2786 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 

5Sweet potatoes may also be moved interstate 

from Hawaii with irradiation in accordance with 

§ 305.34 of this chapter or after fumigation with 

methyl bromide according to treatment schedule 

T–101–b–3–1, as provided for in § 305.6(a) of this 

chapter. 

6 If there is a question as to the adequacy of a 

carton, send a request for approval of the carton, 

together with a sample carton, to the Animal and 

Plant Health Inspection Service, Plant Protection 

and Quarantine, Center for Plant Health Science 

and Technology, 1730 Varsity Drive, Suite 400, 

Raleigh, NC 27606. 

consignment will be ineligible for 

interstate movement from Hawaii. 

(Approved by the Office of Management and 

Budget under control number 0579–0198) 

§ 318.13–24 Sweet potatoes from Puerto 

Rico. 

Sweet potatoes from Puerto Rico may 

be moved interstate to Atlantic Coast 

ports north of and including Baltimore, 

MD, under limited permit if treated in 

accordance with part 305 of this chapter 

or if the following conditions are met: 

(a) The sweet potatoes must be 

certified by an inspector of Puerto Rico 

as having been grown under the 

following conditions: 

(1) Fields in which the sweet potatoes 

have been grown must have been given 

a preplanting treatment with an APHISapproved soil insecticide. 

(2) Before planting in such treated 

fields, the sweet potato draws and vine 

cuttings must have been dipped in an 

APHIS-approved insecticidal solution. 

(3) During the growing season an 

approved insecticide must have been 

applied to the vines at prescribed 

intervals. 

(b) An inspector of Puerto Rico must 

certify that the sweet potatoes have been 

washed. 

(c) The sweet potatoes must be graded 

by inspectors of Puerto Rico in 

accordance with Puerto Rican standards 

which do not provide a tolerance for 

insect infestation or evidence of insect 

injury and found by such inspectors to 

comply with such standards prior to 

movement from Puerto Rico. 

(d) The sweet potatoes must be 

inspected by an inspector and found to 

be free of the sweet potato scarabee 

(Euscepes postfasciatus Fairm.). 

§ 318.13–25 Sweet potatoes from Hawaii. 

(a) Sweet potatoes may be moved 

interstate from Hawaii in accordance 

with this section only if the following 

conditions are met: 5

(1) The sweet potatoes must be treated 

in accordance with the vapor heat 

treatment schedule specified in 

§ 305.24. 

(2) The sweet potatoes must be 

sampled, cut, and inspected and found 

to be free of the ginger weevil 

(Elytrotreinus subtruncatus). Sampling, 

cutting, and inspection must be 

performed under conditions that will 

prevent any pests that may emerge from 

the sampled sweet potatoes from 

infesting any other sweet potatoes 

intended for interstate movement in 

accordance with this section. 

(3) The sweet potatoes must be 

inspected and found to be free of the 

gray pineapple mealybug (Dysmicoccus 

neobrevipes) and the Kona coffee-root 

knot nematode (Meloidogyne 

konaensis). 

(4)(i) Sweet potatoes that are treated 

in Hawaii must be packaged in the 

following manner: 

(A) The cartons must have no 

openings that will allow the entry of 

fruit flies and must be sealed with seals 

that will visually indicate if the cartons 

have been opened. They may be 

constructed of any material that 

prevents the entry of fruit flies and 

prevents oviposition by fruit flies into 

the fruit in the carton.6

(B) The pallet-load of cartons must be 

wrapped before it leaves the treatment 

facility in one of the following ways: 

(1) With polyethylene sheet wrap; 

(2) With net wrapping; or 

(3) With strapping so that each carton 

on an outside row of the pallet load is 

constrained by a metal or plastic strap. 

(C) Packaging must be labeled with 

treatment lot numbers, packing and 

treatment facility identification and 

location, and dates of packing and 

treatment. 

(ii) Cartons of untreated sweet 

potatoes that are moving to the 

mainland United States for treatment 

must be shipped in shipping containers 

sealed prior to interstate movement with 

seals that will visually indicate if the 

shipping containers have been opened. 

(5)(i) Certification on basis of 

treatment. Certification shall be issued 

by an inspector for the movement of 

sweet potatoes from Hawaii that have 

been treated in accordance with part 

305 of this chapter and handled in 

Hawaii in accordance with this section. 

(ii) Limited permit. A limited permit 

shall be issued by an inspector for the 

interstate movement of untreated 

sweetpotato from Hawaii for treatment 

on the mainland United States in 

accordance with this section. 

(b) [Reserved ] 

(Approved by the Office of Management and 

Budget under control number 0579–0281) 

Subpart—Fruits and Vegetables From 

Puerto Rico or Virgin Islands

[Removed] 

■ 7. Subpart—Fruits and Vegetables 

From Puerto Rico or Virgin Islands, 

consisting of §§ 318.58 through 318.58– 

16, is removed. 

Subpart—Guam [Removed] 

■ 8. Subpart—Guam, consisting of 

§§ 318.82 through 318.82–3, is removed. 

Done in Washington, DC, this 9th day of 

January 2009. 

Kevin Shea, 

Acting Administrator, Animal and Plant 

Health Inspection Service. 

[FR Doc. E9–762 Filed 1–15–09; 8:45 am] 

BILLING CODE 3410–34–P 

DEPARTMENT OF AGRICULTURE 

Natural Resources Conservation 

Service 

7 CFR Part 636 

RIN 0578–AA49 

Wildlife Habitat Incentive Program 

AGENCY: Natural Resources 

Conservation Service, United States 

Department of Agriculture. 

ACTION: Interim final rule with request 

for comment. 

SUMMARY: Section 2602 of the Food, 

Conservation, and Energy Act of 2008 

(2008 Act) amended the Wildlife Habitat 

Incentive Program (WHIP) by: 

Narrowing the program’s applicability 

to private agricultural lands, 

nonindustrial private forestland, and 

Indian land; identifying habitat on pivot 

corners and irregular areas as ‘‘other 

types of wildlife habitat’’ eligible for 

cost-share; increasing, from 15 to 25, the 

percentage of funds that may be used for 

agreements that have a term of at least 

15 years; providing the Secretary of the 

United States Department of Agriculture 

(USDA) authority to give priority to 

projects that would address issues 

raised by State, regional, and national 

conservation initiatives; and instituting 

an annual $50,000 in direct or indirect 

aggregate payment limitations per 

person or legal entity. The Natural 

Resources Conservation Service (NRCS), 

an agency of USDA, issues this interim 

final rule with request for comment to 

incorporate statutory changes resulting 

from the 2008 Act authorization. The 

Agency is also using this rule to 

simplify the regulation and make 

administrative changes to improve 

program efficiency. Cost-share 

agreements entered into on or following 

January 16, 2009 will be administered 

according to this interim final rule. 

DATES: Effective date: The rule is 

effective January 16, 2009. Comment 

date: Submit comments on or before 

March 17, 2009. 


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ADDRESSES: You may send comments, 

which will be published in their 

entirety, using any of the following 

methods: 

Government-wide rulemaking Web 

site: Go to http://www.regulations.gov 

and follow the instructions for sending 

comments electronically. 

Mail: Financial Assistance Programs 

Division, Natural Resources 

Conservation Service, Wildlife Habitat 

Incentive Program Comments, P.O. Box 

2890, Room 5237–S, Washington, DC 

20013. 

Fax: 1–202–720–4265. 

Hand Delivery: Room 5237–S of the 

USDA South Agriculture Building, 1400 

Independence Avenue, SW., 

Washington, DC 20250, between 9 a.m. 

and 4 p.m., Monday through Friday, 

except Federal holidays. Please ask the 

guard at the entrance to the South 

Agriculture Building to call 202–720– 

4527 in order to be escorted into the 

building. 

FOR FURTHER INFORMATION CONTACT: 

Director, Financial Assistance Programs 

Division, Natural Resources 

Conservation Service, P.O. Box 2890, 

Washington, DC 20013–2890. Phone: 

202–720–1844. Fax: 202–720–4265. 

Persons with disabilities who require 

alternative means for communicating 

(Braille, large print, audiotape, etc.) 

should contact the USDA Target Center 

at 202–720–2600 (voice and TDD). 

SUPPLEMENTARY INFORMATION: 

Regulatory Certifications 

Executive Order 12866 

Pursuant to Executive Order 12866, 

this interim final rule with request for 

comment is a significant regulatory 

action. The administrative record is 

available for public inspection in Room 

5831 South Building, USDA, 14th and 

Independence Avenue, SW., 

Washington, DC. NRCS conducted an 

economic analysis of the potential 

impacts associated with this program. A 

summary of the economic analysis can 

be found at the end of this preamble and 

a copy of the analysis is available upon 

request from the Director, Financial 

Assistance Programs Division, Natural 

Resources Conservation Service, Room 

5237S, Washington, DC 20250–2890. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 (SBREFA) 

Section 2904(c) of the Food, 

Conservation, and Energy Act of 2008 

requires that the Secretary use the 

authority in section 808(2) of title 5, 

United States Code, which allows an 

agency to forego SBREFA’s usual 60-day 

Congressional Review delay of the 

effective date of a major regulation if the 

agency finds that there is a good cause 

to do so. NRCS hereby determines that 

it has good cause to do so in order to 

meet the Congressional intent to have 

the conservation programs, authorized 

or amended by Title II, in effect as soon 

as possible. Accordingly, this rule is 

effective upon filing for public 

inspection by the Office of the Federal 

Register. 

Executive Order 13175 

Executive Order 13175 requires 

agencies to consult and collaborate with 

tribes, if policies or actions have 

substantial direct effects on tribes. 

NRCS has determined that this 

regulation does not have a substantial 

direct effect on tribes, since these 

regulatory provisions are required by 

statute, and these provisions do not 

impose unreimbursed compliance costs 

or preempt Tribal law. As a result, 

consultation is not required. 

Executive Order 13084 

Executive Order 13084 requires 

agencies to consult with Indian Tribal 

governments, if the policies uniquely 

impact tribes. NRCS has determined 

that the policies set forth in this 

regulation are required by statute and do 

not uniquely impact tribes and Tribal 

governments; therefore, consultation is 

not required. 

Regulatory Flexibility Act 

NRCS has determined that the 

Regulatory Flexibility Act is not 

applicable to this final rule because the 

Natural Resources Conservation Service 

is not required by 5 U.S.C. 553,ww. or 

any other provision of law, to publish a 

notice of proposed rulemaking with 

respect to the subject matter of this rule. 

Environmental Analysis 

Availability of the Environmental 

Assessment (EA) and Finding of No 

Significant Impact (FONSI). A 

programmatic environmental 

assessment has been prepared in 

association with this rulemaking. The 

analysis has determined that there will 

not be a significant impact to the human 

environment and as a result an 

Environmental Impact Statement is not 

required to be prepared (40 CFR 

1508.13). The EA and FONSI are 

available for review and comment for 60 

days from the date of publication of this 

interim final rule in the Federal 

Register. A copy of the EA and FONSI 

may be obtained from the following 

Web site: http://www.nrcs.usda.gov/ 

programs/Env_Assess/. A hard copy 

may also be requested from the 

following address and contact: National 

Environmental Coordinator, Natural 

Resources Conservation Service, 

Ecological Sciences Division, 1400 

Independence Ave., SW., Washington 

DC 20250. Comments from the public 

should be specific and reference that 

comments provided are on the EA and 

FONSI. Public comment may be 

submitted by any of the following 

means: (1) e-mail comments to 

NEPA2008@wdc.usda.gov, (2) e-mail to 

egov Web site—www.regulations.gov, or 

(3) written comments to: National 

Environmental Coordinator, Natural 

Resources Conservation Service, 

Ecological Sciences Division, 1400 

Independence Ave., SW., Washington 

DC 20250. 

Civil Rights Impact Analysis 

NRCS has determined through a Civil 

Rights Impact Analysis that the interim 

final rule discloses no 

disproportionately adverse impacts for 

minorities, women, or persons with 

disabilities. An increased cost-share 

payment rate for historically 

underserved producers, as defined in 

§ 636.3, is expected to increase 

participation among these groups. The 

data presented indicates producers who 

are members of the historically 

underserved groups have participated in 

NRCS conservation programs at parity 

with other producers. Extrapolating 

from historical participation data, it is 

reasonable to conclude that NRCS 

programs, including WHIP, will 

continue to be administered in a nondiscriminatory manner. Outreach and 

communication strategies are in place to 

ensure all producers will be provided 

the same information to allow them to 

make informed compliance decisions 

regarding the use of their lands that will 

affect their participation in USDA 

programs. WHIP applies to all persons 

equally regardless of their race, color, 

national origin, gender, sex, or disability 

status. Therefore, the WHIP rule 

portends no adverse civil rights 

implications for women, minorities and 

persons with disabilities. 

Paperwork Reduction Act 

Section 2904 of the 2008 Act requires 

that implementation of programs under 

Title II of the Act be made without 

regard to the Paperwork Reduction Act 

of 1995 (44 U.S.C. 3501 et seq.). 

Therefore, NRCS is not reporting 

recordkeeping or estimated paperwork 

burden associated with this interim 

final rule. 

Government Paperwork Elimination Act 

NRCS is committed to compliance 

with the Government Paperwork 

Elimination Act, which requires 

Government agencies, in general, to 


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provide the public the option of 

submitting information or transacting 

business electronically to the maximum 

extent possible. To better accommodate 

public access, NRCS has developed an 

online application and information 

system for public use. 

Executive Order 12988 

This interim final rule has been 

reviewed in accordance with Executive 

Order 12988. The provisions of this 

interim final rule are not retroactive. 

Furthermore, the provisions of this 

interim final rule preempt State and 

local laws to the extent such laws are 

inconsistent with this interim final rule. 

Before an action may be brought in a 

Federal court of competent jurisdiction, 

the administrative appeal rights 

afforded persons at 7 CFR Part 614 must 

be exhausted. 

Unfunded Mandates Reform Act of 1995 

NRCS assessed the affects of this 

rulemaking action on State, local, and 

Tribal governments, and the public. 

This action does not compel the 

expenditure of $100 million or more by 

any State, local, or Tribal governments, 

or anyone in the private sector, and 

therefore, a statement under section 202 

of the Unfunded Mandates Reform Act 

of 1995 is not required. 

Economic Analysis—Executive 

Summary 

The Wildlife Habitat Incentives 

Program (WHIP) provides direct 

technical and financial assistance to 

improve fish and wildlife habitat on 

eligible agricultural and nonindustrial 

private forest lands. The focus of the 

program is on national, regional, and 

State-directed fish and wildlife 

priorities, including rare and declining 

species. These priorities are established 

with input from the regional, State, and 

local stakeholders. Because these efforts 

involve both on-site and off-site-specific 

impacts and these impacts affect a host 

of non-market valued attributes 

ecosystem services, performing a 

traditional benefit-cost analysis (BCA) is 

challenging. Even with these 

limitations, a BCA offers a means to 

identify the main costs and benefits and 

explore policy and program alternatives. 

The primary costs associated with 

WHIP include the cost-share outlays by 

NRCS and the matching funds of the 

producer to fully pay for the restoration 

and improvements in fish and wildlife 

habitat within the agricultural or 

forestry operation. These primary costs 

must then be compared with the 

benefits of the habitat improvement 

realized through these efforts, mainly 

the improvements of the flow of 

ecological goods and services (EGS) and 

provision of non-market valued 

amenities, such as more scenic views, as 

well as providing fish and wildlife 

habitat. 

The results of this BCA suggest that 

the WHIP assistance to participants will 

result in positive net benefits, especially 

in areas where fish and wildlife habitat 

is deteriorating or being lost. The 

changes to WHIP made by the 2008 Act 

do not change this conclusion. Copies of 

the Economic Analysis may be obtained 

from the Director, Financial Assistance 

Programs Division, Natural Resources 

Conservation Service, P.O. Box 2890, 

Washington, DC 20013–2890. 

Section 2904 of the Food, Conservation, 

and Energy Act of 2008 

The Commodity Credit Corporation 

(CCC) is not required by 5 U.S.C. 553 or 

by any other provision of law, to 

publish a notice of proposed rulemaking 

with respect to the subject matter of this 

rule. Section 2904 of the 2008 Act 

requires regulations to be published 

within 90 days after the date of 

enactment and authorizes the CCC to 

promulgate an interim final rule 

effective upon publication with an 

opportunity for notice and comment. 

CCC has determined that an interim 

final rule is necessary to expedite the 

effective date of rulemaking in order to 

meet the intent of Section 2904. 

Discussion of Program 

The Wildlife Habitat Incentive 

Program (WHIP) is a voluntary program 

administered by NRCS, using the funds 

and authorities of the Commodity Credit 

Corporation (CCC). WHIP is available in 

all 50 states, Puerto Rico, Guam, the 

Virgin Islands of the United States, 

American Samoa, and the 

Commonwealth of the Northern Mariana 

Islands. Through WHIP, NRCS provides 

technical and financial assistance to 

participants to develop upland, wetland 

and aquatic wildlife habitat, as well as 

fish and wildlife habitat on other areas, 

and to develop habitat for threatened 

and endangered species. NRCS first 

allocated funds for WHIP in 1997. Over 

the life of the program, NRCS has 

entered into over 25,600 cost-share 

agreements that cover over 4 million 

acres. 

WHIP was originally authorized 

under section 387 of the Federal 

Agriculture Improvement and Reform 

Act of 1996 (the 1996 Act), Public Law 

104–127. In 1997, NRCS published 

regulations to implement WHIP at 7 

CFR 636. Section 2502 of the Farm 

Security and Rural Investment Act of 

2002 (the 2002 Act), Public Law 107– 

171, repealed the original WHIP statute 

and established a new WHIP under 

Section 1240N of the Food Security Act 

of 1985, as amended (the 1985 Act). 

Section 2602 of the Food, Conservation, 

and Energy Act of 2008 (2008 Act) made 

further changes to WHIP. 

In 1997, NRCS published regulations 

to implement WHIP at 7 CFR Part 636. 

The 2002 Act authorized WHIP 

agreements with a duration of at least 15 

years, and NRCS amended the 1997 

regulation, by incorporating this change 

in a final rule published on July 24, 

2002. NRCS publishes this interim final 

rule to incorporate the changes in the 

2008 Act. In addition, NRCS is using 

this rulemaking opportunity to 

implement program improvements 

based upon NRCS’s experience in 

administering WHIP and other 

conservation programs, as well as input 

from program participants and 

stakeholders. 

In addition, the United States 

Department of Agriculture (USDA) held 

Farm Bill forums throughout the 

country in 2005 to solicit input from 

producers and other stakeholders about 

future farm policy. USDA received more 

than 4,000 comments through this 

process, including recommendations 

related to WHIP. In summary, NRCS 

makes changes to the WHIP regulation 

through this interim final rule, 

described more fully below, to reflect 

changes made by the 2008 Act, 

consideration of public input from the 

Farm Bill forums, and opportunities 

identified by NRCS to improve program 

administration. 

Summary of Statutory Changes 

Section 2602(a)—Program Focus 

The original WHIP legislation, 

published in 1996, contained broad 

language to promote implementation of 

wildlife habitat development practices 

by providing participants cost-share 

assistance for developing a wildlife 

management plan and implementing 

eligible activities under the plan. Prior 

to the 2008 Act, WHIP was available to 

develop habitat on private and public 

lands, and available to landowners and 

operators, provided that operators gave 

NRCS evidence they had control of the 

land for the duration of the WHIP 

agreement. 

NRCS focused the majority of WHIP 

funds on private lands. However, the 

NRCS State Conservationist, in 

consultation with the State Technical 

Committee, could allow exceptions to 

the private land focus when significant 

wildlife habitat gains could only be 

achieved by installing practices on nonFederal public land. In addition, Indian 

land, formerly known as Tribal lands, 


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regardless of their status in terms of 

Federal trust lands, and Federal lands 

were eligible in those very limited 

circumstances where the benefit is 

primarily on the private lands, but must 

include some Federal land to meet the 

WHIP objective. 

Section 2602(a) of the 2008 Act 

amends Section 1240N(a) of the 1985 

Act to restrict eligible land to private 

agricultural land, nonindustrial private 

forest land, and Indian land. This 

restriction requires NRCS to make 

changes to the applicability, definitions, 

and program requirement sections of the 

WHIP regulation. In particular, this 

rulemaking adds definitions for 

‘‘agricultural lands,’’ ‘‘Indian land,’’ and 

‘‘nonindustrial private forest land.’’ 

These terms are defined in § 636.3 of 

this regulation. 

NRCS also amends § 636.1(a) to reflect 

the changes made to land eligibility by 

the 2008 Act. In § 636.4, NRCS 

redesignates the existing § 636.4(b) as 

§ 636.4(c), and adds a new § 636.4(b) to 

identify eligible land as private 

agricultural land, nonindustrial private 

forest land, and Indian land. 

Section 2602(b) of the 2008 Act—Other 

Types of Wildlife Habitat 

Section 2602(b) of the 2008 Act 

amends Section 1240N(b) of the 1985 

Act to clarify ‘‘other types of habitat’’ 

includes habitat developed on pivot 

corners and irregular areas. The current 

regulation encompasses these types of 

habitats, and therefore, NRCS 

determined that it did not need to 

amend the WHIP rule to reflect this 

statutory clarification. NRCS will ensure 

that its policy guidance identifies such 

habitat as eligible for enrollment. 

2008 Act Section 2602(c)—Cost-Share 

Rates 

The original WHIP legislation, 

published in 1996, did not specify 

either a cost-share rate or an agreement 

length for WHIP cost-share agreements. 

However, NRCS, in its 1997 final rule, 

specified that NRCS would not pay 

more than 75 percent of the cost of 

establishing wildlife habitat 

development practices, except in the 

case of long-term agreements. Further, 

NRCS reduced the cost-share payment 

to a participant proportionately below 

75 percent to the extent that direct 

Federal financial assistance was 

provided to the participant from other 

sources. The 1997 WHIP rule also 

specified that WHIP cost-share 

agreements would be for a period of 5 

to 10 years, unless a shorter period was 

recommended to address situations 

where wildlife was threatened as a 

result of a disaster. 

The 2002 Act authorized the Secretary 

to use up to 15 percent of program funds 

to provide additional cost-share 

payments to participants to protect and 

restore essential plant and animal 

habitat under long-term agreements 

with durations of at least 15 years. The 

2002 final rule reflected the new 

authority for entering into long-term 

agreements while the percentage of 

funds to be made available for such 

agreements was addressed in Agency 

policy. Section 2602(c) of the 2008 Act 

increases the proportion of annual funds 

available for long-term agreements to 

not more than 25 percent but makes no 

other changes to long-term agreements. 

In response to Section 2602(c), NRCS 

adds the provision to allow up to 25 

percent of WHIP funds to be used to 

carry out cost-share agreements that 

extend 15 years or more. 

Section 2602(d) of the 2008 Act— 

Priority Initiatives 

Section 2602(d) provides the 

Secretary discretionary authority to give 

priority to projects that would address 

issues raised by State, regional, and 

national conservation initiatives. These 

State, regional, and national initiatives 

include, for example: the North 

American Waterfowl Management Plan, 

the National Fish Habitat Action Plan, 

the Greater Sage Grouse Conservation 

Society, the State Comprehensive 

Wildlife Conservation Strategies (also 

referred to as the State Wildlife Action 

Plans), the Northern Bobwhite 

Conservation Initiative, the Gulf of 

Hypoxia Action Plan 2008 (and 

associated annual operating plans), and 

State forest resource strategies. This 

change clarifies discretionary authority 

provided in the program’s original 

statutory language. Section 636.5(c)(1) 

of the 1997 WHIP rule identified criteria 

that NRCS used to evaluate applications 

and make enrollment decisions, 

including ‘‘Contribution to resolving an 

identified habitat problem of national, 

regional, or state importance.’’ Section 

636.5 is redesignated as § 636.6 and in 

response to the 2008 Act, NRCS revises 

§ 636.6(c)(1) to read as follows: 

‘‘Contribution to resolving an identified 

habitat concern of national, regional, or 

state importance.’’ In particular, NRCS 

replaces the word ‘‘problem’’ with the 

word ‘‘concern’’ to reflect a broader 

spectrum of wildlife issues. Further, in 

§ 636.6(a), NRCS replaces the term 

‘‘national and regional needs’’ with 

‘‘national, regional, and State wildlife 

habitat concerns.’’ Finally, in 

§ 636.8(a)(2), NRCS states that ‘‘wildlife 

habitat concerns identified in State, 

regional, and national conservation 

initiatives’’ are one of the possible items 

required to be addressed in the WHIP 

plan of operations (WPO). 

Section 2602(e) of the 2008 Act— 

Payment Limitations 

Section 2602(e) of the 2008 Act 

establishes the following payment 

limitation: ‘‘Payments made to a person 

or legal entity, directly or indirectly, 

under [WHIP] may not exceed, in the 

aggregate, $50,000 per year.’’ NRCS 

incorporates this change in § 636.7(f). 

Summary of Changes to the Regulation 

In addition to the amendments being 

made to address 2008 Act changes, 

NRCS amends the WHIP regulations at 

7 CFR Part 636 through this interim 

final rule to incorporate administrative 

changes to simplify the regulatory 

language, align WHIP policies with 

other NRCS conservation programs, and 

improve the efficiency of program 

administration. NRCS describes these 

changes below in the section-by-section 

analysis. 

Section 636.1, Applicability 

NRCS amends § 636.1(a) by making 

several changes. In particular, NRCS 

replaces the phrase ‘‘for upland wildlife, 

wetland wildlife, threatened and 

endangered species, fish, and other 

types of wildlife’’ with the phrase 

‘‘develop fish and wildlife habitat on 

private agricultural land, nonindustrial 

private forest land, and Indian land.’’ 

NRCS determined that the simplified 

language provides the appropriate broad 

interpretation for the types of habitat to 

be developed on eligible lands, 

including a new statutory requirement 

to encourage the development of habitat 

for native and managed pollinators. 

Section 636.2, Administration 

NRCS makes several adjustments to 

§ 636.2 to help clarify program 

administration. In particular, NRCS 

adds the following statement to 

§ 636.2(a) to clarify the relationship 

between NRCS and the Commodity 

Credit Corporation (CCC): ‘‘The funds, 

facilities, and authorities of the 

Commodity Credit Corporation (CCC) 

are available to NRCS to carry out 

WHIP. Accordingly, where NRCS is 

mentioned in this part, it also refers to 

CCC’s funds, facilities, and authorities, 

where applicable.’’ NRCS has had legal 

authority to use CCC funds to 

implement WHIP since the 2002 Act. By 

adding this language to the WHIP rule, 

NRCS identifies that it may use CCC 

funds to deliver WHIP. 

NRCS makes several changes to 

§ 636.2(c) to align WHIP terminology 

with the terms used by other NRCS 

financial assistance programs. In 


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particular, NRCS replaces the term 

‘‘cooperative agreements’’ with the term 

‘‘agreements’’ to reflect the full scope of 

funding arrangements into which NRCS 

may enter. The change does not alter the 

authority or opportunities for entering 

into agreements. 

NRCS also adds ‘‘Indian tribes,’’ 

‘‘private organizations,’’ and 

‘‘individuals’’ to the list of entities with 

which NRCS may enter into agreements. 

NRCS merges § 636.2(d) with § 636.2(c) 

to simplify and clarify the WHIP 

regulation, eliminating redundant 

language. Therefore, NRCS redesignates 

§§ 636.2(e) and (f) as §§ 636.2(d) and (e), 

respectively. NRCS removes the 

subjective term ‘‘reasonable’’ in the 

redesignated § 636.2(d), and revises 

redesignated paragraph § 636.2(e) to 

clarify that the Chief can override 

decisions made by his delegates if 

necessary to uphold WHIP purposes. 

Section 636.3, Definitions 

NRCS changes many of the definitions 

in the WHIP rule to be consistent with 

other NRCS conservation programs and 

to avoid confusion among NRCS field 

personnel and customers. Specifically, 

NRCS revises the following existing 

definitions for ‘‘Chief,’’ ‘‘Conservation 

district,’’ ‘‘Cost share agreement,’’ 

‘‘Participant,’’ ‘‘Person,’’ ‘‘State 

Conservationist,’’ and ‘‘Wildlife.’’ 

NRCS adds the following terms and 

definitions to the WHIP regulation to be 

consistent with related NRCS 

conservation programs. In particular, 

NRCS adds definitions for ‘‘Agricultural 

lands,’’ ‘‘Applicant,’’ ‘‘At-risk species,’’ 

‘‘Beginning farmer or rancher,’’ 

‘‘Conservation practice,’’ ‘‘Designated 

conservationist,’’ ‘‘Field office technical 

guide (FOTG),’’ ‘‘Historically 

underserved producer,’’ ‘‘Indian tribe,’’ 

‘‘Indian land,’’ ‘‘Joint operation,’’ ‘‘Legal 

entity,’’ ‘‘Lifespan,’’ ‘‘Limited resource 

farmer or rancher,’’ ‘‘Liquidated 

damages,’’ ‘‘Livestock,’’ ‘‘Natural 

Resources Conservation Service 

(NRCS),’’ ‘‘Nonindustrial private 

forestland,’’ ‘‘Operation and 

maintenance,’’ ‘‘Operation and 

maintenance (O&M) agreement,’’ 

‘‘Producer,’’ ‘‘Resource concern,’’ 

‘‘Secretary,’’ ‘‘Socially disadvantaged 

farmer or rancher,’’ ‘‘Technical 

assistance,’’ and ‘‘Technical service 

provider (TSP).’’ Specifically, NRCS 

requests public comment on how to 

tailor the current definition of ‘‘at-risk 

species’’ to assist species in greatest 

need. As currently defined, ‘‘at risk 

species means any plant or animal 

species as determined by the State 

Conservationist, with advice from the 

State Technical Committee, to need 

direct intervention to halt its population 

decline.’’ NRCS removes the terms 

‘‘Conservation Plan’’ and ‘‘Recurring 

Practice’’ since these terms are not used 

in the WHIP regulation. 

NRCS revises several existing terms to 

clarify WHIP program purposes. In 

particular, NRCS revises the definition 

of ‘‘Cost-share payment’’ to be more 

comprehensive by including the 

language ‘‘other goals consistent with 

the program.’’ NRCS revises the 

definition of ‘‘Habitat development’’ to 

clarify that ‘‘conservation practices’’ are 

undertaken to establish, improve, 

protect, enhance, or restore land to 

improve conditions for wildlife. NRCS 

replaces the term ‘‘Practice’’ with 

‘‘Conservation practice’’ and defines the 

term consistent with the definition used 

in related NRCS conservation programs. 

NRCS adds the definitions of 

‘‘Historically underserved producer’’ to 

reference applicants who may be 

eligible for additional cost-share 

assistance as described in § 636.7(a)(2) 

as a beginning farmer or rancher, a 

limited resource farmer or rancher, or a 

socially disadvantaged farmer or 

rancher. Correspondingly, definitions 

are added for ‘‘Beginning farmer or 

rancher,’’ ‘‘Limited resource farmer or 

rancher,’’ and ‘‘Socially disadvantaged 

farmer or rancher.’’ The gross farm sales 

criterion in the ‘‘Limited resource 

farmer or rancher’’ definition is updated 

to reflect the adjustment for inflation. 

These definitions for are consistent with 

the changes to definitions in other 

NRCS conservation programs. 

Finally, NRCS replaces the term 

‘‘Wildlife habitat development plan’’ 

with the term ‘‘WHIP plan of operations 

(WPO)’’ in § 636.7, and consequently 

adds ‘‘WPO’’ to § 636.3. This change 

further aligns § 636.3 with the 

definitions in related NRCS 

conservation programs that identify a 

plan of operations rather than a 

development plan. NRCS replaces the 

terms ‘‘wildlife habitat development 

plan’’ and ‘‘WHDP’’ to ‘‘WHIP plan of 

operations’’ and ‘‘WPO,’’ respectively 

throughout the entire regulation. 

Section 636.4, Program Requirements 

NRCS amends § 636.4 to clarify some 

of the existing program requirements 

that have not been identified in the 

WHIP regulation because they apply 

through other statutory requirements. 

However, NRCS finds that reference to 

these requirements in the WHIP 

regulation is important so that 

prospective participants are aware of 

them. In particular, NRCS revises 

§ 636.4(a) to clarify that WHIP 

participants are subject to the highly 

erodible and wetland conservation 

provisions found at 7 CFR Part 12. 

Additionally, NRCS includes reference 

to the Adjusted Gross Income (AGI) 

limitations, 7 CFR Part 1400, that apply 

to WHIP participants since WHIP has 

become a Title XII conservation 

program. In order to comply with AGI 

requirements, legal entities must 

provide to NRCS a list of members, 

including members in embedded 

entities, along with their social security 

numbers and percent interest in the 

legal entity. 

NRCS adds new program 

requirements through this interim final 

rule to improve program administration 

and to ensure that WHIP program goals 

are met. In particular, NRCS adds 

paragraph (a)(2) to require WHIP 

participants to be in compliance with 

terms of all other USDA-administered 

conservation program contracts to 

which they are a party. In this manner, 

NRCS ensures that a participant who 

receives NRCS conservation benefits is 

meeting their existing responsibilities 

prior to receiving additional assistance. 

NRCS also adds paragraph (a)(3) 

related to the implementation of the 

WHIP plan of operations and the 

associated operations and management 

(O & M) agreement to ensure 

consistency between § 636.4 and 

changes made to § 636.3 and § 636.8. 

NRCS also adds several provisions 

related to payment matters. In 

particular, one paragraph (a)(9) clarifies 

that payments made to Tribal groups 

may exceed the payment limitation if 

the Bureau of Indian Affairs or a Tribal 

official certifies that no one individual 

will receive more than the established 

payment limitation. 

Additionally, NRCS adds paragraph 

(a)(10) to clarify that participants must 

supply NRCS with information needed 

to determine program eligibility, 

including information required to 

determine an applicant’s status as a 

limited resource or beginning farmer or 

rancher. Finally, NRCS adds paragraph 

(a)(11) that requires participants that use 

an alternative identifier, rather than a 

tax identification number, to continue to 

use that same identifier in all WHIP 

cost-share agreements. 

NRCS makes several adjustments to 

§ 636.4(b) to incorporate the 2008 Act 

changes to land eligibility and to 

conform the language to the new 

definitions described in § 636.3. In 

particular, NRCS identifies in § 636.4(b) 

that eligible lands include agricultural 

land, nonindustrial private forest land, 

and Indian land, as defined in § 636.3. 

NRCS also revises § 636.4(c) to 

incorporate changes to clarify land 

ineligibility. In particular, NRCS deletes 

the phrase ‘‘through other forms of 

assistance or without assistance,’’ since 


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the manner in which an applicant 

achieved habitat objectives is 

immaterial to the determination that 

such lands are ineligible for 

participation in the program. NRCS also 

deletes reference to the attainability of 

wildlife habitat on offered lands since 

that consideration is more appropriately 

addressed in ranking criteria. In 

accordance with Section 1240N(a) of the 

1985 Act, as amended by Section 2602 

of the 2008 Act, public land is ineligible 

for WHIP assistance. 

Section 636.5, National Priorities 

NRCS inserts a new § 636.5, and 

redesignates the subsequent sections 

accordingly. The new § 636.5 provides 

that NRCS will establish National 

Priorities to guide funding to the State 

offices, selection of WHIP cost-share 

agreements, and implementation 

priority for WHIP conservation 

practices. This new section also states 

that the national priorities will be 

reviewed annually by NRCS to ensure 

that the program is addressing priority 

wildlife habitat concerns. This addition 

makes WHIP consistent with other 

NRCS conservation programs. 

Section 636.6, Establishing Priority for 

Enrollment in WHIP 

NRCS amends § 636.6(a) by replacing 

‘‘needs’’ with ‘‘wildlife habitat 

concerns.’’ NRCS also amends § 636.6(a) 

by adding the following sentence, 

‘‘NRCS, in consultation with Federal 

and state agencies and conservation 

partners, may identify priorities for 

enrollment in WHIP that will 

complement the goals and objectives of 

relevant fish and wildlife conservation 

initiatives at the State, regional, and 

national levels.’’ These changes clarify 

that NRCS may focus program 

implementation in any given year to 

respond to national, regional, state 

wildlife habitat concerns, identified by 

NRCS in partnership with other Federal 

and State agencies. Local wildlife 

habitat concerns issues may be elevated 

to the appropriate State Conservationist 

in an effort to address specific habitat 

development needs. 

NRCS amends § 636.6(b) by striking 

the term ‘‘species,’’ consistent with the 

program purpose of development of 

wildlife habitat. While the intent of 

such development is to benefit wildlife 

species, the program focus is on the 

land and water resources covered by 

cost-share agreements entered into 

under the program. 

NRCS adds a new ranking criteria to 

§ 636.6(c) to allow NRCS to consider a 

participants’ willingness to complete 

habitat development within two years of 

the cost-share agreement. This criterion 

is intended to encourage quicker 

implementation of wildlife habitat 

improvements and reduce the number 

of modifications and cancellations. 

NRCS deletes § 636.6(d) since the 

function of denying applications is 

better addressed in the application 

ranking process. 

Section 636.7, Cost-Share Payments 

NRCS replaces the term ‘‘WHDP’’ 

with ‘‘WPO,’’ to correspond with the 

changes NRCS makes to §§ 636.3 and 

636.8. Like the WHDP, WPO is the 

document that identifies the location 

and timing of conservation practices 

that the participant agrees to implement 

on eligible land in order to address the 

priority resource concerns. NRCS has 

chosen to change this terminology to 

make it consistent with other financial 

assistance programs administered by 

NRCS. 

NRCS revises § 636.7(a)(1) to reflect 

that ‘‘NRCS shall offer to pay no more 

than 75 percent of the costs of 

establishing conservation practices,’’ 

consistent with changes made in 

§ 636.3. NRCS also adds a new 

provision under § 636.7(a) to allow 

NRCS to provide additional cost-share 

incentives to ‘‘historically underserved 

producers’’ and Indian tribes. 

‘‘Historically underserved producers’’ 

include limited resource, beginning 

farmers or ranchers, and socially 

disadvantaged farmers or ranchers. This 

addition is consistent with the authority 

provided under Section 1244 of the 

1985 Act, as amended by Section 2708 

of the 2008 Act, to provide additional 

incentives for certain farmers, ranchers, 

and Indian tribes, which reads as 

follows: 

(a) Incentives for Certain Farms and 

Ranchers and Indian tribes: 

(1) Incentives Authorized. In carry out any 

conservation program administered by the 

Secretary, the Secretary may provide to a 

person or entity specified in paragraph (2) 

incentives to participate in the conservation 

program— 

(i) To foster new farming and ranching 

opportunities; and 

(ii) To enhance long-term environmental 

goals. 

(2) Covered Persons. Incentives authorized 

by paragraph (1) may be provided to the 

following: 

(i) Beginning farmers or ranchers; 

(ii) Socially disadvantaged farmers or 

ranchers; 

(iii) Limited resource farmers or ranchers; 

and 

(iv) Indian tribes. 

Under this authority, which applies to 

all conservation programs implemented 

by the Secretary, NRCS proposes in this 

rulemaking to increase WHIP cost-share 

rates to the participants identified under 

Section 1244(a)(2) of the 1985 Act, as 

amended. Since WHIP’s legislative 

authority does not establish a definitive 

payment rate, NRCS is adopting in 

§ 636.7 the Environmental Quality 

Incentives Program’s cost-share rate 

policies for historically underserved 

producers. The payment rate for 

historically underserved producers is 

the applicable payment rate and an 

additional payment rate that is no less 

than 25 percent above the applicable 

payment rate, provided this increase 

does not exceed 90 percent of the 

estimated incurred costs associated with 

the conservation practice. This proposal 

not only enables those who are less 

capable of matching Federal assistance 

to receive additional program support, 

but also supports the NRCS effort to 

streamline program policies where 

possible. 

NRCS revises § 636.7(b) by relocating 

to § 636.8(e) the requirement that the 

participant or designee is responsible 

for the implementation of the WPO. The 

reference to the source of 

implementation is more appropriately 

in the section related to the WPO. 

NRCS also adds new paragraphs (c) 

and (d) to § 636.7, and redesignates the 

former § 636.7(c) as (e). NRCS clarifies 

in the new § 636.7(c) that conservation 

practices implemented prior to an 

applicant submitting an application to 

the program are ineligible for payments. 

Additionally, NRCS clarifies in 

§ 636.7(c) that conservation practices 

implemented or initiated prior to the 

approval of a cost-share agreement are 

ineligible for payment, unless NRCS 

grants a waiver in advance. Section 

636.7(d) clarifies existing policy that 

NRCS will identify and provide public 

notification of the conservation 

practices eligible for cost-share 

payments under the program. 

NRCS also adds new paragraphs (f) 

through (j) to § 636.7 to be consistent 

with related NRCS conservation 

programs. More particularly, § 636.7(f) 

incorporates the payment limitation as 

established by the 2008 Act. Section 

636.7(g) states that adjusted gross 

income (AGI) eligibility will be 

determined prior to cost-share 

agreement approval. Section 636.7(h) 

allows for current year cost-adjustment 

for conservation practices, subject to the 

availability of funds. NRCS clarifies in 

§ 636.7(i) that NRCS will not make a 

payment for a conservation practices 

under WHIP if the participant has 

already received a payment for the same 

practice on the same land under another 

USDA conservation program. Section 

636.7(j) requires that the participant and 

NRCS, or an approved TSP, certify that 

the conservation practices have been 


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carried out in accordance with the costshare agreement and agency standards 

prior to issuing final cost-share 

payments. 

Lastly, NRCS adds paragraph (k) in 

accordance with Section 1240N(b)(2)(B) 

that specifies the NRCS may use up to 

25 percent of WHIP funds to carry out 

cost-share agreements that extend 15 

years or more. Prior to the 2008, NRCS 

had the legislative authority to use up 

to 15 percent of WHIP funds to carry out 

these longer term agreements. 

Section 636.8, WHIP Plan of Operations 

(WPO) 

NRCS changes the caption, ‘‘Wildlife 

Habitat Development Plan,’’ to ‘‘WHIP 

plan of operations (WPO),’’ consistent 

with how related NRCS conservation 

programs identify the document that 

contains the information related to 

practices and activities to be 

implemented under the program. 

NRCS makes several revisions to 

§ 636.8(a) to reduce the administrative 

burden upon participants. In particular, 

NRCS removes the language ‘‘and the 

WHDP is approved by participant, 

NRCS, and the local conservation 

district’’ as a result of the need to 

protect personally identifiable 

information in accordance with Section 

1619 of the 2008 Act. This change also 

was recommended by comments 

received by USDA through the Farm Bill 

forums. 

NRCS revises § 636.8(b) to clarify the 

NRCS expectation that the program 

participant will maintain WHIP-funded 

conservation practices as specified in 

the O&M agreement that is consistent 

with other NRCS conservation 

programs. NRCS also removes the 

requirement that a program participant 

has to sign both the cost-share 

agreement and the WPO by adding the 

following language: ‘‘the WPO * * * 

shall be attached and included as part 

of the cost-share agreement.’’ 

NRCS revises § 6363.8(d) to clarify 

that all conservation practices planned 

in the WPO are in accordance with the 

NRCS field office technical guide 

(FOTG), consistent with related NRCS 

conservation programs. 

Finally, as indicated above, NRCS 

incorporates into § 636.8(e) the 

requirement contained previously in 

§ 636.7(b) that a participant is 

responsible for the implementation of 

the WPO. 

Section 636.9, Cost-Share Agreements 

NRCS amends § 636.9(a) to update the 

locations available for submitting an 

application to participate in WHIP. This 

change serves to notify the public of all 

the avenues available for submitting 

applications. 

Under § 636.9(b)(2), NRCS revises the 

duration of the cost-share agreement 

from the former 5- to 10-year duration 

to a minimum duration of one year and 

a maximum of 10 years, with the 

exception of long-term agreements as 

established under § 636.9(c). This new 

language provides the flexibility needed 

for establishing agreement lengths based 

on wildlife habitat needs and other 

factors. 

NRCS removes § 636.9(b)(4) because 

the operation and maintenance 

requirements are included in the O&M 

agreement. Correspondingly, paragraphs 

(b)(5) and (6) of this section are 

redesignated as (b)(4) and (5), 

respectively. NRCS adds a new 

§ 636.9(b)(6) to clarify that payment 

limits will be specified in the cost-share 

agreement, consistent with related 

NRCS conservation programs. NRCS 

also adds a new § 636.9(b)(7) that states 

that the O&M agreement expresses the 

NRCS expectation that participants will 

operate and maintain conservation 

practices installed with program 

assistance for the lifespan of the 

installed practices. NRCS has developed 

this O&M agreement for two reasons: (1) 

To increase the transparency of a 

participant’s contract responsibilities; 

and (2) to ensure these conservation 

practices are maintained for the length 

of time for which they were designed 

and created. The previous § 636.9(b)(7) 

has been redesignated as § 636.9(b)(8). 

NRCS removes § 636.9(c) pursuant to 

modifications in the cost-share 

agreement terms made in § 636.8(b)(2). 

NRCS redesignates § 636.9(d) as 

§ 636.9(c), and revises § 636.9(c)(3), to 

establish a maximum cost-share rate of 

90 percent for conservation practices 

installed under long-term cost-share 

agreements where the duration of the 

agreement is for 15 years or longer. 

Section 636.10, Modifications 

NRCS simplifies the language in 

§ 636.10(a) to reduce the number of 

steps required to modify a cost-share 

agreement and protect personally 

identifiable information. This change 

also ensures that the WPO and O&M 

agreement are also modified along with 

the cost-share agreement. NRCS deletes 

§ 636.10(b) as redundant to § 636.10(a), 

and redesignates existing § 636.10(c) as 

§ 636.10(b). Section 636.10(c) is added 

to ensure that in the event a 

conservation practice fails through no 

fault of the participant, the State 

Conservationist may issue payments to 

re-establish the conservation practice, in 

accordance with established payment 

rates and limitations. 

Section 636.11, Transfer of Interest in a 

Cost-Share Agreement 

NRCS makes several formatting 

changes in this section to improve its 

structure. In particular, §§ 636.11(a)(2), 

(b)(1), and (b)(2) have been redesignated 

as §§ 636.11(c), (d), and (e), respectively. 

NRCS makes these changes to simplify 

the original formatting. 

NRCS revises § 636.11(a) to simplify 

and clarify that participants must notify 

NRCS if they anticipate loss of control 

over the land covered by a cost-share 

agreement, consistent with related 

NRCS conservation programs. NRCS 

adds a new § 636.11(b) to address the 

transfer of responsibilities under WHIP 

cost-share agreements, consistent with 

other NRCS conservation programs. 

Section 636.12, Termination of CostShare Agreements 

NRCS revises § 636.12(a) to clarify 

that NRCS may unilaterally terminate a 

cost-share agreement under certain 

circumstances. NRCS deletes 

§ 636.12(a)(2) because the circumstances 

identified in that provision are already 

addressed by § 636.12(a)(1). 

Accordingly, NRCS redesignates 

§ 636.12(a)(3) as § 636.12(a)(2) and adds 

a new § 636.12(a)(3) that specifies that a 

participant’s failure to correct a 

violation within the allowed time 

period also is cause for termination. 

NRCS revises § 636.12(b) related to 

cost-share agreement termination to 

clarify that participants also may forfeit 

rights to future payments, be assessed 

liquidated damages, or be determined 

ineligible for further conservation 

program funding. NRCS also adds 

§ 636.12(c) to specify that NRCS may 

reduce costs recovered after a 

termination decision based on a 

participant’s good faith effort. These 

revisions align WHIP administration 

with other NRCS conservation program 

administration policies concerning costshare agreement termination and the 

resulting financial consequences and 

requirements. 

Section 636.13, Violations and 

Remedies 

NRCS reformats some of the 

provisions in this section to improve the 

overall structure. Additionally, NRCS 

deletes the original § 636.13(b), which is 

identified in the existing regulation as 

‘‘reserved.’’ 

In § 636.13(a), NRCS removes the 

word ‘‘reasonable’’ in reference to 

participant violation notification. The 

term ‘‘reasonable’’ is unnecessary since 

a 60-day time frame is already provided 

in which a participant has the 

opportunity to initiate actions needed to 


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correct a violation. Section 636.13(a) 

now provides that ‘‘NRCS shall give the 

parties to the cost-share agreement 

notice of the violation and a minimum 

of 60 days to correct the violation and 

comply with the terms of the cost-share 

agreement and attachments thereto.’’ 

NRCS revises § 636.13(b) to include, 

consistent with other NRCS 

conservation programs, the assessment 

of liquidated damages as a possible 

consequence to a violation of a costshare agreement. Liquidated damages 

are not a penalty, but a recognition that 

some of the damages incurred upon the 

breach of a party’s agreement may not 

be easily calculated, but are known to 

occur, such as expenses incurred by 

NRCS to service the cost-share 

agreement 

Section 636.14, Misrepresentation and 

Scheme or Device 

NRCS amends § 636.14 to be in 

accordance with the other financial 

assistance programs administered by 

NRCS. Specifically, NRCS inserts 

language concerning the collection of 

liquidated damages and possible 

cancellation of all other NRCS contracts 

if a person is a participant and 

knowingly misrepresented any fact that 

affected program determination of their 

WHIP cost-share agreement. 

Section 636.15, Offsets and Assignments 

No changes have been made in this 

section. 

Section 636.16, Appeals 

No changes have been made in this 

section. 

Section 636.17, Compliance With 

Regulatory Measures 

NRCS adds § 636.17 to identify clearly 

a participant’s responsibilities 

associated with other regulatory 

measures. This change reflects standard 

NRCS language applicable to multiple 

programs. 

Section 636.18, Technical Services 

Provided by Qualified, Non-USDA 

Personnel 

NRCS adds § 636.18 to incorporate the 

Technical Service Provider provisions 

in place since 2002, but not included in 

the regulation. This section is consistent 

with related NRCS conservation 

programs. 

Section 636.19, Access to Operating 

Unit 

NRCS adds § 636.19 to be consistent 

with related NRCS conservation 

programs. This section provides NRCS 

personnel authorized physical access to 

projects undertaken by participants in 

order to review project progress and 

give further assistance to participants 

where it is needed. 

Section 636.20, Equitable Relief 

NRCS adds § 636.20 to be consistent 

with other NRCS conservation 

programs. This section clarifies that 

WHIP participants who acted in good 

faith based on erroneous information 

provided by NRCS or its representatives 

are entitled to equitable relief if such 

action resulted in a violation of the costshare agreement. 

Section 636.21, Environmental Services 

Credits for Conservation Improvements 

NRCS adds § 636.21, which states that 

NRCS recognizes that environmental 

benefits will be achieved by 

implementing conservation practices 

funded through WHIP, and that 

environmental credits may be gained as 

a result of implementing these activities. 

NRCS asserts no direct or indirect 

interest in these credits. However, NRCS 

retains the authority to ensure that the 

requirements for WHIP-funded 

improvements are met and maintained 

consistent with the terms of the costshare agreement. Where activities may 

affect the land covered by a WHIP costshare agreement, participants are highly 

encouraged to request a compatibility 

assessment from NRCS prior to entering 

into any environmental credit 

agreements. This section is consistent 

with the policy that is being adopted in 

multiple NRCS programs. 

Section 2708, ‘‘Compliance and 

Performance,’’ of the 2008 Act added a 

paragraph to Section 1244(g) of the 1985 

Act entitled, ‘‘Administrative 

Requirements for Conservation 

Programs,’’ which states the following: 

‘‘(g) Compliance and performance.—For 

each conservation program under Subtitle D, 

the Secretary shall develop procedures— 

(1) To monitor compliance with program 

requirements; 

(2) To measure program performance; 

(3) To demonstrate whether long-term 

conservation benefits of the program are 

being achieved; 

(4) To track participation by crop and 

livestock type; and 

(5) To coordinate activities described in 

this subsection with the national 

conservation program authorized under 

section 5 of the Soil and Water Resources 

Conservation Act of 1977 (16 U.S.C. 2004).’’ 

This new provision presents in one 

place the accountability requirements 

placed on the Agency as it implements 

conservation programs and reports on 

program results. The requirements 

apply to all programs under Subtitle D, 

including the Wetlands Reserve 

program, the Conservation Security 

Program, the Conservation Stewardship 

Program, The Farm and Ranch Lands 

Protection Program, the Grassland 

Reserve Program, the Environmental 

Quality Incentives Program (including 

the Agricultural Water Enhancement 

Program), the Wildlife Habitat Incentive 

Program, and the Chesapeake Bay 

Watershed initiative. These 

requirements are not directly 

incorporated into these regulations, 

which set out requirements for program 

participants. However, certain 

provisions within these regulations 

relate to elements of Section 1244(g) of 

the 1985 Act and the Agency’s 

accountability responsibilities regarding 

program performance. NRCS is taking 

this opportunity to describe existing 

procedures that relate to meeting the 

requirements of Section 1244(g) of the 

1985 Act, and Agency expectations for 

improving its ability to report on each 

program’s performance and 

achievement of long-term conservation 

benefits. Also included is reference to 

the sections of these regulations that 

apply to program participants and that 

relate to the Agency accountability 

requirements as outlined in Section 

1244(g) of the 1985 Act. 

Monitor compliance with program 

requirements. NRCS has established 

application procedures to ensure that 

participants meet eligibility 

requirements, and follow-up procedures 

to ensure that participants are 

complying with the terms and 

conditions of their contractual 

arrangement with the government and 

that the installed conservation measures 

are operating as intended. These and 

related program compliance evaluation 

policies are set forth in Agency 

guidance (M_440_512 and M_440_517 

(http://directives.sc.egov.usda.gov/). 

The program requirements applicable 

to participants that relate to compliance 

are set forth in these regulations in 

§ 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 

cost-share agreement obligations, and 

requirements for operating and 

maintaining WHIP-funded conservation 

improvements. 

Measure program performance. 

Pursuant to the requirements of the 

Government Performance and Results 

Act of 1993 (Pub. L. 103–62, Sec. 1116) 

and guidance provided by OMB Circular 

A–11, NRCS has established 

performance measures for its 

conservation programs. Program-funded 

conservation activity is captured 

through automated field-level business 


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1The exception to this is the Conservation 

Reserve Program; since 1987 the NRI has reported 

acreage enrolled in CRP. 

2Soil 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/). 

tools and the information is made 

publicly available at: http:// 

ias.sc.egov.usda.gov/PRSHOME/. 

Program performance also is reported 

annually to Congress and the public 

through the annual performance budget, 

annual accomplishments report and the 

USDA Performance Accountability 

Report. Related performance 

measurement and reporting policies are 

set forth in Agency guidance 

(GM_340_401 and GM_340_403 (http:// 

directives.sc.egov.usda.gov/).) 

The conservation actions undertaken 

by participants are the basis for 

measuring program performance— 

specific actions are tracked and reported 

annually, while the effects of those 

actions relate to whether the long-term 

benefits of the program are being 

achieved. The program requirements 

applicable to participants that relate to 

undertaking conservation actions are set 

forth in these regulations in § 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 longterm conservation benefits are being 

achieved through its programs. Since 

1982, NRCS has reported on certain 

natural resource status and trends 

through the National Resources 

Inventory (NRI), which provides 

statistically reliable, nationally 

consistent land cover/use and related 

natural resource data. However, lacking 

has been a connection between these 

data and specific conservation 

programs.1 In the future, the interagency 

Conservation Effects Assessment Project 

(CEAP), which has been underway since 

2003, will provide nationally consistent 

estimates of environmental effects 

resulting from conservation practices 

and systems applied. CEAP results will 

be used in conjunction with 

performance data gathered through 

Agency field-level business tools to help 

produce estimates of environmental 

effects accomplished through Agency 

programs, such as WHIP. In 2006 a Blue 

Ribbon panel evaluation of CEAP 2

strongly endorsed the project’s purpose, 

but concluded ‘‘CEAP must change 

direction’’ to achieve its purposes. In 

response, CEAP has focused on 

priorities identified by the Panel and 

clarified that its purpose is to quantify 

the effects of conservation practices 

applied on the landscape. Information 

regarding CEAP, including reviews and 

current status is available at (http:// 

www.nrcs.usda.gov/technical/NRI/ 

ceap/. Since 2004 and the initial 

establishment of long-term performance 

measures by program, NRCS has been 

estimating and reporting progress 

toward long-term program goals. Natural 

resource inventory and assessment, and 

performance measurement and 

reporting policies set forth in Agency 

guidance (GM_290_400; GM_340_401; 

GM_340_403)) (http:// 

directives.sc.egov.usda.gov/).) 

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, ‘‘The 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 (M_440_512 and M_440_515). 

Coordinate these actions with the 

national conservation program 

authorized under the Soil and Water 

Resources Conservation Act (RCA). The 

2008 Act reauthorized and expanded on 

a number of elements of the RCA related 

to evaluating program performance and 

conservation benefits. Specifically, the 

2008 Farm Bill added a provision 

stating, 

‘‘Appraisal and inventory of resources, 

assessment and inventory of conservation 

needs, evaluation of the effects of 

conservation practices, and analyses of 

alternative approaches to existing 

conservation programs are basic to effective 

soil, water, and related natural resources 

conservation.’’ 

The program, performance, and 

natural resource and effects data 

described previously will serve as a 

foundation for the next RCA, which will 

also identify and fill, to the extent 

possible, data and information gaps. 

Policy and procedures related to the 

RCA are set forth in Agency guidance 

(GM_290_400; M_440_525; 

GM_130_402) (http:// 

directives.sc.egov.usda.gov/). 

The coordination of the previously 

described components with the RCA is 

an Agency responsibility and is not 

reflected in these regulations. However, 

it is likely that results from the RCA 

process will result in modifications to 

the program and performance data 

collected, to the systems used to acquire 

data and information, and potentially to 

the program itself. Thus, as the 

Secretary proceeds to implement the 

RCA in accordance with the statute, the 

approaches and processes developed 

will improve existing program 

performance measurement and outcome 

reporting capability and provide the 

foundation for improved 

implementation of the program 

performance requirements of Section 

1244(g) of the 1985 Act. 

NRCS is amending this rule, 7 CFR 

part 636, WHIP, republishing it in its 

entirety and accepting comments until 

March 17, 2009, on the aforementioned 

subjects. 

List of Subjects in 7 CFR Part 636 

Administrative practice and 

procedure, Agriculture, Conservation, 

Endangered and threatened species, 

Natural resources, Soil conservation, 

Wildlife. 

■ For reasons set out in the preamble, 

NRCS is revising 7 CFR part 636 to read 

as follows: 

PART 636—WILDLIFE HABITAT 

INCENTIVES PROGRAM 

Sec. 

636.1 Applicability. 

636.2 Administration. 

636.3 Definitions. 

636.4 Program requirements. 

636.5 National priorities. 

636.6 Establishing priority for enrollment in 

WHIP. 

636.7 Cost-share payments. 

636.8 The WHIP Plan of Operation (WPO). 

636.9 Cost-share agreements. 

636.10 Modifications. 


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636.11 Transfer of interest in a cost-share 

agreement. 

636.12 Termination of cost-share 

agreements. 

636.13 Violations and remedies. 

636.14 Misrepresentation and scheme or 

device. 

636.15 Offsets and assignments. 

636.16 Appeals. 

636.17 Compliance with regulatory 

measures. 

636.18 Technical services provided by 

qualified, non-USDA personnel. 

636.19 Access to operating unit. 

636.20 Equitable relief. 

636.21 Environmental Services Credits for 

Conservation Improvements. 

Authority: 16 U.S.C. 3839bb–1. 

§ 636.1 Applicability. 

(a) The purpose of the Wildlife 

Habitat Incentives Program (WHIP) is to 

help participants develop fish and 

wildlife habitat on private agricultural 

land, nonindustrial private forest land, 

and Indian land. 

(b) The regulations in this Part set 

forth the requirements for the WHIP. 

(c) The Chief, Natural Resources 

Conservation Service (NRCS) may 

implement WHIP in any of the 50 states, 

the District of Columbia, the 

Commonwealth of Puerto Rico, Guam, 

the Virgin Islands of the United States, 

American Samoa, and the 

Commonwealth of the Northern Mariana 

Islands. 

§ 636.2 Administration. 

(a) The regulations in this Part will be 

administered under the general 

supervision and direction of the Chief, 

NRCS. The funds, facilities, and 

authorities of the Commodity Credit 

Corporation (CCC) are available to NRCS 

to carry out WHIP. Accordingly, where 

NRCS is mentioned in this Part, it also 

refers to the CCC’s funds, facilities, and 

authorities, where applicable. 

(b) The State Conservationist will 

consult with the State Technical 

Committee in the implementation of the 

program and in establishing program 

direction for WHIP in the applicable 

State. The State Conservationist has the 

authority to accept or reject the State 

Technical Committee recommendation; 

however, the State Conservationist will 

give strong consideration to the State 

Technical Committee’s 

recommendation. 

(c) NRCS may enter into agreements 

with Federal and State agencies, Indian 

tribes, conservation districts, local units 

of government, public and private 

organizations, and individuals to assist 

with program implementation, 

including the provision of technical 

assistance. NRCS may make payments 

pursuant to said agreements for program 

implementation and for other goals 

consistent with the program provided 

for in this Part. 

(d) NRCS will provide the public with 

notice of opportunities to apply for 

participation in the program. 

(e) No delegation in this Part to lower 

organizational levels shall preclude the 

Chief of NRCS, or a designee, from 

determining any issues arising under 

this Part or from reversing or modifying 

any determination made under this Part. 

§ 636.3 Definitions. 

The following definitions will apply 

to this part and all documents issued in 

accordance with this part, unless 

specified otherwise: 

Agricultural lands means cropland, 

grassland, rangeland, pasture, and other 

land determined by NRCS to be suitable 

for fish and wildlife habitat 

development, on which agricultural and 

forest-related products or livestock are 

produced. Agricultural lands may 

include cropped woodland, marshes, 

incidental areas included in the 

agricultural operation, and other types 

of land used for production of livestock. 

Applicant means a person, legal entity 

or joint operation that has an interest in 

an agricultural operation, as defined in 

7 CFR part 1400, who has requested in 

writing to participate in WHIP. 

At-risk species means any plant or 

animal species as determined by the 

State Conservationist, with advice from 

the State Technical Committee, to need 

direct intervention to halt its population 

decline. 

Beginning Farmer or Rancher means 

an individual or entity who: 

(1) Has not operated a farm or ranch, 

or who has operated a farm or ranch for 

not more than 10 consecutive years. 

This requirement applies to all members 

of an entity, and will materially and 

substantially participate in the 

operation of the farm or ranch. 

(2) In the case of a cost-share 

agreement with an individual, 

individually or with the immediate 

family, material and substantial 

participation requires that the 

individual provide substantial day-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, 

United States Department of Agriculture 

(USDA), or a designee. 

Conservation district means any 

district or unit of State, Tribal, or local 

government formed under State, Tribal, 

or territorial law for the express purpose 

of developing and carrying out a local 

soil and water conservation program. 

Such district or unit of government may 

be referred to as a ‘‘conservation 

district,’’ ‘‘soil conservation district,’’ 

‘‘soil and water conservation district,’’ 

‘‘resource conservation district,’’ 

‘‘natural resource district,’’ ‘‘land 

conservation committee,’’ or similar 

name. 

Conservation practice means one or 

more conservation improvements and 

activities, including structural practices, 

land management practices, vegetative 

practices, forest management, and other 

improvements that benefit the eligible 

land and achieve program purposes. 

Cost-share agreement means a legal 

document that specifies the rights and 

obligations of any participant accepted 

into the program. A WHIP cost-share 

agreement is a binding agreement for the 

transfer of assistance from USDA to the 

participant to share in the costs of 

applying conservation. 

Cost-share payment means the 

payments under the WHIP cost-share 

agreement to develop fish and wildlife 

habitat or accomplish other goals 

consistent with the program provided 

for in this Part. 

Designated conservationist means an 

NRCS employee whom the State 

Conservationist has designated as 

responsible for WHIP administration in 

a specific area. 

Field office technical guide (FOTG) 

means the official local NRCS source of 

resource information and interpretations 

of guidelines, criteria, and requirements 

for planning and applying conservation 

practices and conservation management 

systems. It contains detailed 

information on the conservation of soil, 

water, air, plant, and animal resources 

applicable to the local area for which it 

is prepared. 

Habitat development means the 

conservation practices implemented to 

establish, improve, protect, enhance, or 

restore the conditions of the land for the 

specific purpose of improving 

conditions for fish and wildlife. 

Historically Underserved Producer 

means an eligible person, joint 

operation, or legal entity that is a 

beginning farmer or rancher, socially 

disadvantaged farmer or rancher, or 

limited resource farmer or rancher. 


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Indian land means: 

(1) Land held in trust by the United 

States for individual Indians or Indian 

tribes, or 

(2) Land, the title to which is held by 

individual Indians or Indian tribes 

subject to Federal restrictions against 

alienation or encumbrance, or 

(3) Land which is subject to rights of 

use, occupancy and/or benefit of certain 

Indian tribes, or 

(4) Land held in fee title by an Indian, 

Indian family or Indian tribe. 

Indian tribe means any Indian tribe, 

band, nation, or other organized group 

or community, including any Alaska 

Native village or regional or village 

corporation as defined in or established 

pursuant to the Alaska Native Claims 

Settlement Act (43 U.S.C. 1601 et seq.) 

that is eligible for the special programs 

and services provided by the United 

States to Indians because of their status 

as Indians. 

Joint operation means, as defined in 7 

CFR part 1400, a general partnership, 

joint venture, or other similar business 

organization in which the members are 

jointly or severally liable for the 

obligations of the organization. 

Legal entity means, as defined in 7 

CFR 1400, an entity created under 

Federal or State law that: 

(1) Owns land or an agricultural 

commodity, product, or livestock; or 

(2) Produces an agricultural 

commodity, product, or livestock. 

Lifespan means the period of time 

during which a conservation practice is 

to be operated and maintained for the 

intended purpose. 

Limited Resource Farmer or Rancher 

means: 

(1) A person with direct or indirect 

gross farm sales not more than $155,200 

in each of the previous two years 

(adjusted for inflation using Prices Paid 

by Farmer Index as compiled by 

National Agricultural Statistical 

Service), and 

(2) Has a total household income at or 

below the national poverty level for a 

family of four, or less than 50 percent 

of county median household income in 

each of the previous two years (to be 

determined annually using Commerce 

Department Data). 

Liquidated damages means a sum of 

money stipulated in the WHIP 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 (NRCS) is an agency of the 

USDA, which has the responsibility for 

administering WHIP using the funds, 

facilities, and authorities of the CCC. 

Nonindustrial private forestland 

means rural land, as determined by the 

Secretary, that has existing tree cover or 

is suitable for growing trees; and is 

owned by any nonindustrial private 

individual, group, association, 

corporation, Indian tribe, or other 

private legal entity that has definitive 

decision-making authority over the 

land. 

Operation and maintenance means 

work performed by the participant to 

keep the applied conservation practice 

functioning for the intended purpose 

during the conservation practice 

lifespan. Operation includes the 

administration, management, and 

performance of non-maintenance 

actions needed to keep the completed 

practice functioning as intended. 

Maintenance includes work to prevent 

deterioration of the practice, repairing 

damage, or replacement of the practice 

to its original condition if one or more 

components fail. 

Operation and maintenance (O&M) 

agreement means the document that, in 

conjunction with the WHIP plan of 

operations, specifies the operation and 

maintenance responsibilities of the 

participants for conservation practices 

installed with WHIP assistance. 

Participant means a person, legal 

entity, or joint operation, or tribe that is 

receiving payment or is responsible for 

implementing the terms and conditions 

of a WHIP cost-share agreement. 

Person means, as defined in 7 CFR 

part 1400, an individual, natural person 

and does not include a legal entity. 

Producer means, as defined in 7 CFR 

part 1400, a person, legal entity, or joint 

operation who has an interest in the 

agricultural operation or who is engaged 

in agricultural production or forestry 

management. 

Resource concern means a specific 

natural resource problem that represents 

a significant concern in a State or region 

and is likely to be addressed 

successfully through the 

implementation of the conservation 

practices by producers. 

Secretary means the Secretary of the 

USDA. 

Socially disadvantaged farmer or 

rancher means a farmer or rancher who 

has been subjected to racial or ethnic 

prejudices because of their identity as a 

member of a group without regard to 

their individual qualities. 

State Conservationist means the 

NRCS employee authorized to 

implement WHIP and direct and 

supervise NRCS activities in a State, the 

Caribbean Area, or the Pacific Islands 

Area. 

State Technical Committee means a 

committee established by the Secretary 

of the United States Department of 

Agriculture in a State pursuant to 16 

U.S.C. 3861. 

Technical assistance means technical 

expertise, information, and tools 

necessary for the conservation of natural 

resources on land active in agricultural, 

forestry, or related uses. The term 

includes the following: 

(1) Technical services provided 

directly to farmers, ranchers, and other 

eligible entities, such as conservation 

planning, technical consultation, and 

assistance with design and 

implementation of conservation 

practices; and 

(2) Technical infrastructure, including 

activities, processes, tools, and agency 

functions needed to support delivery of 

technical services, such as technical 

standards, resource inventories, 

training, data, technology, monitoring, 

and effects analyses. 

Technical Service Provider (TSP) 

means an individual, private-sector 

entity, or public agency certified by 

NRCS to provide technical services to 

program participants in lieu of or on 

behalf of NRCS. 

WHIP plan of operations (WPO) 

means the document that identifies the 

location and timing of conservation 

practices that the participant agrees to 

implement on eligible land in order to 

develop fish and wildlife habitat and 

provide environmental benefits. The 

WPO is a part of the WHIP cost-share 

agreement. 

Wildlife means non-domesticated 

birds, fishes, reptiles, amphibians, 

invertebrates, and mammals. 

Wildlife habitat means the aquatic 

and terrestrial environments required 

for fish and wildlife to complete their 

life cycles, providing air, food, cover, 

water, and spatial requirements. 

§ 636.4 Program requirements. 

(a) To participate in WHIP, an 

applicant must: 

(1) Be in compliance with the highly 

erodible and wetland conservation 

provisions found in 7 CFR part 12; 

(2) Be in compliance with the terms 

of all other USDA-administered 

conservation program contracts to 

which the participant is a party; 

(3) Develop and agree to comply with 

a WPO and O&M agreement, as 

described in § 636.8; 


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(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 

for the term of the proposed cost-share 

agreement, including the O&M 

agreement. An exception may be made 

by the Chief in the case of land allotted 

by the Bureau of Indian Affairs or 

Indian land where there is sufficient 

assurance of control. 

(6) Agree to provide all information to 

NRCS determined to be necessary to 

assess the merits of a proposed project 

and to monitor cost-share agreement 

compliance; 

(7) Agree to grant to NRCS or its 

representatives access to the land for 

purposes related to application, 

assessment, monitoring, enforcement, 

verification of certifications, or other 

actions required to implement this Part; 

(8) Provide a list of all members of the 

legal entity and embedded entities along 

with members’ tax identification 

numbers and percentage interest in the 

entity. Where applicable, American 

Indians, Alaska Natives, and Pacific 

Islanders may use another unique 

identification number for each 

individual eligible for payment; 

(9) With regard to cost-share 

agreements with individual Indians or 

Indians represented by BIA, payments 

exceeding the payment limitation may 

be made to the Tribal participant if a 

BIA or Tribal official certifies in writing 

that no one individual, directly or 

indirectly, will receive more than the 

payment limitation. The Tribal entity 

must also provide, annually, a listing of 

individuals and payments made, by tax 

identification number or other unique 

identification number, during the 

previous year for calculation of overall 

payment limitations. The Tribal entity 

must also produce, at the request of 

NRCS, proof of payments made to the 

person or legal entity that incurred costs 

or sacrificed income related to 

conservation practice implementation. 

(10) Supply information, as required 

by NRCS, to determine eligibility for the 

program, including but not limited to, 

information to verify the applicant’s 

status as a limited resource farmer or 

rancher or beginning farmer or rancher 

and payment eligibility as established 

by 7 CFR part 1400, Adjusted Gross 

Income; and 

(11) With regard to any participant 

that utilizes a unique identification 

number as an alternative to a tax 

identification number, the participant 

will utilize only that identifier for any 

and all other WHIP cost-share 

agreements to which the participant is 

a party. Violators will be considered to 

have provided fraudulent representation 

and be subject to full penalties of 

§ 636.13 of this part. 

(b) Eligible land includes: 

(1) Private agricultural land; 

(2) Nonindustrial private forest land; 

and 

(3) Indian land. 

(c) Ineligible land. NRCS shall not 

provide cost-share assistance with 

respect to conservation practices on 

land: 

(1) Enrolled in a program where fish 

and wildlife habitat objectives have 

been sufficiently achieved, as 

determined by NRCS; 

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

which NRCS determines would 

undermine the benefits of the habitat 

development or otherwise reduce its 

value; 

(3) On which habitat for threatened or 

endangered species, as defined in 

Section 3 of the Endangered Species Act 

(ESA), 16 U.S.C. 1532, would be 

adversely affected; 

(4) That is public land. 

§ 636.5 National priorities. 

(a) The following national priorities 

will be used in WHIP implementation: 

(1) Promote the restoration of 

declining or important native fish and 

wildlife habitats; 

(2) Protect, restore, develop, or 

enhance fish and wildlife habitat to 

benefit at-risk species; 

(3) Reduce the impacts of invasive 

species on fish and wildlife habitats; 

and 

(4) Protect, restore, develop, or 

enhance declining or important aquatic 

wildlife species’ habitats. 

(b) NRCS, with advice of other 

Federal agencies, will undertake 

periodic reviews of the national 

priorities and the effects of program 

delivery at the State and local level to 

adapt the program to address emerging 

resource issues. NRCS will: 

(1) Use the national priorities to guide 

the allocation of WHIP funds to the 

State NRCS offices, 

(2) Use the national priorities in 

conjunction with State and local 

priorities to assist with prioritization 

and selection of WHIP applications, and 

(3) Periodically review and update the 

national priorities utilizing input from 

the public and affected stakeholders to 

ensure that the program continues to 

address priority resource concerns. 

§ 636.6 Establishing priority for enrollment 

in WHIP. 

(a) NRCS, in consultation with 

Federal and state agencies and 

conservation partners, may identify 

priorities for enrollment in WHIP that 

will complement the goals and 

objectives of relevant fish and wildlife 

conservation initiatives at the state, 

regional, and national levels. In 

response to national, regional, and state 

fish and wildlife habitat concerns, the 

Chief may limit program 

implementation in any given year to 

specific geographic areas or to address 

specific habitat development needs. 

(b) The State Conservationist, in 

consultation with the State Technical 

Committee, may give priority to WHIP 

projects that will address unique 

habitats, or special geographic areas 

identified in the State. Subsequent 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, 

regional, or state importance; 

(2) Relationship to any established 

wildlife or conservation priority areas; 

(3) Duration of benefits to be obtained 

from the habitat development practices; 

(4) Self-sustaining nature of the 

habitat development practices; 

(5) Availability of other partnership 

matching funds or reduced funding 

request by the person applying for 

participation; 

(6) Estimated costs of fish and wildlife 

habitat development activities; 

(7) Other factors determined 

appropriate by NRCS to meet the 

objectives of the program; and 

(8) Willingness of the applicant to 

complete all conservation 

improvements during the first two years 

of the WHIP cost-share agreement. 

§ 636.7 Cost-share payments. 

(a) NRCS may share the cost with a 

participant for implementing the 

conservation practices as provided in 

the WPO that is a component of the 

WHIP cost-share agreement: 

(1) Except as provided in paragraph 

(a)(2) of this section and § 636.9(c), 

NRCS shall offer to pay no more than 75 

percent of the costs of establishing 

conservation practices to develop fish 

and wildlife habitat. The cost-share 

payment to a participant shall be 

reduced proportionately below 75 

percent to the extent that direct Federal 

financial assistance is provided to the 

participant from sources other than 

NRCS, except for certain cases that 

merit additional cost-share assistance to 


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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 incurred costs associated 

with the conservation practice. 

(b) Cost-share payments may be made 

only upon a determination by the NRCS 

that a conservation practice or an 

identifiable component of a 

conservation practice has been 

established in compliance with 

appropriate standards and 

specifications. 

(c) Payments will not be made for a 

conservation practice that was: 

(1) Applied prior to application for 

the program, or 

(2) Initiated or implemented prior to 

cost-share agreement approval, unless a 

waiver was granted by the State 

Conservationist or designated 

conservationist prior to practice 

implementation. 

(d) NRCS will identify and provide 

public notice of the conservation 

practices eligible for payment under the 

program. 

(e) Cost-share payments may be made 

for the establishment and installation of 

additional eligible conservation 

practices, or the maintenance or 

replacement of an eligible conservation 

practice, but only if NRCS determines 

the conservation practice is needed to 

meet the objectives of the program, or 

that the failure of the original project 

was due to reasons beyond the control 

of the participant. 

(f) Payments made or attributed to a 

participant, directly or indirectly, may 

not exceed, in the aggregate, $50,000 per 

year. 

(g) Eligibility for payment in 

accordance with 7 CFR part 1400, 

subpart G, average adjusted gross 

income limitation, will be determined 

prior to cost-share agreement approval. 

(h) Subject to fund availability, the 

payment rates for conservation practices 

scheduled after the year of contract 

obligation may be adjusted to reflect 

increased costs. 

(i) A participant will not be eligible 

for payments for conservation practices 

on eligible land if the participant 

receives payments or other benefits for 

the same practice on the same land 

under any other conservation program 

administered by USDA. 

(j) Before NRCS will approve and 

issue final payment, the participant 

must certify that the conservation 

practice has been completed in 

accordance with the cost-share 

agreement, and NRCS or an approved 

TSP must certify that the practice has 

been carried out in accordance with the 

applicable NRCS field office technical 

guide. 

(k) NRCS, for a fiscal year, may use up 

to 25 percent of WHIP funds to carry out 

cost-share agreements described in 

§ 636.9(c). 

§ 636.8 The WHIP plan of operations 

(WPO). 

(a) The participant develops a WPO 

with the assistance of NRCS or other 

public or private natural resource 

professionals, who are approved by 

NRCS. A WPO encompasses the parcel 

of land where habitat will be 

established, improved, protected, 

enhanced, or restored. The WPO shall 

be approved by NRCS and address at 

least one of the following: 

(1) Fish and wildlife habitat 

conditions that are of concern to the 

participant; 

(2) Fish and wildlife habitat concerns 

identified in State, regional, and 

national conservation initiatives; or 

(3) Fish and wildlife habitat concerns 

identified in an approved area-wide 

plan that addresses the wildlife resource 

habitat concern. 

(b) The WPO forms the basis for the 

WHIP cost-share agreement and shall be 

attached and included as part of the 

cost-share agreement, along with the 

O&M agreement. The WPO includes a 

schedule for installation and 

maintenance of the conservation 

practices, as determined by NRCS. 

(c) The WPO may be modified in 

accordance with § 636.10. 

(d) All conservation practices in the 

WPO must be approved by NRCS and 

developed and carried out in 

accordance with the applicable NRCS 

FOTG. 

(e) The participant is responsible for 

the implementation of the WPO. 

§ 636.9 Cost-share agreements. 

(a) To apply for WHIP cost-share 

assistance, a person or legal entity must 

submit an application for participation 

at a USDA service center to an NRCS 

representative. 

(b) A WHIP cost-share agreement 

shall: 

(1) Incorporate the WPO; 

(2) Be for a time period agreed to by 

the participant and NRCS, with a 

minimum duration of one year after the 

completion of conservation practices 

identified in the WPO and a maximum 

of 10 years, except for agreements 

entered into under paragraph (c) of this 

section; 

(3) Include all provisions as required 

by law or statute; 

(4) Include any participant reporting 

and recordkeeping requirements to 

determine compliance with the 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 operation and maintenance for 

each conservation practice and the 

Agency expectation that WHIP-funded 

conservation practices will be operated 

and maintained for their expected 

lifespan; and 

(8) Include any other provision 

determined necessary or appropriate by 

the NRCS representative. 

(c) Notwithstanding any limitation of 

this part, NRCS may enter into a longterm cost-share agreement that: 

(1) Is for a term of at least 15 years; 

(2) Protects and restores critical plant 

or animal habitat, as determined by 

NRCS; and 

(3) Provides cost-share payments of 

no more than 90 percent of the cost of 

establishing conservation practices to 

develop fish and wildlife habitat. 

§ 636.10 Modifications. 

(a) The participant and NRCS may 

modify a cost-share agreement if both 

parties agree to the modification, the 

WPO is revised in accordance with 

NRCS requirements, and the agreement 

is approved by the designated 

conservationist. 

(b) Any modifications made under 

this section must meet WHIP program 

objectives and must be in compliance 

with this Part. 

(c) In the event a conservation 

practice fails through no fault of the 

participant, the State Conservationist 

may issue payments to re-establish the 

practice, at the rates established in 

accordance with § 636.7, provided such 

payments do not exceed the payment 

limitation requirements as set forth in 

§ 636.7. 

§ 636.11 Transfer of interest in a costshare agreement. 

(a) A participant is responsible for 

notifying NRCS when he/she anticipates 

the voluntary or involuntary loss of 

control of the land covered by a WHIP 

cost-share agreement. 

(b) The participant and NRCS may 

agree to transfer a cost-share agreement 

to another producer. The transferee 

must be determined by NRCS to be 

eligible to participate in WHIP and must 

assume full responsibility under the 

cost-share agreement. 


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(c) With respect to any and all 

payments owed to participants who 

wish to transfer ownership or control of 

land subject to a cost-share agreement, 

the division of payment shall be 

determined by the original party and 

that party’s successor. In the event of a 

dispute or claim on the distribution of 

cost-share payments, NRCS may 

withhold payments without the accrual 

of interest pending a settlement or 

adjudication on the rights to the funds. 

(d) If such new participants are not 

willing or not eligible to assume the 

responsibilities of an existing WHIP 

cost-share agreement including the 

O&M agreement, NRCS shall terminate 

the cost-share agreement and may 

require that all cost-share payments may 

be forfeited, refunded, or both. 

(e) The participants to the cost-share 

agreement shall be jointly and severally 

responsible for refunding the cost-share 

payments with applicable interest 

pursuant to paragraph (d) of this 

section. 

§ 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, the participant will forfeit all 

rights to future payments under the 

agreement, shall pay liquidated 

damages, in an amount determined by 

the State Conservationist in accordance 

with the terms of the agreement, and 

shall refund all or part of the payments 

received, plus interest. Participants 

violating WHIP cost-share agreements 

may be determined ineligible for future 

NRCS-administered conservation 

program funding. 

(1) NRCS may require a participant to 

provide only a partial refund of the 

payments received if a previously 

installed conservation practice can 

function independently, and is not 

adversely affected by the violation or 

the absence of other conservation 

practices that would have been installed 

under the cost-share agreement. 

(2) The State Conservationist will 

have the option to waive all or part of 

the liquidated damages assessed, 

depending upon the circumstances of 

the case. 

(c) When making termination 

decisions, the NRCS may reduce the 

amount of money owed by the 

participant by a proportion that reflects: 

(1) The good faith effort of the 

participant to comply with the 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 shall give the parties 

to the cost-share agreement notice of the 

violation and a minimum of 60 days to 

correct the violation and comply with 

the terms of the cost-share agreement 

and attachments thereto. 

(b) If the participant fails to correct 

the violation of a cost-share agreement 

within the period provided by NRCS 

under paragraph (a) of this section, 

NRCS may terminate the agreement and 

require the participant to refund all or 

part of any of the funds issued under 

that cost-share agreement, plus interest, 

and assess liquidated damages, as well 

as require the participant to forfeit all 

rights to any future payment under the 

agreement. 

§ 636.14 Misrepresentation and scheme or 

device. 

(a) A participant who is determined to 

have erroneously represented any fact 

affecting a program determination made 

in accordance with this Part shall not be 

entitled to cost-share agreement 

payments and must refund to NRCS all 

payments and pay liquidated damages, 

plus interest as determined by NRCS. 

(b) A participant shall refund to NRCS 

all payments, plus interest as 

determined by NRCS, with respect to all 

NRCS cost-share agreements to which 

they are a party if they are determined 

to have knowingly: 

(1) Adopted any scheme or device 

that tends to defeat the purpose of the 

program; 

(2) Made any fraudulent 

representation; or 

(3) Misrepresented any fact affecting a 

program determination. 

(c) Other NRCS cost-share agreements, 

where this person is a participant, may 

be terminated. 

§ 636.15 Offsets and assignments. 

(a) Except as provided in paragraph 

(b) of this section, any payment or 

portion thereof to any person or legal 

entity shall be made without regard to 

questions of title under State law and 

without regard to any claim or lien 

against the land, or proceeds thereof, in 

favor of the owner or any other creditor 

except agencies of the U.S. Government. 

The regulations governing offsets and 

withholdings found at 7 CFR part 1403 

of this title shall be applicable to costshare 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 

practices; 

(3) NRCS program funding decisions; 

(4) Eligible conservation practices; 

and 

(5) Other matters of general 

applicability. 

(c) Before a participant may seek 

judicial review of any action taken 

under this part, the participant must 

exhaust all administrative appeal 

procedures set forth in paragraph (a) of 

this section. 

§ 636.17 Compliance with regulatory 

measures. 

(a) Participants who carry out 

conservation practices shall be 

responsible for obtaining the authorities, 

rights, easements, permits, or other 

approvals necessary for the 

implementation, operation, and 

maintenance of the conservation 

practices in keeping with applicable 

laws and regulations. 

(b) Participants shall be responsible 

for compliance with all laws and for all 

effects or actions resulting from the 

participant’s performance under the 

cost-share agreement. 

§ 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. 


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(b) Participants may use technical 

services from qualified personnel of 

other Federal, State, and local agencies, 

Indian tribes, or individuals who are 

certified as TSPs by NRCS. 

(c) Technical services provided by 

qualified personnel not affiliated with 

USDA may include, but is not limited 

to: Conservation planning; conservation 

practice survey, layout, design, 

installation, and certification; and 

information; education; and training for 

producers. 

(d) NRCS retains approval authority 

over certification of work done by 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 shall have the right to 

enter an agricultural operation or tract 

for the purposes of determining 

eligibility and for ascertaining the 

accuracy of any representations related 

to cost-share agreements, and 

performance. Access shall include the 

right to provide technical assistance; 

determine eligibility; inspect any work 

undertaken under the cost-share 

agreements, including the WPO and 

O&M agreement; and collect 

information necessary to evaluate the 

conservation practice performance 

specified in the cost-share agreements. 

The NRCS representative shall make a 

reasonable effort to contact the 

participant prior to the exercising of this 

provision. 

§ 636.20 Equitable relief. 

(a) If a participant relied upon the 

advice or action of any authorized NRCS 

representative and did not know, or 

have reason to know, that the advice or 

action was improper or erroneous, 

NRCS may accept the advice or action 

as meeting program requirements and 

grant relief because of the good-faith 

reliance on the part of the participant. 

The financial or technical liability for 

any action by a participant that was 

taken based on the advice of a NRCS 

certified non-USDA TSP is the 

responsibility of the certified TSP and 

will not be assumed by NRCS when 

NRCS authorizes payment. Where a 

participant believes that detrimental 

reliance on the advice or action of a 

NRCS representative resulted in an 

ineligibility or program violation, the 

participant may request equitable relief 

under 7 CFR 635.3. 

(b) If, during the term of a WHIP 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 practices 

funded through WHIP, and that 

environmental credits may be gained as 

a result of implementing activities 

compatible with the purposes of a WHIP 

cost-share agreement. NRCS asserts no 

direct or indirect interest on any such 

credits. However, NRCS retains the 

authority to ensure that the 

requirements for WHIP funded 

improvements are met and maintained 

consistent with §§ 636.8 and 636.9. 

Where activities required under an 

environmental credit agreement may 

affect land covered under a WHIP costshare agreement, participants are highly 

encouraged to request a compatibility 

assessment from NRCS prior to entering 

into such agreements. 

Signed in Washington, DC, on January 9, 

2009. 

Arlen Lancaster, 

Vice President, Commodity Credit 

Corporation and Chief, Natural Resources 

Conservation Service. 

[FR Doc. E9–827 Filed 1–15–09; 8:45 am] 

BILLING CODE 3410–16–P 

DEPARTMENT OF AGRICULTURE 

Natural Resources Conservation 

Service 

7 CFR Part 652 

RIN 0578–AA48 

Technical Service Provider Assistance 

AGENCY: Natural Resources 

Conservation Service, United States 

Department of Agriculture. 

ACTION: Interim final rule with request 

for comment. 

SUMMARY: The Natural Resources 

Conservation Service (NRCS), an agency 

of the U.S. Department of Agriculture 

(USDA) is issuing an interim final rule 

for technical service provider (TSP) 

assistance as authorized under the Food 

Security Act of 1985, as amended by the 

Food, Conservation, and Energy Act of 

2008. This interim final rule amends the 

Technical Service Provider (TSP) 

regulations to address changes made by 

the Food, Conservation, and Energy Act 

of 2008. The Secretary of Agriculture 

has delegated to NRCS the 

responsibility for administering the 

authority for technical service provider 

assistance. 

DATES: Effective Date: This rule is 

effective January 16, 2009. 

Comment Date: Submit comments on 

or before March 17, 2009. 

ADDRESSES: You may send comments 

(identified by Docket Number NRCS– 

IFR–08011) using any of the following 

methods: 

• Government-wide rulemaking Web 

site: Go to http://www.regulations.gov 

and follow the instructions for sending 

comments electronically. 

• Mail: Technical Service Provider 

Team, Natural Resources Conservation 

Service, Technical Service Provider 

Assistance Comments, P.O. 2890, Room 

5234–S, Washington, DC 20013. 

• Fax: 1–202–720–5334. 

• Hand Delivery: Room 5234–S of the 

USDA South Office Building, 1400 

Independence Avenue, SW., 

Washington, DC 20250, between 9 a.m. 

and 4 p.m., Monday through Friday, 

except Federal holidays. Please ask the 

guard at the entrance to the South Office 

Building to call 202–720–4630 in order 

to be escorted into the building. 

• This interim final rule may be 

accessed via Internet. Users can access 

the NRCS homepage at http:// 

www.nrcs.usda.gov/; select the Farm 

Bill link from the menu; select the 

Interim final link from beneath the Final 

and Interim Final Rules Index title. 

Persons with disabilities who require 

alternative means for communication 

(Braille, large print, audio tape, etc.) 

should contact the USDA TARGET 

Center at: (202) 720–2600 (voice and 

TDD). 

FOR FURTHER INFORMATION CONTACT: 

Team Leader, Technical Service 

Provider Team, NRCS, P.O. Box 2890, 

Washington, DC 20013–2890; phone: 

(202) 720–6731; fax: (202) 720–5334; or 

e-mail: TSP2008@wdc.usda.gov. 

SUPPLEMENTARY INFORMATION: 

Regulatory Certifications 

Executive Order 12866 

Pursuant to Executive Order 12866, 

this interim final rule with request for 

comment has been determined to be a 

significant regulatory action. The 

administrative record is available for 

public inspection in Room 5831 South 

Building, USDA, 14th and 

Independence Avenue, SW., 

Washington, DC. As required by 

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 this 


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