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Conservation Reserve Program--Emergency Forestry Conservation Reserve Program
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: June 2, 2006 (Volume 71, Number 106)]
[Rules and Regulations]
[Page 31915-31918]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02jn06-1]
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Rules and Regulations
Federal Register
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having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
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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.
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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: kiley.barnes@wdc.usda.gov.
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.
? Accordingly, 7 CFR part 1410 is amended as follows:
PART 1410--CONSERVATION RESERVE PROGRAM
? 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.
? 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.
? 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]
BILLING CODE 3410-01-P