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.

Rules and Regulations Federal Register

71325 

Vol. 75, No. 225 

Tuesday, November 23, 2010 

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 

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71326 Federal Register / Vol. 75, No. 225 / Tuesday, November 23, 2010 / Rules and Regulations 

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 

§ 636.4 ‘‘Program requirements,’’ § 636.8 

‘‘WHIP Plan of Operations,’’ and § 636.9 

‘‘Cost-share agreements.’’ These sections 

make clear the general program 

eligibility requirements, participant 

obligations for implementing a WHIP 

plan of operations, participant costshare agreement obligations, and 

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Federal Register / Vol. 75, No. 225 / Tuesday, November 23, 2010 / Rules and Regulations 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 § 636.8 

‘‘WHIP Plan of Operations,’’ and § 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 longterm 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., 

§ 636.8 ‘‘WHIP Plan of Operations,’’ and 

§ 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 

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71328 Federal Register / Vol. 75, No. 225 / Tuesday, November 23, 2010 / Rules and Regulations 

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 § 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 

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Federal Register / Vol. 75, No. 225 / Tuesday, November 23, 2010 / Rules and Regulations 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 costshare. 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 § 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 

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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 

§ 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 

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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 § 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 nondomesticated 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 § 636.4(b) to incorporate 

the 2008 Act changes to land eligibility 

and to conform the eligibility language 

to the new definitions described in 

§ 636.3. In particular, NRCS identified 

in § 636.4(b) that eligible lands included 

agricultural land, NIPF, and Indian land 

as defined in § 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 locallyowned 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 

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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 § 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 

§ 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 

§ 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 § 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 

§ 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. 

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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 § 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 costshare 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 costshare 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 

§ 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 § 636.5, since State, 

regional, and national conservation 

initiatives are already addressed in 

§ 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 abovementioned 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, § 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 § 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 SageGrouse 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 § 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 agencyapproved 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 

§ 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 

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71334 Federal Register / Vol. 75, No. 225 / Tuesday, November 23, 2010 / Rules and Regulations 

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 

§ 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 § 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 § 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 § 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 § 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 atrisk or declining. One respondent 

recommended specific wording changes 

to § 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 setaside for cost-share agreements 

described in § 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 

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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 

§ 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 § 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 § 636.6, the Chief or 

State Conservationist has the discretion 

to address initiatives. NRCS accepts the 

recommendation to amend § 636.8(a)(2) 

and reference § 636.6(a); however, NRCS 

chooses to not identify specific land 

uses within WHIP’s national priorities. 

Specifically, § 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 § 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 pollinatorfocused 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 

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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 § 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 longerterm 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 costagreements. 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 costshare 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 § 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 

§ 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 

§ 636.11(b) as follows: ‘‘The participant 

and NRCS may agree to transfer a costshare 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 CostShare 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 § 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 § 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 § 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 

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include conservation planning; 

conservation practice survey, layout, 

design, installation, and certification; 

and related technical assistance services 

as described above. 

Accordingly, NRCS is revising 

§ 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 § 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 § 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 

§§ 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 § 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 energyconservation 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 

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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. 

■ 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. 

§ 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. 

§ 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. 

§ 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-today 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 

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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 § 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 costshare 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 

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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 costshare 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. 

§ 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 § 636.8; 

(4) Enter into a cost-share agreement 

for the development of fish and wildlife 

habitat as described in § 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 § 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 

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(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 

§ 636.4(b)(4). 

§ 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. 

§ 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 costshare 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. 

§ 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 § 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 § 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 

§ 636.9(c). 

§ 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 

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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 § 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 

§ 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. 

§ 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 costshare agreement and program; 

(5) Be signed by the participant; 

(6) Specify payment limits described 

in § 636.7(f) including any additional 

payment limitation associated with 

determinations made under § 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 longterm 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. 

§ 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 costshare agreement in order to issue 

payments to re-implement the activity, 

at the rates established in accordance 

with § 636.7, provided such payments 

do not exceed the payment limitation 

requirements as set forth in § 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 

§ 636.12. 

§ 636.11 Transfer of interest in a costshare 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 § 636.12. 

Participants may be subject to 

liquidated damages in accordance with 

§ 636.12. 

§ 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 § 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, 

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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 costshare 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 nonNRCS personnel for the purpose of 

approving WHIP payments. 

§ 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. 

§ 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 

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71344 Federal Register / Vol. 75, No. 225 / Tuesday, November 23, 2010 / Rules and Regulations 

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 costshare 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. 

§ 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 §§ 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 

§ 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 

DEPARTMENT OF AGRICULTURE 

Food Safety and Inspection Service 

9 CFR Parts 317 and 381 

[Docket No. FSIS–2010–0031] 

RIN 0583–AD 

Uniform Compliance Date for Food 

Labeling Regulations 

AGENCY: Food Safety and Inspection 

Service, USDA. 

ACTION: Final rule. 

SUMMARY: The Food Safety and 

Inspection Service (FSIS) is establishing 

January 1, 2014, as the uniform 

compliance date for new meat and 

poultry product labeling regulations that 

are issued between January 1, 2011, and 

December 31, 2012. FSIS periodically 

announces uniform compliance dates 

for new meat and poultry product 

labeling regulations to minimize the 

economic impact of label changes. 

DATES: This rule is effective November 

23, 2010. Comments on this final rule 

must be received on or before December 

23, 2010. 

ADDRESSES: FSIS invites interested 

persons to submit comments on this 

final rule. Comments may be submitted 

by either of the following methods: 

• Federal eRulemaking Portal: This 

Web site provides the ability to type 

short comments directly into the 

comment field on this Web page or 

attach a file for lengthier comments. Go 

to http://www.regulations.gov. Follow 

the online instructions at that site for 

submitting comments. 

• Mail, including floppy disks or CD– 

ROMs, and hand- or courier-delivered 

items: Send to Docket Clerk, USDA, 

FSIS, Room 2–2127, George Washington 

Carver Center, 5601 Sunnyside Avenue, 

Mailstop 5272, Beltsville, MD 20705. 

Instructions: All items submitted by 

mail or electronic mail must include the 

Agency name and docket number FSIS– 

2010–0031. Comments received in 

response to this docket will be made 

available for public inspection and 

posted without change, including any 

personal information, to http:// 

www.regulations.gov. 

Docket: For access to background 

documents or comments received, go to 

the FSIS Docket Room at the address 

listed above between 8 a.m. and 

4:30 p.m., Monday through Friday. 

FOR FURTHER INFORMATION CONTACT: 

Rosalyn Murphy-Jenkins, Food Safety 

and Inspection Service, USDA, Room 2– 

2125, George Washington Carver Center, 

Beltsville, MD 20705 (telephone: 301– 

504–0879; fax: 301–504–0872). 

SUPPLEMENTARY INFORMATION: 

Background 

FSIS periodically issues regulations 

that require changes in the labeling of 

meat and poultry food products. Many 

meat and poultry establishments also 

produce non-meat and non-poultry food 

products subject to the jurisdiction of 

the Food and Drug Administration 

(FDA), and FDA periodically issues 

regulations that require changes in the 

labeling of such products. 

On December 14, 2004, FSIS issued a 

final rule that provided that the Agency 

will set uniform compliance dates for 

new meat and poultry product labeling 

regulations in 2-year increments and 

will periodically issue final rules 

announcing those dates. The final rule 

also established January 1, 2008, as the 

uniform compliance date for meat and 

poultry product labeling regulations that 

were issued between January 1, 2005, 

and December 31, 2006 (69 FR 74405). 

Consistent with the 2004 final rule, FSIS 

subsequently issued final rules on 

March 5, 2007, and December 18, 2008, 

that established uniform compliance 

dates of January 1, 2010, and January 1, 

2012, for meat and poultry product 

labeling regulations issued between 

January 1, 2007, and December 31, 2008, 

and January 1, 2009, and December 31, 

2010, respectively (72 FR 9651) (73 FR 

75564). 

The Final Rule 

This final rule establishes January 1, 

2014, as the uniform compliance date 

for new meat and poultry product 

labeling regulations that are issued 

between January 1, 2011, and December 

31, 2012, and is consistent with the 

previous final rules establishing 

uniform compliance dates. 

FSIS’s approach for establishing 

uniform compliance dates for new food 

labeling regulations is consistent with 

FDA’s approach in this regard. FDA is 

also establishing January 1, 2014, as the 

uniform compliance date for new food 

labeling regulations that are issued 

between January 1, 2011, and December 

31, 2012. 

A uniform compliance date of January 

1, 2014, for all food product labeling 

regulations issued between January 1, 

2011, and December 31, 2012, will 

ensure that changes take effect on a 

timely basis and will minimize the 

economic impact of those changes on 

the industry because companies will not 

have to respond separately to each 

labeling change as it occurs (69 FR 

74406). This policy also serves 

consumers’ interests because the cost of 

the multiple short-term label revisions 

that would otherwise occur would 

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