49358 Federal Register / Vol. 62, No. 182 / Friday, September 19, 1997 / Rules and Regulations

DEPARTMENT OF AGRICULTURE

Natural Resources Conservation

Service

7 CFR Part 636

RIN 0578–AA21

Wildlife Habitat Incentives Program

AGENCY: Natural Resources

Conservation Service, United States

Department of Agriculture.

ACTION: Final rule.

SUMMARY: The Natural Resources

Conservation Service is issuing a final

rule for the Wildlife Habitat Incentives

Program (WHIP). A proposed rule for

WHIP was published in the Federal

Register on December 13, 1996 (61 FR

65485) and comments were solicited

from the public. This final rule

establishes the process by which NRCS

will administer WHIP, responds to

comments received from the public

during the 45-day comment period, and

incorporates clarifications to improve

implementation of the program.

EFFECTIVE DATE: September 19, 1997.

ADDRESSES: This final rule may be

accessed via Internet. Users can access

the Natural Resources Conservation

Service (NRCS) homepage at http://

www.ftw.nrcs.usda.gov; select 1996

Farm Bill Conservation Programs from

the menu.

FOR FURTHER INFORMATION CONTACT:

Warren M. Lee, Director, Watersheds

and Wetlands Division, Natural

Resources Conservation Service, P.O.

Box 2890, Washington, DC 20013–2890.

202–720–3534. Fax: 202–720–2143.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

The Office of Management and Budget

(OMB) determined that this final rule is

significant and was reviewed by OMB

under Executive Order 12866. Pursuant

to section 6(a)(3) of Executive Order

12866, NRCS conducted a benefit-cost

assessment of the potential impacts

associated with this proposed rule and

concluded from the benefit-cost

assessment that the overall impacts of

WHIP will be beneficial. NRCS

determined that the development of

partnerships to provide expert technical

assistance will ensure customers are

afforded the best opportunity for

success. In this manner, NRCS believes

that WHIP will provide for wildlife

habitat, help improve the quality of life

for participants, and have a neutral to

positive impact on local economies.

Copies of the benefit-cost assessment are

available upon request from Jeanne

Christie, Program Manager, Watersheds

and Wetlands Division, Natural

Resources Conservation Service, P.O.

Box 2890, Washington, DC 20013–2890.

Regulatory Flexibility Act

The Regulatory Flexibility Act is not

applicable to this rule because NRCS is

not required by 5 U.S.C. 533 or any

other provision of law to publish a

notice of proposed rulemaking with

respect to the subject matter of this rule.

Environmental Analysis

It has determined through an

amendment to the ‘‘Environmental

Assessment for the Wildlife Habitat

Incentives Program, August 22, 1996’’

that the issuance of this final rule will

not have a significant effect on the

human environment. Copies of the

Environmental Assessment, the

amendment, and the finding of no

significant impact may be obtained from

Jeanne Christie, Watersheds and

Wetlands Division, Natural Resources

Conservation Service, P.O. Box 2890,

Washington, DC 20013–2890.

Paperwork Reduction Act

No substantive changes have been

made in this final rule which affect the

recordkeeping requirements and

estimated burdens previously reviewed

and approved under OMB control

number 0560–0174. The recordkeeping

requirements and estimated burdens for

WHIP were transferred to OMB control

number 0578–0013.

Executive Order 12988

This final has been reviewed in

accordance with Executive Order 12988.

The provisions of this final rule are not

retroactive. Furthermore, the provisions

of this final rule preempt State and local

laws to the extent such laws are

inconsistent with this final rule. Before

an action may be brought in a Federal

court of competent jurisdiction, the

administrative appeal rights afforded

persons at 7 CFR parts 614 and 11 must

be exhausted.

Unfunded Mandates Reform Act of

1995

Pursuant to Title II of the Unfunded

Mandates Reform Act of 1995, Pub. L.

104–4, NRCS assessed the effects of this

rulemaking action on State, local, and

tribal governments, and the public. This

action does not compel the expenditure

of $100 million or more by any State,

local, or tribal governments, or anyone

in the private sector; therefore a

statement under section 202 of the

Unfunded Mandates Reform Act of 1995

is not required.

Discussion of Program

The Federal Agriculture Improvement

and Reform Act of 1996 (the 1996 Act)

(Pub. L. 104–127, April 4, 1996)

provides authority for several

conservation programs. Section 387 of

the 1996 Act authorizes the Wildlife

Habitat Incentives Program (WHIP)

under the supervision of the NRCS. The

primary purpose of WHIP is to help

landowners ‘‘develop upland wildlife,

wetland wildlife, threatened and

endangered species, fish, and other

types of wildlife habitat.’’

Section 387 of the 1996 Act provides

that up to $50 million is available to

implement WHIP. These funds were

formerly available to implement the

Conservation Reserve Program, 16

U.S.C. 3831–3836. WHIP will be under

the general supervision and direction of

the Chief of NRCS.

Through WHIP, NRCS will utilize

CCC funds to provide cost-share

assistance to those landowners who

wish to integrate wildlife considerations

into the overall management of their

operations, or who simply desire to do

more for wildlife. NRCS will implement

WHIP in harmony with other programs

to achieve more comprehensive

advancement of wildlife objectives.

WHIP offers an opportunity to

encourage development of improved

wildlife habitat on eligible lands. As

participants make decisions about the

wildlife habitat development plan for

their land, they will gain a greater

awareness about their farming and

ranching activities. NRCS believes that

the efforts made by participants in this

program will serve as a catalyst for

improving wildlife conditions

throughout the Nation.

On December 13, 1996, a proposed

rule was published with request for

comments. The proposed rule described

the program requirements,

administrative processes, and eligibility

criteria that NRCS would use to

implement WHIP. Nearly 53 individual

responses containing about 377 specific

comments were received during the 45-

day comment period: 5 from agricultural

organizations; 19 from environmental

organizations; 18 from State and local

agencies; and, 11 from individuals and

other organizations.

Additional responses were received

from Federal agencies and employees,

but are not included in the following

analysis of public comments. These

responses are being treated as inter-and

intra-agency comments and are being

considered along with the public

comments where appropriate.

All comments received are available

for review at United States Department
Federal Register / Vol. 62, No. 182 / Friday, September 19, 1997 / Rules and Regulations 49359

of Agriculture, Room 6029–S, South

Building, 14th and Independence Ave.,

SW., Washington, DC., during regular

business hours (8 a.m. to 5 p.m.)

Monday through Friday.

Analysis of Public Comment

Overall, almost all respondents

expressed appreciation with the

proposed rule and the various means by

which the public could comment. Many

offered valuable suggestions for

improving or clarifying specific sections

of the proposed rule. Some of these

suggestions were group efforts, whereas

individual responses used similar or

identical language to identify and

describe their interests, concerns, and

recommended modifications to the

proposed rule.

The majority of comments centered

on six major issues: the ranking of

projects; practices that required

recurring implementation; cost-share

provisions; length of the contract; plan

development; and, land eligibility.

Several comments either commended or

criticized specific statutory

requirements. These comments were

considered as part of the rulemaking

record to the extent that they were

relevant to the provisions of the

rulemaking. Numerous minor editorial

and other changes in the text were

suggested; these comments are not

included in the following analysis but

all were considered, and many of the

minor changes were included in the

final rule.

General Comments on 7 CFR Part 1470

Under the proposed rule, NRCS

proposed to set out WHIP regulations in

CFR title 7, part 1470. However, NRCS

later determined that it is more

appropriate to include the final rule in

part 636. Therefore, NRCS organized the

comments according to the section

number as found in the proposed rule

but in its responses provided the new

section number as found in the final

rule where appropriate. The following

summarizes comments received on the

proposed rule and NRCS’ response to

them.

1. Preamble Language in the Proposed

Rule

Comment. Thirty-six comments

expressed support for the WHIP

program as proposed. Of these, 10

comments indicated that there were

existing wildlife problems which WHIP

could address. These wildlife problems

varied across the country. Four

comments expressed concern that the

preamble did not give sufficient

emphasis to the decline of wildlife

species in the southeast, while three

other comments indicated that wildlife

has already benefited from existing

USDA programs.

Response. In the preamble to the

proposed rule, NRCS did not intend to

provide an exhaustive description of the

various wildlife declines that each

region has experienced or how programs

of the Department have helped to stem

these declines. The NRCS recognizes

that there exist special wildlife concerns

all across the country and hopes that

programs such as WHIP will help

reverse these troubling trends.

Comment. Eight comments supported

using partnerships to implement WHIP.

Four comments recommended that

procedures should be kept simple and

that USDA should try to maximize

landowner participation.

Response. The NRCS appreciates

these comments and will adopt the

recommendations when possible. In

developing the program, the NRCS

determined that a simple and flexible

approach could best meet the varied

wildlife concerns that exist across the

country. The final rule provides the

necessary flexibility to accommodate

input from the landowner and to obtain

assistance from other entities with

wildlife expertise, and to address

specific wildlife concerns.

Privacy

Comment. Nine comments focused on

concern over privacy issues. Four

comments stated that pre-cost-share

agreement information should be

confidential—specifically, if the costshare agreement is not later awarded.

Two suggested that participants should

be able to terminate the cost-share

agreement if the NRCS violated

confidentiality with no obligation to

return dollars already expended. Two

comments supported full disclosure of

all partners who would be involved in

the cost-share agreement prior to

obtaining final signatures. Three

comments requested that the participant

receive notification regarding any site

visits by any partners and access to any

information gathered during the site

visit. One comment stated that the

WHIP plan and cost-share agreement

should not be subject to FOIA or used

in an environmental audit as part of

discovery.

Response. The public’s concern with

the confidentiality of information made

available to NRCS in connection with

WHIP is understandable. There is

significant apprehension that

compliance with applicable Federal

Statutes may hinder some uses of

private lands. NRCS’ policy is to not

release information obtained from WHIP

applicants or participants to other

members of the public or other Federal

agencies unless required to do so by

law. In practice, this means that NRCS

will not contact other Federal agencies

offering information it obtains from

WHIP participants or regarding the

participant’s land.

NRCS may be required to release

information about threatened and

endangered or listed species or critical

habitat pursuant to a request made

under the Freedom of Information Act

or as part of NRCS’ Endangered Species

Act (ESA) compliance requirements. In

deciding whether to participate in

WHIP, prospective applicants will need

to consider whether the benefits of

participating in the program outweigh

the concern that the potential release of

information to the public about listed

species or habitat may lead to a legally

mandated restriction of any degree on

the participant’s land. NRCS will

disclose to WHIP applicants all public

and private entities that may be

involved in a partnership in

administering WHIP in a particular area.

Notification to prospective

participants concerning the involvement

of partnership organizations will

generally occur as part of the

application and planning process before

NRCS enters into a cost-share agreement

with the applicant. After the cost-share

agreement is signed, NRCS will attempt

to contact the participant before followup site visits occur.

ESA and related Federal Law

Comment. Fifteen comments

addressed the relationship of WHIP to

other Federal laws and regulations, 13

of these comments were directed to

concerns over compliance with the ESA.

Two other comments raised concerns

that ESA compliance requirements

could be triggered by the identification

of endangered species on an applicant’s

land, while two different comments

recommended that lands under contract

with WHIP should not be subject to

ESA. Two comments stated that at the

conclusion of the contract participants

should be allowed to return to precontract conditions without regard to

provisions of the ESA, section 404 of the

Clean Water Act (CWA) or any related

laws, rules, or regulations. Five

comments suggested that WHIP should

not be implemented in critical habitats

for threatened and endangered species

absent safe harbor agreement with the

Fish and Wildlife Service, while one

comment suggested that such a safe

harbor agreement should be included as

a component of the WHIP cost-share

agreement. Even so, one comment raised

the concern that the rule failed to

address incidental take permits and
49360 Federal Register / Vol. 62, No. 182 / Friday, September 19, 1997 / Rules and Regulations

related ESA matters. The remaining

three comments discussed the

relationship to section 404 of the CWA

and the ineligibility provisions for

USDA programs under the Food

Security Act of 1985, as amended.

Response. The public’s interest in the

relationship between WHIP and other

environmental statutes, particularly the

Endangered Species Act (ESA), is

understandable in light of the public’s

general interest in and concern about

endangered species and WHIP’s goal of

developing wildlife habitat. The United

States Fish and Wildlife Service (FWS)

is responsible for administering the ESA

and the Army Corps of Engineers and

Environmental Protection Agency is

responsible for administering section

404 of the CWA. Questions regarding

the applicability of these statutes to a

WHIP participant’s land, including

questions about the application of the

statutes after a WHIP cost-share

agreement expires, should be addressed

to the agency responsible for the statute.

However, NRCS intends to provide

assistance to persons interested in WHIP

and therefore, offers to facilitate

discussion with the applicable agency

when asked.

NRCS has no authority to issue safe

harbor agreements for an individual’s

land or issue incidental take permits

(‘incidental take permits’ allow for the

incidental take of species or habitat

incidental to a Habitat Conservation

Plan and section 10 of ESA). Therefore,

NRCS will refer applicants to the FWS

on these important issues. NRCS will

satisfy its consultation responsibilities

as required by ESA.

The WHIP will reflect a concern for

threatened and endangered species by

providing for the termination of any

WHIP cost-share agreement if the

participant unlawfully adversely

modifies critical habitat or otherwise

harms a threatened or endangered

species. The adverse action may involve

an area on the participant’s farm that is

outside the site of habitat development

specified in the cost-share agreement.

Section 636.11 of the final rule provides

for cost-share agreement termination if

the State Conservationist determines

that the termination is in the public

interest. NRCS believes it is in the

public’s interest to terminate a WHIP

cost-share agreement when the program

participant unlawfully harms a

threatened or endangered species.

NRCS will also support threatened or

endangered species through WHIP by

not approving a cost-share agreement for

a practice that may help one threatened

or endangered species but harm another.

Funding

Comment. The NRCS received

thirteen comments on the subject of

WHIP program funding. These

comments did not focus on any

particular aspect of funding but

included such varied topics as the

availability of technical assistance

moneys to NRCS and non-USDA

entities, the policy option to obligate the

majority of WHIP program funds over

the next two years, and the suggested

ability of NRCS to set a $5000 cap per

year per contract. One comment

recommended that habitat conservation

plans receive priority for threatened and

endangered species funding. One

comment suggested that conservation

partners should donate technical

assistance. Another comment advised

that NRCS should spend WHIP funds on

implementation of cost-share practice

and not on technical assistance.

Response. The NRCS did not address

funding matters in the rule. However, as

a policy matter the NRCS recognizes the

importance of using WHIP funds to

implement wildlife habitat practices

that yield real benefits for wildlife.

NRCS will also work with other public

and private wildlife interests to provide

assistance for the program from other

resources. This may include both

technical assistance and funding where

there are voluntary and mutual interests

between program applicants, partners,

and the NRCS. In addition, the 1996 Act

provided that $50,000,000 shall be made

available to carry out WHIP. The NRCS

intends to distribute these funds to

priority projects that maximize

environmental returns and participation

in the program. Therefore, the NRCS

does not anticipate a need to set a $5000

per year limitation, especially given the

projected high demand for program

funding. However, NRCS does

anticipate that most cost-share

agreements will cost less than $10,000

and will only enter in a cost-share

agreement in excess of that amount if

superior wildlife habitat benefit

warrants greater Federal investment.

Paperwork Reduction Act

Comment. The Department received

three comments on the Paperwork

Reduction Act during the public

comment period for the proposed rule.

These comments expressed concern

regarding: the level of bureaucracy

involved with the local work groups; the

need to simplify the paperwork; and

that a greater amount of technical

assistance will be needed to implement

the program.

Response. The NRCS has striven to

simplify the process for the participant

by only requiring the minimum of

paperwork, assuming most of the

administrative burden, and providing

flexibility to incorporate the Wildlife

Habitat Development Plan (WHDP) into

other conservation plans that the

participant may have. Based on the

information currently available, NRCS

believes that its recordkeeping and

reporting burden estimates are valid, but

will re-evaluate their accuracy after the

program is fully implemented.

2. Section-by-Section Comments on 7

CFR Part 1470

Several modifications to improve the

clarity of the rule have resulted in some

of the section numbers being

redesignated in the final rule. The

following discussion of the public

comments relates to the section

numbers as indicated in the proposed

rule.

Section 1470.1 Applicability

Comment. One comment supported

the purpose of WHIP to ‘‘help

participants develop habitat for upland

wildlife, wetland wildlife, threatened

and endangered species, fish and other

types of wildlife.’’

Response. The purpose stated in the

rule mirrors the statutory purposes. The

NRCS welcomes the opportunity to

work with landowners to improve

wildlife habitats throughout the nation.

Section 1470.2 Administration

Comment. Under the proposed rule,

section 1470.2 addressed the general

framework for WHIP implementation.

The NRCS received 28 comments on

this section. Ten of these comments

expressed support for the utilization of

cooperative agreements with other

entities with interests in wildlife habitat

while one comment disapproved of the

use of such arrangements. Three

comments suggested the NRCS clarify

whether non-profit organizations or

other entities could enter into

agreements under WHIP. One comment

wanted the NRCS to delegate

implementation authority for the

program to a State agency.

Response. The NRCS believes that the

opportunity to work with other Federal

agencies, local and State partners, and

the private sector, will improve delivery

of the program. The language in the

proposed rule encompassed many types

of organizations who have wildlife

concerns, including non-profit

organizations, land trusts, and hunting

clubs. The final rule language has been

simplified regarding these agreements.

Comment. The NRCS received two

other comments related to cooperative

agreements: one comment
Federal Register / Vol. 62, No. 182 / Friday, September 19, 1997 / Rules and Regulations 49361

recommended that the rule expressly

provide for agreements which reimburse

partners for salaries and expenses; and

the other comment recommended that a

one-to five year time frame for

agreements be included in the rule.

Response. Any agreement the NRCS

enters into must be in accordance with

the appropriate authorities.

Comment. Six comments supported a

strong role for the State Technical

Committees, while two other comments

supported review of State Technical

Committee membership by the NRCS

National Office, and two other

comments recommended particular

agencies for membership on the State

Technical Committee.

Response. Section 3861 of Title 16 of

the United States Code authorizes the

establishment of State Technical

Committees, describes their advisory

role, and describes the entities eligible

to participate on such a committee.

NRCS intends to publish a rule on the

structure and purpose of the State

Technical Committees in a separate

rulemaking, and shall consider these

recommendations regarding committee

representation as it develops that rule.

Comment. One comment expressed

concern that Habitat Conservation Plans

were not explicitly mentioned in this

section.

Response. The term ‘‘habitat

conservation plan’’ is a term of art

recognized under the ESA. As described

above, the NRCS does not have

enforcement authority under the ESA

and does not want to create any

confusion between such plans and the

plans developed under WHIP. The

WHIP participant may use one plan or

another method to satisfy this

requirement under both statutes.

Section 1470.3 Definitions

There were seven comments received

on this section.

Authorized CCC Representative

Comment. One comment

recommended adding a definition for

this term in the rule.

Response. The CCC is a governmentowned and operated corporation,

chartered in the 1930s to help stabilize

and support farm prices and income,

and to maintain balanced supplies and

orderly distribution of agricultural

commodities. The 1996 Act expanded

the mission of the CCC to include the

power to carry out conservation or

environmental programs authorized by

law.

Although CCC will provide most of

the funds to implement the program, the

NRCS has the administrative

responsibility to manage the program.

The term ‘‘authorized CCC

representative’’ has been removed from

the final rule.

Conservation Plan

Comment. One comment wanted this

term defined within the rule and

clarification of its role in WHIP relative

to other NRCS programs. Response. The NRCS added a

definition for ‘‘conservation plan’’ in the

final rule. However, the term ‘‘Wildlife

Habitat Development Plan (WHDP)’’, as

found in this rule, can constitute an

entire conservation plan if the

participant does not intend to

implement any non-WHIP practices, or

the WHDP can constitute a component

of a conservation plan for a larger

management unit or a broader set of

conservation activities under other

programs.

Habitat Development

Comment. One comment wanted to

narrow this definition based on the

assumption that a broader definition

makes targeting more difficult. Response. The NRCS believes that a

broad definition is necessary to

encompass the range of possible

program opportunities that merit

funding. Therefore, no change has been

made to this definition.

Wildlife

Comment. Four comments were

received indicating that this definition

should be changed. One of these

comments suggested adding amphibians

and three of these comments

recommended a less inclusive definition

while adding a definition for ‘‘wildlife

habitat’’.

Response. The NRCS agrees with

these recommendations and has

modified the definition for ‘‘wildlife’’ in

the final rule to mean ‘‘birds, fishes,

reptiles, amphibians, invertebrates, and

mammals, along with all other animals’

and has added a new definition for

‘‘wildlife habitat’’ to mean ‘‘the aquatic

and terrestrial environments required

for wildlife to complete their life cycles,

including air, food, cover, water, and

spatial requirements.’’

Cost-Share Agreement

To better reflect the nature of the

relationship between NRCS and a

participant, the term ‘‘contract’’ has

been changed to ‘‘cost-share

agreement.’’

Section 1470.4 Program requirements.

Section 1470.4 (a):

Comment. There were 19 comments

regarding the length of contracts. Ten

comments supported the terminology

within the proposed for a 10-year

minimum. One of these comments

supported allowing cost-share

agreements to extend up to 15 years,

similar to an existing state wildlife

program, and another of these

comments supported perpetual costshare agreements. Nine comments

supported shorter time-spans. Of these,

seven supported annual cost-share

agreements and one comment

recommended tying the life of the

practice to the length of the cost-share

agreements, as appropriate, ranging

from three to five to ten years.

Response. The NRCS decided to

provide greater flexibility in the length

of the cost-share agreement. Therefore,

the rule has been revised to provide for

cost-share agreement lengths of five to

ten years and in special emergency

circumstance to provide the flexibility

to enter into one-year cost-share

agreements. From a wildlife standpoint,

the longer wildlife habitat is retained on

the landscape, the greater the wildlife

benefits. While certain wildlife species

such as birds, can find alternative

nesting sites, many wildlife species are

much less mobile and will not be able

to relocate. Even many bird species

display a strong preference for returning

to the same site year after year.

Therefore, NRCS will continue to place

priority on working with applicants

who express an interest in long-term

cost-share agreements. However, the

cost-share agreement period applies to

the time that it takes to install a practice

or practices and verify that they have

been successfully installed. For certain

wildlife practice or combinations of

wildlife practices it may not require 10

years to achieve desired benefits. In all

cases, after completion of the cost-share

agreement period, program participants

will still be required to be in

compliance with an associated

operations and maintenance agreement

to maintain the WHIP practice or

practices for the life of each practice.

Practice life varies, and may or may not

extend beyond the actual cost-share

agreement period, but for some practices

such as impoundment structures,

practice lifespans can range up to 20 or

30 years. This operations and

maintenance agreement is consistent

with the way other Departmental

programs, such as the Agriculture

Conservation Program, Great Plains

Conservation Program, and Colorado

River Basin Salinity Control Programs

operated in the past. All of these

programs had wildlife components. The

NRCS believes the five to ten year costshare agreement period is appropriate

because it allows NRCS to monitor the

wildlife practices on an annual basis for
49362 Federal Register / Vol. 62, No. 182 / Friday, September 19, 1997 / Rules and Regulations

the first several years after the practice

is installed and thus evaluate whether

they are providing the benefits

anticipated. Wildlife management is

complex; wildlife science is changing as

our understanding of wildlife and its

interactions increase. Successful

implementation of wildlife habitat

practices requires ongoing monitoring

and the ability to respond by modifying

the agreement where appropriate and

acceptable to the parties involved.

In addition, an emergency event may

necessitate NRCS’s quick intervention to

minimize or remove a threat to critical

wildlife habitat. For example, wildlife

populations threatened with

overcrowding and disease because of a

severe drought might require the

implementation of habitat practices

which ameliorate the drought’s

immediate and deleterious impacts. An

emergency practice, such as the

pumping of water, may need to be in

place for only one year to realize its

wildlife habitat goals, and therefore a

five to ten-year cost-share agreement

requirement would eliminate such a

critical opportunity from funding.

NRCS believes it would prove more

cost-effective to undertake short-term

practices which prevent the loss of

wildlife habitat and wildlife

populations, than to undertake the

expense of subsequent efforts which

would attempt to re-establish wildlife

populations. This concern applies

particularly to wildlife species already

in decline and under consideration for

nomination as a candidate, threatened

or endangered species listing under the

Endangered Species Act.

NRCS anticipates the application of

this provision will only occur on a very

limited basis. The State Conservationist,

in consultation with the State Technical

Committee, must identify the existence

of a wildlife emergency and request

authority from the Chief, or designee, to

enter into agreements for periods shorter

than 5 years. If approved, the State

Conservationist may enter into

emergency agreements during a sixmonth time period. If there is a

continuing need to enter into

agreements after the six-months has

elapsed, then the State Conservationist

may request a six-month extension.

NRCS incorporated the ability to

respond to emergencies into this final

rule. To improve the organization and

clarity of the final rule, the WHDP and

cost-share agreements were reorganized

into separate sections.

Section 1470.4 (c):

Comment. There were 15 responses to

land eligibility requirements. Eleven

comments supported limiting eligible

lands primarily or exclusively to private

lands. One comment supported making

State lands ineligible along with Federal

lands, while allowing local, tribal, and

private lands to remain eligible.

Response. The NRCS will focus the

majority of WHIP funds towards private

lands. However, the NRCS State

Conservationist, in consultation with

the State Technical Committee, can

allow exceptions where significant

wildlife habitat gains can only be

achieved by installing practices on nonFederal public land. For example,

practices for aquatic habitat restoration

may require such an exception because

the State owns the stream or lake

bottom. In another case, it may be cost

effective to include State or local lands

adjoining or interspersed with a number

of private lands enrolled in WHIP,

particularly where State agencies are

providing significant in-kind or

monetary resources to the success of the

overall project. In addition, Tribal lands,

regardless of their status in terms of

Federal trust lands, continue to be

eligible and Federal lands are eligible in

those very limited circumstances where

the benefit is primarily on the private

lands, but must include some Federal

land to meet the WHIP objective.

Therefore, this section has been revised

to clarify which lands are eligible.

Comment. One comment wanted the

NRCS to obtain the State Fish and Game

agency’s concurrence on all eligible

land determinations. One respondent

requested clarification of whether

Federal land is confined to lands held

in title by the U.S. or includes lands

held by other entities but originally

purchased with Federal funds. One

comment requested clarification of the

term ‘‘other lands’’ in § 1470.4(c)(3).

Response. The final rule provides the

flexibility to work with partners

including State Fish and Game agencies

in the implementation of WHIP. Land

eligibility determinations are derived

from identifying who holds title to the

land. To specifically require

concurrence on eligible land

determinations would add unnecessary

administrative complexity to the

program without providing a specific

benefit. The term ‘‘other lands’’ in

§ 636.4(c)(3) of the final rule refers to

the other lands offered for enrollment in

WHIP at the time the application is

considered or in the future.

Section 1470.5 Application Procedures

Comment. The NRCS received three

comments about application

procedures. One comment wanted

partners to accept applications for

WHIP, one comment requested that only

qualified biological professionals should

make wildlife habitat assessments, and

one comment recommended the release

of existing information in a State’s

Natural Heritage database to NRCS.

Response. Partners can provide copies

of applications to interested individuals,

but should inform such prospective

applicants of the need to contact NRCS

to complete and submit final

applications. Acceptance of applications

will need a determination of land

eligibility that will generally require a

visit to the NRCS field office before the

application can be processed. Persons

trained in the appropriate assessment

procedures will conduct all the

biological assessments, but such

professionals may not hold a degree in

biology. Partners with biological

expertise can provide assessment

assistance or information to NRCS,

including non-privileged information

such partner may have regarding the

range or habitat requirements of a

particular species. No change was made

in the rule in response to these

recommendations. However, § 1470.5 in

the proposed rule has been revised and

divided into two sections in the final

rule: ‘‘§ 636.7, The Wildlife Habitat

Development Plan’’ and ‘‘§ 636.8, Costshare Agreements’’ to improve clarity.

Section 1470.6 Establishing Priority for

Enrollment in WHIP

Sections 1470.6 (a) and (b):

Comment. The NRCS received 53

comments directed to establishment of

priorities for enrollment in WHIP. Fortytwo of these comments concerned the

establishment of State and national

priorities while 11 concerned

establishment of criteria for evaluating

individual applications. Thirteen

comments supported geographic

targeting at either the state or national

level as proposed in the rule, while

eight comments opposed geographic

targeting but supported instead targeting

by specific wildlife habitats, wildlife

species, or wildlife practices.

Three comments supported placing

national priorities in the final rule,

while one comment requested

clarification about how national

priorities should be developed. Sixteen

comments recommended particular

species or habitats for priority

treatment: five comments recommended

fish as an equal priority to terrestrial

species; seven comments recommended

grassland wildlife habitat in various

parts of the country; three recommend

habitats for neotropicals; and one

comment recommend utilizing wellhead

protection areas. Three comments stated

that State Fish and Game agencies

should establish priorities.

Response. Although the Chief has

been given the ability to target or limit
Federal Register / Vol. 62, No. 182 / Friday, September 19, 1997 / Rules and Regulations 49363

the scope of WHIP, the rule states that

this is in response to national and

regional needs. These national and

regional needs are identified in part by

the NCRS State office in consultation

with the State Technical Committee.

Each NRCS State office has the ability

to prioritize the allocation made to its

administrative area and has been given

the option of targeting by geographic

areas, wildlife habitat types, or specific

wildlife practices.

NRCS intends to allow targeting based

upon local priorities through a locallyled process or by the State Technical

Committee, and therefore, has not

included specific national priorities in

the final rule. In the locally-led process,

local groups and individuals are given

the ability to identify any wildlife issue

of concern, terrestrial or aquatic. NRCS

has explicitly included fish in its

definition of wildlife and believes that

fish shall receive priority treatment in

many areas of the country.

WHIP provides an opportunity to

prevent declines in wildlife populations

and to achieve stable and diverse

wildlife habitats. The NRCS believes the

locally-led process will increase the

likelihood of the program meeting these

Federal goals. Throughout the process,

NRCS will gain local knowledge,

experience, and expertise from the

participating groups and individuals,

and will benefit from their involvement

and commitment to program objectives.

The proposed rule set forth the

flexibility for locally-identified

priorities and no changes were made in

this regard in the final rule.

Section 1470.6(c):

Comment. Four comments supported

the existing criteria found in section

1470.6(c) with respect to the evaluation

of individual applications. Several

comments recommended adding criteria

to the list, including emphasis upon

declining species in the context of an

ecosystem approach (three comments);

cost-share agreement duration (two

comments); public access for hunting

(one comment); threatened and

endangered species habitat (one

comment); and net improvement in onsite wildlife habitat (one comment).

Several comments recommended either

removing particular items as priority

criteria or caution regarding the

application of existing criteria,

including removing sustainability and

maintenance (one comment), cautioning

that a practice that benefits one species

may harm other species (one comment),

and removing any priority dependent on

the amount of cost-share provided by

the participant (one comment). One

comment suggested that the whole unit

of land owned by the applicant must be

included in the WHIP contract to be the

eligible for cost share funds.

Response. The NRCS believes that the

criteria listed in the proposed rule

adequately focused WHIP funds towards

the projects that will most benefit the

habitat needs of wildlife. The criteria in

the rule provides the NRCS with the

flexibility to further refine criteria as

appropriate to achieve specific wildlife

habitat goals identified as important in

specific areas. This flexibility will allow

for the development of ranking criteria

to evaluate applications and to fund

those requests that will best address the

specific wildlife concerns identified by

NRCS in consultation with the State

Technical Committee or through the

locally led process. The criteria was

revised to clarify that wildlife habitat

need was an overriding requirement. No

other additions or deletions were made

to the list.

Section 1470.6(d): Comment. One

comment recommended deleting this

section because its provisions are

already covered in 1470.4.

Response. Though this paragraph

refers to eligibility, the paragraph serves

as an administrative tool for eliminating

projects that are technically eligible but

do not meet the wildlife habitat goals of

WHIP.

Comment. Another comment

cautioned against placing WHIP costshare agreements on public land unless

special criteria applied such as a

demonstration project.

Response. The NRCS intends to focus

WHIP funds on private lands and will

only enroll public lands in special

situations, such as aquatic restoration,

where the public land is a small

component of a larger habitat restoration

effort, or where there is a direct private

benefit. The language was simplified to

better describe the circumstances when

an application could be denied.

Section 1470.7 Cost Share Payments

The NRCS received a total of 97

comments on this section of the rule.

Section 1470.7 (a): Comment. The

NRCS received 13 comments on the

percentage of cost-share provided under

WHIP: five comments stated the costshare percentage should not exceed 75

percent from any source; three

comments stated the cost-share

percentage should not exceed 75

percent from Federal sources; two

comments supported the cost-share

provisions in the rule; and, one

comment stated that cost-share should

be allowed up to 100 percent. One

comment suggested that in-kind services

such as time and labor could count

toward the landowners 25 percent costshare assistance and one comment

recommended the participants should

receive graduated payments over the life

of the contract.

Response. The 1996 Act does not

allow incentive payments under WHIP.

In response to comments, the final rule

is revised to state that WHIP shall not

pay more than 75 percent of the cost for

a habitat development practice. In

addition, WHIP payments, in

combination with other direct Federal

sources, shall not exceed 75 percent of

the cost for a habitat development

practice. For practices that receive funds

directly from other Federal sources, the

WHIP cost-share payment shall be

reduced proportionately, except in

special cases where circumstances merit

additional cost-share assistance to

achieve the intended goals of the

project. Generally, other direct Federal

sources such as the Fish and Wildlife

Service’s Partners for Wildlife program

can contribute part of the 75 percent

maximum direct Federal cost-share

assistance. The 25 percent cost-share

assistance can be met from other sources

such as State, private, or nonprofit

sources. This assistance may include inkind matches from the program

participant, but such arrangements must

be worked out in development of the

agreement and must be appropriate to

meeting the objectives of the project.

The final rule has been modified so that

a participant may receive an incentive

payment for an activity from a different

source. The NRCS recognizes it will not

fund some activities that are necessary

to the restoration of a particular habitat,

and will not interfere with other

organizations assisting participants in

those endeavors.

Section 1470.7(b): Comment. There

were many concerns raised concerning

the adequacy of the standards and

specifications for wildlife practices

currently used by NRCS. Eleven

comments recommended the State

Wildlife Agencies approve wildlife

standards and specifications. In

addition, seven comments stated the

State Technical Committees should

approve all wildlife practices used in

WHIP. Eighteen comments referred to

the NRCS Field Office Technical Guide

(FOTG), nine of which recommended

updating the FOTG, one comment

suggested adapting NRCS Technical

Notes as eligible wildlife practices in

WHIP, and the remaining eight

indicated that some practices in the

FOTG should not be eligible for WHIP.

Several other comments identified

individual practices that should be

eligible for WHIP, including nesting

platforms, screening diversion channels

to enhance water quality, managing

pesticides and nutrients, establishing
49364 Federal Register / Vol. 62, No. 182 / Friday, September 19, 1997 / Rules and Regulations

and sustaining biodiversity along field

edges and rights of way, managing early

successional grasslands, leaving grain

standing in the field for wildlife,

seasonal flooding of cropland for

migratory birds, and establishing

crawfish impoundments. One comment

suggested developing WHIP practice

guidelines for threatened or endangered

species.

Response. The NRCS National office

is adding technical guidance for the

FOTG related to wildlife practices and

management. These revisions include

adding a wildlife component to many

existing practices and new

specifications designed to aid

conservation planning. The NRCS State

Conservationist, in consultation with

the State Technical Committee, can

develop interim standards and

specifications for practices not currently

in the FOTG. Practices included in

WHIP cost-share agreements should

focus on achieving benefits for wildlife,

therefore, it is not necessary to identify

practices that are ineligible for WHIP in

the FOTG. NRCS Biological Technical

Notes as well as existing standards and

specifications developed by State

Wildlife Agencies or other suitable

sources may be used as the basis for

developing interim wildlife practices.

The flexibility already exists to address

the concerns described above.

Therefore, no changes were made in the

final rule.

Comment. Five comments referred to

the time frame for cost-share payments,

two of which supported the language as

proposed, two of which requested

clarification whether payment will be

made prior to or after the installation of

a practice, and one of which suggested

prior payment for limited resource

farmers.

Response. As outlined in the

proposed rule, cost-share payments

shall be made after the installation of a

practice per WHIP specifications and

the submission of appropriate records

and receipts. Although there is no

authority in the WHIP statute to offer

advance payments, WHIP payments are

assignable to third parties and as such,

are able to be paid directly to vendors

providing services. In addition, many of

the partnerships formed at the State

level between NRCS and those

interested in having a successful WHIP

in their respective States, provide that

certain financial or technical assistance

or services will be provided to

participants by the partners. In some

cases, the partners will establish the

practice at no charge to the participant.

No changes were made in the final rule

in response to these comments.

Comment. One comment provided

that WHIP could provide significant

wildlife habitat improvements if

allowed on CRP lands.

Response. The 1996 Act added a

wildlife emphasis to the CRP and

provided substantial funds towards

implementation. The NRCS does not

believe the limited WHIP funds should

be used to obtain wildlife benefits on

acreage enrolled in a program

established to achieve similar benefits.

Section 1470.7 (c): Comment. Ten

comments described how many wildlife

habitats require recurring practices

(such as prescribed burning, discing, or

mowing) to mimic the natural events

that formerly maintained grassland

habitats.

Response. The NRCS recognizes the

special management needs of critical

grassland habitats and will provide costshare for recurring practices. Therefore,

the NRCS has added a definition for

‘‘recurring practices’’ in this final rule

and has changed this section to make

funding of recurring practices possible.

Section 1470.7(d): Comment. The

NRCS received 21 comments on this

paragraph related to incentive

payments, eleven of which stated

incentive payments provided by

partners should not be subject to the

limit that specifies a participant cannot

receive in excess of 100 percent costshare assistance for a practice, nine of

which recommended changing the rule

to allow for incentive payments, and

one comment suggesting that WallopBreaux funds should be eligible for

matching with WHIP funds.

Response. The NRCS removed the

language regarding the 100 percent

limitation to clarify that its terms apply

only to 75 percent of the cost-share

payments received by a participant; and

the remaining provisions of § 1470.7(d)

were incorporated into § 636.6(a).

Because the NRCS encourages

cooperation between entities that share

wildlife objectives, the National office

recommends that the WHIP ranking

system developed within a State not

penalize an applicant’s ability to receive

cost-share assistance from other sources.

Comment. One comment

recommended clarifying the meaning of

the assistance versus payment so that

the salaries of NRCS and other partners

are not included in the cost-share the

landowner is required to match.

Response. The NRCS resolves this

concern with the revision described

above by addressing only the 75 percent

cost-share provided by NRCS or from

direct Federal funds in § 636.7(a).

Section 1470.8 The Wildlife Habitat

Development Plan (WHDP)

Comment. Forty comments were

received on the Wildlife Habitat

Development Plan (WHDP), thirteen of

which expressed approval for the

inclusion of partners in the planning

process. Two comments wanted

conservation district partners to have

approval authority, one of which felt

that the approval authority should be

more than a ‘‘rubber stamp’’. One

comment asked whether the NRCS

would reimburse partners for technical

assistance provided during the planning

process. Two comments stated that

hunting rights should not be affected by

the implementation of the WHDP. Six

comments related to WHDP

requirements, two stated that hunting

rights should remain unaffected, one

stated that the plan should address State

priority goals, three indicated there

should not be requirements on adjacent

land not subject to the cost-share

agreement. One of these six comments

requested the NRCS not to require a full

Resource Management System. Six

additional comments wanted existing

management plans (e.g. SWCD

conservation plans, Resource

Management Systems, Stewardship

Incentives Program, Forestry Incentives

Program, and Habitat Conservation

Plans) to be allowed as the basis for the

WHDP, while one comment

recommended integrating WHDP with

other NRCS conservation planning

efforts. Two comments supported the

WHDP as described in the proposed

rule.

Response. The NRCS supports using

of conservation partners in all aspects of

WHIP, including assessments, planning,

monitoring, and evaluation activities.

The NRCS also supports efficiency of

efforts and will adapt, as appropriate,

for use in WHIP any plans developed

which provide the needed information.

As stated earlier, the WHDP may be the

entire conservation plan or one of

several components of a conservation

plan depending on the desires and

priorities of the program participant. In

general, it is not anticipated that the

NRCS will reimburse partners for

technical assistance during the planning

process. However, there may be special

cases where such arrangements are

made. These arrangements will

generally be subject to the availability of

NRCS resources. No change was made

in the final rule because the rule

contains sufficient flexibility to address

these concerns as they are raised

through the locally-led process and in

consultation with the State Technical

Committee.
Federal Register / Vol. 62, No. 182 / Friday, September 19, 1997 / Rules and Regulations 49365

Comment. Seven comments were

related to monitoring of the WHIP plan,

three of which stated that monitoring

and evaluation were important

activities, two of which encouraged the

use of partners in monitoring and

measure success of the program, one of

which wanted monitoring to be

included in the plan, and the remaining

comment wanted monitoring to be

conducted only by NRCS and restricted

to ensure compliance with Federal laws,

rules, standards and specifications.

Response. The NRCS agrees that

monitoring and evaluation are

important for measuring success and

identifying failures. Initially, each NRCS

State office shall determine the

monitoring method to use, as

appropriate for the different types of

wildlife habitat enrolled in the program.

However, the NRCS has identified the

need to develop a national standard for

measuring wildlife habitat improvement

in order to track wildlife habitat benefits

achieved under the program. No such

methodology currently exists, and it is

the intent of NRCS to work with other

wildlife interests to develop one. These

comments are beyond the scope of this

rule and are being addressed more

appropriately in a broader context.

Section 1470.9 Modifications

Comment. Two comments were

received concerning modifications to a

WHIP plan. One comment wanted to

allow changes to a plan at anytime

based on unforeseen circumstances

while the other comment wanted all

modifications approved by the local

work group in conjunction with the

local conservation district.

Response. The local work group is

comprised of Federal, State, County,

tribal or local government

representatives at the local level. The

local work group serves as a

recommending body only and will not

have approval authority of WHIP costshare agreements or modifications to

such cost-share agreements. WHIP will

accommodate, to the extent that funding

allows, unforeseen technical

modifications to a plan. The cost-share

agreement modification provisions for

WHIP are similar to those in other

USDA conservation programs. The

program handbook will provide

procedural guidance for modifying costshare agreements, and will have the

flexibility to enable a participant to

modify a cost-share agreement several

years into its implementation as long as

the WHDP is revised according to

program requirements.

Section 1470.10 Transfer of Interest in a

Contract

Comment. The NRCS received four

comments on this topic. Two comments

recommended funds should not be

returned if a cost-share agreement is

terminated. One comment

recommended the return of all or a

portion of the funds if a cost-share

agreement is terminated through a

change in ownership. One comment

requesting clarification of the terms for

a transfer of cost-share agreement and

whether an easement was involved.

Response. NRCS does not have the

authority to acquire easements from

WHIP participants, and therefore there

are no easements involved in a WHIP

cost-share agreement. The NRCS added

language to this section to include

provisions when a subsequent owner is

unwilling to assume responsibility

under the WHIP cost-share agreement.

Section 1470.11 Termination of costshare agreements

Comment. The NRCS received six

comments on this section of the rule.

Two comments requested clarification

of the terms ‘‘public interest’’ and

‘‘severe hardship’’. One comment

wanted the ability to end the cost-share

agreement without obligation for the

participant to return any funds. One

comment wanted less harsh language in

this section.

Response. The NRCS will utilize

standard cost-share agreement

procedures in the implementation of

this section. The ‘‘public interest’’ and

‘‘severe hardship’’ standards have been

implemented in many Departmental

programs and such standards require

fact-intensive determinations. A

particular summary of such

determinations would not prove

insightful. There were no changes made

to this section.

Section 1470.12 Violations and

Remedies

Comment. The NRCS received one

comment on this section requesting

clarification of the terms ‘‘reasonable

notice’’ and ‘‘additional time as CCC

may allow.’’

Response. Written notice mailed to

the last known address of the

participant constitutes reasonable

notice, but there exist other methods

that also qualify. The NRCS will allow

additional time beyond 30 days to

correct a violation in those cases where

an extension is determined reasonable,

such as inclement weather, or other

extenuating circumstances. In addition,

language was added to clarify the

difference between situations where the

participant sought to come back into

compliance and those where the

participant elected not to do so.

Section 1470.13 Misrepresentation and

Scheme or Device

Comment. The NRCS received one

comment on this section raising the

concern that a program participant

could be penalized for unknowingly

violating the terms of the cost-share

agreement.

Response. Section 636.13 in the final

rule focuses upon misrepresentations

and knowing violations, and thus the

NRCS considers a person’s state of mind

when applying the terms of this section.

Language was added in § 636.13

clarifying the outcomes possible under

this section.

Section 1470.15 Appeals

Language was added to this section

identifying activities that are not subject

to appeal, consistent with the

Department of Agriculture

Reorganization Act of 1994.

Accordingly, Title 7 of the Code of

Federal Regulations, subchapter D, is

amended by adding a new part 636 to

read as follows:

PART 636—WILDLIFE HABITAT

INCENTIVES PROGRAM

Sec.

636.1 Applicability.

636.2 Administration.

636.3 Definitions.

636.4 Program requirements.

636.5 Establishing priority for enrollment in

WHIP.

636.6 Cost-share payments.

636.7 The Wildlife Habitat Development

Plan (WHDP).

636.8 Cost-share agreements.

636.9 Modifications.

636.10 Transfer of interest in a cost-share

agreement.

636.11 Termination of cost-share

agreements.

636.12 Violations and remedies.

636.13 Misrepresentation and scheme or

device.

636.14 Offsets and assignments.

636.15 Appeals.

Authority: 16 U.S.C. 3836a.

§ 636.1. Applicability.

(a) The purpose of the WHIP is to help

participants develop habitat for upland

wildlife, wetland wildlife, threatened

and endangered species, fish, and other

types of wildlife.

(b) The regulations in this part set

forth the requirements for the Wildlife

Habitat Incentives Program (WHIP).

(c) The Chief, NRCS may implement

WHIP in any of the 50 states, the District

of Columbia, the Commonwealth of

Puerto Rico, Guam, the Virgin Islands of

the United States, American Samoa, and
49366 Federal Register / Vol. 62, No. 182 / Friday, September 19, 1997 / Rules and Regulations

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,

NRCS.

(b) The State Conservationist will

consult with the State Technical

Committee in the implementation of the

program and in establishing program

direction for the NRCS in the applicable

State. The State Conservationist has the

authority to accept or reject the State

Technical Committee recommendation;

however, the State Conservationist will

give strong consideration to the State

Technical Committee’s

recommendation.

(c) NRCS may enter into cooperative

agreements with Federal agencies, State

and local agencies, conservation

districts, local watershed groups, and

private entities to assist with program

implementation, including cost-share

agreement execution, assistance,

planning, and monitoring

responsibilities.

(d) NRCS may make payments

pursuant to agreements with other

Federal, State, or local agencies,

conservation districts, local watershed

groups, or private entities for program

implementation, coordination of

enrollment of cost-share agreements, or

for other goals consistent with the

program provided for in this part.

(e) NRCS will provide the public with

reasonable notice of opportunities to

apply for participation in the program.

(f) Nothing in this part shall preclude

the Chief of NRCS, or a designee, from

determining any question arising under

this part or from reversing or modifying

any determination made under this part.

§ 636.3. Definitions.

Chief means the Chief of the Natural

Resources Conservation Service or the

person delegated authority to act for the

Chief.

Conservation district means a political

subdivision of a State, Native American

Tribe, or territory, organized pursuant to

the State or territorial soil conservation

district law, or Tribal law. The

subdivision may be a conservation

district, soil conservation district, soil

and water conservation district,

resource conservation district, natural

resource district, land conservation

committee, or similar legally constituted

body.

Conservation plan means a record of

a participant’s decisions, and

supporting information, for treatment of

a unit of land or water, and includes a

schedule of operations, activities, and

estimated expenditures needed to solve

identified natural resource problems.

Cost-share agreement means the

document that specifies the obligations

and the rights of any person who has

been accepted for participation in the

program.

Cost-share payment means the

payments under this part to develop

wildlife habitat.

Habitat development means the

physical actions or practices undertaken

to establish, improve, protect, enhance,

or restore the present conditions of the

land for the specific purpose of

improving conditions for wildlife.

Participant means an applicant who is

a party to a WHIP cost-share agreement.

Person means an individual,

partnership, association, corporation,

cooperative, estate, trust, joint venture,

joint operation, or other business

enterprise or other legal entity and,

whenever applicable, a State, a political

subdivision of a State, or any agency

thereof.

Practice means a specified treatment,

such as a structural or land management

measure, which is planned and applied

according to NRCS standards and

specifications.

Recurring practices means practices

repeated on the same area over the life

of a cost-share agreement to achieve

specific habitat attributes.

State Conservationist means the

NRCS employee authorized to direct

and supervise NRCS activities in a State,

the Caribbean Area, or the Pacific Basin

Area.

State Technical Committee means a

committee established by the Secretary

of the United States Department of

Agriculture in a State pursuant to 16

U.S.C. 3861.

Wildlife means birds, fishes, reptiles,

amphibians, invertebrates, and

mammals, along with all other animals.

Wildlife habitat means the aquatic

and terrestrial environments required

for wildlife to complete their life cycles,

including air, food, cover, water, and

spatial requirements.

§ 636.4. Program requirements.

(a) To participate in WHIP, a person

must:

(1) Develop and agree to comply with

a WHDP, as described in § 636.7;

(2) Enter into a cost-share agreement

for the development of wildlife as

described in § 636.8;

(3) Provide NRCS with written

evidence of ownership or legal control

for the life of the proposed cost-share

agreement period; however, an

exception may be made by the Chief:

(i) In the case of land allotted by the

Bureau of Indian Affairs, tribal land, or

(ii) Other instances in which NRCS

determines there is sufficient assurance

of control;

(4) Agree to provide all information to

NRCS as determined to be necessary to

assess the merits of a proposed project

and to monitor the compliance of a

participant with a cost-share agreement;

and (5)Agree to grant to NRCS or its

representatives access to the land for

purposes related to application,

assessment, monitoring, enforcement, or

other actions required to implement this

part.

(b) Ineligible land. NRCS shall not

provide cost-share assistance with

respect to practices on land:

(1) Enrolled in a program where

wildlife habitat objectives have been

sufficiently achieved through other

forms of assistance or without

assistance, as determined by NRCS.

(2) With on-site or off-site conditions

which NRCS determines would

undermine the benefits of the habitat

development or otherwise reduce its

value;

(3) Where NRCS determines that the

wildlife habitat development benefits

attainable are of lessor value than would

occur on other lands; or

(4) Owned by the United States,

except where there is a direct Tribal,

State, or private benefit; or

(5) On which habitat for threatened or

endangered species would be adversely

affected.

(c) All other land except as provided

in paragraph (b) of this section is

eligible.

§ 636.5 Establishing priority for enrollment

in WHIP.

(a) In response to national and

regional needs, the Chief may limit

program implementation in any given

year to specific geographic areas or to

address specific habitat development

needs of targeted species of special

concern.

(b) The State Conservationist, in

consultation with the State Technical

Committee, may limit implementation

of WHIP to address unique species,

habitats, or special geographic areas of

the State. Subsequent cost-share

agreement offers that would

complement previous cost-share

agreements due to geographic proximity

of the lands involved or other

relationships may receive priority

consideration for participation.

(c) NRCS will evaluate the

applications and make enrollment

decisions based on the wildlife habitat

need using some or all of the following

criteria:

(1) Contribution to resolving an

identified habitat problem of national,

regional, or state importance;
Federal Register / Vol. 62, No. 182 / Friday, September 19, 1997 / Rules and Regulations 49367

(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 wildlife habitat

development activities; and

(7) Other factors determined

appropriate by NRCS to meet the

objectives of the program.

(d) Notwithstanding the criteria set

forth in paragraph (c) of this section, the

State Conservationist, in consultation

with the State Technical Committee,

may deny an application if it is not cost

effective or does not sufficiently meet

program requirements:

§ 636.6 Cost-share payments.

(a) NRCS may share the cost with a

participant for implementing the

practices as provided in the WHDP;

NRCS shall offer to pay no more than 75

percent of the cost of establishing such

practices. The cost-share payment to a

participant shall be reduced

proportionately below 75 percent to the

extent that direct Federal financial

assistance is provided to the participant

from sources other than NRCS, except

for certain cases that merit additional

cost-share assistance to achieve the

intended goals of the program, as

determined by the State Conservationist.

(b) Cost-share payments may be made

only upon a determination by the NRCS

that an eligible practice or an

identifiable unit of the practice has been

established in compliance with

appropriate standards and

specifications. Identified practices may

be implemented by the participant or

other designee.

(c) Cost-share payments may be made

for the establishment and installation of

additional eligible practices, or the

maintenance or replacement of an

eligible practice, but only if NRCS

determines the practice is needed to

meet the objectives of the program, or

that the failure of the original practice

was due to reasons beyond the control

of the participant.

§ 636.7 The Wildlife Habitat Development

Plan (WHDP).

(a) The participant develops a WHDP

with the assistance of NRCS or other

public or private natural resource

professionals, and the WHDP is

approved by the participant, NRCS, and

the local conservation district. A WHDP

encompasses the parcel of land that has

the wildlife habitat conditions that are

of concern to the participant.

(b) The WHDP forms the basis for the

agreement and is incorporated therein.

The WHDP includes a schedule for

installation of the wildlife habitat

development practices, maintenance,

and related requirements to maintain

the habitat for the life of the cost-share

agreement.

(c) The WHDP may be modified in

accordance with § 636.9.

§ 636.8 Cost-share agreements.

(a) To apply for WHIP cost-share

assistance, a person must submit an

application for participation in the

WHIP at a USDA office or to an NRCS

representative.

(b) A WHIP cost-share agreement

shall:

(1) Incorporate all portions of a

WHDP;

(2) Be for a period of 5 to 10 years,

unless provisions of paragraph (c) of

this section apply;

(3) Include all provisions as required

by law or statute;

(4) Specify the requirements for

operation and maintenance of applied

wildlife habitat development practices;

(5) Include any participant reporting

and recordkeeping requirements to

determine compliance with the costshare agreement and program;

(6) Be signed by the participant. When

the participant is not the owner,

concurrence from the owner is required;

and,

(7) Include any other provision

determined necessary or appropriate by

the NRCS representative.

(c) The Chief may allow a cost-share

agreement period for less than five years

in situations where wildlife habitat is

threatened as a result of a disaster and

emergency measures are necessary to

address the potential for dramatic

declines in one or more wildlife

populations.

§ 636.9 Modifications.

(a) NRCS, with the concurrence of the

conservation district, may approve

modifications to a WHDP where such

modifications are acceptable to the

parties.

(b) NRCS may approve modifications

to the cost-share agreement where such

modifications are acceptable to the

parties.

(c) Any modifications made under

this section must meet WHIP program

objectives, and must be in compliance

with this part.

§ 636.10 Transfer of interest in a costshare agreement.

(a) (1) If the ownership or operation

of the land changes during the term of

the cost-share agreement, NRCS shall

modify the cost-share agreement to

reflect the new interested persons and

new divisions of payments. NRCS shall

make eligible cost-share payments upon

presentation of an assignment of rights

or other evidence that title had passed.

(2) With respect to any and all

payments owed to participants who

wish to transfer ownership or control of

land subject to a cost-share agreement,

the division of payment shall be

determined by the original party and

that party’s successor. In the event of a

dispute or claim on the distribution of

cost-share payments, NRCS may

withhold payments without the accrual

of interest pending a settlement or

adjudication on the rights to the funds.

(b) (1) If such new owners or

operators are not willing to assume the

responsibilities posed in an existing

WHIP cost-share agreement, NRCS shall

terminate the cost-share agreement and

may require that all cost-share payments

may be forfeited, refunded, or both.

(2) The signatories to the cost-share

agreement shall be jointly and severally

responsible for refunding the cost-share

payments pursuant to paragraph (b)(1)

of this section.

§ 636.11 Termination of cost-share

agreements.

(a) The State Conservationist may, by

mutual agreement with the parties to the

cost-share agreement, consent to the

termination of the contract 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) Compliance with the terms of the

cost-share agreement would work a

severe hardship on the parties to the

contract; or,

(3) Termination of the cost-share

agreement would, as determined by the

State Conservationist, be in the public

interest.

(b) If a cost-share agreement is

terminated in accordance with the

provisions of this section, the State

Conservationist may allow the

participants to retain any cost-share

payments received under the cost-share

agreement in a porportion appropriate

to the effort the participant has made to

comply with the cost-share agreement,

or, in cases of hardship, where forces

beyond the participant’s control

prevented compliance with the costshare agreement.

§ 636.12 Violations and remedies.

(a) (1) If NRCS determines that a

participant is in violation of a cost-share

agreement or documents incorporated

by reference into the cost-share
49368 Federal Register / Vol. 62, No. 182 / Friday, September 19, 1997 / Rules and Regulations

agreement, NRCS may give the parties to

the cost-share agreement reasonable

notice and an opportunity to voluntarily

correct the violation within 30 days of

the date of the notice, or such additional

time as NRCS may allow.

(2) If the participant fails to cure the

violation of a cost-share agreement

within the period provided under

paragraph (a)(1) of this section, NRCS

may terminate the agreement and

require the participant to refund all or

part of any assistance earned under that

cost-share agreement, plus interest, as

well as require the participant to forfeit

all rights for future payment under the

agreement.

(b) [Reserved].

§ 636.13 Misrepresentation and scheme or

device.

(a) A person who is determined by

NRCS to have erroneously represented

any fact affecting a program

determination made in accordance with

this part shall not be entitled to costshare agreement payments and must

refund all payments, plus interest as

determined by NRCS.

(b) A person who is 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 shall refund to

NRCS all payments, plus interest as

determined by NRCS, with respect to all

NRCS cost-share agreements. The

person’s interest in all NRCS cost-share

agreements may be terminated.

§ 636.14 Offsets and assignments.

(a) Except as provided in paragraph

(b) of this section, any payment or

portion thereof to any person shall be

made without regard to questions of title

under State law and without regard to

any claim or lien against the land, or

proceeds thereof, in favor of the owner

or any other creditor except agencies of

the U.S. Government. The regulations

governing offsets and withholdings

found in part 3 of this title shall be

applicable to cost-share agreement

payments.

(b) Any person entitled to any cash

payment under this program, may

assign the right to receive such

payments in whole or in part.

§ 636.15 Appeals.

(a) Any person may obtain

reconsideration and review of

determinations affecting participation in

this program in accordance with part

614 Part C of this title, except as

provided in paragraph (b) of this

section.

(b) In accordance with the provisions

of the Department of Agriculture

Reorganization Act of 1994, Pub. L.

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

wildlife priority areas, habitats or

practices;

(3) NRCS program funding decisions;

(4) Eligible conservation practices;

and

(5) Other matters of general

applicability.

(c) Before a person may seek judicial

review of any action taken under this

part, the person must exhaust all

administrative appeal procedures set

forth in paragraph (a) of this section.

Signed at Washington, D.C. on September

12, 1997.

Gary A. Margheim,

Acting Chief, Natural Resources Conservation

Service.

[FR Doc. 97–24768 Filed 9–18–97; 8:45 am]

BILLING CODE 3410–16–P