Wildlife Habitat Incentives Program

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

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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

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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