum extent 
possible, as determined by CCC, in accordance with NRCS FOTG including, 
as appropriate, restoring the hydrology of the wetland and establishing 
vegetative cover (which may include emerging vegetation in water and 
bottomland hardwoods, cypress, and other appropriate tree species in 
shallow water areas), as determined by CCC.
    (f) Offers for contracts under this section must be submitted under 
continuous signup provisions as authorized in Sec.  1410.30.
    (g) Except as otherwise determined by CCC, all other requirements 
of this part apply to enrollments under this section, and CCC may add 
such other requirements or conditions as it deems necessary. Such 
additional conditions include, but are not limited to, payment 
limitations, adjusted gross income limitations, and limitations on the 
amount of acreage that can be enrolled in any one county.

0
6. In Sec.  1410.22, amend paragraph (b) by adding the words ``and 
management activities'' immediately after the word ``practices'' and by 
adding the following sentence at the end of paragraph (b) to read as 
follows:


Sec.  1410.22   CRP conservation plan.

* * * * *
    (b) * * * The producer must undertake management activities on the 
land as needed throughout the term of the CRP contract to implement the 
conservation plan.
* * * * *

0
7. Amend Sec.  1410.40 by adding a new paragraph (g) to read as 
follows:


Sec.  1410.40   Cost-share payments.

* * * * *
    (g) CCC may make cost-share payments for thinning of existing tree 
stands to benefit wildlife habitat and other resource conditions on 
enrolled land, as determined by CCC.

0
8. Amend Sec.  1410.42 by revising paragraph (d) to read as set forth 
below:


Sec.  1410.42  Annual rental payments.

* * * * *
    (d) The maximum amount of rental payments that a person or legal 
entity may receive, directly or indirectly, under CRP for any fiscal 
year must not exceed $50,000. The regulations in part 1400 of this 
chapter will be applicable for determining whether the limit has been 
exceeded.
* * * * *

0
9. Revise Sec.  1410.44 to read as follows:


Sec.  1410.44   Average Adjusted Gross Income.

    (a) Benefits under this part will not be available to persons or 
legal entities whose average adjusted gross income exceeds $1,000,000 
or as further specified in part 1400 subpart F of this chapter.
    (b) The limit specified in paragraph (a) of this section may be 
waived as specified in part 1400 subpart F of this chapter.

0
10. Revise Sec.  1410.53 to read as follows:


Sec.  1410.53   Executed CRP contract not in conformity with 
regulations.

    If, after a CRP contract is approved by CCC, it is discovered that 
such CRP contract is found to contain material errors of fact or is not 
in conformity with this part, these regulations will prevail, and CCC 
may, at its sole discretion, terminate or modify the CRP contract, 
effective immediately or at a later date as CCC determines appropriate.


    Signed at Washington, DC, on June 23, 2009.
Dennis J. Taitano,
Acting for Executive Vice President, Commodity Credit Corporation.
[FR Doc. E9-15305 Filed 6-26-09; 8:45 am]
BILLING CODE 3410-05-P