[Federal Register Volume 61, Number 241 (Friday, December 13, 1996)]
[Proposed Rules]
[Pages 65485-65490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-31676]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 61, No. 241 / Friday, December 13, 1996 / 
Proposed Rules  

[[Page 65485]]



DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation
Natural Resources Conservation Service

7 CFR Part 1470

RIN 0578-AA21


Wildlife Habitat Incentives Program

AGENCY: Commodity Credit Corporation; Natural Resources Conservation 
Service, United States Department of Agriculture.

ACTION: Notice of proposed rulemaking with request for comments.

-----------------------------------------------------------------------

SUMMARY: The Federal Agriculture Improvement and Reform Act authorized 
the establishment of a Wildlife Habitat Incentives Program within NRCS. 
The Commodity Credit Corporation (CCC) and the Natural Resources 
Conservation Service (NRCS) are issuing a proposed rule for 
implementation of the Wildlife Habitat Incentives Program.

DATES: Comments must be received by January 27, 1997.

ADDRESSES: All comments concerning this proposed rule should be 
addressed to Warren M. Lee, Director, Watersheds and Wetlands Division, 
Natural Resources Conservation Service, P.O. Box 2890, Washington, D.C. 
20013-2890. Attention: WHIP. Fax: 202-690-1462. This rule may also be 
accessed, and comments submitted, via Internet. Users can access the 
NRCS Federal Register homepage and submit comments at http://
astro.itc.nrcs.usda.gov:6500.

FOR FURTHER INFORMATION CONTACT: Jeanne Melanson, Program Manager, 
Watersheds and Wetlands Division, Natural Resources Conservation 
Service, (202) 720-3534.

SUPPLEMENTARY INFORMATION:

Background

    The desirability of an area for habitat depends upon the wildlife 
species involved. Even so, wildlife habitats of all types have become 
degraded as a result of development pressures. As development 
encroaches and replaces the existing habitat, the wildlife dependent 
upon that habitat is also replaced. A number of habitat types that 
existed at the time of European settlement (including many of our 
native grasslands, savannas, barrens, and certain types of forestlands) 
have almost disappeared from the landscape.
    Often, the loss of a habitat means the irretrievable loss of the 
species dependent upon that habitat. Of all North American birds, those 
occupying grasslands throughout the Great Plains are experiencing the 
steepest, most consistent, and most widespread declines. Approximately 
83 percent of these species show decreasing population trends from 1963 
to 1993. In the West, intensification of cultivated cropland, 
especially in irrigated areas, has contributed to a 68 percent decrease 
in the harvest of ring-necked pheasants. Other habitats such as 
wetlands, riparian forests, and rivers and streams have suffered a 
serious decline in quality and or quality. These changes also impact 
wildlife populations.

Executive Order 12866

    The Office of Management and Budget (OMB) determined that this 
proposed rule is significant and was reviewed by the Office of 
Management and Budget under Executive Order 12866. Pursuant to 
Sec. 6(a)(3) of Executive Order 12866, CCC and NRCS conducted a 
benefit-cost assessment of the potential impacts associated with this 
proposed rule. CCC and NRCS concluded from the benefit-cost assessment 
that the overall impacts of WHIP will be beneficial. CCC and NRCS 
determined that the development of partnerships to provide expert 
technical assistance will ensure customers are afforded the best 
opportunity for success. In this manner, CCC and NRCS believe that WHIP 
will provide for wildlife habitat, help improve the quality of life for 
participants, and have a neutral to positive impact on local economies. 
Copies of the benefit-cost assessment are available upon request from 
Jeanne Melanson, Program Manager, Watersheds and Wetlands Division, 
Natural Resources Conservation Service, P.O. Box 2890, Washington, D.C. 
20013-2890.

Regulatory Flexibility Act

    It has been determined that the Regulatory Flexibility Act is not 
applicable to this rule because neither the CCC or NRCS are required by 
5 U.S.C. 553 or any other provision of law to publish a notice of 
proposed rulemaking with respect to the subject matter of this rule.

Environmental Evaluation

    It has been determined through an environmental review that the 
issuance of this proposed rule will not have a significant impact upon 
the human environment. Copies of the environmental assessment may be 
obtained from Jeanne Melanson, Program Manager, Watersheds and Wetlands 
Division, Natural Resources Conservation Service, P.O. Box 2890, 
Washington, D.C. 20013-2890.

Executive Order 12372

    This program/activity is not subject to the provisions of Executive 
Order 12372 because it involves direct payments to individuals and not 
to State and local officials. See notice related to 7 CFR Part 3015, 
Subpart V, published at 48 FR 29115 (June 24, 1983).

Federal Domestic Assistance Program

    The title and number of the Federal Domestic Assistance Program, as 
found in the Catalog of Federal Domestic Assistance, to which this rule 
applies are: Wildlife Habitat Incentives Program--10.914.

Paperwork Reduction Act

    This proposed rule sets forth procedures for implementing WHIP. CCC 
needs certain information from potential applicants, in order to carry 
out the requirements of the program. CCC submitted the information 
collection requirements in this proposed rule to the Office of 
Management and Budget (OMB) for approval under the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq. CCC prepared an Information Collection 
Request (ICR) document; the public may obtain a copy of this request 
from Jeanne Melanson, Program Manager, Natural Resources Conservation 
Service, P.O. Box 2890, Washington, D.C. 20013-2890.
    Title: Environmental Quality Incentives Program, Wildlife Habitat 
Improvement Program, and Farmland Protection Program.

[[Page 65486]]

    OMB Control Number: 0560-0174.
    Expiration Date of Approval: 3 Years from OMB Approval.
    Type of Request: Revision.
    Abstract: The Federal Agriculture Improvement and Reform Act of 
1996, Pub. L. 104-127, authorized the implementation of the Wildlife 
Habitat Incentives Program. This rule sets forth the procedures for 
producers to apply and participate in the program. Pursuant to 
Sec. 1470.5, producers may file an application for participation at a 
USDA service center. NRCS will collect information from a participant 
on the resource problems to be addressed, evaluate the information, 
and, working with the participant, develop a wildlife habitat 
development plan that describes the needed practices or land management 
changes. This plan becomes a part of the WHIP contract, and CCC will 
make payments to participants as the participants carry out the 
provisions of the contract. CCC submitted to OMB proposed forms that 
CCC will use for the application, the contract, and for the NRCS 
collection of information related to resource needs.
    Estimate of Burden: CCC estimates the public reporting for this 
information collection associated with WHIP forms is an average of 90 
minutes per applicant.
    Respondents: Persons who wish to participate in WHIP.
    Estimated Number of Respondents: 5,000.
    Estimated Number of Responses per Respondent: 6.
    Estimated Total Annual Burden on Respondents: 7,900 hours.
    Additionally, CCC shall utilize information supplied by local work 
groups to designate particular geographic areas as priority areas for 
program funding under WHIP. Staff from State and local governments 
shall comprise part of these local work groups, and thus information 
collected from these groups is governed under the Paperwork Reduction 
Act.
    For the local work groups, the annualized cost to WHIP respondents 
is $1,680,000. CCC based this figure on 120,000 burden hours times an 
average wage of $14.00 an hour (wages for State and local agency staff 
average approximately $14 an hour).
    There also exists a burden associated with development of 
conservation plans and follow-up verification of the conservation 
practices adopted pursuant to the WHIP wildlife habitat development 
plan. For the collection of information resulting from the development 
of conservation plans and subsequent verification of practices, the 
annualized cost to respondents is $480,000. This figure is based on 
40,000 burden hours times the wage of $12.00 an hour.
    CCC requests comments regarding: (a) Whether the collection of 
information is necessary for the proper performance of the functions of 
the agency, including whether the information will have practical 
utility; (b) the accuracy of the agency's estimate of burden including 
the validity of the methodology and assumptions used; (c) ways to 
enhance the quality, utility, and clarity of the information to be 
collected; (d) ways to minimize the burden of the collection of 
information on those who are to respond, including through the use of 
appropriate automated, electronic, mechanical, or other technological 
collection techniques or other forms of information technology.
    USDA will accept comments on this information collection at: Desk 
Officer for Agriculture, Office of Information and Regulatory Affairs, 
Office of Management and Budget, Washington, D.C. 20503, and to Jeanne 
Melanson, Program Manager, Natural Resources Conservation Service, P.O. 
Box 2890, Washington, D.C. 20013-2890. USDA will incorporate all 
comments as part of the public record.
    The Paperwork Reduction Act requires OMB to make a decision 
concerning the collection(s) of information contained in this proposed 
rule between 30 and 60 days after publication of this document in the 
Federal Register. Therefore, a comment to OMB is best assured of having 
its full effect if OMB receives it within 30 days of publication. This 
does not affect the deadline for the public to comment to the 
Department on the proposed regulations.

Executive Order 12778

    This proposed rule has been reviewed in accordance with Executive 
Order 12778. The provisions of this proposed rule are not retroactive. 
Furthermore, the provisions of this proposed rule preempt State and 
local laws to the extent such laws are inconsistent with this proposed 
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 or 780, as appropriate, must be exhausted.

Unfunded Mandates Reform Act of 1995

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995, 
Pub. L. 104-4, the affects of this rulemaking action on State, local, 
and tribal governments, and the public have been assessed. 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.

Discussion of the Program

    The Federal Agriculture Improvement and Reform Act of 1996 (the 
1996 Act), Pub. L. 104-127, provides the authority for several 
conservation programs. Section 387 of the 1996 Act authorizes the 
establishment of a Wildlife Habitat Incentives Program (WHIP) 
specifically under the supervision of the NRCS. The primary purpose of 
WHIP is to help landowners ``develop upland wildlife, wetland wildlife, 
threatened and endangered species, fish, and other types of wildlife 
habitat.''
    Section 387 of the 1996 Act provides that funds from CCC that are 
available for implementing the Conservation Reserve Program, 16 U.S.C. 
3831-3836, will be used to implement WHIP. The Chief, NRCS, is a Vice-
President of the CCC and WHIP will be under the general supervision and 
direction of the Vice President of CCC who is the Chief of NRCS. 
Through WHIP, CCC provides cost-share assistance to those landowners 
who wish to integrate wildlife considerations into the overall 
management of their operations or who simply desire to ``do more for 
wildlife.'' NRCS, using CCC funds, will implement WHIP in harmony with 
other programs to achieve more comprehensive advancement of wildlife 
objectives.
    WHIP offers an opportunity to encourage development of improved 
wildlife habitat on eligible lands. As participants make decisions 
about the wildlife habitat development plan for their particular land, 
they will gain a greater awareness about the diversity of wildlife 
needs and how wildlife management can fit into their farming or 
ranching activities. NRCS believes that the efforts made by 
participants in this program will serve as a catalyst for improving 
wildlife conditions throughout the Nation.

Public Listening Forums

    In April 1996, USDA held nine forums to provide opportunities for 
public comment in advance of this rulemaking action. These forums were 
held at Sacramento, California; Longmont, Colorado; Columbus, Georgia; 
Springfield, Illinois; Wyomissing, Pennsylvania; Sioux Falls, South 
Dakota; Abilene, Texas; Spokane, Washington; and Washington, D.C. More 
than 850 people, including 206 speakers, attended these forums. In 
addition, USDA accepted written

[[Page 65487]]

comments. USDA considered the public comments provided at these forums 
in the preparation of this proposed rule. The documents relating to 
these forums are available for public inspection at Room 6029 South 
Building, USDA, 14th and Independence Ave. SW, Washington, D.C.
    All the commenters who addressed WHIP expressed support for the 
program and the increased role wildlife objectives have in the 
Conservation Title programs.
    Several commenters suggested that WHIP funds should fill gaps and 
target practices with respect to other programs authorized by Title III 
of the 1996 Act that may not otherwise receive funding. NRCS will 
coordinate the implementation of WHIP with the other program efforts to 
avoid program duplication. In particular, Sec. 1470.4(c) provides that 
CCC may not share the cost of practices on land where other programs 
have sufficiently met wildlife objectives. However, it is anticipated 
that there will be significant opportunities to further wildlife 
objectives through collaborative efforts with other public and private 
organizations. Other provisions in the rule encourage program 
innovation to achieve broader wildlife benefits through cooperative 
agreements and related mechanisms for coordinating resources.
    USDA received five comments related to the types of practices that 
should or should not be eligible for cost-share funds. Section 1470.7 
describes the types of practices that will be eligible.
    USDA received three comments expressing a desire that WHIP funds be 
allocated evenly between the States and three other comments suggesting 
a more focused targeting of program funds. Section 1470.6 provides that 
funds will be targeted according to NRCS State, regional, and national 
priorities.
    Eleven commenters expressed support for the continuing close 
relationship between NRCS and conservation districts in the development 
of conservation plans. Section 1470.8 provides that wildlife habitat 
development plans will be developed by NRCS or other public or private 
natural resource professional, and approved by the conservation 
district. Additional provisions of the regulation authorize 
conservation districts to be involved in the modification or 
termination of plans.

Summary of Provisions

    The following is a summary of the WHIP provisions in this proposed 
rule:
    Section 1470.1 describes the purpose of the Wildlife Habitat 
Incentives Program and where the program may be offered. Through WHIP, 
NRCS will provide participants with the technical expertise to 
establish realistic wildlife goals for their land and CCC will provide 
cost-share assistance to help establish practices. Section 387 of the 
1996 Act provides that 50 million dollars is available through 2002 for 
program implementation. Within the limits of that amount, CCC will fund 
projects in those areas where it is determined that the greatest 
benefit can be achieved.
    Section 1470.2 provides that WHIP will be administered under the 
supervision of the Chief, NRCS as Vice President of CCC. As provided by 
section 387 of the 1996 Act, the program will be developed in 
consultation with the State Technical Committees. The NRCS State 
Conservationist, with advice from the State Technical Committee, will 
develop and submit to the Chief a plan for implementing and 
administering the WHIP program in each State, i.e. a NRCS State plan. 
The NRCS State plan will include the NRCS State objectives, NRCS State 
wildlife priorities, partnership involvement, the application ranking 
process and criteria, and other provisions necessary to assure 
successful implementation of the program. The Chief will allocate WHIP 
funds to the NRCS State level based on these NRCS State plans.
    Section 1470.3 defines the terms that are used in this proposed 
rule.
    Section 1470.4 describes the general program requirements. Under 
WHIP, CCC will enter into cost-share contracts, for a minimum duration 
of 10 years, with persons who want to implement practices that improve 
habitat conditions for wildlife. According to Department wildlife 
biologists, there often exists a time lag between when a practice is 
installed and the wildlife benefits are realized. Therefore, a 
participant will receive cost-share assistance upon completion of the 
installation of the practice but must maintain the practice for the 
duration of the contract period. CCC requests comments from the public 
related to the proposed duration of the contract.
    To participate in WHIP, a person must either own the land on which 
the practices will be implemented or have control and possession of the 
land for the duration of the contract. The land cannot be owned by a 
Federal agency or have on-site or off-site conditions that could 
undermine the successful establishment of habitat development 
practices.
    Section 1470.5 provides that a person who wants to receive cost-
share assistance must submit an application to a CCC representative. If 
an applicant is eligible, a CCC representative will visit the site and 
gather information relevant to the eligibility of the land, the 
objectives of the applicant, the habitat needs, and other information 
necessary to evaluate the relative merits of the project.
    Section 1470.6 describes the national criteria that the NRCS State 
plan must incorporate into its ranking scheme. The NRCS will give 
priority to projects on private lands or eligible Tribal lands. NRCS 
may consider projects on State or local public land only if a priority 
project on private lands contains a public land component or the 
project otherwise merits special consideration. In general, NRCS will 
not implement WHIP on State forest-, park-, or gamelands because NRCS 
assumes that the State has already assumed responsibility for 
implementing wildlife habitat development practices on such land.
    The NRCS State plan may also include additional criteria relevant 
to the particular habitat concerns of State or regional importance. 
Funds will not be allocated evenly to all States. The Chief may focus 
program funds to particular habitat needs of target species based upon 
the NRCS State plan or national goals and priorities.
    Section 1470.7 includes the provisions related to cost-share 
assistance. The NRCS State Conservationist, in consultation with the 
State Technical Committee, will develop from the NRCS field office 
technical guides a list of practices eligible for WHIP cost-share 
assistance. Any practice in the field office technical guide that 
provides positive benefits to wildlife habitat may be eligible for 
cost-share funds. Cost-share assistance will be used to implement the 
practices contained in the conservation plan prepared to obtain the 
desired habitat response. CCC will not contribute more than 75 percent 
towards the cost of installing or implementing a practice. If a 
practice fails for reasons beyond a participant's control such as 
drought or flood, cost-share assistance may be available (at the sole 
discretion of CCC) for the re-establishment of the necessary practices.
    Section 1470.8 addresses the necessary elements of a cost-share 
contract, including the incorporation of a Wildlife Habitat Development 
Plan (WHDP). The participant develops the WHDP with the NRCS (or public 
or private natural resource professional) and the conservation 
district. The WHDP provides the participants with a record of the 
decisions made regarding the implementation of practices, the

[[Page 65488]]

associated costs, and a schedule of installation, operation, and 
maintenance of the practice. The WHDP forms the basis of the contract 
for cost-share assistance.
    Section 1470.9 allows for the modification of a contract or a WHDP 
as long as the modification meets program objectives.
    Section 1470.10 provides that a contract will need to be modified 
or terminated if the participant transfers an interest in the land 
under contract or otherwise loses control of the subject land.
    Section 1470.11 allows for a contract to be terminated voluntarily 
for reasons of undue economic hardship, an inability to comply with the 
terms of the contract as a result of conditions beyond a participant's 
control, or the NRCS State Conservationist determines that termination 
would be in the public interest.
    Section 1470.12 provides that a participant may be given at least 
30 days to correct a violation of a cost-share contract before CCC will 
seek remedies for breach of the contract.
    Section 1470.13 addresses actions that CCC will consider as a 
scheme or device to defeat the purposes of the program.
    Section 1470.14 are provisions related to the assignment of 
payments and payments that are not subject to claims of creditors.
    Section 1470.15 provides that a person may obtain a review of an 
adverse agency decision by utilizing the appeal provisions found at 7 
CFR part 614 or 780, as appropriate.

List of Subjects in 7 CFR Part 1470

    Administrative practices and procedures, Conservation, Habitat, 
Wildlife.

    Accordingly, it is proposed that Title 7, Chapter XIV, of the Code 
of Federal Regulations be amended by adding a new part 1470 to read as 
follows:

PART 1470--WILDLIFE HABITAT INCENTIVES PROGRAM

Sec.
1470.1  Applicability.
1470.2  Administration.
1470.3  Definitions.
1470.4  Program requirements.
1470.5  Application procedures.
1470.6  Establishing priority for enrollment in WHIP.
1470.7  Cost-share payments.
1470.8  The wildlife habitat development plan (WHDP)
1470.9  Modifications.
1470.10  Transfer of interest in a contract.
1470.11  Termination of contracts.
1470.12  Violations and remedies.
1470.13  Misrepresentation and scheme or device.
1470.14  Offsets and assignments.
1470.15  Appeals.

    Authority: 15 U.S.C. 714b and 714c; 16 U.S.C. 590a et seq., 
3836a.


Sec. 1470.1  Applicability.

    (a) The purpose of the WHIP is to help participants develop habitat 
for upland wildlife, wetland wildlife, threatened and endangered 
species, fish, and other types of wildlife.
    (b) The regulations in this part set forth the requirements for the 
Wildlife Habitat Incentives Program (WHIP).
    (c) The Chief, NRCS may implement WHIP in any of the 50 states, the 
District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin 
Islands of the United States, American Samoa, and the Commonwealth of 
the Northern Mariana Islands.


Sec. 1470.2  Administration.

    (a) The regulations in this part will be administered under the 
general supervision and direction of the Chief, NRCS as Vice President 
of CCC and as Chief of NRCS. In the field, the regulations in this part 
will be administered by NRCS.
    (b) The State Conservationist will consult with the State Technical 
Committee in the implementation of the program and in establishing 
program policies for the NRCS in the applicable State. The State 
Conservationist has the authority to accept or reject the State 
Technical Committee recommendation; however, the State Conservationist 
will give strong consideration to the State Technical Committee's 
recommendation.
    (c) CCC may enter into cooperative agreements with Federal 
agencies, State and local agencies, conservation districts, local 
watershed groups, and with private entities to assist with program 
implementation, including contract execution, assistance, planning, and 
monitoring responsibilities.
    (d) CCC may allocate funds for such purposes related to wildlife 
priority areas; special pilot programs for wildlife habitat 
development, targeted species or targeted species habitat problems; 
cooperative agreements with other Federal, State, or local agencies, 
conservation districts, local watershed groups, or private entities for 
program implementation; coordination of enrollment of contracts; or for 
other goals consistent with the program provided for in this part.
    (e) No delegation herein shall preclude the Vice President of CCC 
who is the Chief of NRCS, or a designee, from determining any question 
arising under this part or from reversing or modifying any 
determination made under this part.


Sec. 1470.3  Definitions.

    Chief means the Chief of the Natural Resources Conservation Service 
or the person delegated authority to act for the Chief.
    Conservation district means a political subdivision of a State, 
Native American Tribe, or territory, organized pursuant to the State or 
territorial soil conservation district law, or Tribal law. The 
subdivision may be a conservation district, soil conservation district, 
soil and water conservation district, resource conservation district, 
natural resource district, land conservation committee, or similar 
legally constituted body.
    Contract means the document that specifies the obligations and the 
rights of any person who has been accepted for participation in the 
program.
    Cost-share payment means the payments under this part to develop 
wildlife habitat.
    Habitat development means the physical actions or practices 
undertaken to establish, improve, protect, enhance, or restore the 
present conditions of the land for the specific purpose of improving 
conditions for wildlife.
    Participant means an applicant who is a party to a WHIP contract.
    Person means an individual, partnership, association, corporation, 
cooperative, estate, trust, joint venture, joint operation, or other 
business enterprise or other legal entity and, whenever applicable, a 
State, a political subdivision of a State, or any agency thereof.
    Practice means a specified treatment, such as a structural or land 
management measure, which is planned and applied according to NRCS 
standards and specifications.
    State Conservationist means the NRCS employee authorized to direct 
and supervise NRCS activities in a State, the Caribbean Area, or the 
Pacific Basin Area.
    State Technical Committee means a committee established by the 
Secretary of the United States Department of Agriculture in a State 
pursuant to 16 U.S.C. 3861.
    WHDP means the Wildlife Habitat Development Plan.
    WHIP means the Wildlife Habitat Incentives Program.
    Wildlife means birds, fishes, reptiles, invertebrates, and mammals, 
and all other classes of wild animals and all types of aquatic and land 
vegetation upon which wildlife is dependent.


Sec. 1470.4  Program requirements.

    (a) Under WHIP, CCC will enter into wildlife habitat development 
cost-share contracts, for a minimum of 10 years

[[Page 65489]]

duration, with persons who voluntarily seek to cooperate in the 
development of wildlife habitat. To participate in WHIP, a person must 
agree to implement a Wildlife Habitat Development Plan (WHDP). As 
specified in Sec. 1470.7, CCC will provide cost-share assistance for 
the implementation of the habitat development practices.
    (b) To participate in WHIP, a person must:
    (1) Own or have legal control and possession of the land for which 
enrollment is sought; and
    (2) Agree to provide such information to the NRCS as the agency 
deems necessary to assist in the determination of the merits of a 
proposed project.
    (c) Ineligible land. CCC shall not provide cost-share assistance 
with respect to practices on land:
    (1) Enrolled in a program where wildlife habitat objectives have 
been sufficiently achieved through other forms of assistance or without 
assistance, as determined by NRCS.
    (2) With on-site or off-site conditions which NRCS determines would 
undermine the benefits of the habitat development or otherwise reduce 
its value;
    (3) NRCS determines that the wildlife habitat development benefits 
attainable are of lesser value than would occur on other lands; or
    (4) Owned by the United States.


Sec. 1470.5  Application procedures.

    (a) To apply for WHIP cost-share assistance, a person must submit 
an application for participation in the WHIP at a USDA service center 
or to an authorized CCC representative.
    (b) By filing an application for participation, a person consents 
to allowing CCC and NRCS representatives entering upon the land for 
purposes of assessing the wildlife habitat development potential, and 
for other activities such as the development of the WHDP that are 
necessary or desirable for program participation.


Sec. 1470.6  Establishing priority for enrollment in WHIP.

    (a) In response to national and regional needs, the Chief may limit 
program implementation in any given year to specific geographic areas 
or to address specific habitat development needs of targets species of 
special concern.
    (b) The State Conservationist, in consultation with the State 
Technical Committee, may limit implementation of WHIP to address unique 
species, habitats, or special geographic areas of the State. Subsequent 
contract offers that would complement previous contracts due to 
geographic proximity of the lands involved or other relationships may, 
at any time, receive priority consideration for participation.
    (c) NRCS will evaluate the applications and make enrollment 
decisions based on the relative:
    (1) Contribution to resolving an identified habitat problem of 
national, regional, or state importance;
    (2) Significance of the habitat development in response to any 
established species or habitat priority;
    (3) Relationship to any established wildlife or conservation 
priority areas;
    (4) Duration of benefits to be obtained from the habitat 
development practices;
    (5) Self-sustaining nature of the habitat development practices;
    (6) Availability of other partnership matching funds or reduced 
funding request by the person applying for participation; and
    (7) Estimated costs of wildlife habitat development activities.
    (d) The State Conservationist, in consultation with the State 
Technical Committee, may determine that an application which meets the 
eligibility requirements under Sec. 1470.4 should not be enrolled 
because such application is not:
    (1) Valuable to wildlife habitat improvement;
    (2) Technically feasible;
    (3) Cost-effective;
    (4) On private or Tribal land; or
    (5) Sufficiently cost-effective relative to other applications, 
given available funds.


Sec. 1470.7  Cost-share payments.

    (a) CCC may share the cost with a participant for implementing the 
practices as provided in the WHDP. CCC shall offer to pay no more than 
75 percent of such costs.
    (b) Cost-share payments may be made only upon a determination by 
the NRCS that an eligible practice or an identifiable unit of the 
practice has been established in compliance with appropriate standards 
and specifications. Identified practices may be implemented by the 
participant, or other designee.
    (c) Cost-share payments may be made for the establishment and 
installation of additional eligible practices, or the maintenance or 
replacement of an eligible practice, but only if NRCS determines the 
practice is needed to meet the objectives of the program, and the 
failure of the original practice was due to reasons beyond the control 
of the participant.
    (d) A participant may seek additional assistance from other public 
or private organizations as long as the activities funded are in 
compliance with this part. However, in the event that the total amount 
of assistance or payments that the participant would otherwise receive 
from all sources would exceed 100 percent of the cost of the practice, 
the participant shall be ineligible for further payments and shall 
refund that amount received under this part which is equal to such 
excess over 100 percent.


Sec. 1470.8  The wildlife habitat development plan (WHDP).

    (a) The participant develops a WHDP with the assistance of NRCS or 
other public or private natural resource professionals, and the WHDP is 
approved by the local conservation district. A WHDP encompasses the 
parcel of land that has the wildlife habitat conditions that are of 
concern to the participant.
    (b) The WHDP forms the basis for the contract and is incorporated 
therein. The WHDP includes a schedule for installation of the wildlife 
habitat development practices and related requirements to maintain the 
habitat for the life of the contract.
    (c) A WHIP contract shall:
    (1) Incorporate all portions of a WHDP;
    (2) Include all provisions as required by law or statute;
    (3) Specify the requirements for operation and maintenance of 
applied wildlife habitat development practices;
    (4) Include any participant reporting and recordkeeping 
requirements to determine compliance with the contract and program;
    (5) Be signed by the participant, and by the owner if the 
participant is not the owner of the land subject to the contract; and
    (6) Any other provision determined necessary or appropriate by the 
CCC representative.


Sec. 1470.9  Modifications.

    (a) Upon request of the participant, NRCS, with the concurrence of 
the conservation district, may approve modifications to a WHDP.
    (b) Upon request of the participant, CCC may approve modifications 
to a contract.
    (c) Any modifications made under this section must meet WHIP 
program objectives, and must be in compliance with this part.


Sec. 1470.10  Transfer of interest in a contract.

    (a) If the ownership or operation of the land under contract 
changes in such a manner that the contract no longer contains the 
necessary signatures of persons required to sign the contract, CCC 
shall modify the contract to reflect

[[Page 65490]]

the new interested persons and new divisions of payments. CCC shall 
make eligible cost-share payments upon presentation of an assignment of 
rights or other evidence that title had passed.
    (b) If such persons are not willing to become parties to the 
modified contract or for any other reason a modified contract is not 
executed, CCC shall terminate the contract and may require that all 
cost-share payments may be forfeited, refunded, or both.
    (c) The signatories to the contract prior to the change of 
ownership or operation shall be jointly and severally responsible for 
refunding the cost-share payments pursuant to paragraph (b).
    (d) With respect to any and all payments owed to participants, CCC 
shall bear no responsibility for any full payments or partial 
distributions of funds between the original party and that party's 
successor. In the event of a dispute or claim on the distribution of 
cost-share payments, CCC may withhold payments without the accrual of 
interest pending a settlement or adjudication on the rights to the 
funds.


Sec. 1470.11  Termination of contracts.

    (a) The State Conservationist may, by mutual agreement with the 
parties to the contract, consent to the termination of the contract 
where:
    (1) The parties to the contract are unable to comply with the terms 
of the contract as the result of conditions beyond their control;
    (2) Compliance with the terms of the contract would work a severe 
hardship on the parties to the contract; or
    (3) Termination of the contract would, as determined by the State 
Conservationist, be in the public interest.
    (b) If a contract is terminated in accordance with the provisions 
of this section, the State Conservationist may allow the participants 
to retain any cost-share payments received under the contract.


Sec. 1470.12  Violations and remedies.

    In the event of a violation of a contract or any associated WHDP, 
CCC may give the parties to the contract reasonable notice and an 
opportunity to voluntarily correct the violation within 30 days of the 
date of the notice, or such additional time as CCC may allow.


Sec. 1470.13  Misrepresentation and scheme or device.

    (a) A person who is destermined to have erroneously represented any 
fact affecting a program determination made in accordance with this 
part shall not be entitled to contract payments and must refund all 
payments, plus interest determined in accordance with this part.
    (b) A person who is determined to have knowingly:
    (1) Adopted any scheme or device that tends to defeat the purpose 
of the program;
    (2) Made any fraudulent representation; or
    (3) Misrepresented any fact affecting a program determination shall 
refund to CCC all payments, plus interest determined in accordance with 
part 1403 of this chapter received by such person with respect to all 
contracts. The person's interest in all contracts shall be terminated.


Sec. 1470.14  Offsets and assignments.

    (a) Except as provided in paragraph (b) of this section, any 
payment or portion thereof to any person shall be made without regard 
to questions of title under State law and without regard to any claim 
or lien against the land, or proceeds thereof, in favor of the owner or 
any other creditor except agencies of the U.S. Government. The 
regulations governing offsets and withholdings found at part 1403 of 
this chapter shall be applicable to contract payments.
    (b) Any person entitled to any payment may assign any payments in 
accordance with regulations governing assignment of payment found at 
part 1404 of this chapter.


Sec. 1470.15  Appeals.

    (a) Any person may obtain reconsideration and review of 
determinations affecting participation in this program in accordance 
with part 614 or 780 of this title, as appropriate.
    (b) Before a person may seek judicial review of any action taken 
under this part, the person must exhaust all administrative appeal 
procedures set forth in paragraph (a) of this section.

    Signed at Washington, D.C. on November 6, 1996.
Pearlie Reed,
Acting Chief, Natural Resources Conservation Service, Acting Vice 
President, Commodity Credit Corporation.
[FR Doc. 96-31676 Filed 12-12-96; 8:45 am]
BILLING CODE 3410-16-P