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 contractsthat 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 Since CRP was originally enacted by the 1985 Farm Bill, there has been an evolution of the types and kinds of land enrolled.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. 104127, 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. 107171, 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 redirect 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 50percent costshare for tree thinning activities; and (3) implementation of new payment limitation applicability and new adjusted gross incomebased 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 noaction alternatives are not feasible, and are used only to demonstrate impacts of the new or revised provisions. The alternatives are:

Based on estimates concerning the amount of land that will be eligible, assumed participation rates and annual enrollment, and estimated peracre 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 2Estimated Costs of CRP Changes in This Rule [$1,000,000] FY 20092012 FY 20132018 FY 20092018 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 downstream 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 nondiscretionary 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 7633176332) 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. 1044) 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 Program10.069.

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 21012111 of the 2008 Farm Bill, which are in Title II. Accordingly, these provisions of section 2904 apply to this rule. EGovernment Act Compliance

CCC is committed to complying with the EGovernment 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. 104121) (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.
For the reasons explained above, amend 7 CFR part 1410 as follows: PART 1410CONSERVATION RESERVE PROGRAM
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. 38013847. 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.
3. Amend Sec. 1410.2 as follows:
a. Revise the definitions in paragraph (b) for ``Annual rental payment'' and ``Technical assistance'' to read as set forth below; and b. Add the definition in paragraph (b), in alphabetical order, for the term ``Commercial pondraised 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 costshares.

Commercial pondraised 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.
* * * * *
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Sec. 1410.3 [Amended]
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''.
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 pondraised 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.
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.
* * * * *
7. Amend Sec. 1410.40 by adding a new paragraph (g) to read as follows:
Sec. 1410.40 Costshare payments.
* * * * *
(g) CCC may make costshare payments for thinning of existing tree stands to benefit wildlife habitat and other resource conditions on enrolled land, as determined by CCC.
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.
* * * * *
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. 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. E915305 Filed 62609; 8:45 am]
BILLING CODE 341005P

FOR FURTHER INFORMATION CONTACT

Beverly J. Preston, CRP Program Manager, at USDA/FSA/CEPD/STOP 0513, 1400 Independence Avenue, SW., Washington, DC 202500513; telephone 2027209563; email:
beverly.preston@wdc.usda.gov. Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.) should contact the USDA Target Center at 2027202600 (voice and TDD).