[Federal Register Volume 75, Number 225 (Tuesday, November 23, 2010)]
[Rules and Regulations]
[Pages 71325-71344]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29394]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 75, No. 225 / Tuesday, November 23, 2010 /
Rules and Regulations
[[Page 71325]]
DEPARTMENT OF AGRICULTURE
Natural Resources Conservation Service
7 CFR Part 636
RIN 0578-AA49
Wildlife Habitat Incentive Program
AGENCY: Commodity Credit Corporation, Natural Resources Conservation
Service, United States Department of Agriculture.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Natural Resources Conservation Service (NRCS), an agency
of the United States Department of Agriculture (USDA), is issuing a
final rule for the Wildlife Habitat Incentive Program (WHIP). This
final rule sets forth how NRCS, using the funds, facilities, and
authorities of the Commodity Credit Corporation (CCC), will implement
WHIP in response to changes made by the Food, Conservation, and Energy
Act of 2008 (2008 Act). NRCS published an interim final rule with
request for comment in the Federal Register on January 16, 2009, an
amendment was published on March 12, 2009, with a request for public
comment, and another amendment was published on July 15, 2009, with a
request for public comment. NRCS is publishing a final rule that
addresses the comments received on the interim final rule and to
clarify policies to improve program implementation.
DATES: Effective Date: The rule is effective November 23, 2010.
FOR FURTHER INFORMATION CONTACT: Gregory K. Johnson, Director,
Financial Assistance Programs Division, Department of Agriculture,
Natural Resources Conservation Service, 1400 Independence Avenue, SW.,
Room 5237 South Building, Washington, DC 20250; Telephone: (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 final rule has been
determined to be a significant regulatory action. The administrative
record is available for public inspection at the Department of
Agriculture, 1400 Independence Avenue, SW., Room 5241 South Building,
Washington, DC 20250. In accordance with Executive Order 12866, 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 the regulatory certifications of the preamble, and a copy of the
analysis is available upon request from Gregory K. Johnson, Director,
Financial Assistance Programs Division, Department of Agriculture,
Natural Resources Conservation Service, 1400 Independence Avenue, SW.,
Room 5237 South Building, Washington, DC 20250.
Regulatory Flexibility Act
The Regulatory Flexibility Act is not applicable to this final rule
because NRCS 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.
Environmental Analysis
In compliance with the National Environmental Policy Act, a
Programmatic Environmental Assessment (EA) was prepared in association
with the interim final rule. The analysis determined there will not be
a significant impact to the human environment and as a result, an
Environmental Impact Statement was not required to be prepared (40 CFR
1508.13). The Programmatic EA and Finding of No Significant Impact
(FONSI) were made available for public review for 60 days, which also
coincided with the public review timeframe for the interim final rule.
Comments were received on the Programmatic EA and FONSI, and responses
to those comments have been prepared and can be reviewed along with a
copy of the EA and FONSI from the following Web site: http://www.nrcs.usda.gov/programs/Env_Assess/. Additional program
requirements that were not in the interim final rule, and that are now
in the final rule, are minor program element changes that do not affect
the overall effects or analysis in the Programmatic EA. As a result,
preparation of a supplemental Programmatic EA has been determined not
to be necessary.
Civil Rights Impact Analysis
NRCS has determined through a Civil Rights Impact Analysis that
this final rule discloses no disproportionately adverse impacts for
minorities, women, or persons with disabilities. 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, this final rule will not result in
adverse civil rights implications for women, minorities, and persons
with disabilities.
Copies of the Civil Rights Impact Analysis are available from
Albert Cerna, National Wildlife Habitat Incentive Program Manager,
Financial Assistance Programs Division, Department of Agriculture,
Natural Resources Conservation Service, 1400 Independence Avenue, SW.,
Room 5233 South Building, Washington, DC 20250, or electronically at
http://www.nrcs.usda.gov/Programs/farmbill/2008/civilrightsimpact.html.
Paperwork Reduction Act
Section 2904 of the 2008 Act requires that the implementation of
programs authorized 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 final rule.
Government Paperwork Elimination Act
NRCS is committed to compliance with the Government Paperwork
[[Page 71326]]
Elimination Act and the Freedom to E-File Act, which requires
government agencies in general, to 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 final rule has been reviewed in accordance with Executive
Order 12988, Civil Justice Reform. The rule is not retroactive and
preempts State and local laws to the extent such laws are inconsistent
with this rule. Before an action may be brought in a Federal court of
competent jurisdiction, the administrative appeal rights afforded
persons at 7 CFR parts 11 and 614 must be exhausted.
Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994
Pursuant to section 304 of the Federal Crop Insurance Reform Act of
1994 (Pub. L. 103-354), USDA classified this rule as non-major.
Therefore, a risk analysis was not conducted.
Unfunded Mandates Reform Act of 1995
NRCS assessed the affects of this final rule on State, local, and
tribal governments, and the public. This action does not compel the
expenditure of $100 million or more in any one year (adjusted for
inflation) by any State, local, or tribal governments, or anyone in the
private sector; therefore, a statement under section 202 of the
Unfunded Mandates Reform Act of 1995 is not required.
Executive Order 13132
This final rule has been reviewed in accordance with the
requirements of Executive Order 13132, Federalism. USDA has determined
that this final rule conforms with the Federalism principles set forth
in the Executive Order; would not impose any compliance costs on the
States; and would not have substantial direct effects on the States, on
the relationship between the Federal Government and the States, or on
the distribution of power and responsibilities on the various levels of
government. Therefore, USDA concludes that this final rule does not
have Federalism implications.
Executive Order 13175
This final rule has been reviewed in accordance with the
requirements of Executive Order 13175, Consultation and Coordination
with Indian Tribal Governments. NRCS has assessed the impact of this
final rule on Indian tribal governments and concluded that this final
rule will not negatively affect Indian tribal governments or their
communities. The rule neither imposes substantial direct compliance
costs on tribal governments nor preempts tribal law. However, NRCS
plans to undertake a series of at least six regional tribal
consultation sessions before December 30, 2010, on the impact of NRCS
conservation programs and services on tribal governments and their
members to establish a baseline of consultation for future actions.
Reports from these sessions will be made part of the USDA annual
reporting on Tribal Consultation and Collaboration. NRCS will respond
in a timely and meaningful manner to all tribal governments' requests
for consultation.
Small Business Regulatory Enforcement Fairness Act of 1996
Section 2904(c) of the 2008 Act requires that the Secretary use the
authority in section 808(2) of Title 5, U.S.C., which allows an agency
to forego the Small Business Regulatory Enforcement Fairness Act of
1996 usual 60-day congressional review delay of the effective date of a
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 of the 2008 Act in effect as soon as possible.
Accordingly, this rule is effective upon filing for public inspection
by the Office of the Federal Register.
Section 2708 of the 2008 Act
Section 2708, ``Compliance and Performance,'' of the 2008 Act added
a paragraph to section 1244(g) of the Food Security Act of 1985, as
amended 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 Food Security Act of 1985, as amended 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 Food Security Act of
1985, as amended and agency expectations for improving its ability to
report on each program's performance and the 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 Food Security Act of 1985, as amended.
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 (CPM-
440-512 and CPM-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
[[Page 71327]]
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 tools, and the information is 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, a connection between these data and specific conservation
programs (with the exception of the Conservation Reserve Program, since
1987 the NRI has reported acreage enrolled in CRP) has been lacking. 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 strongly endorsed the project's
purpose, but concluded ``CEAP must change direction'' to achieve its
purposes. (See 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/.) 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/.
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 are set
forth in agency guidance (GM-290-400; GM-340-401; and GM-340-403)
(http://directives.sc.egov.usda.gov/).
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
``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 (CPM-440-512 and CPM-
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 Act 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; CPM-440-525; and 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 Food Security Act of 1985, as amended.
Economic Analysis--Executive Summary
WHIP provides direct technical and financial assistance to improve
fish and wildlife habitat on eligible agricultural, nonindustrial
private forest land (NIPF), and Indian land. 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
through the State Technical Committee. Because these efforts involve
both onsite and offsite specific impacts, and these impacts
[[Page 71328]]
affect a host of non-market valued attributes ecosystem services,
performing a traditional benefit-cost analysis is challenging. Even
with these limitations, a benefit-cost analysis 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 participant to fully pay
for the restoration and improvements in fish and wildlife habitat
within the agricultural, forestry operation, or Indian land. 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 and provision of non-market
valued amenities, such as more scenic views, as well as providing fish
and wildlife habitat.
The results of this benefit-cost analysis 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
Gregory K. Johnson, Director, Financial Assistance Programs Division,
Department of Agriculture, Natural Resources Conservation Service, 1400
Independence Avenue, SW., Room 5237 South Building, Washington, DC
20250.
Discussion of Program
WHIP is a voluntary program administered by NRCS using the funds
and authorities of the CCC. WHIP is available in any of the 50 States,
District of Columbia, 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 at-risk species, including threatened and
endangered species. NRCS first allocated funds for WHIP in 1997. Over
the life of the program, NRCS has entered into over 29,000 cost-share
agreements that cover over 4.7 million acres.
WHIP was originally authorized under section 387 of the Federal
Agriculture Improvement and Reform Act of 1996 (Pub. L. 104-127). In
1997, NRCS published regulations to implement WHIP at 7 CFR part 636.
Section 2502 of the Farm Security and Rural Investment Act of 2002
(Pub. L. 107-171) repealed the original WHIP authority and established
a new WHIP under section 1240N of the Food Security Act of 1985, as
amended. Section 2602 of the 2008 Act made further changes to WHIP.
These recent changes included restricting eligible lands to private
agricultural land, NIPF, and Indian land; clarifying the phrase ``other
types of habitat'' to include habitat developed on pivot corners and
irregular areas; increasing the proportion of annual funds available
for long-term agreements that are 15 years or longer to not more than
25 percent; providing the Secretary with discretionary authority to
address State, regional, and national conservation initiatives; and
establishing a $50,000 annual payment limitation per person or legal
entity. The WHIP statute uses tribal, but NRCS will use Indian and
tribal interchangeably to be consistent with other programs.
Registration and Reporting Requirements of the Federal Funding and
Transparency Act of 2006
The Office of Management and Budget recently published two
regulations, 2 CFR part 25 and 2 CFR part 170, to assist agencies and
recipients of Federal financial assistance comply with the Federal
Funding Accountability and Transparency Act of 2006 (FFATA) (Pub. L.
109-282, as amended). Both regulations have implementation requirements
beginning October 1, 2010.
The regulations at 2 CFR part 25 require, with some exceptions,
recipients of Federal financial assistance to apply for and receive a
Dun and Bradstreet Universal Numbering System (DUNS) number and
register in the Central Contractor Registry (CCR). The regulations at 2
CFR part 170 establish new requirements for Federal financial
assistance applicants, recipients, and sub recipients. The regulation
provides standard wording that each agency must include in its awarding
of financial assistance that requires recipients to report information
about first-tier sub awards and executive compensation under those
awards.
NRCS has determined that 2 CFR part 25 and 2 CFR part 170 apply to
certain awards of financial assistance provided under WHIP. Therefore,
NRCS has incorporated, by reference, these registration and reporting
requirements at Sec. 636.4 and will include the requisite provisions
as part of the WHIP contract.
Analysis of Public Comment
On January 16, 2009, NRCS published an interim final rule in the
Federal Register. On March 12, 2009, NRCS published an amendment to the
interim final rule addressing the incorrect application of the $50,000
annual payment limitation to joint operations and requesting public
comment on how USDA's conservation programs can further the Nation's
ability to increase renewable energy production and conservation,
mitigate the effects and adapt to climate change, and reduce net carbon
and greenhouse gas (GHG) emissions.
Following this amendment and request for comment, NRCS published an
additional amendment to the interim final rule, with a request for
comment, on July 15, 2009, redefining the term agricultural lands to be
more inclusive of lands that have the potential to produce agricultural
products or livestock. The comments received on the interim final rule
and amendments were consolidated and are addressed in this public
comment analysis. In total, 43 comments were received during the
comment periods; 3 were from individuals, 15 from State agencies, 2
from Federal agencies, 2 from Indian tribes, and 23 from
nongovernmental organizations. All comments received are available for
review at http://www.nrcs.usda.gov/programs/farmbill/2008/public-comments.html.
The discussion that follows is organized in the same sequence as
the interim final rule.
Section 636.1 Applicability
Section 636.1 sets forth WHIP's purpose and scope, stating that
``the purpose of the program is to help participants develop fish and
wildlife habitat on private agricultural land, NIPF, and Indian land.''
Comments: One respondent expressed concern about NRCS proposing to
strike the term species from the program's purpose statement, shifting
the program focus from species to land and water resources.
Response: The interim final rule replaced 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, NIPF, and Indian land,''
in an effort to be consistent with the program's statutory authority.
The simplified language provided 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. No changes were made to the final rule.
Comments: Numerous respondents requested that NRCS extend WHIP's
[[Page 71329]]
program purpose and scope to pollinators, specifically. Five
respondents requested that NRCS reference native and managed pollinator
habitat, while four of the five respondents wanted WHIP to focus on
native pollinators and their habitats and not managed pollinators,
leaving managed pollinator habitat to other conservation programs like
the Environmental Quality Incentives Program (EQIP).
Response: Section 1244(h) of the Food Security Act of 1985, as
amended states:
``In carrying out any conservation program administered by the
Secretary, the Secretary may, as appropriate, encourage (1) the
development of habitat for native and managed pollinators; and (2) the
use of conservation practices that benefit native and managed
pollinators.''
Section 1244(h) includes both managed and native pollinators. In
section 1244(h), WHIP's authority focuses on wildlife habitat with no
distinction made between native and managed species. As part of the
development of habitats in many projects, WHIP plants grasses, forbs,
shrubs, and trees that provide habitats for pollinator species as a
consequence of providing habitats for prioritized wildlife. NRCS
chooses to retain the interim final rule's original language which
follows the intent of section 1244(h) and WHIP's legislative authority
that makes no distinction between restoring or enhancing native and
managed pollinator species' habitats.
Comments: Several respondents requested that NRCS focus its
technical assistance efforts on improving pollinator habitat. One
respondent wanted NRCS to designate a national coordinator to advance
habitat for honey bees and expand its outreach to potential
participants. Another respondent expressed concern that with a lack of
emphasis in a regulation, pollinator habitat may be disregarded by
individual States. Another respondent wanted to ensure that expedited
efforts were made to update and revise the conservation practice
standards and technical notes, assuring that these standards and
technical notes were appropriate and relevant to the local habitat and
species' needs. Moreover, the respondent wanted NRCS to provide input
to the National Institute of Food and Agriculture and Agricultural
Research Service about additional research needed to improve the
science regarding wildlife habitat and conservation practices that are
best for native and managed pollinators.
Response: No changes were made to the rule in response to these
comments. State Conservationists have been encouraged to establish
pollinator species as State priorities, and they have done so. In
fiscal year (FY) 2009, NRCS funded 54 projects to restore and improve
pollinator habitat through the WHIP and the Conservation Innovation
Grants (CIG) program. Interim conservation practice standards and
technical notes have been and are in the process of being established.
State Conservationists are providing information to producers that
conservation practices which benefit pollinator species are eligible
for cost-share. NRCS does not conduct research, but has established
partnerships with agencies that provide information from research.
Section 636.2 Administration
Section 636.2 sets forth the policies related to NRCS and its
agreements with partners.
Comments: Two respondents requested that NRCS include marketing and
outreach as eligible work for partner agreements, also known as
contribution agreements. Several respondents supported the flexibility
to enter into agreements with Federal and State agencies and Indian
tribes to assist with program implementation.
Response: Since WHIP's inception, NRCS has used partnership
agreements with Federal, State, and local agencies to implement the
program. NRCS has the ability to include marketing and outreach in
these agreements.
Aside from working through contribution agreements, NRCS also has
the ability to enter into agreements with Technical Service Providers
(TSPs) to assist in implementing conservation programs. Section 2706 of
the 2008 Act amended the Food Security Act of 1985, as amended to
authorize payments to TSPs for related technical assistance services
that accelerate program delivery. Related technical assistance services
include, but are not limited to, conservation planning documentation,
payment scheduling, and documentation. Technical standards for
certifying other services like outreach and marketing TSPs will be
formulated during FY 2010.
As in the case of other Title XII conservation programs, a WHIP
participant or NRCS may use the services of a qualified TSP to install
and implement conservation practices. Technical services provided may
include conservation planning; conservation practice survey, layout,
design, installation, and certification; and related technical
assistance services as described above. To clarify that TSPs may be
used to expedite WHIP conservation program delivery, NRCS has added
related technical assistance services to Sec. 636.18(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
related technical assistance services as defined in 7 CFR part 652.''
Section 636.3 Definitions
When NRCS published the WHIP interim final rule, it revised many of
WHIP's definitions to be consistent with other NRCS conservation
programs and to avoid confusion among NRCS field personnel and
customers. A majority of the comments received during the interim final
rule's request for comment period were definitions contained in section
636.3. Following are definitions received from public comments.
Agricultural Lands
Comments: Over 20 respondents commented on the agricultural lands
definition. The majority of respondents stated that the definition of
agricultural lands was too limited. The respondents requested that NRCS
expand the definition to include ``lands on which agricultural and
forest products may be produced or have the potential to be produced.''
They cited that many rural, privately owned lands offer significant
wildlife habitat potential, despite the fact that they are not
currently used for agricultural production.
Response: NRCS concurs with this recommendation and on July 15,
2009, published an amendment to the interim final rule which defined
agricultural lands as: ``Cropland, grassland, rangeland, pastureland,
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 or have the potential to be produced. Agricultural
lands may include cropped woodland, wetlands, waterways, streams,
incidental areas included in the agricultural operation, and other
types of land used for or have the potential to be used for
production.''
Under WHIP, NRCS has the discretion to define agricultural lands in
order to meet the program objectives. In the past, WHIP served as a
niche program through its ability to improve wildlife habitat on areas
that were not otherwise eligible for NRCS conservation assistance. NRCS
believes that the interim final rule's agricultural lands definition
was too narrow in its interpretation of the statute, especially since
lands that are not currently under
[[Page 71330]]
production oftentimes can most readily be improved for wildlife
habitat, and that there are many active conservationists who wish to
enhance wildlife habitat but may not be actively producing a commodity
or raising livestock. As noted above, this change was adopted in the
amendment to the interim final rule.
Comments: Two respondents requested that NRCS add specific language
to modify the agricultural lands definition to make it consistent with
the Farm Credit Administration's (FCA) definition of agricultural land.
The intent behind making the WHIP definition consistent with FCA's
definition was similar to the rationale described above --expand the
types of eligible lands to those that have the potential or are
available to produce a crop, fruits, timber, or livestock.
Response: Based upon the rationale set forth above, NRCS concurs
with this recommendation and on July 15, 2009, published an amendment
to the interim final rule which changed the definition of agricultural
lands.
Comments: Nearly a dozen respondents requested that specific areas
be identified in the definition of agricultural lands. Areas mentioned
included wetlands, riparian areas, aspen groves, streams, canals,
shelterbelts, buffer strips, and waterways.
Response: NRCS has chosen to retain the current definition of
agricultural lands with the slight modification of changing marshes to
wetlands, since wetlands is a more inclusive term to describe areas
WHIP seeks to restore and enhance. NRCS has also chosen to add the
terms waterways and streams. NRCS believes areas like canals,
shelterbelts, aspen groves, and buffer strips would be determined to be
eligible since they would be considered lands incidental to the
agricultural or forestry operation.
Applicant
Comments: Six respondents requested changing the definition of
applicant. As currently defined, an applicant must have an interest in
an agricultural operation. Such a requirement prohibits NIPF landowners
and others who own or operate agricultural land with the potential to
produce an agricultural crop or livestock from participating.
Response: NRCS accepts this recommendation to revise the term
applicant, and modifies the definition in this final rule as follows:
``Applicant means a person, legal entity, joint operation, or Indian
tribe that has an interest in agricultural land, NIPF, Indian land, or
other lands identified in Sec. 636.4(c)4, who has requested in writing
to participate in WHIP.''
At-Risk Species
Comments: In the interim final rule published on January 16, 2009,
NRCS specifically requested comment on its definition of at-risk
species. Approximately 20 individuals and organizations responded to
this request, providing suggestions on how NRCS could modify this
definition.
Fifteen respondents suggested using the definition that exists in
the Memorandum of Understanding (MOU) with the U.S. Fish and Wildlife
Service (USFWS), NRCS, and the Association of Fish and Wildlife
Agencies. As stated in the MOU, ``at-risk species refers to plant and
animal species in that area listed as threatened or endangered under
the Endangered Species Act (ESA); proposed or candidates for listing
under ESA: likely to become candidates for listing in the near future;
species listed as endangered or threatened (or similar classification)
under State law; and State species of conservation concern (i.e., those
species identified by State fish and wildlife agencies in State
wildlife action plans or other State agency conservation strategies and
plans that include species identified as being in greatest need of
conservation concern).''
One respondent suggested that State agencies determine at-risk
species, while another respondent suggested that NRCS retain the
interim final rule definition as follows: ``Any plant or animal species
as determined by the State Conservationist, with advice from the State
Technical Committee, needing direct intervention to halt its population
decline.'' Another respondent wanted NRCS to take into account global
species of concern generated by The Nature Conservancy and a similar
list generated by the International Union of Conservation of Nature.
One respondent recommended that consideration should also be extended
to ecosystems at-risk as well as species.
One respondent suggested using the MOU definition, in conjunction
with NRCS' definition, specifically rewording the definition as
follows: ``At-risk species refers to (1) any plant or animal species
listed as threatened or endangered under ESA, (2) proposed for listing
under ESA, (3) a candidate for listing in the near future, (4) likely
to become a candidate for listing in the near future, (5) listed as
endangered or threatened (or similar classification) under State law,
(6) a species of conservation concern, or (7) other species determined
by the State Conservationist, with advice from the State Technical
Committee, to need direct intervention to halt its population
decline.'' Another respondent suggested that NRCS expand the definition
beyond the MOU definition by adding the following sentence to the MOU
definition: ``At-risk species may also include native species
identified by the Chief, in consultation with the State Conservationist
and State Technical Committee, and with advice from the USFWS, National
Marine Fisheries Service, or other experts as at-risk because of
population vulnerability due to climate change, catastrophic events, or
pest/pathogen outbreaks.''
Two respondents defined at-risk species more broadly stating at-
risk means any plant or animal species as determined by the State
Conservationist, with advice from the State Technical Committee, the
USFWS, the State agency responsible for fish and wildlife, and in
consultation with the State wildlife action plan to include species
listed as endangered or threatened under ESA and proposed or candidate
species for listing under ESA (this allows determination by the State
Conservationist), while another respondent requested that NRCS allow
for a localized area to give a designation.
Response: Section 636.3 in the interim final rule defines at-risk
species as ``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
developed this definition to provide maximum flexibility and allow the
State Conservationist to enroll acres for any type of species, provided
it is experiencing population decline. For example, the at-risk
definition has enabled NRCS to restore wildlife habitat for species
that have experienced population decline from a natural disaster or
other situation, without the requirement that the species be included
on a list.
NRCS determined, based on the public comments, to revise its
definition to read as follows: ``At-risk species means any plant or
animal species listed as threatened or endangered; proposed or
candidate for listing under the ESA; a species listed as threatened or
endangered under State law or tribal law on tribal land; State or
tribal land species of conservation concern; or other plant or animal
species or community, as determined by the State Conservationist, with
advice from the State Technical Committee and Tribal Conservation
Advisory Council (for tribal land), that has undergone, or likely to
undergo, population decline
[[Page 71331]]
and may become imperiled without direct intervention.''
Habitat Development
Comments: Two respondents requested that NRCS modify the habitat
development definition solely to address native conditions for fish and
wildlife habitat.
Response: WHIP's authority focuses on wildlife habitat with no
distinction made between native and managed species and no distinction
made on native or managed conditions. NRCS chooses to retain the
flexibility afforded by the program's enabling legislation and leave it
to the discretion of the State Conservationist, with advice from the
State Technical Committee, to restore or enhance wildlife for those
species that are deemed to need habitat restoration or enhancement in
that geographic area or State. No changes were made to the final rule.
Historically Underserved Producer
Comments: Three respondents requested that NRCS expand WHIP's
applicability to include NIPF landowners or family forest owners, along
with farmers and ranchers, in the definition of historically
underserved producer.
Response: NRCS' current definition of historically underserved
producer is as follows: ``Historically underserved producer means an
eligible person, joint operation, or legal entity who is a beginning
farmer or rancher, socially disadvantaged farmer or rancher, or limited
resource farmer or rancher.''
NIPF landowners are eligible for the increased WHIP cost-share
rates afforded to historically underserved agricultural producers,
provided they meet the same quantifiable criteria contained within the
separate definitions for beginning farmer or rancher, limited resource
farmer or rancher, or socially disadvantaged farmer or rancher. Section
636.3 defines each of these terms.
To clarify that NIPF landowners can qualify for the increased cost-
share rates, NRCS revises the historically underserved producer
definition as follows: ``Historically underserved producer means an
eligible person, joint operation, legal entity, or Indian tribe who is
a beginning farmer or rancher, socially disadvantaged farmer or
rancher, limited resource farmer or rancher, or NIPF landowner who
meets the beginning, socially disadvantaged, or limited resource
qualifications set forth in Sec. 636.3.''
Livestock
Comments: Two respondents request that NRCS revise the definition
of livestock to limit the terminology to ``all domesticated animals
kept on farms and ranches for the production of agricultural goods, as
determined by the Chief.''
Response: NRCS retains the interim final rule's definition since
some animals raised on a farm or ranch such as bison, fish, or emus may
not be considered domesticated species. As defined, ``livestock means
all animals produced on farms and ranches, as determined by the
Chief.''
Resource Concern
Comments: Four respondents requested that NRCS modify the
definition of resource concern, striking the phrase by producers and
replacing it with by participants.
Response: NRCS accepts this recommendation since the term
participant is the term used to describe a person, joint operation, or
legal entity that has responsibility to implement the contract.
Therefore, the final rule definition is as follows: ``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 activities
by participants.''
Wildlife
Comments: Four respondents requested that NRCS include mollusks in
the definition of wildlife.
Response: Mollusks are considered invertebrates; therefore, NRCS
retains the definition of wildlife as stated in the interim final rule:
``Wildlife means non-domesticated birds, fishes, reptiles, amphibians,
invertebrates, and mammals.''
Section 636.4 Program Requirements
Section 636.4 articulates program eligibility requirements. In the
interim final rule, NRCS made several adjustments to Sec. 636.4(b) to
incorporate the 2008 Act changes to land eligibility and to conform the
eligibility language to the new definitions described in Sec. 636.3.
In particular, NRCS identified in Sec. 636.4(b) that eligible lands
included agricultural land, NIPF, and Indian land as defined in Sec.
636.3. Most of the comments received for this section focused on
eligible lands and the role of other agencies in determining what lands
are eligible for WHIP assistance.
Land Eligibility
Comments: Several respondents were disappointed that NRCS limited
the program to private agricultural lands, NIPF, and tribal lands,
stating that a lot of wildlife benefits can occur on public lands.
Another respondent recommended that the public lands restriction be
revised when significant habitat gains can accrue on public lands,
while another respondent suggested that NRCS allow public lands if it
is a working component of the participant's agricultural or forestry
operation, and where an at-risk species on private land would benefit.
Ten respondents suggested that public lands leased by private
landowners who have control over the land for the contract period be
eligible. Nine of those respondents also wanted NRCS to allow public
lands that were held in trust for the beneficiaries of a State's
education system. Another respondent requested that WHIP allow for a
small number of strategically located projects on private non-
agricultural land, State, or locally-owned public lands.
Response: The 2008 Act amended section 1240N of the Food Security
Act of 1985, as amended to limit WHIP's scope to ``wildlife habitat on
private agricultural land, NIPF, and tribal lands.'' Consequently,
public lands are ineligible for WHIP assistance, even those leased by
private landowners or States' education systems. Based on this
authority, WHIP's activities on streams and waterways are limited to
the extent that these lands are considered private lands. The final
rule is being revised to provide that certain trust lands are eligible
for assistance.
Hawaii and Other Pacific Trust Lands
Comments: Several respondents requested that NRCS allow public
leaseholder land in the State of Hawaii to be eligible for WHIP cost-
share assistance. In addition to Hawaii homelands, several respondents
also requested that NRCS expand the definition of Indian land beyond
tribal and trust land held by Alaska Natives to include trust lands in
the Pacific.
Response: The respondents accurately note that many public trust
lands in Hawaii and other Pacific locations operate as the equivalent
of private land and leaseholders hold such land under very long-term
leases (99 years in the case of Hawaii) and often without any payment
to the government at issue including any requirement to share any
profits made from agricultural operations. While such trust lands
cannot fall under the statutory definition of tribal lands as urged by
the
[[Page 71332]]
respondents, as set forth below, the rule is being revised to make such
trust lands eligible for WHIP assistance when the Chief determines
trust land is held under a long-term lease by a person or
nongovernmental entity and when the Chief determines that (i) By the
nature of the lease, such land is tantamount to private agricultural
land; (ii) the duration of the lease is at least the length of any WHIP
agreement; and (iii) no funds under the WHIP program are paid to a
governmental entity.
Comments: Ten respondents requested that NRCS allow stream systems,
including stream bottoms, to be eligible, while another respondent
requested that NRCS allow streams to be eligible if the activity is for
dam removal. Six respondents requested that NRCS allow stream systems
to be eligible when the landowner who operates the land within these
landscapes is willing to participate. Two respondents supported the
rationale to allow streams to be enrolled, particularly if it is public
land that remains under private control during the contract period. Two
respondents stated that the intent of WHIP was to limit WHIP's use in
State Parks and wildlife areas, not where private land surrounds the
stream or waterway.
Response: NRCS will enroll streams and stream bottoms provided the
governmental entity with authority over State or Federal waters
provides documentation certifying that the stream and the stream bottom
are considered private land. The processes for obtaining this approval
will be outlined in 440 Conservation Programs Manual, Part 517, Section
517.22 Eligibility.
Comments: Section 1240N(b) directs the Secretary to ``make cost-
share payments to owners of lands referred to in subsection (a) to
develop (A) upland wildlife habitat; (B) wetland wildlife habitat; (C)
habitat for threatened and endangered species; (D) fish habitat; and
other types of wildlife habitat approved by the Secretary, including
habitat developed on pivot corners and irregular areas.'' One
respondent supported Congress' addition of pivot corners into WHIP.
Response: Prior to the 2008 Act, the existing WHIP regulation
encompassed habitats on areas such as pivot corners; therefore, NRCS
determined that it did not need to amend the final rule, although the
preamble clarified that pivot corners were considered eligible lands.
Comments: Several respondents requested that NRCS involve other
agencies in the determination of public lands. Specifically, four
respondents recommended that NRCS modify 636.4(c), to allow the USFWS
and State agencies to be involved in determining land that is
ineligible. Specifically, they request that NRCS revise paragraph (c)
as follows: ``Ineligible land. NRCS will not provide cost-share
assistance if after coordination with the State fish and wildlife
agency and USFWS with respect to conservation practices on land * * *''
Response: NRCS chooses to retain the interim final rule's language
in Sec. 636.4 which does not specify consultation with State fish and
wildlife agencies or USFWS. The State Conservationist may consult with
the State fish and wildlife agency and USFWS on ineligible land
determinations as stated in 440 Conservation Programs Manual, Part 517,
Section 517.22; however, the final decision rests with the State
Conservationist.
Comments: One respondent requested that NRCS broaden the scope of
Sec. 636.4(c)(3) to include not just threatened and endangered
species, but also at-risk species. In essence, the respondent requested
that NRCS not provide assistance on land where at-risk species may be
adversely affected, while two additional respondents requested that
NRCS expand the list to proposed or candidates for listing under ESA or
likely to become candidates under ESA or similar classification under
State law.
Response: NRCS retains the reference to threatened and endangered
species in Sec. 636.4(c)(3), since the proposed categorized species
are broader categories of species that are experiencing population
decline and such species may not undergo the same scrutiny and
information gathering process in their labeling as threatened or
endangered species.
Comments: Section 636.4(c)(4) sets forth the types of lands
ineligible for WHIP assistance. Three respondents requested that NRCS
revise Sec. 636.4(c)(4) regarding ineligible land to read: ``Lands
owned in fee title by an agency of the United States, other than land
held in trust for Indian tribes, and (ii) lands owned in fee title by a
State, including an agency or subdivision of a State or a unit of
government.''
Response: NRCS supports the recommended wording change and adopts
it.
Person Eligibility
Comments: Several respondents commented on person eligibility. One
respondent supported NRCS' ability to grant waivers for persons and
legal entities who exceed the Adjusted Gross Income (AGI) limitation as
specified in 7 CFR part 1400. Section 1400.500 allows the Chief to
grant a waiver ``for the protection of environmentally sensitive land
of special significance.'' Such a waiver proves helpful to States like
Hawaii, where high real estate prices, wealthy landowners, and critical
natural resources exist. Two respondents questioned whether tribes were
exempt from the AGI limitation.
Response: Tribes are exempt from AGI limits in accordance with 7
CFR part 1400, ``Farm Program Payment Limitation and Payment
Eligibility for 2009 and Subsequent Crop, Program, or Fiscal Years.''
Comments: One respondent requested that WHIP should reflect the
policy outlined in 7 CFR part 1466, EQIP, which clearly exempts Indian
tribes or Indians represented by the Bureau of Indian Affairs (BIA)
from the limitations.
Response: 7 CFR 1400.4 excludes tribes from payment limitation and
eligibility provisions related to the AGI: ``Provisions of this part do
not apply to Indian tribes as defined in section 1400.3.'' The
regulation's corresponding preamble states the following:
``In this rule, section 1400.4 exempts Indian tribes, as defined
in 1400.3, from all requirements of this part. Provisions of this
part apply to persons or legal entities. Indian tribes are not
included under the definition of person or legal entity as provided
by the 2008 Act for the application of payment eligibility and
payment limitation provisions. The 2008 Act does not impose any
limitations or restrictions on programs payments and benefits to
federally recognized Indian tribes. This exemption to the provisions
of this part only applies to Indian tribes. The payment eligibility
and payment limitation requirements remain applicable to individual
American Indians or Alaska Natives receiving program payment and
benefits as individuals, or through a group in which all members of
the group are American Indians or Alaska Natives.''
For this reason, persons and legal entities within the tribe will
be subject to limitations in accordance with Sec. 636.4(a)(9);
however, payments made to tribal groups may exceed the payment
limitation if the BIA or a tribal official certifies that no one
individual will receive more than the established payment limitation.
Comments: As it relates to tribes, one respondent requested that
NRCS form a partnership via a Memorandum of Agreement or MOU between
NRCS and the tribe to ensure that tribal members comply with tribal law
before applying for WHIP benefits as well as operational consideration.
An individual tribal member must comply with a tribal management plan
and be able to show proper documentation for land control pursuant to
the tribal nation.
[[Page 71333]]
Response: The NRCS policy is to work with all tribes to meet all of
their resource needs. No changes were made to the final rule.
Comments: Related to payment matters, one respondent requested that
NRCS rephrase Sec. 636.9(c) to add: ``Deferment will be eligible for
payments for foregone income when deferment of use is needed to meet
habitat need and achieve program objectives.''
Response: Section 1240N identifies that NRCS is to provide cost-
share assistance to private agricultural landowners to develop wildlife
habitat. The statutory authority does not restrict cost-share
assistance to any particular identified aspect of the cost of habitat
development. As can be gleaned from other financial assistance
programs, the costs associated for implementing a conservation
practice, activity, or other fish and wildlife habitat development
action includes the income forgone from its implementation, and thus,
income foregone is an appropriate consideration for determining the
level of cost-share assistance that should be made available under the
program. Therefore, NRCS will review and develop payment rates wildlife
habitat development actions where the income foregone by the WHIP
participant to implement those actions is appropriate to be included in
the cost-share payments made under the WHIP contract. NRCS has made
editorial adjustments throughout the final rule to clarify that cost-
share assistance is available for the implementation of cost-share
practices, activities, and other habitat development actions, and that
such cost-share assistance includes income foregone. Therefore, NRCS
has added a new term, ``conservation activities,'' to encompass the
range of habitat development actions eligible for cost-share
assistance, and incorporated the term throughout the final rule where
appropriate.
Comments: One respondent suggested that NRCS clarify when the
operation and maintenance (O&M) agreement will be signed.
Response: The O&M agreement will continue to be signed at the time
that the WHIP plan of operations cost-share agreement is signed. In
accordance with Sec. 636.8, the WHIP plan of operations forms the
basis for the WHIP cost-share agreement, along with the O&M agreement.
The WHIP plan of operations includes a schedule for the implementation
and maintenance of the conservation activities, as determined by NRCS.
Section 636.5 National Priorities
Section 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.
Comments: NRCS received over 20 comments pertaining to WHIP's
national priorities. Nine respondents supported WHIP's national
priorities outlined in section 636.5(a). Several others supported
WHIP's priorities, but wanted to see pollinators addressed as part of
the priorities. Several of those respondents wanted only native
pollinators to be considered national priorities. Another respondent
wanted honey bees to be a national priority. Six respondents requested
giving priority to unique habitats or special geographic areas
identified by the State, while two other respondents requested that
natural disasters, such as catastrophic wildfires, insect and disease
outbreaks, invasive, and other natural disasters be considered a
national priority. Several respondents requested that WHIP address
these priorities and other additional priorities identified in section
8001 of the 2008 Act.
Response: Although these are good comments, they are too specific.
The existing WHIP national priorities are broad and include these
recommendations.
Comments: One respondent requested that WHIP address State,
regional, or national conservation initiatives in its list of national
priorities.
Response: NRCS believes that it is not necessary to add this last
recommendation to Sec. 636.5, since State, regional, and national
conservation initiatives are already addressed in Sec. 636.6,
``Establishing priority for enrollment in WHIP.''
Comments: One respondent requested that NRCS add the following to
its list of priorities: ``(a)(5) Protect, restore, develop, or enhance
important migration and other movement corridors for wildlife.''
Response: NRCS has added the above-mentioned migration or movement
corridor to 636.5 (a)(5) as WHIP's fifth national priority since it is
neither species nor land-use specific.
Comments: Several organizations commented on WHIP's priority
setting process. One respondent would like the process for establishing
national priorities promulgated in the regulation, while others
requested outside agency input.
Response: NRCS is not making changes to the final rule in response
to these comments because the rulemaking process enables respondents to
comment on WHIP's national priorities. In addition, Sec. 636.5(b)
articulates the policy to undertake periodic review of the agency's
national priorities.
Section 636.6 Establishing Priority for Enrollment in WHIP
Section 636.6 establishes the policies and procedures for enrolling
lands in WHIP at the State and local levels.
Comments: A majority of the comments received focused on priority
setting, requesting that NRCS name specific priorities and policies in
the regulation, while others commented on specific ranking criteria.
Other respondents supported NRCS' emphasis on local input, while others
raised concern about the Chief being able to limit the program to
specific geographic areas. Finally, some respondents requested specific
wording changes.
For example, several respondents requested amending Sec. 636.6 to
add after paragraph (a): ``These conservation initiatives may include
such things as the North American Waterfowl Management Plan, the
National Fish Habitat Action Plan, the Greater Sage-Grouse Conservation
Strategy, the State Comprehensive Wildlife Conservation Strategies
(also referred to as the State Wildlife Action Plan), the Northern
Bobwhite Conservation Initiative, and State forest resource
strategies.'' One respondent requested adding ``and other conservation
plans designated by the Chief'' to the list. Three other respondents
requested that NRCS amend Sec. 636.6(c) to include priority forest
areas or regions identified in the State Forest Resource Assessments
and Strategies required by section 8002 of the 2008 Act.
Response: In order to maintain flexibility when addressing wildlife
habitat needs, the State Conservationist, with input from the State
Technical Committee, identifies appropriate ranking criteria and uses
the agency-approved Application Evaluation and Ranking Tool (AERT) to
prioritize all eligible applications. Ranking priority is given to
those applications that complement the goals and objectives of relevant
fish and wildlife conservation initiatives at the State, regional, and
national levels, including the current and successor plans of the
initiatives identified by the respondents.
Comments: Several respondents suggested specific wording revisions
in Sec. 636.6(a) by changing the word ``and'' to ``or.'' Another
respondent suggested that NRCS change the word limit to focus.
Response: NRCS accepts these recommendations and has reworded
paragraph (a) as follows: ``NRCS, in consultation with Federal and
State agencies, tribal, and conservation partners, may identify
priorities for
[[Page 71334]]
enrollment in WHIP that will complement the goals and objectives of
relevant fish and wildlife conservation initiatives at the State,
regional, tribal land, or national levels. In response to national,
tribal, regional, or State fish and wildlife habitat concerns, the
Chief may focus program implementation in any given year to specific
geographic areas or to address specific habitat development needs.''
Comments: As it relates to Sec. 636.6(c)(1), several respondents
recommended the paragraph be revised as follows: ``Contribution to
resolving an identified habitat concern of national, regional, or State
importance, including habitat to benefit at-risk species.'' One
respondent supports NRCS' change in terminology from needs to concern.
Response: NRCS accepts these suggestions and has incorporated them
into the final rule.
Comments: NRCS received several comments on the 2-year-completion
criteria. Several respondents expressed concern that giving priority to
applicants who are willing to complete all conservation practices
within 2 years discriminates against more complex projects. Three
respondents suggest offering a higher cost-share rate during the first
2 years of the contract to motivate completion of a contract. Two
respondents say that completing a contract will be difficult in 2
years, but that higher cost-share rates during the first 2 years would
promote completion. One respondent supports NRCS emphasis on a 2-year
agreement.
Response: Section 636.6(c) of the interim final rule states the
following: ``(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 * * * (8) Willingness of the
applicant to complete all conservation improvements during the first 2
years of the WHIP cost-share agreement.'' The State Conservationist,
with advice from the State Technical Committee, has discretion to use
one or more of the criteria listed in Sec. 636.6(c). Depending on the
needs of the particular geographic area or State, the State
Conservationist may or may not use a participant's willingness to
complete the application within the first 2 years. However, to ensure
more complex projects have an opportunity to be funded, at-risk species
is added to 636.6 (c)(1). NRCS amends Sec. 636.6(c)(1) in the interim
final rule to read as follows: ``Contribution to resolving an
identified habitat concern of national, tribal, regional, or State
importance including at-risk species.''
Section 636.7 Cost-Share Payments
Section 636.7 sets forth the payment rates, payment limitations,
and requirements for receiving payments under WHIP. In the interim
final rule, NRCS adopted a number of payment policies to address the
2008 Act requirements and to make WHIP consistent with other NRCS
conservation programs. These policies included: Revising WHIP cost-
share rates, stipulating that NRCS will offer to pay no more than 75
percent of the costs of establishing conservation practices; adding a
new provision as Sec. 636.7(a)(2) to allow NRCS to provide additional
cost-share incentives to historically underserved producers that
include limited resource farmers or ranchers, beginning farmers or
ranchers, and socially disadvantaged farmers or ranchers; and
instituting a payment limitation of $50,000 per person or legal entity
per year as required under section 1244(a)(2) of the Food Security Act
of 1985, as amended.
Comments: Several respondents requested that NRCS make WHIP
consistent with other NRCS programs, like EQIP, by paying for activity
plans and income foregone. They specifically suggested rewording Sec.
636.7(d) as follows: ``NRCS, in consultation with the State Technical
Committee, will identify and provide public notice of the conservation
practices eligible for payment under the program. Conservation
practices eligible for payment include development and implementation
of conservation activity plans including grazing, haying, forestry, and
stubble management.''
In line with compensating producers for income foregone, one
respondent supported a payment that recognized game damage.
Response: NRCS does not have authorization in WHIP to make payments
based on any method other than cost-sharing to develop upland wildlife
habitat, wetland wildlife habitat, habitat for threatened and
endangered species, fish habitat, and other types of wildlife habitat
approved by the Secretary, including habitat developed on pivot corners
and irregular areas. Accordingly, NRCS cannot provide payments for
conservation activity plans. However, as discussed above, NRCS is
modifying this final rule to include income foregone as a cost element
of wildlife habitat development that will be included in payment rates.
Comments: Several respondents requested that WHIP's payments be
flexible based on the type of species targeted. Specifically, 10
respondents requested to allow waivers to the 75 percent Federal cost-
share cap when dealing with at-risk species, while several of these
respondents specifically requested that the cost-share rate be raised
up to 90 percent for threatened and endangered species, pollinators,
and other species considered to be at-risk or declining. One respondent
recommended specific wording changes to Sec. 636.7. The comment called
for a change in the 15-year minimum contract to 5 years for 90 percent
cost-share for Federal or State threatened and endangered recovery
plans.
Response: NRCS chooses to retain the language in the interim final
rule which gives flexibility to the State Conservationist to establish
cost-share rates up to 75 percent and up to 90 percent for specified
cost-share agreements. Section 636.7(a)(1) sets forth that NRCS will
not pay more than 75 percent of the costs to develop fish and wildlife
habitat, including those that target at-risk or declining species. For
cost-share agreements that are 15 years or more and whose habitat
development actions have been determined to protect essential plant or
animal habitat, NRCS may provide up to 90 percent of those habitat
development actions. For participants who are considered historically
underserved, NRCS may issue payments not less than 25 percent above the
applicable payment rate, provided that this increase does not exceed 90
percent of the estimated incurred costs associated with the
conservation practice.
Comments: NRCS received several comments on the 25 percent set-
aside for cost-share agreements exceeding 15 years.
Response: Section 1240N(b)(2)(B) of the Food Security Act of 1985,
as amended specifies 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 Act, NRCS had the legislative authority to use up to 15
percent of WHIP funds to carry out these longer-term agreements.
Comments: One respondent suggested NRCS should track the 25 percent
set-aside for cost-share agreements described in Sec. 636.9(c) at the
national level, instead of requiring 25 percent of all State funds for
these projects, since annual allocations are typically small amounts.
Response: NRCS already tracks the 25 percent annual reserve for
longer-term agreements on a State and national level. NRCS uses its
contracting software to track this and all other information about its
cost-share agreements. Tracking is an
[[Page 71335]]
administrative action; therefore, no changes were made to the final
rule.
Comments: NRCS received numerous comments on the $50,000 annual
payment limitation. Several of the respondents requested that NRCS
waive the $50,000 annual payment limitation for a variety of reasons
including waiving the limitation for non-profit entities; at-risk and
declining species; or projects, not landowners. Five respondents
requested that NRCS clarify how the $50,000 annual payment limitation
works over multi-years. They stated that the payment limitation should
be clarified as follows: ``A multiple contract may exceed $50,000
provided the payments made or attributed to a participant, directly or
indirectly, may not exceed, in the aggregate, $50,000 per year.''
Response: NRCS has no authority to waive the annual payment
limitation. Section 1240N(e) directs the Secretary to limit payments
not to exceed $50,000 per year. Therefore, NRCS retains the payment
limitation as set forth in Sec. 636.7(f).
A WHIP project may exceed $50,000 provided no one individual
exceeds the annual payment limitation. This may extend to a project
with multiple landowners or to where there is one landowner who wishes
to extend his payment over multiple years. For example, for one
landowner who wishes to install 45,000 trees and plants, 5,000 trees
per year at a cost of $10.00 per tree (including labor), the payments
may be as follows: $50,000 annual payment limitation for a 10-year
contract beginning with FY 2009 with 75 percent cost-share. A total of
45,000 trees will be planted at a rate of 5,000 trees per year with a
cost of $10.00 per tree including labor:
FY 2009
FY 2010 = $50,000
FY 2011 = $50,000
FY 2012 = $50,000
FY 2013 = $50,000
FY 2014 = $50,000
FY 2015 = $50,000
FY 2016 = $50,000
FY 2017 = $50,000
FY 2018 = $50,000 = Total payments = $450,000
FY 2019 = all plantings were completed in FY 2018 and no payment this
year as this is a maintenance year.
However, under the annual payment limitation, if the same
participant elects to complete all plantings in one fiscal year, i.e.,
FY 2009, the participant will be limited to one payment of $50,000.
Section 636.8 WHIP Plan of Operations
Section 636.8 sets forth the WHIP plan of operation's basic
requirements, including habitat types that should be addressed under a
WHIP plan of operations.
Comments: Most of the comments generated in this section focused on
what types of habitats should receive emphasis in a WHIP plan of
operations. While some respondents requested that NRCS amend Sec.
636.6 to prioritize habitats that have been impacted by natural
disasters, such as catastrophic wildfires, insect and disease
outbreaks, and invasive species, a majority of respondents requested
that NRCS place a priority on restoring and enhancing pollinator
habitat.
Response: NRCS has chosen to leave its regulation species neutral
so that species are not inadvertently ignored by highlighting some and
not others. In accordance with Sec. 636.6, the Chief or State
Conservationist has the discretion to address initiatives. NRCS accepts
the recommendation to amend Sec. 636.8(a)(2) and reference Sec.
636.6(a); however, NRCS chooses to not identify specific land uses
within WHIP's national priorities. Specifically, Sec. 636.8(a)(2) is
revised as follows: ``Fish and wildlife habitat concerns identified in
State, regional, tribal land, or national conservation initiatives, as
referenced in Sec. 636.6(a).''
NRCS placed the NRCS Conservation Practice Standards in the Federal
Register request for comments. A number of suggestions dealt with
better inclusion of concern for pollinators and pollinator habitat
within the practice standard. NRCS anticipates that many of the
suggestions will be incorporated into revised Conservation Practice
Standards. Increased concern for pollinator habitat is evident through
both national and State-specific technical notes over the past few
years concerning the enhancement and protection of pollinator habitat.
Currently, 23 State offices have identified to the public through
their Web page that pollinator habitat is a priority in their State.
Fifteen States have FY 2009 pollinator WHIP contracts. NRCS State
offices have been encouraged to provide incentives in appropriate
conservation programs (e.g., EQIP, WHIP, and CSP) for the creation of
pollinator habitat, and a recently approved NRCS Pollinator Initiative
will implement increased attention to pollinators through an agency
pollinator policy, additional conservation program incentives, new and
stronger pollinator-focused partnerships, and far-reaching
informational and educational outreach efforts.
Comments: In addition to requesting that pollinator habitat be
emphasized in the WHIP plan of operations, one respondent requested
that NRCS ensure that its updates and revisions to conservation
practice standards and the development of its technical notes for
native and managed pollinators move forward on an expedited basis. The
respondent also requested that NRCS increase outreach to producers on
methods in which they can address pollinator habitat through its cost-
share assistance and requested that NRCS use WHIP to create
conservation corridors.
Response: NRCS will continue to address pollinator needs, as
appropriate, in the WHIP plan of operations, but has chosen to leave
the regulation species neutral, so that species are not inadvertently
ignored by highlighting some and not others. NRCS has taken and will
continue to take a proactive approach to addressing pollinator habitat,
including the development of wildlife corridors. State Conservationists
have been encouraged to establish pollinator species as State
priorities, and they have been proactive in establishing pollinator
habitat as State priorities and interim conservation standards and
technical notes related to pollinator species and their habitat. NRCS
has also established partnerships with agencies that provide
information on pollinator research. In 2008, NRCS funded a bat habitat
enhancement project through the CIG program. In 2009, CIG funded 5
pollinator projects and WHIP funded 49 pollinator contracts nationwide.
Comments: As it relates to practice life spans, one respondent
requested that NRCS codify that management practices have a one-year
minimum and establish a 5-year minimum for structural and vegetative
practices.
Response: NRCS is not including in this rulemaking practice life
spans, because NRCS' existing practice is to set forth such information
in the NRCS Field Office Technical Guide (FOTG). The FOTG is supported
by national standards based upon USDA's scientific and technical
findings.
Comments: Several other respondents requested that NRCS accept
conservation plans, such as a forest management plan, which may be
developed by another agency as a foundation to the WHIP plan of
operations and ensure that such plans complement one another.
Response: NRCS agrees that habitat, forestry, and other natural
resource plans should complement one another. Section 636.8 enables
NRCS to consult
[[Page 71336]]
with ``other public or private natural resource professionals,'' such
as State or regional foresters, to develop a WHIP plan of operations
that may be compatible with a forest management plan. Therefore, no
changes were made to the final rule.
Section 636.9 Cost-Share Agreements
Section 636.9 sets forth the duration of the cost-share agreement.
Prior to the interim final rule, all long-term WHIP agreements were 5
to 10 years in duration. The interim final rule established a minimum
duration of one year after the completion of all conservation practices
and a maximum of 10 years, with the exception of longer-term agreements
as established under Sec. 636.9(c). This revised contract length
provided the flexibility needed for establishing agreement lengths
based on wildlife habitat needs and other factors.
Comments: One respondent expressed confusion about NRCS' intent to
implement shorter-term WHIP contracts and simultaneously encourage
longer-term cost-share agreements, while another respondent supported
setting aside 25 percent for longer-term agreements. Several
respondents expressed concern that giving priority to applicants who
are willing to complete all conservation practices within 2 years
discriminates against more complex projects.
Response: Section 1240N(b)(2) enables the Secretary to provide up
to 25 percent of the funds made available for cost-share agreements
that are at least 15 years in length. NRCS is retaining the original
language of the interim final rule because it encourages both shorter
and longer-term cost-agreements. Such language provides the State
Conservationists flexibility to address resource concerns based on both
the short and long-term needs of the State or geographic area.
Furthermore, a State Conservationist has the discretion to raise or
lower cost-share rates to create an incentive to complete the contract
in a timely manner.
Section 636.10 Modifications
Section 636.10 sets forth the policies and procedures to modify a
cost-share agreement.
Comments: One respondent supported WHIP's modification provisions.
Another respondent requested that NRCS recognize the right of contract
holders to control wildlife in any way possible when animals cause
damage to property or threaten personal safety.
Response: NRCS respects the need to modify a contract where a
health or safety issue exists. To accommodate instances where public
health or safety is jeopardized, NRCS adds paragraph (d) to Sec.
636.10: ``Where circumstances beyond the participant's control or when
it is in the public interest, such as a matter of health or safety, the
State Conservationist may independently or by mutual agreement with the
parties, modify or terminate the cost-share agreement as provided for
in stated in Sec. 636.12.''
Section 636.11 Transfer of Interest in a Cost-Share Agreement
Section 636.11 sets forth the policies and procedures regarding the
transfer of interest in a cost-share agreement.
Comments: Five respondents requested that NRCS change producer to
participant to be more inclusive of the type of individuals and
entities that participate in WHIP.
Response: NRCS accepts this recommendation and rewords Sec.
636.11(b) as follows: ``The participant and NRCS may agree to transfer
a cost-share agreement to another potential participant. The transferee
must be determined by NRCS to be eligible to participate in WHIP and
must assume full responsibility under the cost-share agreement.''
Section 636.12 Termination of Cost-Share Agreements
Section 636.12 sets forth the conditions and procedures under which
a cost-share agreement may be terminated. No comments were received on
this section; therefore, no changes were made to the final rule.
Section 636.13 Violations and Remedies
Section 636.13 sets forth the policies and procedures as it relates
to contract violations and remedies to recoup the Federal investment.
No substantive comments were received; therefore, no changes were made
to the final rule.
Section 636.14 Misrepresentation and Scheme or Device
Section 636.14 establishes the policies and procedures when a
participant knowingly misrepresented any fact that affected program
determination of their WHIP cost-share agreement. No comments were
received on this section; therefore, no changes were made to the final
rule.
Section 636.15 Offsets and Assignments
Section 636.15 establishes offsets and assignments of payments. No
comments were received on this section; therefore, no changes were made
to the final rule.
Section 636.16 Appeals
Section 636.16 sets forth the policies and procedures regarding
program appeals. No comments were received on this section; therefore,
no changes were made to the final rule.
Section 636.17 Compliance With Regulatory Measures
NRCS added 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.
Comments: Seven respondents requested that NRCS not issue payments
until the participant has obtained and complied with all applicable
local, State, and Federal permits.
Response: NRCS does not accept the comment, but instead adjusts
636.17 (a) as follows: ``Participants who carry out conservation
practices will be responsible for obtaining the authorities, rights,
easements, permits, or other approvals necessary for the
implementation, operation, and maintenance of the conservation
activities in keeping with applicable laws and regulations. The
requirement for the participant to obtain necessary permits is included
in the terms and conditions of the contract appendix.''
Section 636.18 Technical Services Provided by Qualified, Non-USDA
Personnel
NRCS added Sec. 636.18 in the interim final rule to incorporate
the TSP provisions in place since 2002, but not included in the WHIP
regulation.
Comments: One respondent supported the use of TSPs.
Response: Section 2706 of the 2008 Act amended the Food Security
Act of 1985, as amended to authorize payments to third party TSPs or
``related technical assistance services that accelerate program
delivery.'' Related technical assistance services include, but are not
limited to, conservation planning documentation, payment scheduling and
documentation, and other services.
To reflect the new statutory authority that TSPs may be used to
expedite WHIP conservation program delivery, NRCS has added ``related
technical services'' to Sec. 636.18(c). As in the case of other Food
Security Act of 1985, as amended conservation programs, NRCS or a WHIP
participant may use the services of a qualified TSP to install and
implement the WHIP plan of operations. Technical services provided may
[[Page 71337]]
include conservation planning; conservation practice survey, layout,
design, installation, and certification; and related technical
assistance services as described above.
Accordingly, NRCS is revising Sec. 636.18(c) as follows:
``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 related technical services as defined in 7 CFR part
652.''
Section 636.19 Access to Operating Unit
Section 636.19 establishes the policies shared by all NRCS programs
about access to a participant's operating unit.
Comments: Four respondents want to add including TSPs after NRCS
representatives to clarify that TSPs have the right to enter the
premises. They also request that NRCS revise the language from
agricultural operation or tract to a participant's property.
Response: Under WHIP and other NRCS conservation programs, a
participant or NRCS may use the services of a qualified TSP to plan,
design, install, and check-out conservation practices. TSPs are
authorized to access the property where they have been delegated
authority to conduct NRCS activities via the contract or through an
agreement between NRCS and the TSP. Section 636.4(a)(7) provides that
participants 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. To ensure that participant's are aware that
TSPs, as a representative of NRCS, may enter the property, NRCS will
amend the Appendix to the contract so that participants are fully
informed that NRCS or the TSP, acting on behalf of NRCS, may enter a
property for program purposes.
Section 636.20 Equitable Relief
NRCS added Sec. 636.20, Equitable relief, in the interim final
rule to be consistent with other NRCS conservation programs. This
section clarified that WHIP participants who acted in good faith based
on erroneous information provided by NRCS or its representatives may be
granted equitable relief if such action resulted in a violation of the
cost-share agreement. No comments were received on this section;
therefore, no changes were made to the final rule.
Section 636.21 Environmental Services Credits for Conservation
Improvements
NRCS included Sec. 636.21, Environmental services credits for
conservation improvements, in the interim final rule which acknowledged
participants' rights to the environmental benefits achieved by
conservation programs like WHIP.
Comments: Three respondents supported NRCS' provision pertaining to
environmental credits, while another respondent requested that NRCS
calculate what portion of the potential credit NRCS has financed and
what portion remains that could be sold into an ecosystem services
market. The same respondent also requested that NRCS require a
compatibility assessment. Seven respondents requested that NRCS add a
modification option to the environmental credits provision similar to
the Healthy Forest Reserve Program.
Response: NRCS retains the interim final rule's provision on
environmental credits and adds language to accommodate a possible
modification for an environmental credits provision that is consistent
with the purposes of the cost-share agreement: ``NRCS recognizes that
environmental benefits will be achieved by implementing conservation
practices funded through WHIP, and environmental credits may be gained
as a result of implementing conservation practices compatible with the
purposes of a WHIP cost-share agreement. NRCS asserts no direct or
indirect interest on these credits. However, NRCS retains the authority
to ensure that program purposes are met, maintained, and 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 an
O&M compatibility assessment from NRCS prior to entering into any such
credit agreements. The WHIP cost-share agreement may be modified, in
accordance with policies outlined in Sec. 636.10, provided the
modification meets WHIP purposes and is in compliance with this part.''
Comments: Another respondent requests that NRCS coordinate this
type of activity with the Office of Ecosystem and Markets.
Response: As a preliminary matter, NRCS notes that the Office of
Ecosystem Services and Markets has changed its name to the Office of
Environmental Markets (OEM). No changes were made to the final rule.
Development of ecosystems services markets under the WHIP program is
beyond the statutory authority of that program. To the extent
appropriate, NRCS coordinates with OEM and other relevant offices when
formulating policy.
Climate Change
Comments: On March 12, 2009, NRCS published an amendment to the
interim final rule with a request for public comment on how
conservation programs, like WHIP, could be used to mitigate climate
change, conserve energy, and reduce net carbon emissions. Four
respondents provided comments on how WHIP could be used to reduce the
impacts of climate change. All respondents stated that WHIP's primary
focus should continue to be fish and wildlife habitat since WHIP is the
only conservation program focused solely on fish and wildlife habitat.
However, each of these respondents believed that practices applied in
WHIP may assist in meeting the challenges posed by climate change. One
respondent stated that WHIP should promote practices that involve
perennial vegetation, draw attention to the energy-conservation value
of many WHIP practices, and collaborate with conservation districts.
The respondent cited specifically that control of invasive species and
removal of wood damaged by pests may help meet the goal of renewable
energy.
Another respondent stated it would be inappropriate for NRCS to use
WHIP to support projects focused primarily on advancing renewable
energy and energy conservation, it should only be supported where such
production is a co-benefit of the practice. The same respondent stated
that NRCS should consider activities to monitor and measure GHG
reductions that are generated by the project, but it should not make
extra payments for carbon sequestration. This respondent also
reiterated that the enhancement and restoration of wildlife corridors
and other forms of perennial vegetation are practices that would
provide dual benefits and also help species adapt to climate change.
Two respondents requested that when examining practices such as
wildlife migration corridors, NRCS add points in WHIP project selection
criteria that would, with other wildlife habitat benefits being equal,
provide a preference for projects that reduce net carbon emissions or
boost carbon storage. To evaluate this, they suggested making
accommodations at the regional level so that if points are awarded,
they are based on reasonable expectations for fish or wildlife benefits
to the location.
Response: NRCS will continue to place its primary focus on fish and
wildlife habitat. However, NRCS accepts
[[Page 71338]]
the respondents' comments that some practices can serve multiple
purposes, such as riparian migration corridors, which not only
sequester carbon and provide essential fish and wildlife habitat, but
also help species adapt to climate change. NRCS accepts the
respondents' suggestions that additional ranking points may be assigned
to practices that offer multiple benefits in WHIP's AERT. NRCS also
agrees with the respondents that additional WHIP payments should not be
issued for practices which are already being compensated under wildlife
habitat cost-share.
List of Subjects in 7 CFR Part 636
Administrative practice and procedure, Agriculture, Conservation,
Endangered and threatened species, Natural resources, Soil
conservation, and Wildlife.
0
For reasons stated above, the CCC revises part 636 of Title 7 of the
CFR to read as follows:
PART 636--WILDLIFE HABITAT INCENTIVE 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 WHIP plan of operation.
636.9 Cost-share agreements.
636.10 Modifications.
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 personnel not
affiliated with USDA.
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 Incentive Program (WHIP) is
to help participants develop fish and wildlife habitat on private
agricultural land, nonindustrial private forest land (NIPF), and Indian
land.
(b) The regulations in this part set forth the requirements for
WHIP.
(c) The Chief, Natural Resources Conservation Service (NRCS), may
implement WHIP in any of the 50 States, District of Columbia, 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. 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.
(b) The State Conservationist may accept recommendations from the
State Technical Committee and Tribal Conservation Advisory Council (for
tribal land) in the implementation of the program and in establishing
program direction for WHIP in the applicable State or tribal land. The
State Conservationist has the authority to accept or reject the State
Technical Committee and the Tribal Conservation Advisory Council's (for
tribal land) recommendation; however, the State Conservationist will
give strong consideration to the State Technical Committee and the
Tribal Conservation Advisory Council'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 will
preclude the Chief, or 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,
pastureland, 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 or have the potential to be produced.
Agricultural lands may include cropped woodland, wetlands, waterways,
streams, incidental areas included in the agricultural operation, and
other types of land used for or have the potential to be used for
production.
Applicant means a person, legal entity, joint operation, or Indian
tribe that has an interest in agricultural land, NIPF, Indian land, or
other lands identified in 636.4(c)4, who has requested in writing to
participate in WHIP.
At-risk species means any plant or animal species listed as
threatened or endangered; proposed or candidate for listing under the
Endangered Species Act (ESA); a species listed as threatened or
endangered under State law or tribal law on tribal land; State or
tribal land species of conservation concern; or other plant or animal
species or community, as determined by the State Conservationist, with
advice from the State Technical Committee and Tribal Conservation
Advisory Council (for tribal land), that has undergone, or likely to
undergo, population decline and may become imperiled without direct
intervention.
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, who 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 or designee.
Conservation activities means conservation systems, practices, or
management measures needed to
[[Page 71339]]
address a resource concern or improve environmental quality through the
treatment of natural resources, and includes structural, vegetative,
and management activities, as determined by NRCS.
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. Approved conservation practices are listed in the NRCS Field
Office Technical Guide (FOTG).
Cost-share agreement means a financial assistance 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 the Department of Agriculture (USDA) to the
participant to share in the costs of applying conservation activities.
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 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 activities 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, legal entity, or Indian tribe who is a beginning farmer or
rancher, socially disadvantaged farmer or rancher, limited resource
farmer or rancher, or NIPF landowner who meets the beginning, socially
disadvantaged, or limited resource qualifications set forth in Sec.
636.3.
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 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 and severally liable for the obligations
of the organization.
Legal entity means, as defined in 7 CFR part 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 of not more
than $142,000 in each of the previous 2 years (this is the amount for
2010, and 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 2 years (to be determined
annually using the Department of Commerce 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 is an agency of USDA, which
has the responsibility for administering WHIP using the funds,
facilities, and authorities of the CCC.
Nonindustrial private forest land 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 decisionmaking authority over the land.
Operation and maintenance means work performed by the participant
to keep the applied conservation activities 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 activity 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 agreement means the document that, in
conjunction with the WHIP plan of operations, specifies the operation
and maintenance (O&M) responsibilities of the participants for
conservation activities implemented with WHIP assistance.
Participant means a person, legal entity, joint operation, or
Indian 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, joint operation, or Indian tribe 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
[[Page 71340]]
successfully through the implementation of the conservation activities
by participants.
Secretary means the Secretary of 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. Those groups include African Americans, American Indians or
Alaskan Natives, Hispanics, and Asians or Pacific Islanders.
State Conservationist means the NRCS employee authorized to
implement WHIP and direct and supervise NRCS activities in a State,
Caribbean Area, or the Pacific Islands Area.
State Technical Committee means a committee established by the
Secretary 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 means an individual, entity, Indian
tribe, or public agency either:
(1) Certified by NRCS and placed on the approved list to provide
technical services to participants; or
(2) Selected by the Department to assist the Department in the
implementation of conservation programs covered by this part through a
procurement contract, contribution agreement, or cooperative agreement
with the Department.
Tribal Conservation Advisory Council means a committee established
by a State Conservationist to implement consultation as defined in
General Manual 410 Part 405.
WHIP plan of operations means the document that identifies the
location and timing of conservation activities that the participant
agrees to implement on eligible land in order to develop fish and
wildlife habitat and provide environmental benefits. The WHIP plan of
operations 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 WHIP plan of operations and
O&M agreement, as described in Sec. 636.8;
(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 of land 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 (BIA) 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 the 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 BIA or
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 related to conservation activity
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 (AGI);
(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 are subject to Sec. 636.13; and
(12) Comply with applicable registration and reporting requirements
of the Federal Funding Accountability and Transparency Act of 2006
(Pub. L. 109-282, as amended) and 2 CFR parts 25 and 170.
(b) Eligible land includes:
(1) Private agricultural land;
(2) NIPF;
(3) Indian land; and
(4) Trust land owned in fee title by a State, including an agency
or subdivision of a State, when such trust land is held under a long-
term lease by a person or nongovernmental entity and when the Chief
determines that (i) by the nature of the lease, such land is tantamount
to private agricultural land; (ii) the duration of the lease is at
least the length of any WHIP agreement; and (iii) no funds under the
WHIP program are paid to a governmental entity.
(c) Ineligible land. NRCS will not provide cost-share assistance
with respect to land:
(1) Enrolled in a program where fish and wildlife habitat
objectives have been sufficiently achieved, as determined by NRCS;
(2) With onsite or offsite 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 ESA, 16 U.S.C. 1532, would be adversely
affected; or
(4) That is owned in fee title by an agency of the United States,
other than:
(i) Land held in trust for Indian tribes, and
[[Page 71341]]
(ii) Lands owned in fee title by a State, including an agency or
subdivision of a State or a unit of government except as provided in
Sec. 636.4(b)(4).
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;
(4) Protect, restore, develop, or enhance declining or important
aquatic wildlife species' habitats; and
(5) Protect, restore, develop, or enhance important migration and
other movement corridors for wildlife.
(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, tribal, and local levels 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 offices;
(2) Use the national priorities in conjunction with State, tribal,
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, Indian tribes, 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, tribal,
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, tribal land,
or national levels. In response to national, tribal, regional, or State
fish and wildlife habitat concerns, the Chief may focus program
implementation in any given year to specific geographic areas or to
address specific habitat development needs.
(b) The State Conservationist, with recommendations from the State
Technical Committee and Tribal Conservation Advisory Council (for
tribal land), 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, tribal, regional, or State importance including at-risk
species;
(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 2 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 activities as provided in the WHIP plan of operations that
is a component of the WHIP cost-share agreement:
(1) Except as provided in paragraph (a)(2) of this section and in
Sec. 636.9(c), NRCS will offer to pay no more than 75 percent of the
costs to develop fish and wildlife habitat. The cost-share payment to a
participant will 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 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 costs associated with WHIP plan of operations implementation.
(b) Cost-share payments may be made only upon a determination by
NRCS that a conservation activity or an identifiable component of a
conservation activity has been established in compliance with
appropriate standards and specifications.
(c) Payments will not be made for a conservation activity 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 implementation.
(d) NRCS, in consultation with the State Technical Committee, will
identify and provide public notice of the conservation activities
eligible for payment under the program.
(e) Cost-share payments may be made for the establishment and
installation of additional eligible conservation activities, or the
maintenance or replacement of an eligible conservation activity, but
only if NRCS determines the conservation activity 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 AGI limitation, will be determined prior to cost-
share agreement approval.
(h) Subject to fund availability, the payment rates identified in a
WHIP contract may be adjusted by NRCS to reflect increased costs.
(i) A participant will not be eligible for payments for
conservation activities on eligible land if the participant receives
payments or other benefits for the same activity 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 activity has been
completed in accordance with the cost-share agreement, and NRCS or an
approved Technical Service Provider (TSP) must certify that the
activity has been carried out in accordance with the applicable FOTG.
(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 WHIP plan of operations.
(a) As a condition of participation, the participant develops a
WHIP plan of operations with the assistance of NRCS or other public or
private natural
[[Page 71342]]
resource professionals who are approved by NRCS. A WHIP plan of
operations encompasses the parcel of land where habitat will be
established, improved, protected, enhanced, or restored. The WHIP plan
of operations will be approved by NRCS and address at least one of the
following as determined by NRCS:
(1) Fish and wildlife habitat conditions that are of concern to the
participant;
(2) Fish and wildlife habitat concerns identified in State,
regional, tribal land, or national conservation initiatives, as
referenced in Sec. 636.6(a); or
(3) Fish and wildlife habitat concerns identified in an approved
area-wide plan that addresses the wildlife resource habitat concern.
(b) The WHIP plan of operations forms the basis for the WHIP cost-
share agreement and will be attached and included as part of the cost-
share agreement, along with the O&M agreement. The WHIP plan of
operations includes a schedule for implementation and maintenance of
the conservation activities, as determined by NRCS.
(c) The WHIP plan of operations may be modified in accordance with
Sec. 636.10.
(d) All conservation activities in the WHIP plan of operations must
be approved by NRCS and developed and carried out in accordance with
the applicable FOTG.
(e) The participant is responsible for the implementation of the
WHIP plan of operations.
Sec. 636.9 Cost-share agreements.
(a) To apply for WHIP cost-share assistance, a person, tribe, or
legal entity must submit an application for participation at a USDA
Service Center to an NRCS representative.
(b) A WHIP cost-share agreement will:
(1) Incorporate the WHIP plan of operations;
(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 activities identified in the WHIP plan of operations 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 the O&M for each
conservation activity and the agency expectation that WHIP-funded
conservation activities 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 essential plant or animal habitat, as
determined by NRCS; and
(3) Provides cost-share payments of no more than 90 percent of the
cost of implementing the WHIP plan of operations 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 WHIP plan of operations 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 implementation of a conservation activity fails
through no fault of the participant, the State Conservationist may
modify the cost-share agreement in order to issue payments to re-
implement the activity, 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.
(d) Where circumstances beyond the participant's control or when it
is in the public interest, such as matters of health or safety, the
State Conservationist may independently or by mutual agreement with the
parties modify or terminate the cost-share agreement as provided for in
Sec. 636.12.
Sec. 636.11 Transfer of interest in a cost-share agreement.
(a) A participant is responsible for notifying NRCS when he or she
anticipates the voluntary or involuntary loss of control of the land
covered by a WHIP cost-share agreement during the term of the
agreement.
(b) The participant and NRCS may agree to transfer a cost-share
agreement to another potential participant. The transferee must be
determined by NRCS to be eligible to participate in WHIP and must
assume full responsibility under the cost-share agreement.
(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 will 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 new participants are not willing or not eligible to assume
the responsibilities of an existing WHIP cost-share agreement,
including the O&M agreement, and the participant fails to implement the
cost-share agreement, then NRCS will terminate the agreement and may
require that all cost-share payments be forfeited, refunded, or both,
with applicable interest in accordance with Sec. 636.12. Participants
may be subject to liquidated damages in accordance with Sec. 636.12.
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, in accordance with
the provisions of paragraphs (a)(1) and (a)(2) of this section the
State Conservationist may allow the participant to retain a portion of
any payments received appropriate to the effort the participant has
made to comply with the contract.
(1) NRCS may require a participant to provide only a partial refund
of the payments received if a previously implemented conservation
activity can function independently, and is not adversely affected by
the violation or the absence of other conservation activities that
would have been implemented under the cost-share agreement; and
(2) The State Conservationist will have the option to waive all or
part of the liquidated damages assessed,
[[Page 71343]]
depending upon the circumstances of the case.
(c) When making termination decisions, 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 will 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 may assess liquidated damages
as indicated in the cost-share agreement appendix, as well as require
the participant to forfeit all rights to any future payment under the
agreement.
(c) If NRCS terminates a cost-share agreement due to breach of
contract, the participant will forfeit all rights to future payments
under the agreement, may be required to pay liquidated damages in an
amount determined by the State Conservationist in accordance with the
terms of the agreement, and will 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.
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, will 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 will 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 will 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 United States
Government. The regulations governing offsets and withholdings found at
7 CFR part 1403 of this title will 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 activities;
(3) NRCS program funding decisions;
(4) Eligible conservation activities; 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 implement the WHIP plan of operations will be
responsible for obtaining the authorities, rights, easements, permits,
or other approvals necessary for the implementation, operation, and
maintenance of the conservation activities in keeping with applicable
laws and regulations. The requirement for the participant to obtain
necessary permits is included in the terms and conditions of the
contract appendix.
(b) Participants will be responsible for compliance with all laws
and for all effects or actions resulting from the participants'
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.
(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 are not limited to, conservation
planning; conservation practice survey, layout, design, installation,
and certification; and related technical services as defined in 7 CFR
part 652.
(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 will 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 will include the right to provide
technical assistance; determine eligibility; inspect any work
undertaken under the cost-share agreements, including the WHIP plan of
operations and O&M agreement; and collect information necessary to
evaluate the habitat development performance specified in the cost-
share agreements. The NRCS representative will 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
grant relief in accordance with 7 CFR part 635. Where a participant
believes that detrimental reliance on the advice or action of a NRCS
representative resulted in an
[[Page 71344]]
ineligibility or program violation, the participant may request
equitable relief under 7 CFR 635.3. 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.
(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 activities 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 program purposes are
met and 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. The WHIP cost-share agreement may be
modified, in accordance with policies outlined in Sec. 636.10,
provided the modification meets WHIP purposes and is in compliance with
this part.
Signed this 17th day of November, 2010, in Washington, DC.
Dave White,
Vice President, Commodity Credit Corporation and Chief, Natural
Resources Conservation Service.
[FR Doc. 2010-29394 Filed 11-22-10; 8:45 am]
BILLING CODE 3410-16-P