[Federal Register Volume 74, Number 11 (Friday, January 16, 2009)]
[Rules and Regulations]
[Pages 2786-2800]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-827]
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DEPARTMENT OF AGRICULTURE
Natural Resources Conservation Service
7 CFR Part 636
RIN 0578-AA49
Wildlife Habitat Incentive Program
AGENCY: Natural Resources Conservation Service, United States
Department of Agriculture.
ACTION: Interim final rule with request for comment.
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SUMMARY: Section 2602 of the Food, Conservation, and Energy Act of 2008
(2008 Act) amended the Wildlife Habitat Incentive Program (WHIP) by:
Narrowing the program's applicability to private agricultural lands,
nonindustrial private forestland, and Indian land; identifying habitat
on pivot corners and irregular areas as ``other types of wildlife
habitat'' eligible for cost-share; increasing, from 15 to 25, the
percentage of funds that may be used for agreements that have a term of
at least 15 years; providing the Secretary of the United States
Department of Agriculture (USDA) authority to give priority to projects
that would address issues raised by State, regional, and national
conservation initiatives; and instituting an annual $50,000 in direct
or indirect aggregate payment limitations per person or legal entity.
The Natural Resources Conservation Service (NRCS), an agency of USDA,
issues this interim final rule with request for comment to incorporate
statutory changes resulting from the 2008 Act authorization. The Agency
is also using this rule to simplify the regulation and make
administrative changes to improve program efficiency. Cost-share
agreements entered into on or following January 16, 2009 will be
administered according to this interim final rule.
DATES: Effective date: The rule is effective January 16, 2009. Comment
date: Submit comments on or before March 17, 2009.
[[Page 2787]]
ADDRESSES: You may send comments, which will be published in their
entirety, using any of the following methods:
Government-wide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending comments
electronically.
Mail: Financial Assistance Programs Division, Natural Resources
Conservation Service, Wildlife Habitat Incentive Program Comments, P.O.
Box 2890, Room 5237-S, Washington, DC 20013.
Fax: 1-202-720-4265.
Hand Delivery: Room 5237-S of the USDA South Agriculture Building,
1400 Independence Avenue, SW., Washington, DC 20250, between 9 a.m. and
4 p.m., Monday through Friday, except Federal holidays. Please ask the
guard at the entrance to the South Agriculture Building to call 202-
720-4527 in order to be escorted into the building.
FOR FURTHER INFORMATION CONTACT: Director, Financial Assistance
Programs Division, Natural Resources Conservation Service, P.O. Box
2890, Washington, DC 20013-2890. Phone: 202-720-1844. Fax: 202-720-
4265. Persons with disabilities who require alternative means for
communicating (Braille, large print, audiotape, etc.) should contact
the USDA Target Center at 202-720-2600 (voice and TDD).
SUPPLEMENTARY INFORMATION:
Regulatory Certifications
Executive Order 12866
Pursuant to Executive Order 12866, this interim final rule with
request for comment is a significant regulatory action. The
administrative record is available for public inspection in Room 5831
South Building, USDA, 14th and Independence Avenue, SW., Washington,
DC. NRCS conducted an economic analysis of the potential impacts
associated with this program. A summary of the economic analysis can be
found at the end of this preamble and a copy of the analysis is
available upon request from the Director, Financial Assistance Programs
Division, Natural Resources Conservation Service, Room 5237S,
Washington, DC 20250-2890.
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)
Section 2904(c) of the Food, Conservation, and Energy Act of 2008
requires that the Secretary use the authority in section 808(2) of
title 5, United States Code, which allows an agency to forego 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. NRCS hereby determines that it has good cause to do so in order to
meet the Congressional intent to have the conservation programs,
authorized or amended by Title II, in effect as soon as possible.
Accordingly, this rule is effective upon filing for public inspection
by the Office of the Federal Register.
Executive Order 13175
Executive Order 13175 requires agencies to consult and collaborate
with tribes, if policies or actions have substantial direct effects on
tribes. NRCS has determined that this regulation does not have a
substantial direct effect on tribes, since these regulatory provisions
are required by statute, and these provisions do not impose
unreimbursed compliance costs or preempt Tribal law. As a result,
consultation is not required.
Executive Order 13084
Executive Order 13084 requires agencies to consult with Indian
Tribal governments, if the policies uniquely impact tribes. NRCS has
determined that the policies set forth in this regulation are required
by statute and do not uniquely impact tribes and Tribal governments;
therefore, consultation is not required.
Regulatory Flexibility Act
NRCS has determined that the Regulatory Flexibility Act is not
applicable to this final rule because the Natural Resources
Conservation Service is not required by 5 U.S.C. 553,ww. or any other
provision of law, to publish a notice of proposed rulemaking with
respect to the subject matter of this rule.
Environmental Analysis
Availability of the Environmental Assessment (EA) and Finding of No
Significant Impact (FONSI). A programmatic environmental assessment has
been prepared in association with this rulemaking. The analysis has
determined that there will not be a significant impact to the human
environment and as a result an Environmental Impact Statement is not
required to be prepared (40 CFR 1508.13). The EA and FONSI are
available for review and comment for 60 days from the date of
publication of this interim final rule in the Federal Register. A copy
of the EA and FONSI may be obtained from the following Web site: http://www.nrcs.usda.gov/programs/Env_Assess/. A hard copy may also be
requested from the following address and contact: National
Environmental Coordinator, Natural Resources Conservation Service,
Ecological Sciences Division, 1400 Independence Ave., SW., Washington
DC 20250. Comments from the public should be specific and reference
that comments provided are on the EA and FONSI. Public comment may be
submitted by any of the following means: (1) e-mail comments to
[email protected], (2) e-mail to egov Web site--
www.regulations.gov, or (3) written comments to: National Environmental
Coordinator, Natural Resources Conservation Service, Ecological
Sciences Division, 1400 Independence Ave., SW., Washington DC 20250.
Civil Rights Impact Analysis
NRCS has determined through a Civil Rights Impact Analysis that the
interim final rule discloses no disproportionately adverse impacts for
minorities, women, or persons with disabilities. An increased cost-
share payment rate for historically underserved producers, as defined
in Sec. 636.3, is expected to increase participation among these
groups. The data presented indicates producers who are members of the
historically underserved groups have participated in NRCS conservation
programs at parity with other producers. Extrapolating from historical
participation data, it is reasonable to conclude that NRCS programs,
including WHIP, will continue to be administered in a non-
discriminatory manner. Outreach and communication strategies are in
place to ensure all producers will be provided the same information to
allow them to make informed compliance decisions regarding the use of
their lands that will affect their participation in USDA programs. WHIP
applies to all persons equally regardless of their race, color,
national origin, gender, sex, or disability status. Therefore, the WHIP
rule portends no adverse civil rights implications for women,
minorities and persons with disabilities.
Paperwork Reduction Act
Section 2904 of the 2008 Act requires that implementation of
programs under Title II of the Act be made without regard to the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Therefore,
NRCS is not reporting recordkeeping or estimated paperwork burden
associated with this interim final rule.
Government Paperwork Elimination Act
NRCS is committed to compliance with the Government Paperwork
Elimination Act, which requires Government agencies, in general, to
[[Page 2788]]
provide the public the option of submitting information or transacting
business electronically to the maximum extent possible. To better
accommodate public access, NRCS has developed an online application and
information system for public use.
Executive Order 12988
This interim final rule has been reviewed in accordance with
Executive Order 12988. The provisions of this interim final rule are
not retroactive. Furthermore, the provisions of this interim final rule
preempt State and local laws to the extent such laws are inconsistent
with this interim final rule. Before an action may be brought in a
Federal court of competent jurisdiction, the administrative appeal
rights afforded persons at 7 CFR Part 614 must be exhausted.
Unfunded Mandates Reform Act of 1995
NRCS assessed the affects of this rulemaking action on State,
local, and Tribal governments, and the public. This action does not
compel the expenditure of $100 million or more by any State, local, or
Tribal governments, or anyone in the private sector, and therefore, a
statement under section 202 of the Unfunded Mandates Reform Act of 1995
is not required.
Economic Analysis--Executive Summary
The Wildlife Habitat Incentives Program (WHIP) provides direct
technical and financial assistance to improve fish and wildlife habitat
on eligible agricultural and nonindustrial private forest lands. The
focus of the program is on national, regional, and State-directed fish
and wildlife priorities, including rare and declining species. These
priorities are established with input from the regional, State, and
local stakeholders. Because these efforts involve both on-site and off-
site-specific impacts and these impacts affect a host of non-market
valued attributes ecosystem services, performing a traditional benefit-
cost analysis (BCA) is challenging. Even with these limitations, a BCA
offers a means to identify the main costs and benefits and explore
policy and program alternatives.
The primary costs associated with WHIP include the cost-share
outlays by NRCS and the matching funds of the producer to fully pay for
the restoration and improvements in fish and wildlife habitat within
the agricultural or forestry operation. These primary costs must then
be compared with the benefits of the habitat improvement realized
through these efforts, mainly the improvements of the flow of
ecological goods and services (EGS) and provision of non-market valued
amenities, such as more scenic views, as well as providing fish and
wildlife habitat.
The results of this BCA suggest that the WHIP assistance to
participants will result in positive net benefits, especially in areas
where fish and wildlife habitat is deteriorating or being lost. The
changes to WHIP made by the 2008 Act do not change this conclusion.
Copies of the Economic Analysis may be obtained from the Director,
Financial Assistance Programs Division, Natural Resources Conservation
Service, P.O. Box 2890, Washington, DC 20013-2890.
Section 2904 of the Food, Conservation, and Energy Act of 2008
The Commodity Credit Corporation (CCC) is not required by 5 U.S.C.
553 or by any other provision of law, to publish a notice of proposed
rulemaking with respect to the subject matter of this rule. Section
2904 of the 2008 Act requires regulations to be published within 90
days after the date of enactment and authorizes the CCC to promulgate
an interim final rule effective upon publication with an opportunity
for notice and comment. CCC has determined that an interim final rule
is necessary to expedite the effective date of rulemaking in order to
meet the intent of Section 2904.
Discussion of Program
The Wildlife Habitat Incentive Program (WHIP) is a voluntary
program administered by NRCS, using the funds and authorities of the
Commodity Credit Corporation (CCC). WHIP is available in all 50 states,
Puerto Rico, Guam, the Virgin Islands of the United States, American
Samoa, and the Commonwealth of the Northern Mariana Islands. Through
WHIP, NRCS provides technical and financial assistance to participants
to develop upland, wetland and aquatic wildlife habitat, as well as
fish and wildlife habitat on other areas, and to develop habitat for
threatened and endangered species. NRCS first allocated funds for WHIP
in 1997. Over the life of the program, NRCS has entered into over
25,600 cost-share agreements that cover over 4 million acres.
WHIP was originally authorized under section 387 of the Federal
Agriculture Improvement and Reform Act of 1996 (the 1996 Act), Public
Law 104-127. In 1997, NRCS published regulations to implement WHIP at 7
CFR 636. Section 2502 of the Farm Security and Rural Investment Act of
2002 (the 2002 Act), Public Law 107-171, repealed the original WHIP
statute and established a new WHIP under Section 1240N of the Food
Security Act of 1985, as amended (the 1985 Act). Section 2602 of the
Food, Conservation, and Energy Act of 2008 (2008 Act) made further
changes to WHIP.
In 1997, NRCS published regulations to implement WHIP at 7 CFR Part
636. The 2002 Act authorized WHIP agreements with a duration of at
least 15 years, and NRCS amended the 1997 regulation, by incorporating
this change in a final rule published on July 24, 2002. NRCS publishes
this interim final rule to incorporate the changes in the 2008 Act. In
addition, NRCS is using this rulemaking opportunity to implement
program improvements based upon NRCS's experience in administering WHIP
and other conservation programs, as well as input from program
participants and stakeholders.
In addition, the United States Department of Agriculture (USDA)
held Farm Bill forums throughout the country in 2005 to solicit input
from producers and other stakeholders about future farm policy. USDA
received more than 4,000 comments through this process, including
recommendations related to WHIP. In summary, NRCS makes changes to the
WHIP regulation through this interim final rule, described more fully
below, to reflect changes made by the 2008 Act, consideration of public
input from the Farm Bill forums, and opportunities identified by NRCS
to improve program administration.
Summary of Statutory Changes
Section 2602(a)--Program Focus
The original WHIP legislation, published in 1996, contained broad
language to promote implementation of wildlife habitat development
practices by providing participants cost-share assistance for
developing a wildlife management plan and implementing eligible
activities under the plan. Prior to the 2008 Act, WHIP was available to
develop habitat on private and public lands, and available to
landowners and operators, provided that operators gave NRCS evidence
they had control of the land for the duration of the WHIP agreement.
NRCS focused the majority of WHIP funds on private lands. However,
the NRCS State Conservationist, in consultation with the State
Technical Committee, could allow exceptions to the private land focus
when significant wildlife habitat gains could only be achieved by
installing practices on non-Federal public land. In addition, Indian
land, formerly known as Tribal lands,
[[Page 2789]]
regardless of their status in terms of Federal trust lands, and Federal
lands were eligible in those very limited circumstances where the
benefit is primarily on the private lands, but must include some
Federal land to meet the WHIP objective.
Section 2602(a) of the 2008 Act amends Section 1240N(a) of the 1985
Act to restrict eligible land to private agricultural land,
nonindustrial private forest land, and Indian land. This restriction
requires NRCS to make changes to the applicability, definitions, and
program requirement sections of the WHIP regulation. In particular,
this rulemaking adds definitions for ``agricultural lands,'' ``Indian
land,'' and ``nonindustrial private forest land.'' These terms are
defined in Sec. 636.3 of this regulation.
NRCS also amends Sec. 636.1(a) to reflect the changes made to land
eligibility by the 2008 Act. In Sec. 636.4, NRCS redesignates the
existing Sec. 636.4(b) as Sec. 636.4(c), and adds a new Sec.
636.4(b) to identify eligible land as private agricultural land,
nonindustrial private forest land, and Indian land.
Section 2602(b) of the 2008 Act--Other Types of Wildlife Habitat
Section 2602(b) of the 2008 Act amends Section 1240N(b) of the 1985
Act to clarify ``other types of habitat'' includes habitat developed on
pivot corners and irregular areas. The current regulation encompasses
these types of habitats, and therefore, NRCS determined that it did not
need to amend the WHIP rule to reflect this statutory clarification.
NRCS will ensure that its policy guidance identifies such habitat as
eligible for enrollment.
2008 Act Section 2602(c)--Cost-Share Rates
The original WHIP legislation, published in 1996, did not specify
either a cost-share rate or an agreement length for WHIP cost-share
agreements. However, NRCS, in its 1997 final rule, specified that NRCS
would not pay more than 75 percent of the cost of establishing wildlife
habitat development practices, except in the case of long-term
agreements. Further, NRCS reduced the cost-share payment to a
participant proportionately below 75 percent to the extent that direct
Federal financial assistance was provided to the participant from other
sources. The 1997 WHIP rule also specified that WHIP cost-share
agreements would be for a period of 5 to 10 years, unless a shorter
period was recommended to address situations where wildlife was
threatened as a result of a disaster.
The 2002 Act authorized the Secretary to use up to 15 percent of
program funds to provide additional cost-share payments to participants
to protect and restore essential plant and animal habitat under long-
term agreements with durations of at least 15 years. The 2002 final
rule reflected the new authority for entering into long-term agreements
while the percentage of funds to be made available for such agreements
was addressed in Agency policy. Section 2602(c) of the 2008 Act
increases the proportion of annual funds available for long-term
agreements to not more than 25 percent but makes no other changes to
long-term agreements. In response to Section 2602(c), NRCS adds the
provision to allow up to 25 percent of WHIP funds to be used to carry
out cost-share agreements that extend 15 years or more.
Section 2602(d) of the 2008 Act--Priority Initiatives
Section 2602(d) provides the Secretary discretionary authority to
give priority to projects that would address issues raised by State,
regional, and national conservation initiatives. These State, regional,
and national initiatives include, for example: the North American
Waterfowl Management Plan, the National Fish Habitat Action Plan, the
Greater Sage Grouse Conservation Society, the State Comprehensive
Wildlife Conservation Strategies (also referred to as the State
Wildlife Action Plans), the Northern Bobwhite Conservation Initiative,
the Gulf of Hypoxia Action Plan 2008 (and associated annual operating
plans), and State forest resource strategies. This change clarifies
discretionary authority provided in the program's original statutory
language. Section 636.5(c)(1) of the 1997 WHIP rule identified criteria
that NRCS used to evaluate applications and make enrollment decisions,
including ``Contribution to resolving an identified habitat problem of
national, regional, or state importance.'' Section 636.5 is
redesignated as Sec. 636.6 and in response to the 2008 Act, NRCS
revises Sec. 636.6(c)(1) to read as follows: ``Contribution to
resolving an identified habitat concern of national, regional, or state
importance.'' In particular, NRCS replaces the word ``problem'' with
the word ``concern'' to reflect a broader spectrum of wildlife issues.
Further, in Sec. 636.6(a), NRCS replaces the term ``national and
regional needs'' with ``national, regional, and State wildlife habitat
concerns.'' Finally, in Sec. 636.8(a)(2), NRCS states that ``wildlife
habitat concerns identified in State, regional, and national
conservation initiatives'' are one of the possible items required to be
addressed in the WHIP plan of operations (WPO).
Section 2602(e) of the 2008 Act--Payment Limitations
Section 2602(e) of the 2008 Act establishes the following payment
limitation: ``Payments made to a person or legal entity, directly or
indirectly, under [WHIP] may not exceed, in the aggregate, $50,000 per
year.'' NRCS incorporates this change in Sec. 636.7(f).
Summary of Changes to the Regulation
In addition to the amendments being made to address 2008 Act
changes, NRCS amends the WHIP regulations at 7 CFR Part 636 through
this interim final rule to incorporate administrative changes to
simplify the regulatory language, align WHIP policies with other NRCS
conservation programs, and improve the efficiency of program
administration. NRCS describes these changes below in the section-by-
section analysis.
Section 636.1, Applicability
NRCS amends Sec. 636.1(a) by making several changes. In
particular, NRCS replaces the phrase ``for upland wildlife, wetland
wildlife, threatened and endangered species, fish, and other types of
wildlife'' with the phrase ``develop fish and wildlife habitat on
private agricultural land, nonindustrial private forest land, and
Indian land.'' NRCS determined that the simplified language provides
the appropriate broad interpretation for the types of habitat to be
developed on eligible lands, including a new statutory requirement to
encourage the development of habitat for native and managed
pollinators.
Section 636.2, Administration
NRCS makes several adjustments to Sec. 636.2 to help clarify
program administration. In particular, NRCS adds the following
statement to Sec. 636.2(a) to clarify the relationship between NRCS
and the Commodity Credit Corporation (CCC): ``The funds, facilities,
and authorities of the Commodity Credit Corporation (CCC) are available
to NRCS to carry out WHIP. Accordingly, where NRCS is mentioned in this
part, it also refers to CCC's funds, facilities, and authorities, where
applicable.'' NRCS has had legal authority to use CCC funds to
implement WHIP since the 2002 Act. By adding this language to the WHIP
rule, NRCS identifies that it may use CCC funds to deliver WHIP.
NRCS makes several changes to Sec. 636.2(c) to align WHIP
terminology with the terms used by other NRCS financial assistance
programs. In
[[Page 2790]]
particular, NRCS replaces the term ``cooperative agreements'' with the
term ``agreements'' to reflect the full scope of funding arrangements
into which NRCS may enter. The change does not alter the authority or
opportunities for entering into agreements.
NRCS also adds ``Indian tribes,'' ``private organizations,'' and
``individuals'' to the list of entities with which NRCS may enter into
agreements. NRCS merges Sec. 636.2(d) with Sec. 636.2(c) to simplify
and clarify the WHIP regulation, eliminating redundant language.
Therefore, NRCS redesignates Sec. Sec. 636.2(e) and (f) as Sec. Sec.
636.2(d) and (e), respectively. NRCS removes the subjective term
``reasonable'' in the redesignated Sec. 636.2(d), and revises
redesignated paragraph Sec. 636.2(e) to clarify that the Chief can
override decisions made by his delegates if necessary to uphold WHIP
purposes.
Section 636.3, Definitions
NRCS changes many of the definitions in the WHIP rule to be
consistent with other NRCS conservation programs and to avoid confusion
among NRCS field personnel and customers. Specifically, NRCS revises
the following existing definitions for ``Chief,'' ``Conservation
district,'' ``Cost share agreement,'' ``Participant,'' ``Person,''
``State Conservationist,'' and ``Wildlife.''
NRCS adds the following terms and definitions to the WHIP
regulation to be consistent with related NRCS conservation programs. In
particular, NRCS adds definitions for ``Agricultural lands,''
``Applicant,'' ``At-risk species,'' ``Beginning farmer or rancher,''
``Conservation practice,'' ``Designated conservationist,'' ``Field
office technical guide (FOTG),'' ``Historically underserved producer,''
``Indian tribe,'' ``Indian land,'' ``Joint operation,'' ``Legal
entity,'' ``Lifespan,'' ``Limited resource farmer or rancher,''
``Liquidated damages,'' ``Livestock,'' ``Natural Resources Conservation
Service (NRCS),'' ``Nonindustrial private forestland,'' ``Operation and
maintenance,'' ``Operation and maintenance (O&M) agreement,''
``Producer,'' ``Resource concern,'' ``Secretary,'' ``Socially
disadvantaged farmer or rancher,'' ``Technical assistance,'' and
``Technical service provider (TSP).'' Specifically, NRCS requests
public comment on how to tailor the current definition of ``at-risk
species'' to assist species in greatest need. As currently defined,
``at risk species means any plant or animal species as determined by
the State Conservationist, with advice from the State Technical
Committee, to need direct intervention to halt its population
decline.'' NRCS removes the terms ``Conservation Plan'' and ``Recurring
Practice'' since these terms are not used in the WHIP regulation.
NRCS revises several existing terms to clarify WHIP program
purposes. In particular, NRCS revises the definition of ``Cost-share
payment'' to be more comprehensive by including the language ``other
goals consistent with the program.'' NRCS revises the definition of
``Habitat development'' to clarify that ``conservation practices'' are
undertaken to establish, improve, protect, enhance, or restore land to
improve conditions for wildlife. NRCS replaces the term ``Practice''
with ``Conservation practice'' and defines the term consistent with the
definition used in related NRCS conservation programs. NRCS adds the
definitions of ``Historically underserved producer'' to reference
applicants who may be eligible for additional cost-share assistance as
described in Sec. 636.7(a)(2) as a beginning farmer or rancher, a
limited resource farmer or rancher, or a socially disadvantaged farmer
or rancher. Correspondingly, definitions are added for ``Beginning
farmer or rancher,'' ``Limited resource farmer or rancher,'' and
``Socially disadvantaged farmer or rancher.'' The gross farm sales
criterion in the ``Limited resource farmer or rancher'' definition is
updated to reflect the adjustment for inflation. These definitions for
are consistent with the changes to definitions in other NRCS
conservation programs.
Finally, NRCS replaces the term ``Wildlife habitat development
plan'' with the term ``WHIP plan of operations (WPO)'' in Sec. 636.7,
and consequently adds ``WPO'' to Sec. 636.3. This change further
aligns Sec. 636.3 with the definitions in related NRCS conservation
programs that identify a plan of operations rather than a development
plan. NRCS replaces the terms ``wildlife habitat development plan'' and
``WHDP'' to ``WHIP plan of operations'' and ``WPO,'' respectively
throughout the entire regulation.
Section 636.4, Program Requirements
NRCS amends Sec. 636.4 to clarify some of the existing program
requirements that have not been identified in the WHIP regulation
because they apply through other statutory requirements. However, NRCS
finds that reference to these requirements in the WHIP regulation is
important so that prospective participants are aware of them. In
particular, NRCS revises Sec. 636.4(a) to clarify that WHIP
participants are subject to the highly erodible and wetland
conservation provisions found at 7 CFR Part 12. Additionally, NRCS
includes reference to the Adjusted Gross Income (AGI) limitations, 7
CFR Part 1400, that apply to WHIP participants since WHIP has become a
Title XII conservation program. In order to comply with AGI
requirements, legal entities must provide to NRCS a list of members,
including members in embedded entities, along with their social
security numbers and percent interest in the legal entity.
NRCS adds new program requirements through this interim final rule
to improve program administration and to ensure that WHIP program goals
are met. In particular, NRCS adds paragraph (a)(2) to require WHIP
participants to be in compliance with terms of all other USDA-
administered conservation program contracts to which they are a party.
In this manner, NRCS ensures that a participant who receives NRCS
conservation benefits is meeting their existing responsibilities prior
to receiving additional assistance.
NRCS also adds paragraph (a)(3) related to the implementation of
the WHIP plan of operations and the associated operations and
management (O & M) agreement to ensure consistency between Sec. 636.4
and changes made to Sec. 636.3 and Sec. 636.8.
NRCS also adds several provisions related to payment matters. In
particular, one paragraph (a)(9) clarifies that payments made to Tribal
groups may exceed the payment limitation if the Bureau of Indian
Affairs or a Tribal official certifies that no one individual will
receive more than the established payment limitation.
Additionally, NRCS adds paragraph (a)(10) to clarify that
participants must supply NRCS with information needed to determine
program eligibility, including information required to determine an
applicant's status as a limited resource or beginning farmer or
rancher. Finally, NRCS adds paragraph (a)(11) that requires
participants that use an alternative identifier, rather than a tax
identification number, to continue to use that same identifier in all
WHIP cost-share agreements.
NRCS makes several adjustments to Sec. 636.4(b) to incorporate the
2008 Act changes to land eligibility and to conform the language to the
new definitions described in Sec. 636.3. In particular, NRCS
identifies in Sec. 636.4(b) that eligible lands include agricultural
land, nonindustrial private forest land, and Indian land, as defined in
Sec. 636.3.
NRCS also revises Sec. 636.4(c) to incorporate changes to clarify
land ineligibility. In particular, NRCS deletes the phrase ``through
other forms of assistance or without assistance,'' since
[[Page 2791]]
the manner in which an applicant achieved habitat objectives is
immaterial to the determination that such lands are ineligible for
participation in the program. NRCS also deletes reference to the
attainability of wildlife habitat on offered lands since that
consideration is more appropriately addressed in ranking criteria. In
accordance with Section 1240N(a) of the 1985 Act, as amended by Section
2602 of the 2008 Act, public land is ineligible for WHIP assistance.
Section 636.5, National Priorities
NRCS inserts a new Sec. 636.5, and redesignates the subsequent
sections accordingly. The new Sec. 636.5 provides that NRCS will
establish National Priorities to guide funding to the State offices,
selection of WHIP cost-share agreements, and implementation priority
for WHIP conservation practices. This new section also states that the
national priorities will be reviewed annually by NRCS to ensure that
the program is addressing priority wildlife habitat concerns. This
addition makes WHIP consistent with other NRCS conservation programs.
Section 636.6, Establishing Priority for Enrollment in WHIP
NRCS amends Sec. 636.6(a) by replacing ``needs'' with ``wildlife
habitat concerns.'' NRCS also amends Sec. 636.6(a) by adding the
following sentence, ``NRCS, in consultation with Federal and state
agencies and conservation partners, may identify priorities for
enrollment in WHIP that will complement the goals and objectives of
relevant fish and wildlife conservation initiatives at the State,
regional, and national levels.'' These changes clarify that NRCS may
focus program implementation in any given year to respond to national,
regional, state wildlife habitat concerns, identified by NRCS in
partnership with other Federal and State agencies. Local wildlife
habitat concerns issues may be elevated to the appropriate State
Conservationist in an effort to address specific habitat development
needs.
NRCS amends Sec. 636.6(b) by striking the term ``species,''
consistent with the program purpose of development of wildlife habitat.
While the intent of such development is to benefit wildlife species,
the program focus is on the land and water resources covered by cost-
share agreements entered into under the program.
NRCS adds a new ranking criteria to Sec. 636.6(c) to allow NRCS to
consider a participants' willingness to complete habitat development
within two years of the cost-share agreement. This criterion is
intended to encourage quicker implementation of wildlife habitat
improvements and reduce the number of modifications and cancellations.
NRCS deletes Sec. 636.6(d) since the function of denying applications
is better addressed in the application ranking process.
Section 636.7, Cost-Share Payments
NRCS replaces the term ``WHDP'' with ``WPO,'' to correspond with
the changes NRCS makes to Sec. Sec. 636.3 and 636.8. Like the WHDP,
WPO is the document that identifies the location and timing of
conservation practices that the participant agrees to implement on
eligible land in order to address the priority resource concerns. NRCS
has chosen to change this terminology to make it consistent with other
financial assistance programs administered by NRCS.
NRCS revises Sec. 636.7(a)(1) to reflect that ``NRCS shall offer
to pay no more than 75 percent of the costs of establishing
conservation practices,'' consistent with changes made in Sec. 636.3.
NRCS also adds a new provision under Sec. 636.7(a) to allow NRCS to
provide additional cost-share incentives to ``historically underserved
producers'' and Indian tribes. ``Historically underserved producers''
include limited resource, beginning farmers or ranchers, and socially
disadvantaged farmers or ranchers. This addition is consistent with the
authority provided under Section 1244 of the 1985 Act, as amended by
Section 2708 of the 2008 Act, to provide additional incentives for
certain farmers, ranchers, and Indian tribes, which reads as follows:
(a) Incentives for Certain Farms and Ranchers and Indian tribes:
(1) Incentives Authorized. In carry out any conservation program
administered by the Secretary, the Secretary may provide to a person
or entity specified in paragraph (2) incentives to participate in
the conservation program--
(i) To foster new farming and ranching opportunities; and
(ii) To enhance long-term environmental goals.
(2) Covered Persons. Incentives authorized by paragraph (1) may
be provided to the following:
(i) Beginning farmers or ranchers;
(ii) Socially disadvantaged farmers or ranchers;
(iii) Limited resource farmers or ranchers; and
(iv) Indian tribes.
Under this authority, which applies to all conservation programs
implemented by the Secretary, NRCS proposes in this rulemaking to
increase WHIP cost-share rates to the participants identified under
Section 1244(a)(2) of the 1985 Act, as amended. Since WHIP's
legislative authority does not establish a definitive payment rate,
NRCS is adopting in Sec. 636.7 the Environmental Quality Incentives
Program's cost-share rate policies for historically underserved
producers. The payment rate for historically underserved producers is
the applicable payment rate and an additional payment rate that is no
less than 25 percent above the applicable payment rate, provided this
increase does not exceed 90 percent of the estimated incurred costs
associated with the conservation practice. This proposal not only
enables those who are less capable of matching Federal assistance to
receive additional program support, but also supports the NRCS effort
to streamline program policies where possible.
NRCS revises Sec. 636.7(b) by relocating to Sec. 636.8(e) the
requirement that the participant or designee is responsible for the
implementation of the WPO. The reference to the source of
implementation is more appropriately in the section related to the WPO.
NRCS also adds new paragraphs (c) and (d) to Sec. 636.7, and
redesignates the former Sec. 636.7(c) as (e). NRCS clarifies in the
new Sec. 636.7(c) that conservation practices implemented prior to an
applicant submitting an application to the program are ineligible for
payments. Additionally, NRCS clarifies in Sec. 636.7(c) that
conservation practices implemented or initiated prior to the approval
of a cost-share agreement are ineligible for payment, unless NRCS
grants a waiver in advance. Section 636.7(d) clarifies existing policy
that NRCS will identify and provide public notification of the
conservation practices eligible for cost-share payments under the
program.
NRCS also adds new paragraphs (f) through (j) to Sec. 636.7 to be
consistent with related NRCS conservation programs. More particularly,
Sec. 636.7(f) incorporates the payment limitation as established by
the 2008 Act. Section 636.7(g) states that adjusted gross income (AGI)
eligibility will be determined prior to cost-share agreement approval.
Section 636.7(h) allows for current year cost-adjustment for
conservation practices, subject to the availability of funds. NRCS
clarifies in Sec. 636.7(i) that NRCS will not make a payment for a
conservation practices under WHIP if the participant has already
received a payment for the same practice on the same land under another
USDA conservation program. Section 636.7(j) requires that the
participant and NRCS, or an approved TSP, certify that the conservation
practices have been
[[Page 2792]]
carried out in accordance with the cost-share agreement and agency
standards prior to issuing final cost-share payments.
Lastly, NRCS adds paragraph (k) in accordance with Section
1240N(b)(2)(B) that specifies the NRCS may use up to 25 percent of WHIP
funds to carry out cost-share agreements that extend 15 years or more.
Prior to the 2008, NRCS had the legislative authority to use up to 15
percent of WHIP funds to carry out these longer term agreements.
Section 636.8, WHIP Plan of Operations (WPO)
NRCS changes the caption, ``Wildlife Habitat Development Plan,'' to
``WHIP plan of operations (WPO),'' consistent with how related NRCS
conservation programs identify the document that contains the
information related to practices and activities to be implemented under
the program.
NRCS makes several revisions to Sec. 636.8(a) to reduce the
administrative burden upon participants. In particular, NRCS removes
the language ``and the WHDP is approved by participant, NRCS, and the
local conservation district'' as a result of the need to protect
personally identifiable information in accordance with Section 1619 of
the 2008 Act. This change also was recommended by comments received by
USDA through the Farm Bill forums.
NRCS revises Sec. 636.8(b) to clarify the NRCS expectation that
the program participant will maintain WHIP-funded conservation
practices as specified in the O&M agreement that is consistent with
other NRCS conservation programs. NRCS also removes the requirement
that a program participant has to sign both the cost-share agreement
and the WPO by adding the following language: ``the WPO * * * shall be
attached and included as part of the cost-share agreement.''
NRCS revises Sec. 6363.8(d) to clarify that all conservation
practices planned in the WPO are in accordance with the NRCS field
office technical guide (FOTG), consistent with related NRCS
conservation programs.
Finally, as indicated above, NRCS incorporates into Sec. 636.8(e)
the requirement contained previously in Sec. 636.7(b) that a
participant is responsible for the implementation of the WPO.
Section 636.9, Cost-Share Agreements
NRCS amends Sec. 636.9(a) to update the locations available for
submitting an application to participate in WHIP. This change serves to
notify the public of all the avenues available for submitting
applications.
Under Sec. 636.9(b)(2), NRCS revises the duration of the cost-
share agreement from the former 5- to 10-year duration to a minimum
duration of one year and a maximum of 10 years, with the exception of
long-term agreements as established under Sec. 636.9(c). This new
language provides the flexibility needed for establishing agreement
lengths based on wildlife habitat needs and other factors.
NRCS removes Sec. 636.9(b)(4) because the operation and
maintenance requirements are included in the O&M agreement.
Correspondingly, paragraphs (b)(5) and (6) of this section are
redesignated as (b)(4) and (5), respectively. NRCS adds a new Sec.
636.9(b)(6) to clarify that payment limits will be specified in the
cost-share agreement, consistent with related NRCS conservation
programs. NRCS also adds a new Sec. 636.9(b)(7) that states that the
O&M agreement expresses the NRCS expectation that participants will
operate and maintain conservation practices installed with program
assistance for the lifespan of the installed practices. NRCS has
developed this O&M agreement for two reasons: (1) To increase the
transparency of a participant's contract responsibilities; and (2) to
ensure these conservation practices are maintained for the length of
time for which they were designed and created. The previous Sec.
636.9(b)(7) has been redesignated as Sec. 636.9(b)(8).
NRCS removes Sec. 636.9(c) pursuant to modifications in the cost-
share agreement terms made in Sec. 636.8(b)(2). NRCS redesignates
Sec. 636.9(d) as Sec. 636.9(c), and revises Sec. 636.9(c)(3), to
establish a maximum cost-share rate of 90 percent for conservation
practices installed under long-term cost-share agreements where the
duration of the agreement is for 15 years or longer.
Section 636.10, Modifications
NRCS simplifies the language in Sec. 636.10(a) to reduce the
number of steps required to modify a cost-share agreement and protect
personally identifiable information. This change also ensures that the
WPO and O&M agreement are also modified along with the cost-share
agreement. NRCS deletes Sec. 636.10(b) as redundant to Sec.
636.10(a), and redesignates existing Sec. 636.10(c) as Sec.
636.10(b). Section 636.10(c) is added to ensure that in the event a
conservation practice fails through no fault of the participant, the
State Conservationist may issue payments to re-establish the
conservation practice, in accordance with established payment rates and
limitations.
Section 636.11, Transfer of Interest in a Cost-Share Agreement
NRCS makes several formatting changes in this section to improve
its structure. In particular, Sec. Sec. 636.11(a)(2), (b)(1), and
(b)(2) have been redesignated as Sec. Sec. 636.11(c), (d), and (e),
respectively. NRCS makes these changes to simplify the original
formatting.
NRCS revises Sec. 636.11(a) to simplify and clarify that
participants must notify NRCS if they anticipate loss of control over
the land covered by a cost-share agreement, consistent with related
NRCS conservation programs. NRCS adds a new Sec. 636.11(b) to address
the transfer of responsibilities under WHIP cost-share agreements,
consistent with other NRCS conservation programs.
Section 636.12, Termination of Cost-Share Agreements
NRCS revises Sec. 636.12(a) to clarify that NRCS may unilaterally
terminate a cost-share agreement under certain circumstances. NRCS
deletes Sec. 636.12(a)(2) because the circumstances identified in that
provision are already addressed by Sec. 636.12(a)(1). Accordingly,
NRCS redesignates Sec. 636.12(a)(3) as Sec. 636.12(a)(2) and adds a
new Sec. 636.12(a)(3) that specifies that a participant's failure to
correct a violation within the allowed time period also is cause for
termination.
NRCS revises Sec. 636.12(b) related to cost-share agreement
termination to clarify that participants also may forfeit rights to
future payments, be assessed liquidated damages, or be determined
ineligible for further conservation program funding. NRCS also adds
Sec. 636.12(c) to specify that NRCS may reduce costs recovered after a
termination decision based on a participant's good faith effort. These
revisions align WHIP administration with other NRCS conservation
program administration policies concerning cost-share agreement
termination and the resulting financial consequences and requirements.
Section 636.13, Violations and Remedies
NRCS reformats some of the provisions in this section to improve
the overall structure. Additionally, NRCS deletes the original Sec.
636.13(b), which is identified in the existing regulation as
``reserved.''
In Sec. 636.13(a), NRCS removes the word ``reasonable'' in
reference to participant violation notification. The term
``reasonable'' is unnecessary since a 60-day time frame is already
provided in which a participant has the opportunity to initiate actions
needed to
[[Page 2793]]
correct a violation. Section 636.13(a) now provides that ``NRCS shall
give the parties to the cost-share agreement notice of the violation
and a minimum of 60 days to correct the violation and comply with the
terms of the cost-share agreement and attachments thereto.''
NRCS revises Sec. 636.13(b) to include, consistent with other NRCS
conservation programs, the assessment of liquidated damages as a
possible consequence to a violation of a cost-share agreement.
Liquidated damages are not a penalty, but a recognition that some of
the damages incurred upon the breach of a party's agreement may not be
easily calculated, but are known to occur, such as expenses incurred by
NRCS to service the cost-share agreement
Section 636.14, Misrepresentation and Scheme or Device
NRCS amends Sec. 636.14 to be in accordance with the other
financial assistance programs administered by NRCS. Specifically, NRCS
inserts language concerning the collection of liquidated damages and
possible cancellation of all other NRCS contracts if a person is a
participant and knowingly misrepresented any fact that affected program
determination of their WHIP cost-share agreement.
Section 636.15, Offsets and Assignments
No changes have been made in this section.
Section 636.16, Appeals
No changes have been made in this section.
Section 636.17, Compliance With Regulatory Measures
NRCS adds Sec. 636.17 to identify clearly a participant's
responsibilities associated with other regulatory measures. This change
reflects standard NRCS language applicable to multiple programs.
Section 636.18, Technical Services Provided by Qualified, Non-USDA
Personnel
NRCS adds Sec. 636.18 to incorporate the Technical Service
Provider provisions in place since 2002, but not included in the
regulation. This section is consistent with related NRCS conservation
programs.
Section 636.19, Access to Operating Unit
NRCS adds Sec. 636.19 to be consistent with related NRCS
conservation programs. This section provides NRCS personnel authorized
physical access to projects undertaken by participants in order to
review project progress and give further assistance to participants
where it is needed.
Section 636.20, Equitable Relief
NRCS adds Sec. 636.20 to be consistent with other NRCS
conservation programs. This section clarifies that WHIP participants
who acted in good faith based on erroneous information provided by NRCS
or its representatives are entitled to equitable relief if such action
resulted in a violation of the cost-share agreement.
Section 636.21, Environmental Services Credits for Conservation
Improvements
NRCS adds Sec. 636.21, which states that NRCS recognizes that
environmental benefits will be achieved by implementing conservation
practices funded through WHIP, and that environmental credits may be
gained as a result of implementing these activities. NRCS asserts no
direct or indirect interest in these credits. However, NRCS retains the
authority to ensure that the requirements for WHIP-funded improvements
are met and maintained consistent with the terms of the cost-share
agreement. Where activities may affect the land covered by a WHIP cost-
share agreement, participants are highly encouraged to request a
compatibility assessment from NRCS prior to entering into any
environmental credit agreements. This section is consistent with the
policy that is being adopted in multiple NRCS programs.
Section 2708, ``Compliance and Performance,'' of the 2008 Act added
a paragraph to Section 1244(g) of the 1985 Act entitled,
``Administrative Requirements for Conservation Programs,'' which states
the following:
``(g) Compliance and performance.--For each conservation program
under Subtitle D, the Secretary shall develop procedures--
(1) To monitor compliance with program requirements;
(2) To measure program performance;
(3) To demonstrate whether long-term conservation benefits of
the program are being achieved;
(4) To track participation by crop and livestock type; and
(5) To coordinate activities described in this subsection with
the national conservation program authorized under section 5 of the
Soil and Water Resources Conservation Act of 1977 (16 U.S.C.
2004).''
This new provision presents in one place the accountability
requirements placed on the Agency as it implements conservation
programs and reports on program results. The requirements apply to all
programs under Subtitle D, including the Wetlands Reserve program, the
Conservation Security Program, the Conservation Stewardship Program,
The Farm and Ranch Lands Protection Program, the Grassland Reserve
Program, the Environmental Quality Incentives Program (including the
Agricultural Water Enhancement Program), the Wildlife Habitat Incentive
Program, and the Chesapeake Bay Watershed initiative. These
requirements are not directly incorporated into these regulations,
which set out requirements for program participants. However, certain
provisions within these regulations relate to elements of Section
1244(g) of the 1985 Act and the Agency's accountability
responsibilities regarding program performance. NRCS is taking this
opportunity to describe existing procedures that relate to meeting the
requirements of Section 1244(g) of the 1985 Act, and Agency
expectations for improving its ability to report on each program's
performance and achievement of long-term conservation benefits. Also
included is reference to the sections of these regulations that apply
to program participants and that relate to the Agency accountability
requirements as outlined in Section 1244(g) of the 1985 Act.
Monitor compliance with program requirements. NRCS has established
application procedures to ensure that participants meet eligibility
requirements, and follow-up procedures to ensure that participants are
complying with the terms and conditions of their contractual
arrangement with the government and that the installed conservation
measures are operating as intended. These and related program
compliance evaluation policies are set forth in Agency guidance (M--
440--512 and M--440--517 (http://directives.sc.egov.usda.gov/).
The program requirements applicable to participants that relate to
compliance are set forth in these regulations in Sec. 636.4, ``Program
Requirements,'' Sec. 636.8, ``WHIP Plan of Operations'', and Sec.
636.9, ``Cost-share agreements.'' These sections make clear the general
program eligibility requirements, participant obligations for
implementing a WHIP plan of operations, participant cost-share
agreement obligations, and requirements for operating and maintaining
WHIP-funded conservation improvements.
Measure program performance. Pursuant to the requirements of the
Government Performance and Results Act of 1993 (Pub. L. 103-62, Sec.
1116) and guidance provided by OMB Circular A-11, NRCS has established
performance measures for its conservation programs. Program-funded
conservation activity is captured through automated field-level
business
[[Page 2794]]
tools and the information is made publicly available at: http://ias.sc.egov.usda.gov/PRSHOME/. Program performance also is reported
annually to Congress and the public through the annual performance
budget, annual accomplishments report and the USDA Performance
Accountability Report. Related performance measurement and reporting
policies are set forth in Agency guidance (GM--340--401 and GM--340--
403 (http://directives.sc.egov.usda.gov/).)
The conservation actions undertaken by participants are the basis
for measuring program performance--specific actions are tracked and
reported annually, while the effects of those actions relate to whether
the long-term benefits of the program are being achieved. The program
requirements applicable to participants that relate to undertaking
conservation actions are set forth in these regulations in Sec. 636.8,
``WHIP Plan of Operations'' and Sec. 636.9, ``Cost-share agreements.''
These sections make clear participant obligations for implementing,
operating, and maintaining WHIP-funded conservation improvements, which
in aggregate result in the program performance that is reflected in
Agency performance reports.
Demonstrate whether long-term conservation benefits of the program
are being achieved. Demonstrating the long-term natural resource
benefits achieved through conservation programs is subject to the
availability of needed data, the capacity and capability of modeling
approaches, and the external influences that affect actual natural
resource condition. While NRCS captures many measures of ``output''
data, such as acres of conservation practices, it is still in the
process of developing methods to quantify the contribution of those
outputs to environmental outcomes.
NRCS currently uses a mix of approaches to evaluate whether long-
term conservation benefits are being achieved through its programs.
Since 1982, NRCS has reported on certain natural resource status and
trends through the National Resources Inventory (NRI), which provides
statistically reliable, nationally consistent land cover/use and
related natural resource data. However, lacking has been a connection
between these data and specific conservation programs.\1\ In the
future, the interagency Conservation Effects Assessment Project (CEAP),
which has been underway since 2003, will provide nationally consistent
estimates of environmental effects resulting from conservation
practices and systems applied. CEAP results will be used in conjunction
with performance data gathered through Agency field-level business
tools to help produce estimates of environmental effects accomplished
through Agency programs, such as WHIP. In 2006 a Blue Ribbon panel
evaluation of CEAP \2\ strongly endorsed the project's purpose, but
concluded ``CEAP must change direction'' to achieve its purposes. In
response, CEAP has focused on priorities identified by the Panel and
clarified that its purpose is to quantify the effects of conservation
practices applied on the landscape. Information regarding CEAP,
including reviews and current status is available at (http://www.nrcs.usda.gov/technical/NRI/ceap/ ceap/. Since 2004 and the initial
establishment of long-term performance measures by program, NRCS has
been estimating and reporting progress toward long-term program goals.
Natural resource inventory and assessment, and performance measurement
and reporting policies set forth in Agency guidance (GM--290--400; GM--
340--401; GM--340--403)) (http://directives.sc.egov.usda.gov/).)
---------------------------------------------------------------------------
\1\ The exception to this is the Conservation Reserve Program;
since 1987 the NRI has reported acreage enrolled in CRP.
\2\ Soil and Water Conservation Society. 2006. Final Report from
the Blue Ribbon Panel Conducting an External Review of the U.S.
Department of Agriculture Conservation Effects Assessment Project.
Ankeny, IA: Soil and Water Conservation Society. This review is
available at (http://www.nrcs.usda.gov/technical/NRI/ceap/).
---------------------------------------------------------------------------
Demonstrating the long-term conservation benefits of conservation
programs is an Agency responsibility. Through CEAP, NRCS is in the
process of evaluating how these long-term benefits can be achieved
through the conservation practices and systems applied by participants
under the program. The program requirements applicable to participants
that relate to producing long-term conservation benefits are described
previously under ``measuring program performance,'' i.e., Sec. 636.8,
``The WHIP Plan of Operations'' and Sec. 636.9, ``Cost-share
agreements.'' These and related program management procedures
supporting program implementation are set forth in Agency guidance (M--
440--512 and M--440--515).
Coordinate these actions with the national conservation program
authorized under the Soil and Water Resources Conservation Act (RCA).
The 2008 Act reauthorized and expanded on a number of elements of the
RCA related to evaluating program performance and conservation
benefits. Specifically, the 2008 Farm Bill added a provision stating,
``Appraisal and inventory of resources, assessment and inventory
of conservation needs, evaluation of the effects of conservation
practices, and analyses of alternative approaches to existing
conservation programs are basic to effective soil, water, and
related natural resources conservation.''
The program, performance, and natural resource and effects data
described previously will serve as a foundation for the next RCA, which
will also identify and fill, to the extent possible, data and
information gaps. Policy and procedures related to the RCA are set
forth in Agency guidance (GM--290--400; M--440--525; GM--130--402)
(http://directives.sc.egov.usda.gov/).
The coordination of the previously described components with the
RCA is an Agency responsibility and is not reflected in these
regulations. However, it is likely that results from the RCA process
will result in modifications to the program and performance data
collected, to the systems used to acquire data and information, and
potentially to the program itself. Thus, as the Secretary proceeds to
implement the RCA in accordance with the statute, the approaches and
processes developed will improve existing program performance
measurement and outcome reporting capability and provide the foundation
for improved implementation of the program performance requirements of
Section 1244(g) of the 1985 Act.
NRCS is amending this rule, 7 CFR part 636, WHIP, republishing it
in its entirety and accepting comments until March 17, 2009, on the
aforementioned subjects.
List of Subjects in 7 CFR Part 636
Administrative practice and procedure, Agriculture, Conservation,
Endangered and threatened species, Natural resources, Soil
conservation, Wildlife.
0
For reasons set out in the preamble, NRCS is revising 7 CFR part 636 to
read as follows:
PART 636--WILDLIFE HABITAT INCENTIVES PROGRAM
Sec.
636.1 Applicability.
636.2 Administration.
636.3 Definitions.
636.4 Program requirements.
636.5 National priorities.
636.6 Establishing priority for enrollment in WHIP.
636.7 Cost-share payments.
636.8 The WHIP Plan of Operation (WPO).
636.9 Cost-share agreements.
636.10 Modifications.
[[Page 2795]]
636.11 Transfer of interest in a cost-share agreement.
636.12 Termination of cost-share agreements.
636.13 Violations and remedies.
636.14 Misrepresentation and scheme or device.
636.15 Offsets and assignments.
636.16 Appeals.
636.17 Compliance with regulatory measures.
636.18 Technical services provided by qualified, non-USDA personnel.
636.19 Access to operating unit.
636.20 Equitable relief.
636.21 Environmental Services Credits for Conservation Improvements.
Authority: 16 U.S.C. 3839bb-1.
Sec. 636.1 Applicability.
(a) The purpose of the Wildlife Habitat Incentives Program (WHIP)
is to help participants develop fish and wildlife habitat on private
agricultural land, nonindustrial private forest land, and Indian land.
(b) The regulations in this Part set forth the requirements for the
WHIP.
(c) The Chief, Natural Resources Conservation Service (NRCS) may
implement WHIP in any of the 50 states, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, the Virgin Islands of the United
States, American Samoa, and the Commonwealth of the Northern Mariana
Islands.
Sec. 636.2 Administration.
(a) The regulations in this Part will be administered under the
general supervision and direction of the Chief, NRCS. The funds,
facilities, and authorities of the Commodity Credit Corporation (CCC)
are available to NRCS to carry out WHIP. Accordingly, where NRCS is
mentioned in this Part, it also refers to the CCC's funds, facilities,
and authorities, where applicable.
(b) The State Conservationist will consult with the State Technical
Committee in the implementation of the program and in establishing
program direction for WHIP in the applicable State. The State
Conservationist has the authority to accept or reject the State
Technical Committee recommendation; however, the State Conservationist
will give strong consideration to the State Technical Committee's
recommendation.
(c) NRCS may enter into agreements with Federal and State agencies,
Indian tribes, conservation districts, local units of government,
public and private organizations, and individuals to assist with
program implementation, including the provision of technical
assistance. NRCS may make payments pursuant to said agreements for
program implementation and for other goals consistent with the program
provided for in this Part.
(d) NRCS will provide the public with notice of opportunities to
apply for participation in the program.
(e) No delegation in this Part to lower organizational levels shall
preclude the Chief of NRCS, or a designee, from determining any issues
arising under this Part or from reversing or modifying any
determination made under this Part.
Sec. 636.3 Definitions.
The following definitions will apply to this part and all documents
issued in accordance with this part, unless specified otherwise:
Agricultural lands means cropland, grassland, rangeland, pasture,
and other land determined by NRCS to be suitable for fish and wildlife
habitat development, on which agricultural and forest-related products
or livestock are produced. Agricultural lands may include cropped
woodland, marshes, incidental areas included in the agricultural
operation, and other types of land used for production of livestock.
Applicant means a person, legal entity or joint operation that has
an interest in an agricultural operation, as defined in 7 CFR part
1400, who has requested in writing to participate in WHIP.
At-risk species means any plant or animal species as determined by
the State Conservationist, with advice from the State Technical
Committee, to need direct intervention to halt its population decline.
Beginning Farmer or Rancher means an individual or entity who:
(1) Has not operated a farm or ranch, or who has operated a farm or
ranch for not more than 10 consecutive years. This requirement applies
to all members of an entity, and will materially and substantially
participate in the operation of the farm or ranch.
(2) In the case of a cost-share agreement with an individual,
individually or with the immediate family, material and substantial
participation requires that the individual provide substantial day-to-
day labor and management of the farm or ranch, consistent with the
practices in the county or State where the farm is located.
(3) In the case of a cost-share agreement with an entity or joint
operation, all members must materially and substantially participate in
the operation of the farm or ranch. Material and substantial
participation requires that each of the members provide some amount of
the management, or labor and management necessary for day-to-day
activities, such that if each of the members did not provide these
inputs, operation of the farm or ranch would be seriously impaired.
Chief means the Chief of NRCS, United States Department of
Agriculture (USDA), or a designee.
Conservation district means any district or unit of State, Tribal,
or local government formed under State, Tribal, or territorial law for
the express purpose of developing and carrying out a local soil and
water conservation program. Such district or unit of government may be
referred to as a ``conservation district,'' ``soil conservation
district,'' ``soil and water conservation district,'' ``resource
conservation district,'' ``natural resource district,'' ``land
conservation committee,'' or similar name.
Conservation practice means one or more conservation improvements
and activities, including structural practices, land management
practices, vegetative practices, forest management, and other
improvements that benefit the eligible land and achieve program
purposes.
Cost-share agreement means a legal document that specifies the
rights and obligations of any participant accepted into the program. A
WHIP cost-share agreement is a binding agreement for the transfer of
assistance from USDA to the participant to share in the costs of
applying conservation.
Cost-share payment means the payments under the WHIP cost-share
agreement to develop fish and wildlife habitat or accomplish other
goals consistent with the program provided for in this Part.
Designated conservationist means an NRCS employee whom the State
Conservationist has designated as responsible for WHIP administration
in a specific area.
Field office technical guide (FOTG) means the official local NRCS
source of resource information and interpretations of guidelines,
criteria, and requirements for planning and applying conservation
practices and conservation management systems. It contains detailed
information on the conservation of soil, water, air, plant, and animal
resources applicable to the local area for which it is prepared.
Habitat development means the conservation practices implemented to
establish, improve, protect, enhance, or restore the conditions of the
land for the specific purpose of improving conditions for fish and
wildlife.
Historically Underserved Producer means an eligible person, joint
operation, or legal entity that is a beginning farmer or rancher,
socially disadvantaged farmer or rancher, or limited resource farmer or
rancher.
[[Page 2796]]
Indian land means:
(1) Land held in trust by the United States for individual Indians
or Indian tribes, or
(2) Land, the title to which is held by individual Indians or
Indian tribes subject to Federal restrictions against alienation or
encumbrance, or
(3) Land which is subject to rights of use, occupancy and/or
benefit of certain Indian tribes, or
(4) Land held in fee title by an Indian, Indian family or Indian
tribe.
Indian tribe means any Indian tribe, band, nation, or other
organized group or community, including any Alaska Native village or
regional or village corporation as defined in or established pursuant
to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.)
that is eligible for the special programs and services provided by the
United States to Indians because of their status as Indians.
Joint operation means, as defined in 7 CFR part 1400, a general
partnership, joint venture, or other similar business organization in
which the members are jointly or severally liable for the obligations
of the organization.
Legal entity means, as defined in 7 CFR 1400, an entity created
under Federal or State law that:
(1) Owns land or an agricultural commodity, product, or livestock;
or
(2) Produces an agricultural commodity, product, or livestock.
Lifespan means the period of time during which a conservation
practice is to be operated and maintained for the intended purpose.
Limited Resource Farmer or Rancher means:
(1) A person with direct or indirect gross farm sales not more than
$155,200 in each of the previous two years (adjusted for inflation
using Prices Paid by Farmer Index as compiled by National Agricultural
Statistical Service), and
(2) Has a total household income at or below the national poverty
level for a family of four, or less than 50 percent of county median
household income in each of the previous two years (to be determined
annually using Commerce Department Data).
Liquidated damages means a sum of money stipulated in the WHIP
cost-share agreement that the participant agrees to pay NRCS if the
participant fails to adequately complete the terms of the cost-share
agreement. The sum represents an estimate of the technical assistance
expenses incurred to service the agreement, and reflects the
difficulties of proof of loss and the inconvenience or non-feasibility
of otherwise obtaining an adequate remedy.
Livestock means all animals produced on farms and ranches, as
determined by the Chief.
Natural Resources Conservation Service (NRCS) is an agency of the
USDA, which has the responsibility for administering WHIP using the
funds, facilities, and authorities of the CCC.
Nonindustrial private forestland means rural land, as determined by
the Secretary, that has existing tree cover or is suitable for growing
trees; and is owned by any nonindustrial private individual, group,
association, corporation, Indian tribe, or other private legal entity
that has definitive decision-making authority over the land.
Operation and maintenance means work performed by the participant
to keep the applied conservation practice functioning for the intended
purpose during the conservation practice lifespan. Operation includes
the administration, management, and performance of non-maintenance
actions needed to keep the completed practice functioning as intended.
Maintenance includes work to prevent deterioration of the practice,
repairing damage, or replacement of the practice to its original
condition if one or more components fail.
Operation and maintenance (O&M) agreement means the document that,
in conjunction with the WHIP plan of operations, specifies the
operation and maintenance responsibilities of the participants for
conservation practices installed with WHIP assistance.
Participant means a person, legal entity, or joint operation, or
tribe that is receiving payment or is responsible for implementing the
terms and conditions of a WHIP cost-share agreement.
Person means, as defined in 7 CFR part 1400, an individual, natural
person and does not include a legal entity.
Producer means, as defined in 7 CFR part 1400, a person, legal
entity, or joint operation who has an interest in the agricultural
operation or who is engaged in agricultural production or forestry
management.
Resource concern means a specific natural resource problem that
represents a significant concern in a State or region and is likely to
be addressed successfully through the implementation of the
conservation practices by producers.
Secretary means the Secretary of the USDA.
Socially disadvantaged farmer or rancher means a farmer or rancher
who has been subjected to racial or ethnic prejudices because of their
identity as a member of a group without regard to their individual
qualities.
State Conservationist means the NRCS employee authorized to
implement WHIP and direct and supervise NRCS activities in a State, the
Caribbean Area, or the Pacific Islands Area.
State Technical Committee means a committee established by the
Secretary of the United States Department of Agriculture in a State
pursuant to 16 U.S.C. 3861.
Technical assistance means technical expertise, information, and
tools necessary for the conservation of natural resources on land
active in agricultural, forestry, or related uses. The term includes
the following:
(1) 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
(2) 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.
Technical Service Provider (TSP) means an individual, private-
sector entity, or public agency certified by NRCS to provide technical
services to program participants in lieu of or on behalf of NRCS.
WHIP plan of operations (WPO) means the document that identifies
the location and timing of conservation practices that the participant
agrees to implement on eligible land in order to develop fish and
wildlife habitat and provide environmental benefits. The WPO is a part
of the WHIP cost-share agreement.
Wildlife means non-domesticated birds, fishes, reptiles,
amphibians, invertebrates, and mammals.
Wildlife habitat means the aquatic and terrestrial environments
required for fish and wildlife to complete their life cycles, providing
air, food, cover, water, and spatial requirements.
Sec. 636.4 Program requirements.
(a) To participate in WHIP, an applicant must:
(1) Be in compliance with the highly erodible and wetland
conservation provisions found in 7 CFR part 12;
(2) Be in compliance with the terms of all other USDA-administered
conservation program contracts to which the participant is a party;
(3) Develop and agree to comply with a WPO and O&M agreement, as
described in Sec. 636.8;
[[Page 2797]]
(4) Enter into a cost-share agreement for the development of fish
and wildlife habitat as described in Sec. 636.9;
(5) Provide NRCS with written evidence of ownership or legal
control for the term of the proposed cost-share agreement, including
the O&M agreement. An exception may be made by the Chief in the case of
land allotted by the Bureau of Indian Affairs or Indian land where
there is sufficient assurance of control.
(6) Agree to provide all information to NRCS determined to be
necessary to assess the merits of a proposed project and to monitor
cost-share agreement compliance;
(7) Agree to grant to NRCS or its representatives access to the
land for purposes related to application, assessment, monitoring,
enforcement, verification of certifications, or other actions required
to implement this Part;
(8) Provide a list of all members of the legal entity and embedded
entities along with members' tax identification numbers and percentage
interest in the entity. Where applicable, American Indians, Alaska
Natives, and Pacific Islanders may use another unique identification
number for each individual eligible for payment;
(9) With regard to cost-share agreements with individual Indians or
Indians represented by BIA, payments exceeding the payment limitation
may be made to the Tribal participant if a BIA or Tribal official
certifies in writing that no one individual, directly or indirectly,
will receive more than the payment limitation. The Tribal entity must
also provide, annually, a listing of individuals and payments made, by
tax identification number or other unique identification number, during
the previous year for calculation of overall payment limitations. The
Tribal entity must also produce, at the request of NRCS, proof of
payments made to the person or legal entity that incurred costs or
sacrificed income related to conservation practice implementation.
(10) Supply information, as required by NRCS, to determine
eligibility for the program, including but not limited to, information
to verify the applicant's status as a limited resource farmer or
rancher or beginning farmer or rancher and payment eligibility as
established by 7 CFR part 1400, Adjusted Gross Income; and
(11) With regard to any participant that utilizes a unique
identification number as an alternative to a tax identification number,
the participant will utilize only that identifier for any and all other
WHIP cost-share agreements to which the participant is a party.
Violators will be considered to have provided fraudulent representation
and be subject to full penalties of Sec. 636.13 of this part.
(b) Eligible land includes:
(1) Private agricultural land;
(2) Nonindustrial private forest land; and
(3) Indian land.
(c) Ineligible land. NRCS shall not provide cost-share assistance
with respect to conservation practices on land:
(1) Enrolled in a program where fish and wildlife habitat
objectives have been sufficiently achieved, as determined by NRCS;
(2) With on-site or off-site conditions which NRCS determines would
undermine the benefits of the habitat development or otherwise reduce
its value;
(3) On which habitat for threatened or endangered species, as
defined in Section 3 of the Endangered Species Act (ESA), 16 U.S.C.
1532, would be adversely affected;
(4) That is public land.
Sec. 636.5 National priorities.
(a) The following national priorities will be used in WHIP
implementation:
(1) Promote the restoration of declining or important native fish
and wildlife habitats;
(2) Protect, restore, develop, or enhance fish and wildlife habitat
to benefit at-risk species;
(3) Reduce the impacts of invasive species on fish and wildlife
habitats; and
(4) Protect, restore, develop, or enhance declining or important
aquatic wildlife species' habitats.
(b) NRCS, with advice of other Federal agencies, will undertake
periodic reviews of the national priorities and the effects of program
delivery at the State and local level to adapt the program to address
emerging resource issues. NRCS will:
(1) Use the national priorities to guide the allocation of WHIP
funds to the State NRCS offices,
(2) Use the national priorities in conjunction with State and local
priorities to assist with prioritization and selection of WHIP
applications, and
(3) Periodically review and update the national priorities
utilizing input from the public and affected stakeholders to ensure
that the program continues to address priority resource concerns.
Sec. 636.6 Establishing priority for enrollment in WHIP.
(a) NRCS, in consultation with Federal and state agencies and
conservation partners, may identify priorities for enrollment in WHIP
that will complement the goals and objectives of relevant fish and
wildlife conservation initiatives at the state, regional, and national
levels. In response to national, regional, and state fish and wildlife
habitat concerns, the Chief may limit program implementation in any
given year to specific geographic areas or to address specific habitat
development needs.
(b) The State Conservationist, in consultation with the State
Technical Committee, may give priority to WHIP projects that will
address unique habitats, or special geographic areas identified in the
State. Subsequent cost-share agreement offers that would complement
previous cost-share agreements due to geographic proximity of the lands
involved or other relationships may receive priority consideration for
participation.
(c) NRCS will evaluate the applications and make enrollment
decisions based on the fish and wildlife habitat need using some or all
of the following criteria:
(1) Contribution to resolving an identified habitat concern of
national, regional, or state importance;
(2) Relationship to any established wildlife or conservation
priority areas;
(3) Duration of benefits to be obtained from the habitat
development practices;
(4) Self-sustaining nature of the habitat development practices;
(5) Availability of other partnership matching funds or reduced
funding request by the person applying for participation;
(6) Estimated costs of fish and wildlife habitat development
activities;
(7) Other factors determined appropriate by NRCS to meet the
objectives of the program; and
(8) Willingness of the applicant to complete all conservation
improvements during the first two years of the WHIP cost-share
agreement.
Sec. 636.7 Cost-share payments.
(a) NRCS may share the cost with a participant for implementing the
conservation practices as provided in the WPO that is a component of
the WHIP cost-share agreement:
(1) Except as provided in paragraph (a)(2) of this section and
Sec. 636.9(c), NRCS shall offer to pay no more than 75 percent of the
costs of establishing conservation practices to develop fish and
wildlife habitat. The cost-share payment to a participant shall be
reduced proportionately below 75 percent to the extent that direct
Federal financial assistance is provided to the participant from
sources other than NRCS, except for certain cases that merit additional
cost-share assistance to
[[Page 2798]]
achieve the intended goals of the program, as determined by the State
Conservationist.
(2) Historically underserved producers, as defined in Sec. 636.3,
and Indian tribes may receive the applicable payment rate and an
additional rate that is not less than 25 percent above the applicable
rate, provided that this increase does not exceed 90 percent of the
estimated incurred costs associated with the conservation practice.
(b) Cost-share payments may be made only upon a determination by
the NRCS that a conservation practice or an identifiable component of a
conservation practice has been established in compliance with
appropriate standards and specifications.
(c) Payments will not be made for a conservation practice that was:
(1) Applied prior to application for the program, or
(2) Initiated or implemented prior to cost-share agreement
approval, unless a waiver was granted by the State Conservationist or
designated conservationist prior to practice implementation.
(d) NRCS will identify and provide public notice of the
conservation practices eligible for payment under the program.
(e) Cost-share payments may be made for the establishment and
installation of additional eligible conservation practices, or the
maintenance or replacement of an eligible conservation practice, but
only if NRCS determines the conservation practice is needed to meet the
objectives of the program, or that the failure of the original project
was due to reasons beyond the control of the participant.
(f) Payments made or attributed to a participant, directly or
indirectly, may not exceed, in the aggregate, $50,000 per year.
(g) Eligibility for payment in accordance with 7 CFR part 1400,
subpart G, average adjusted gross income limitation, will be determined
prior to cost-share agreement approval.
(h) Subject to fund availability, the payment rates for
conservation practices scheduled after the year of contract obligation
may be adjusted to reflect increased costs.
(i) A participant will not be eligible for payments for
conservation practices on eligible land if the participant receives
payments or other benefits for the same practice on the same land under
any other conservation program administered by USDA.
(j) Before NRCS will approve and issue final payment, the
participant must certify that the conservation practice has been
completed in accordance with the cost-share agreement, and NRCS or an
approved TSP must certify that the practice has been carried out in
accordance with the applicable NRCS field office technical guide.
(k) NRCS, for a fiscal year, may use up to 25 percent of WHIP funds
to carry out cost-share agreements described in Sec. 636.9(c).
Sec. 636.8 The WHIP plan of operations (WPO).
(a) The participant develops a WPO with the assistance of NRCS or
other public or private natural resource professionals, who are
approved by NRCS. A WPO encompasses the parcel of land where habitat
will be established, improved, protected, enhanced, or restored. The
WPO shall be approved by NRCS and address at least one of the
following:
(1) Fish and wildlife habitat conditions that are of concern to the
participant;
(2) Fish and wildlife habitat concerns identified in State,
regional, and national conservation initiatives; or
(3) Fish and wildlife habitat concerns identified in an approved
area-wide plan that addresses the wildlife resource habitat concern.
(b) The WPO forms the basis for the WHIP cost-share agreement and
shall be attached and included as part of the cost-share agreement,
along with the O&M agreement. The WPO includes a schedule for
installation and maintenance of the conservation practices, as
determined by NRCS.
(c) The WPO may be modified in accordance with Sec. 636.10.
(d) All conservation practices in the WPO must be approved by NRCS
and developed and carried out in accordance with the applicable NRCS
FOTG.
(e) The participant is responsible for the implementation of the
WPO.
Sec. 636.9 Cost-share agreements.
(a) To apply for WHIP cost-share assistance, a person or legal
entity must submit an application for participation at a USDA service
center to an NRCS representative.
(b) A WHIP cost-share agreement shall:
(1) Incorporate the WPO;
(2) Be for a time period agreed to by the participant and NRCS,
with a minimum duration of one year after the completion of
conservation practices identified in the WPO and a maximum of 10 years,
except for agreements entered into under paragraph (c) of this section;
(3) Include all provisions as required by law or statute;
(4) Include any participant reporting and recordkeeping
requirements to determine compliance with the cost-share agreement and
program;
(5) Be signed by the participant;
(6) Specify payment limits described in Sec. 636.7(f) including
any additional payment limitation associated with determinations made
under Sec. 636.7(g);
(7) Include an O&M agreement that describes operation and
maintenance for each conservation practice and the Agency expectation
that WHIP-funded conservation practices will be operated and maintained
for their expected lifespan; and
(8) Include any other provision determined necessary or appropriate
by the NRCS representative.
(c) Notwithstanding any limitation of this part, NRCS may enter
into a long-term cost-share agreement that:
(1) Is for a term of at least 15 years;
(2) Protects and restores critical plant or animal habitat, as
determined by NRCS; and
(3) Provides cost-share payments of no more than 90 percent of the
cost of establishing conservation practices to develop fish and
wildlife habitat.
Sec. 636.10 Modifications.
(a) The participant and NRCS may modify a cost-share agreement if
both parties agree to the modification, the WPO is revised in
accordance with NRCS requirements, and the agreement is approved by the
designated conservationist.
(b) Any modifications made under this section must meet WHIP
program objectives and must be in compliance with this Part.
(c) In the event a conservation practice fails through no fault of
the participant, the State Conservationist may issue payments to re-
establish the practice, at the rates established in accordance with
Sec. 636.7, provided such payments do not exceed the payment
limitation requirements as set forth in Sec. 636.7.
Sec. 636.11 Transfer of interest in a cost-share agreement.
(a) A participant is responsible for notifying NRCS when he/she
anticipates the voluntary or involuntary loss of control of the land
covered by a WHIP cost-share agreement.
(b) The participant and NRCS may agree to transfer a cost-share
agreement to another producer. The transferee must be determined by
NRCS to be eligible to participate in WHIP and must assume full
responsibility under the cost-share agreement.
[[Page 2799]]
(c) With respect to any and all payments owed to participants who
wish to transfer ownership or control of land subject to a cost-share
agreement, the division of payment shall be determined by the original
party and that party's successor. In the event of a dispute or claim on
the distribution of cost-share payments, NRCS may withhold payments
without the accrual of interest pending a settlement or adjudication on
the rights to the funds.
(d) If such new participants are not willing or not eligible to
assume the responsibilities of an existing WHIP cost-share agreement
including the O&M agreement, NRCS shall terminate the cost-share
agreement and may require that all cost-share payments may be
forfeited, refunded, or both.
(e) The participants to the cost-share agreement shall be jointly
and severally responsible for refunding the cost-share payments with
applicable interest pursuant to paragraph (d) of this section.
Sec. 636.12 Termination of cost-share agreements.
(a) The State Conservationist may, independently or by mutual
agreement with the parties to the cost-share agreement, terminate the
cost-share agreement where:
(1) The parties to the cost-share agreement are unable to comply
with the terms of the cost-share agreement as the result of conditions
beyond their control;
(2) Termination of the cost-share agreement would, as determined by
the State Conservationist, be in the public interest; or
(3) A participant fails to correct a violation of a cost-share
agreement within the period provided by NRCS in accordance with Sec.
636.13.
(b) If NRCS terminates a cost-share agreement, the participant will
forfeit all rights to future payments under the agreement, shall pay
liquidated damages, in an amount determined by the State
Conservationist in accordance with the terms of the agreement, and
shall refund all or part of the payments received, plus interest.
Participants violating WHIP cost-share agreements may be determined
ineligible for future NRCS-administered conservation program funding.
(1) NRCS may require a participant to provide only a partial refund
of the payments received if a previously installed conservation
practice can function independently, and is not adversely affected by
the violation or the absence of other conservation practices that would
have been installed under the cost-share agreement.
(2) The State Conservationist will have the option to waive all or
part of the liquidated damages assessed, depending upon the
circumstances of the case.
(c) When making termination decisions, the NRCS may reduce the
amount of money owed by the participant by a proportion that reflects:
(1) The good faith effort of the participant to comply with the
cost-share agreement, or
(2) The existence of hardships beyond the participant's control
that have prevented compliance. If a participant claims hardship, that
claim must be documented and cannot have existed when the applicant
applied for participation in the program.
Sec. 636.13 Violations and remedies.
(a) If NRCS determines that a participant is in violation of a
cost-share agreement, NRCS shall give the parties to the cost-share
agreement notice of the violation and a minimum of 60 days to correct
the violation and comply with the terms of the cost-share agreement and
attachments thereto.
(b) If the participant fails to correct the violation of a cost-
share agreement within the period provided by NRCS under paragraph (a)
of this section, NRCS may terminate the agreement and require the
participant to refund all or part of any of the funds issued under that
cost-share agreement, plus interest, and assess liquidated damages, as
well as require the participant to forfeit all rights to any future
payment under the agreement.
Sec. 636.14 Misrepresentation and scheme or device.
(a) A participant who is determined to have erroneously represented
any fact affecting a program determination made in accordance with this
Part shall not be entitled to cost-share agreement payments and must
refund to NRCS all payments and pay liquidated damages, plus interest
as determined by NRCS.
(b) A participant shall refund to NRCS all payments, plus interest
as determined by NRCS, with respect to all NRCS cost-share agreements
to which they are a party if they are determined to have knowingly:
(1) Adopted any scheme or device that tends to defeat the purpose
of the program;
(2) Made any fraudulent representation; or
(3) Misrepresented any fact affecting a program determination.
(c) Other NRCS cost-share agreements, where this person is a
participant, may be terminated.
Sec. 636.15 Offsets and assignments.
(a) Except as provided in paragraph (b) of this section, any
payment or portion thereof to any person or legal entity shall be made
without regard to questions of title under State law and without regard
to any claim or lien against the land, or proceeds thereof, in favor of
the owner or any other creditor except agencies of the U.S. Government.
The regulations governing offsets and withholdings found at 7 CFR part
1403 of this title shall be applicable to cost-share agreement
payments.
(b) WHIP participants may assign any payments in accordance with 7
CFR part 1404.
Sec. 636.16 Appeals.
(a) Any participant may obtain reconsideration and review of
determinations affecting participation in this program in accordance
with 7 CFR parts 11 and 614, except as provided in paragraph (b) of
this section.
(b) In accordance with the provisions of the Department of
Agriculture Reorganization Act of 1994, Public Law 103-354 (7 U.S.C.
6901), the following decisions are not appealable:
(1) Payment rates, payment limits, and cost-share percentages;
(2) The designation of approved fish and wildlife priority areas,
habitats, or practices;
(3) NRCS program funding decisions;
(4) Eligible conservation practices; and
(5) Other matters of general applicability.
(c) Before a participant may seek judicial review of any action
taken under this part, the participant must exhaust all administrative
appeal procedures set forth in paragraph (a) of this section.
Sec. 636.17 Compliance with regulatory measures.
(a) Participants who carry out conservation practices shall be
responsible for obtaining the authorities, rights, easements, permits,
or other approvals necessary for the implementation, operation, and
maintenance of the conservation practices in keeping with applicable
laws and regulations.
(b) Participants shall be responsible for compliance with all laws
and for all effects or actions resulting from the participant's
performance under the cost-share agreement.
Sec. 636.18 Technical services provided by qualified personnel not
affiliated with USDA.
(a) NRCS may use the services of qualified TSPs in performing its
responsibilities for technical assistance.
[[Page 2800]]
(b) Participants may use technical services from qualified
personnel of other Federal, State, and local agencies, Indian tribes,
or individuals who are certified as TSPs by NRCS.
(c) Technical services provided by qualified personnel not
affiliated with USDA may include, but is not limited to: Conservation
planning; conservation practice survey, layout, design, installation,
and certification; and information; education; and training for
producers.
(d) NRCS retains approval authority over certification of work done
by non-NRCS personnel for the purpose of approving WHIP payments.
Sec. 636.19 Access to operating unit.
As a condition of program participation, any authorized NRCS
representative shall have the right to enter an agricultural operation
or tract for the purposes of determining eligibility and for
ascertaining the accuracy of any representations related to cost-share
agreements, and performance. Access shall include the right to provide
technical assistance; determine eligibility; inspect any work
undertaken under the cost-share agreements, including the WPO and O&M
agreement; and collect information necessary to evaluate the
conservation practice performance specified in the cost-share
agreements. The NRCS representative shall make a reasonable effort to
contact the participant prior to the exercising of this provision.
Sec. 636.20 Equitable relief.
(a) If a participant relied upon the advice or action of any
authorized NRCS representative and did not know, or have reason to
know, that the advice or action was improper or erroneous, NRCS may
accept the advice or action as meeting program requirements and grant
relief because of the good-faith reliance on the part of the
participant. The financial or technical liability for any action by a
participant that was taken based on the advice of a NRCS certified non-
USDA TSP is the responsibility of the certified TSP and will not be
assumed by NRCS when NRCS authorizes payment. Where a participant
believes that detrimental reliance on the advice or action of a NRCS
representative resulted in an ineligibility or program violation, the
participant may request equitable relief under 7 CFR 635.3.
(b) If, during the term of a WHIP cost-share agreement, a
participant has been found in violation of a provision of the cost-
share agreement, the O&M agreement, or any document incorporated by
reference through failure to fully comply with that provision, the
participant may be eligible for equitable relief under 7 CFR 635.4.
Sec. 636.21 Environmental services credits for conservation
improvements.
USDA recognizes that environmental benefits will be achieved by
implementing conservation practices funded through WHIP, and that
environmental credits may be gained as a result of implementing
activities compatible with the purposes of a WHIP cost-share agreement.
NRCS asserts no direct or indirect interest on any such credits.
However, NRCS retains the authority to ensure that the requirements for
WHIP funded improvements are met and maintained consistent with
Sec. Sec. 636.8 and 636.9. Where activities required under an
environmental credit agreement may affect land covered under a WHIP
cost-share agreement, participants are highly encouraged to request a
compatibility assessment from NRCS prior to entering into such
agreements.
Signed in Washington, DC, on January 9, 2009.
Arlen Lancaster,
Vice President, Commodity Credit Corporation and Chief, Natural
Resources Conservation Service.
[FR Doc. E9-827 Filed 1-15-09; 8:45 am]
BILLING CODE 3410-16-P