Wildlife Habitat Incentive Program, 71325-71344 [2010-29394]

Agencies

• DEPARTMENT OF AGRICULTURE
• Natural Resources Conservation Service

[Federal Register Volume 75, Number 225 (Tuesday, November 23, 2010)]
[Rules and Regulations]
[Pages 71325-71344]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-29394]



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

[[Page 71325]]



DEPARTMENT OF AGRICULTURE

Natural Resources Conservation Service

7 CFR Part 636

RIN 0578-AA49


Wildlife Habitat Incentive Program

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

ACTION: Final rule.

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SUMMARY: The Natural Resources Conservation Service (NRCS), an agency 
of the United States Department of Agriculture (USDA), is issuing a 
final rule for the Wildlife Habitat Incentive Program (WHIP). This 
final rule sets forth how NRCS, using the funds, facilities, and 
authorities of the Commodity Credit Corporation (CCC), will implement 
WHIP in response to changes made by the Food, Conservation, and Energy 
Act of 2008 (2008 Act). NRCS published an interim final rule with 
request for comment in the Federal Register on January 16, 2009, an 
amendment was published on March 12, 2009, with a request for public 
comment, and another amendment was published on July 15, 2009, with a 
request for public comment. NRCS is publishing a final rule that 
addresses the comments received on the interim final rule and to 
clarify policies to improve program implementation.

DATES: Effective Date: The rule is effective November 23, 2010.

FOR FURTHER INFORMATION CONTACT: Gregory K. Johnson, Director, 
Financial Assistance Programs Division, Department of Agriculture, 
Natural Resources Conservation Service, 1400 Independence Avenue, SW., 
Room 5237 South Building, Washington, DC 20250; Telephone: (202) 720-
1844; Fax: (202) 720-4265.
    Persons with disabilities who require alternative means for 
communicating (Braille, large print, audiotape, etc.) should contact 
the USDA Target Center at (202) 720-2600 (voice and TDD).

SUPPLEMENTARY INFORMATION:

Regulatory Certifications

Executive Order 12866

    Pursuant to Executive Order 12866, this final rule has been 
determined to be a significant regulatory action. The administrative 
record is available for public inspection at the Department of 
Agriculture, 1400 Independence Avenue, SW., Room 5241 South Building, 
Washington, DC 20250. In accordance with Executive Order 12866, NRCS 
conducted an economic analysis of the potential impacts associated with 
this program. A summary of the economic analysis can be found at the 
end of the regulatory certifications of the preamble, and a copy of the 
analysis is available upon request from Gregory K. Johnson, Director, 
Financial Assistance Programs Division, Department of Agriculture, 
Natural Resources Conservation Service, 1400 Independence Avenue, SW., 
Room 5237 South Building, Washington, DC 20250.

Regulatory Flexibility Act

    The Regulatory Flexibility Act is not applicable to this final rule 
because NRCS is not required by 5 U.S.C. 553, or by any other provision 
of law, to publish a notice of proposed rulemaking with respect to the 
subject matter of this rule.

Environmental Analysis

    In compliance with the National Environmental Policy Act, a 
Programmatic Environmental Assessment (EA) was prepared in association 
with the interim final rule. The analysis determined there will not be 
a significant impact to the human environment and as a result, an 
Environmental Impact Statement was not required to be prepared (40 CFR 
1508.13). The Programmatic EA and Finding of No Significant Impact 
(FONSI) were made available for public review for 60 days, which also 
coincided with the public review timeframe for the interim final rule. 
Comments were received on the Programmatic EA and FONSI, and responses 
to those comments have been prepared and can be reviewed along with a 
copy of the EA and FONSI from the following Web site: https://www.nrcs.usda.gov/programs/Env_Assess/. Additional program 
requirements that were not in the interim final rule, and that are now 
in the final rule, are minor program element changes that do not affect 
the overall effects or analysis in the Programmatic EA. As a result, 
preparation of a supplemental Programmatic EA has been determined not 
to be necessary.

Civil Rights Impact Analysis

    NRCS has determined through a Civil Rights Impact Analysis that 
this final rule discloses no disproportionately adverse impacts for 
minorities, women, or persons with disabilities. Outreach and 
communication strategies are in place to ensure all producers will be 
provided the same information to allow them to make informed compliance 
decisions regarding the use of their lands that will affect their 
participation in USDA programs. WHIP applies to all persons equally 
regardless of their race, color, national origin, gender, sex, or 
disability status. Therefore, this final rule will not result in 
adverse civil rights implications for women, minorities, and persons 
with disabilities.
    Copies of the Civil Rights Impact Analysis are available from 
Albert Cerna, National Wildlife Habitat Incentive Program Manager, 
Financial Assistance Programs Division, Department of Agriculture, 
Natural Resources Conservation Service, 1400 Independence Avenue, SW., 
Room 5233 South Building, Washington, DC 20250, or electronically at 
https://www.nrcs.usda.gov/Programs/farmbill/2008/civilrightsimpact.html.

Paperwork Reduction Act

    Section 2904 of the 2008 Act requires that the implementation of 
programs authorized under Title II of the Act be made without regard to 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). 
Therefore, NRCS is not reporting recordkeeping or estimated paperwork 
burden associated with this final rule.

Government Paperwork Elimination Act

    NRCS is committed to compliance with the Government Paperwork

[[Page 71326]]

Elimination Act and the Freedom to E-File Act, which requires 
government agencies in general, to provide the public the option of 
submitting information or transacting business electronically to the 
maximum extent possible. To better accommodate public access, NRCS has 
developed an online application and information system for public use.

Executive Order 12988

    This final rule has been reviewed in accordance with Executive 
Order 12988, Civil Justice Reform. The rule is not retroactive and 
preempts State and local laws to the extent such laws are inconsistent 
with this rule. Before an action may be brought in a Federal court of 
competent jurisdiction, the administrative appeal rights afforded 
persons at 7 CFR parts 11 and 614 must be exhausted.

Federal Crop Insurance Reform and Department of Agriculture 
Reorganization Act of 1994

    Pursuant to section 304 of the Federal Crop Insurance Reform Act of 
1994 (Pub. L. 103-354), USDA classified this rule as non-major. 
Therefore, a risk analysis was not conducted.

Unfunded Mandates Reform Act of 1995

    NRCS assessed the affects of this final rule on State, local, and 
tribal governments, and the public. This action does not compel the 
expenditure of $100 million or more in any one year (adjusted for 
inflation) by any State, local, or tribal governments, or anyone in the 
private sector; therefore, a statement under section 202 of the 
Unfunded Mandates Reform Act of 1995 is not required.

Executive Order 13132

    This final rule has been reviewed in accordance with the 
requirements of Executive Order 13132, Federalism. USDA has determined 
that this final rule conforms with the Federalism principles set forth 
in the Executive Order; would not impose any compliance costs on the 
States; and would not have substantial direct effects on the States, on 
the relationship between the Federal Government and the States, or on 
the distribution of power and responsibilities on the various levels of 
government. Therefore, USDA concludes that this final rule does not 
have Federalism implications.

Executive Order 13175

    This final rule has been reviewed in accordance with the 
requirements of Executive Order 13175, Consultation and Coordination 
with Indian Tribal Governments. NRCS has assessed the impact of this 
final rule on Indian tribal governments and concluded that this final 
rule will not negatively affect Indian tribal governments or their 
communities. The rule neither imposes substantial direct compliance 
costs on tribal governments nor preempts tribal law. However, NRCS 
plans to undertake a series of at least six regional tribal 
consultation sessions before December 30, 2010, on the impact of NRCS 
conservation programs and services on tribal governments and their 
members to establish a baseline of consultation for future actions. 
Reports from these sessions will be made part of the USDA annual 
reporting on Tribal Consultation and Collaboration. NRCS will respond 
in a timely and meaningful manner to all tribal governments' requests 
for consultation.

Small Business Regulatory Enforcement Fairness Act of 1996

    Section 2904(c) of the 2008 Act requires that the Secretary use the 
authority in section 808(2) of Title 5, U.S.C., which allows an agency 
to forego the Small Business Regulatory Enforcement Fairness Act of 
1996 usual 60-day congressional review delay of the effective date of a 
regulation if the agency finds that there is a good cause to do so. 
NRCS hereby determines that it has good cause to do so in order to meet 
the congressional intent to have the conservation programs authorized 
or amended by Title II of the 2008 Act in effect as soon as possible. 
Accordingly, this rule is effective upon filing for public inspection 
by the Office of the Federal Register.

Section 2708 of the 2008 Act

    Section 2708, ``Compliance and Performance,'' of the 2008 Act added 
a paragraph to section 1244(g) of the Food Security Act of 1985, as 
amended entitled, ``Administrative Requirements for Conservation 
Programs,'' which states the following: ``(g) Compliance and 
performance.--For each conservation program under Subtitle D, the 
Secretary shall develop procedures--
    (1) To monitor compliance with program requirements;
    (2) To measure program performance;
    (3) To demonstrate whether long-term conservation benefits of the 
program are being achieved;
    (4) To track participation by crop and livestock type; and
    (5) To coordinate activities described in this subsection with the 
national conservation program authorized under section 5 of the Soil 
and Water Resources Conservation Act of 1977 (16 U.S.C. 2004).''
    This new provision presents in one place the accountability 
requirements placed on the agency as it implements conservation 
programs and reports on program results. The requirements apply to all 
programs under Subtitle D, including the Wetlands Reserve Program, the 
Conservation Security Program, the Conservation Stewardship Program, 
the Farm and Ranch Lands Protection Program, the Grassland Reserve 
Program, the Environmental Quality Incentives Program (including the 
Agricultural Water Enhancement Program), the Wildlife Habitat Incentive 
Program, and the Chesapeake Bay Watershed Initiative. These 
requirements are not directly incorporated into these regulations, 
which set out requirements for program participants. However, certain 
provisions within these regulations relate to elements of section 
1244(g) of the Food Security Act of 1985, as amended and the agency's 
accountability responsibilities regarding program performance. NRCS is 
taking this opportunity to describe existing procedures that relate to 
meeting the requirements of section 1244(g) of the Food Security Act of 
1985, as amended and agency expectations for improving its ability to 
report on each program's performance and the achievement of long-term 
conservation benefits. Also included is reference to the sections of 
these regulations that apply to program participants and that relate to 
the agency accountability requirements as outlined in section 1244(g) 
of the Food Security Act of 1985, as amended.
    Monitor compliance with program requirements. NRCS has established 
application procedures to ensure that participants meet eligibility 
requirements and follow-up procedures to ensure that participants are 
complying with the terms and conditions of their contractual 
arrangement with the government, and that the installed conservation 
measures are operating as intended. These and related program 
compliance evaluation policies are set forth in agency guidance (CPM-
440-512 and CPM-440-517) (https://directives.sc.egov.usda.gov/).
    The program requirements applicable to participants that relate to 
compliance are set forth in these regulations in Sec.  636.4 ``Program 
requirements,'' Sec.  636.8 ``WHIP Plan of Operations,'' and Sec.  
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

[[Page 71327]]

requirements for operating and maintaining WHIP-funded conservation 
improvements.
    Measure program performance. Pursuant to the requirements of the 
Government Performance and Results Act of 1993 (Pub. L. 103-62, Sec. 
1116) and guidance provided by OMB Circular A-11, NRCS has established 
performance measures for its conservation programs. Program-funded 
conservation activity is captured through automated field-level 
business tools, and the information is available at https://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) 
(https://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 Sec.  636.8 
``WHIP Plan of Operations,'' and Sec.  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 long-term natural resource 
benefits achieved through conservation programs is subject to the 
availability of needed data, the capacity and capability of modeling 
approaches, and the external influences that affect actual natural 
resource condition. While NRCS captures many measures of ``output'' 
data, such as acres of conservation practices, it is still in the 
process of developing methods to quantify the contribution of those 
outputs to environmental outcomes. NRCS currently uses a mix of 
approaches to evaluate whether long-term conservation benefits are 
being achieved through its programs. Since 1982, NRCS has reported on 
certain natural resource status and trends through the National 
Resources Inventory (NRI), which provides statistically reliable, 
nationally consistent land cover/use and related natural resource data. 
However, a connection between these data and specific conservation 
programs (with the exception of the Conservation Reserve Program, since 
1987 the NRI has reported acreage enrolled in CRP) has been lacking. In 
the future, the interagency Conservation Effects Assessment Project 
(CEAP), which has been underway since 2003, will provide nationally 
consistent estimates of environmental effects resulting from 
conservation practices and systems applied. CEAP results will be used 
in conjunction with performance data gathered through agency field-
level business tools to help produce estimates of environmental effects 
accomplished through agency programs, such as WHIP. In 2006, a Blue 
Ribbon panel evaluation of CEAP strongly endorsed the project's 
purpose, but concluded ``CEAP must change direction'' to achieve its 
purposes. (See Soil and Water Conservation Society. 2006. Final Report 
from the Blue Ribbon Panel Conducting an External Review of the U.S. 
Department of Agriculture Conservation Effects Assessment Project. 
Ankeny, IA: Soil and Water Conservation Society. This review is 
available at https://www.nrcs.usda.gov/technical/NRI/ceap/.) In 
response, CEAP has focused on priorities identified by the Panel and 
clarified that its purpose is to quantify the effects of conservation 
practices applied on the landscape. Information regarding CEAP, 
including reviews and current status, is available at https://www.nrcs.usda.gov/technical/NRI/ceap/.
    Since 2004 and the initial establishment of long-term performance 
measures by program, NRCS has been estimating and reporting progress 
toward long-term program goals. Natural resource inventory and 
assessment and performance measurement and reporting policies are set 
forth in agency guidance (GM-290-400; GM-340-401; and GM-340-403) 
(https://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., Sec.  636.8 
``WHIP Plan of Operations,'' and Sec.  636.9 ``Cost-share agreements.'' 
These and related program management procedures supporting program 
implementation are set forth in agency guidance (CPM-440-512 and CPM-
440-515).
    Coordinate these actions with the national conservation program 
authorized under the Soil and Water Resources Conservation Act (RCA). 
The 2008 Act reauthorized and expanded on a number of elements of the 
RCA related to evaluating program performance and conservation 
benefits. Specifically, the 2008 Act added a provision stating, 
``Appraisal and inventory of resources, assessment and inventory of 
conservation needs, evaluation of the effects of conservation 
practices, and analyses of alternative approaches to existing 
conservation programs are basic to effective soil, water, and related 
natural resources conservation.''
    The program, performance, and natural resource and effects data 
described previously will serve as a foundation for the next RCA, which 
will also identify and fill, to the extent possible, data and 
information gaps. Policy and procedures related to the RCA are set 
forth in agency guidance (GM-290-400; CPM-440-525; and GM-130-402) 
(https://directives.sc.egov.usda.gov/).
    The coordination of the previously described components with the 
RCA is an agency responsibility and is not reflected in these 
regulations. However, it is likely that results from the RCA process 
will result in modifications to the program and performance data 
collected, to the systems used to acquire data and information, and 
potentially to the program itself. Thus, as the Secretary proceeds to 
implement the RCA in accordance with the statute, the approaches and 
processes developed will improve existing program performance 
measurement and outcome reporting capability and provide the foundation 
for improved implementation of the program performance requirements of 
section 1244(g) of the Food Security Act of 1985, as amended.

Economic Analysis--Executive Summary

    WHIP provides direct technical and financial assistance to improve 
fish and wildlife habitat on eligible agricultural, nonindustrial 
private forest land (NIPF), and Indian land. The focus of the program 
is on national, regional, and State-directed fish and wildlife 
priorities, including rare and declining species. These priorities are 
established with input from the regional, State, and local stakeholders 
through the State Technical Committee. Because these efforts involve 
both onsite and offsite specific impacts, and these impacts

[[Page 71328]]

affect a host of non-market valued attributes ecosystem services, 
performing a traditional benefit-cost analysis is challenging. Even 
with these limitations, a benefit-cost analysis offers a means to 
identify the main costs and benefits and explore policy and program 
alternatives.
    The primary costs associated with WHIP include the cost-share 
outlays by NRCS and the matching funds of the participant to fully pay 
for the restoration and improvements in fish and wildlife habitat 
within the agricultural, forestry operation, or Indian land. These 
primary costs must then be compared with the benefits of the habitat 
improvement realized through these efforts, mainly the improvements of 
the flow of ecological goods and services and provision of non-market 
valued amenities, such as more scenic views, as well as providing fish 
and wildlife habitat.
    The results of this benefit-cost analysis suggest that the WHIP 
assistance to participants will result in positive net benefits, 
especially in areas where fish and wildlife habitat is deteriorating or 
being lost. The changes to WHIP made by the 2008 Act do not change this 
conclusion. Copies of the economic analysis may be obtained from 
Gregory K. Johnson, Director, Financial Assistance Programs Division, 
Department of Agriculture, Natural Resources Conservation Service, 1400 
Independence Avenue, SW., Room 5237 South Building, Washington, DC 
20250.

Discussion of Program

    WHIP is a voluntary program administered by NRCS using the funds 
and authorities of the CCC. WHIP is available in any of the 50 States, 
District of Columbia, Puerto Rico, Guam, the Virgin Islands of the 
United States, American Samoa, and the Commonwealth of the Northern 
Mariana Islands. Through WHIP, NRCS provides technical and financial 
assistance to participants to develop upland, wetland, and aquatic 
wildlife habitat, as well as fish and wildlife habitat on other areas 
and to develop habitat for at-risk species, including threatened and 
endangered species. NRCS first allocated funds for WHIP in 1997. Over 
the life of the program, NRCS has entered into over 29,000 cost-share 
agreements that cover over 4.7 million acres.
    WHIP was originally authorized under section 387 of the Federal 
Agriculture Improvement and Reform Act of 1996 (Pub. L. 104-127). In 
1997, NRCS published regulations to implement WHIP at 7 CFR part 636. 
Section 2502 of the Farm Security and Rural Investment Act of 2002 
(Pub. L. 107-171) repealed the original WHIP authority and established 
a new WHIP under section 1240N of the Food Security Act of 1985, as 
amended. Section 2602 of the 2008 Act made further changes to WHIP.
    These recent changes included restricting eligible lands to private 
agricultural land, NIPF, and Indian land; clarifying the phrase ``other 
types of habitat'' to include habitat developed on pivot corners and 
irregular areas; increasing the proportion of annual funds available 
for long-term agreements that are 15 years or longer to not more than 
25 percent; providing the Secretary with discretionary authority to 
address State, regional, and national conservation initiatives; and 
establishing a $50,000 annual payment limitation per person or legal 
entity. The WHIP statute uses tribal, but NRCS will use Indian and 
tribal interchangeably to be consistent with other programs.

Registration and Reporting Requirements of the Federal Funding and 
Transparency Act of 2006

    The Office of Management and Budget recently published two 
regulations, 2 CFR part 25 and 2 CFR part 170, to assist agencies and 
recipients of Federal financial assistance comply with the Federal 
Funding Accountability and Transparency Act of 2006 (FFATA) (Pub. L. 
109-282, as amended). Both regulations have implementation requirements 
beginning October 1, 2010.
    The regulations at 2 CFR part 25 require, with some exceptions, 
recipients of Federal financial assistance to apply for and receive a 
Dun and Bradstreet Universal Numbering System (DUNS) number and 
register in the Central Contractor Registry (CCR). The regulations at 2 
CFR part 170 establish new requirements for Federal financial 
assistance applicants, recipients, and sub recipients. The regulation 
provides standard wording that each agency must include in its awarding 
of financial assistance that requires recipients to report information 
about first-tier sub awards and executive compensation under those 
awards.
    NRCS has determined that 2 CFR part 25 and 2 CFR part 170 apply to 
certain awards of financial assistance provided under WHIP. Therefore, 
NRCS has incorporated, by reference, these registration and reporting 
requirements at Sec.  636.4 and will include the requisite provisions 
as part of the WHIP contract.

Analysis of Public Comment

    On January 16, 2009, NRCS published an interim final rule in the 
Federal Register. On March 12, 2009, NRCS published an amendment to the 
interim final rule addressing the incorrect application of the $50,000 
annual payment limitation to joint operations and requesting public 
comment on how USDA's conservation programs can further the Nation's 
ability to increase renewable energy production and conservation, 
mitigate the effects and adapt to climate change, and reduce net carbon 
and greenhouse gas (GHG) emissions.
    Following this amendment and request for comment, NRCS published an 
additional amendment to the interim final rule, with a request for 
comment, on July 15, 2009, redefining the term agricultural lands to be 
more inclusive of lands that have the potential to produce agricultural 
products or livestock. The comments received on the interim final rule 
and amendments were consolidated and are addressed in this public 
comment analysis. In total, 43 comments were received during the 
comment periods; 3 were from individuals, 15 from State agencies, 2 
from Federal agencies, 2 from Indian tribes, and 23 from 
nongovernmental organizations. All comments received are available for 
review at https://www.nrcs.usda.gov/programs/farmbill/2008/public-comments.html.
    The discussion that follows is organized in the same sequence as 
the interim final rule.

Section 636.1 Applicability

    Section 636.1 sets forth WHIP's purpose and scope, stating that 
``the purpose of the program is to help participants develop fish and 
wildlife habitat on private agricultural land, NIPF, and Indian land.''
    Comments: One respondent expressed concern about NRCS proposing to 
strike the term species from the program's purpose statement, shifting 
the program focus from species to land and water resources.
    Response: The interim final rule replaced the phrase ``for upland 
wildlife, wetland wildlife, threatened and endangered species, fish, 
and other types of wildlife'' with the phrase ``develop fish and 
wildlife habitat on private agricultural land, NIPF, and Indian land,'' 
in an effort to be consistent with the program's statutory authority. 
The simplified language provided the appropriate broad interpretation 
for the types of habitat to be developed on eligible lands, including a 
new statutory requirement to encourage the development of habitat for 
native and managed pollinators. No changes were made to the final rule.
    Comments: Numerous respondents requested that NRCS extend WHIP's

[[Page 71329]]

program purpose and scope to pollinators, specifically. Five 
respondents requested that NRCS reference native and managed pollinator 
habitat, while four of the five respondents wanted WHIP to focus on 
native pollinators and their habitats and not managed pollinators, 
leaving managed pollinator habitat to other conservation programs like 
the Environmental Quality Incentives Program (EQIP).
    Response: Section 1244(h) of the Food Security Act of 1985, as 
amended states:
    ``In carrying out any conservation program administered by the 
Secretary, the Secretary may, as appropriate, encourage (1) the 
development of habitat for native and managed pollinators; and (2) the 
use of conservation practices that benefit native and managed 
pollinators.''
    Section 1244(h) includes both managed and native pollinators. In 
section 1244(h), WHIP's authority focuses on wildlife habitat with no 
distinction made between native and managed species. As part of the 
development of habitats in many projects, WHIP plants grasses, forbs, 
shrubs, and trees that provide habitats for pollinator species as a 
consequence of providing habitats for prioritized wildlife. NRCS 
chooses to retain the interim final rule's original language which 
follows the intent of section 1244(h) and WHIP's legislative authority 
that makes no distinction between restoring or enhancing native and 
managed pollinator species' habitats.
    Comments: Several respondents requested that NRCS focus its 
technical assistance efforts on improving pollinator habitat. One 
respondent wanted NRCS to designate a national coordinator to advance 
habitat for honey bees and expand its outreach to potential 
participants. Another respondent expressed concern that with a lack of 
emphasis in a regulation, pollinator habitat may be disregarded by 
individual States. Another respondent wanted to ensure that expedited 
efforts were made to update and revise the conservation practice 
standards and technical notes, assuring that these standards and 
technical notes were appropriate and relevant to the local habitat and 
species' needs. Moreover, the respondent wanted NRCS to provide input 
to the National Institute of Food and Agriculture and Agricultural 
Research Service about additional research needed to improve the 
science regarding wildlife habitat and conservation practices that are 
best for native and managed pollinators.
    Response: No changes were made to the rule in response to these 
comments. State Conservationists have been encouraged to establish 
pollinator species as State priorities, and they have done so. In 
fiscal year (FY) 2009, NRCS funded 54 projects to restore and improve 
pollinator habitat through the WHIP and the Conservation Innovation 
Grants (CIG) program. Interim conservation practice standards and 
technical notes have been and are in the process of being established. 
State Conservationists are providing information to producers that 
conservation practices which benefit pollinator species are eligible 
for cost-share. NRCS does not conduct research, but has established 
partnerships with agencies that provide information from research.

Section 636.2 Administration

    Section 636.2 sets forth the policies related to NRCS and its 
agreements with partners.
    Comments: Two respondents requested that NRCS include marketing and 
outreach as eligible work for partner agreements, also known as 
contribution agreements. Several respondents supported the flexibility 
to enter into agreements with Federal and State agencies and Indian 
tribes to assist with program implementation.
    Response: Since WHIP's inception, NRCS has used partnership 
agreements with Federal, State, and local agencies to implement the 
program. NRCS has the ability to include marketing and outreach in 
these agreements.
    Aside from working through contribution agreements, NRCS also has 
the ability to enter into agreements with Technical Service Providers 
(TSPs) to assist in implementing conservation programs. Section 2706 of 
the 2008 Act amended the Food Security Act of 1985, as amended to 
authorize payments to TSPs for related technical assistance services 
that accelerate program delivery. Related technical assistance services 
include, but are not limited to, conservation planning documentation, 
payment scheduling, and documentation. Technical standards for 
certifying other services like outreach and marketing TSPs will be 
formulated during FY 2010.
    As in the case of other Title XII conservation programs, a WHIP 
participant or NRCS may use the services of a qualified TSP to install 
and implement conservation practices. Technical services provided may 
include conservation planning; conservation practice survey, layout, 
design, installation, and certification; and related technical 
assistance services as described above. To clarify that TSPs may be 
used to expedite WHIP conservation program delivery, NRCS has added 
related technical assistance services to Sec.  636.18(c): ``Technical 
services provided by qualified personnel not affiliated with USDA may 
include, but is not limited to, conservation planning; conservation 
practice survey, layout, design, installation, and certification; and 
related technical assistance services as defined in 7 CFR part 652.''

Section 636.3 Definitions

    When NRCS published the WHIP interim final rule, it revised many of 
WHIP's definitions to be consistent with other NRCS conservation 
programs and to avoid confusion among NRCS field personnel and 
customers. A majority of the comments received during the interim final 
rule's request for comment period were definitions contained in section 
636.3. Following are definitions received from public comments.

Agricultural Lands

    Comments: Over 20 respondents commented on the agricultural lands 
definition. The majority of respondents stated that the definition of 
agricultural lands was too limited. The respondents requested that NRCS 
expand the definition to include ``lands on which agricultural and 
forest products may be produced or have the potential to be produced.'' 
They cited that many rural, privately owned lands offer significant 
wildlife habitat potential, despite the fact that they are not 
currently used for agricultural production.
    Response: NRCS concurs with this recommendation and on July 15, 
2009, published an amendment to the interim final rule which defined 
agricultural lands as: ``Cropland, grassland, rangeland, pastureland, 
and other land determined by NRCS to be suitable for fish and wildlife 
habitat development on which agricultural and forest-related products 
or livestock are or have the potential to be produced. Agricultural 
lands may include cropped woodland, wetlands, waterways, streams, 
incidental areas included in the agricultural operation, and other 
types of land used for or have the potential to be used for 
production.''
    Under WHIP, NRCS has the discretion to define agricultural lands in 
order to meet the program objectives. In the past, WHIP served as a 
niche program through its ability to improve wildlife habitat on areas 
that were not otherwise eligible for NRCS conservation assistance. NRCS 
believes that the interim final rule's agricultural lands definition 
was too narrow in its interpretation of the statute, especially since 
lands that are not currently under

[[Page 71330]]

production oftentimes can most readily be improved for wildlife 
habitat, and that there are many active conservationists who wish to 
enhance wildlife habitat but may not be actively producing a commodity 
or raising livestock. As noted above, this change was adopted in the 
amendment to the interim final rule.
    Comments: Two respondents requested that NRCS add specific language 
to modify the agricultural lands definition to make it consistent with 
the Farm Credit Administration's (FCA) definition of agricultural land. 
The intent behind making the WHIP definition consistent with FCA's 
definition was similar to the rationale described above --expand the 
types of eligible lands to those that have the potential or are 
available to produce a crop, fruits, timber, or livestock.
    Response: Based upon the rationale set forth above, NRCS concurs 
with this recommendation and on July 15, 2009, published an amendment 
to the interim final rule which changed the definition of agricultural 
lands.
    Comments: Nearly a dozen respondents requested that specific areas 
be identified in the definition of agricultural lands. Areas mentioned 
included wetlands, riparian areas, aspen groves, streams, canals, 
shelterbelts, buffer strips, and waterways.
    Response: NRCS has chosen to retain the current definition of 
agricultural lands with the slight modification of changing marshes to 
wetlands, since wetlands is a more inclusive term to describe areas 
WHIP seeks to restore and enhance. NRCS has also chosen to add the 
terms waterways and streams. NRCS believes areas like canals, 
shelterbelts, aspen groves, and buffer strips would be determined to be 
eligible since they would be considered lands incidental to the 
agricultural or forestry operation.

Applicant

    Comments: Six respondents requested changing the definition of 
applicant. As currently defined, an applicant must have an interest in 
an agricultural operation. Such a requirement prohibits NIPF landowners 
and others who own or operate agricultural land with the potential to 
produce an agricultural crop or livestock from participating.
    Response: NRCS accepts this recommendation to revise the term 
applicant, and modifies the definition in this final rule as follows: 
``Applicant means a person, legal entity, joint operation, or Indian 
tribe that has an interest in agricultural land, NIPF, Indian land, or 
other lands identified in Sec.  636.4(c)4, who has requested in writing 
to participate in WHIP.''

At-Risk Species

    Comments: In the interim final rule published on January 16, 2009, 
NRCS specifically requested comment on its definition of at-risk 
species. Approximately 20 individuals and organizations responded to 
this request, providing suggestions on how NRCS could modify this 
definition.
    Fifteen respondents suggested using the definition that exists in 
the Memorandum of Understanding (MOU) with the U.S. Fish and Wildlife 
Service (USFWS), NRCS, and the Association of Fish and Wildlife 
Agencies. As stated in the MOU, ``at-risk species refers to plant and 
animal species in that area listed as threatened or endangered under 
the Endangered Species Act (ESA); proposed or candidates for listing 
under ESA: likely to become candidates for listing in the near future; 
species listed as endangered or threatened (or similar classification) 
under State law; and State species of conservation concern (i.e., those 
species identified by State fish and wildlife agencies in State 
wildlife action plans or other State agency conservation strategies and 
plans that include species identified as being in greatest need of 
conservation concern).''
    One respondent suggested that State agencies determine at-risk 
species, while another respondent suggested that NRCS retain the 
interim final rule definition as follows: ``Any plant or animal species 
as determined by the State Conservationist, with advice from the State 
Technical Committee, needing direct intervention to halt its population 
decline.'' Another respondent wanted NRCS to take into account global 
species of concern generated by The Nature Conservancy and a similar 
list generated by the International Union of Conservation of Nature. 
One respondent recommended that consideration should also be extended 
to ecosystems at-risk as well as species.
    One respondent suggested using the MOU definition, in conjunction 
with NRCS' definition, specifically rewording the definition as 
follows: ``At-risk species refers to (1) any plant or animal species 
listed as threatened or endangered under ESA, (2) proposed for listing 
under ESA, (3) a candidate for listing in the near future, (4) likely 
to become a candidate for listing in the near future, (5) listed as 
endangered or threatened (or similar classification) under State law, 
(6) a species of conservation concern, or (7) other species determined 
by the State Conservationist, with advice from the State Technical 
Committee, to need direct intervention to halt its population 
decline.'' Another respondent suggested that NRCS expand the definition 
beyond the MOU definition by adding the following sentence to the MOU 
definition: ``At-risk species may also include native species 
identified by the Chief, in consultation with the State Conservationist 
and State Technical Committee, and with advice from the USFWS, National 
Marine Fisheries Service, or other experts as at-risk because of 
population vulnerability due to climate change, catastrophic events, or 
pest/pathogen outbreaks.''
    Two respondents defined at-risk species more broadly stating at-
risk means any plant or animal species as determined by the State 
Conservationist, with advice from the State Technical Committee, the 
USFWS, the State agency responsible for fish and wildlife, and in 
consultation with the State wildlife action plan to include species 
listed as endangered or threatened under ESA and proposed or candidate 
species for listing under ESA (this allows determination by the State 
Conservationist), while another respondent requested that NRCS allow 
for a localized area to give a designation.
    Response: Section 636.3 in the interim final rule defines at-risk 
species as ``any plant or animal species as determined by the State 
Conservationist, with advice from the State Technical Committee, to 
need direct intervention to halt its population decline.'' NRCS 
developed this definition to provide maximum flexibility and allow the 
State Conservationist to enroll acres for any type of species, provided 
it is experiencing population decline. For example, the at-risk 
definition has enabled NRCS to restore wildlife habitat for species 
that have experienced population decline from a natural disaster or 
other situation, without the requirement that the species be included 
on a list.
    NRCS determined, based on the public comments, to revise its 
definition to read as follows: ``At-risk species means any plant or 
animal species listed as threatened or endangered; proposed or 
candidate for listing under the ESA; a species listed as threatened or 
endangered under State law or tribal law on tribal land; State or 
tribal land species of conservation concern; or other plant or animal 
species or community, as determined by the State Conservationist, with 
advice from the State Technical Committee and Tribal Conservation 
Advisory Council (for tribal land), that has undergone, or likely to 
undergo, population decline

[[Page 71331]]

and may become imperiled without direct intervention.''

Habitat Development

    Comments: Two respondents requested that NRCS modify the habitat 
development definition solely to address native conditions for fish and 
wildlife habitat.
    Response: WHIP's authority focuses on wildlife habitat with no 
distinction made between native and managed species and no distinction 
made on native or managed conditions. NRCS chooses to retain the 
flexibility afforded by the program's enabling legislation and leave it 
to the discretion of the State Conservationist, with advice from the 
State Technical Committee, to restore or enhance wildlife for those 
species that are deemed to need habitat restoration or enhancement in 
that geographic area or State. No changes were made to the final rule.

Historically Underserved Producer

    Comments: Three respondents requested that NRCS expand WHIP's 
applicability to include NIPF landowners or family forest owners, along 
with farmers and ranchers, in the definition of historically 
underserved producer.
    Response: NRCS' current definition of historically underserved 
producer is as follows: ``Historically underserved producer means an 
eligible person, joint operation, or legal entity who is a beginning 
farmer or rancher, socially disadvantaged farmer or rancher, or limited 
resource farmer or rancher.''
    NIPF landowners are eligible for the increased WHIP cost-share 
rates afforded to historically underserved agricultural producers, 
provided they meet the same quantifiable criteria contained within the 
separate definitions for beginning farmer or rancher, limited resource 
farmer or rancher, or socially disadvantaged farmer or rancher. Section 
636.3 defines each of these terms.
    To clarify that NIPF landowners can qualify for the increased cost-
share rates, NRCS revises the historically underserved producer 
definition as follows: ``Historically underserved producer means an 
eligible person, joint operation, legal entity, or Indian tribe who is 
a beginning farmer or rancher, socially disadvantaged farmer or 
rancher, limited resource farmer or rancher, or NIPF landowner who 
meets the beginning, socially disadvantaged, or limited resource 
qualifications set forth in Sec.  636.3.''

Livestock

    Comments: Two respondents request that NRCS revise the definition 
of livestock to limit the terminology to ``all domesticated animals 
kept on farms and ranches for the production of agricultural goods, as 
determined by the Chief.''
    Response: NRCS retains the interim final rule's definition since 
some animals raised on a farm or ranch such as bison, fish, or emus may 
not be considered domesticated species. As defined, ``livestock means 
all animals produced on farms and ranches, as determined by the 
Chief.''

Resource Concern

    Comments: Four respondents requested that NRCS modify the 
definition of resource concern, striking the phrase by producers and 
replacing it with by participants.
    Response: NRCS accepts this recommendation since the term 
participant is the term used to describe a person, joint operation, or 
legal entity that has responsibility to implement the contract. 
Therefore, the final rule definition is as follows: ``Resource concern 
means a specific natural resource problem that represents a significant 
concern in a State or region, and is likely to be addressed 
successfully through the implementation of the conservation activities 
by participants.''

Wildlife

    Comments: Four respondents requested that NRCS include mollusks in 
the definition of wildlife.
    Response: Mollusks are considered invertebrates; therefore, NRCS 
retains the definition of wildlife as stated in the interim final rule: 
``Wildlife means non-domesticated birds, fishes, reptiles, amphibians, 
invertebrates, and mammals.''

Section 636.4 Program Requirements

    Section 636.4 articulates program eligibility requirements. In the 
interim final rule, NRCS made several adjustments to Sec.  636.4(b) to 
incorporate the 2008 Act changes to land eligibility and to conform the 
eligibility language to the new definitions described in Sec.  636.3. 
In particular, NRCS identified in Sec.  636.4(b) that eligible lands 
included agricultural land, NIPF, and Indian land as defined in Sec.  
636.3. Most of the comments received for this section focused on 
eligible lands and the role of other agencies in determining what lands 
are eligible for WHIP assistance.

Land Eligibility

    Comments: Several respondents were disappointed that NRCS limited 
the program to private agricultural lands, NIPF, and tribal lands, 
stating that a lot of wildlife benefits can occur on public lands. 
Another respondent recommended that the public lands restriction be 
revised when significant habitat gains can accrue on public lands, 
while another respondent suggested that NRCS allow public lands if it 
is a working component of the participant's agricultural or forestry 
operation, and where an at-risk species on private land would benefit. 
Ten respondents suggested that public lands leased by private 
landowners who have control over the land for the contract period be 
eligible. Nine of those respondents also wanted NRCS to allow public 
lands that were held in trust for the beneficiaries of a State's 
education system. Another respondent requested that WHIP allow for a 
small number of strategically located projects on private non-
agricultural land, State, or locally-owned public lands.
    Response: The 2008 Act amended section 1240N of the Food Security 
Act of 1985, as amended to limit WHIP's scope to ``wildlife habitat on 
private agricultural land, NIPF, and tribal lands.'' Consequently, 
public lands are ineligible for WHIP assistance, even those leased by 
private landowners or States' education systems. Based on this 
authority, WHIP's activities on streams and waterways are limited to 
the extent that these lands are considered private lands. The final 
rule is being revised to provide that certain trust lands are eligible 
for assistance.

Hawaii and Other Pacific Trust Lands

    Comments: Several respondents requested that NRCS allow public 
leaseholder land in the State of Hawaii to be eligible for WHIP cost-
share assistance. In addition to Hawaii homelands, several respondents 
also requested that NRCS expand the definition of Indian land beyond 
tribal and trust land held by Alaska Natives to include trust lands in 
the Pacific.
    Response: The respondents accurately note that many public trust 
lands in Hawaii and other Pacific locations operate as the equivalent 
of private land and leaseholders hold such land under very long-term 
leases (99 years in the case of Hawaii) and often without any payment 
to the government at issue including any requirement to share any 
profits made from agricultural operations. While such trust lands 
cannot fall under the statutory definition of tribal lands as urged by 
the

[[Page 71332]]

respondents, as set forth below, the rule is being revised to make such 
trust lands eligible for WHIP assistance when the Chief determines 
trust land is held under a long-term lease by a person or 
nongovernmental entity and when the Chief determines that (i) By the 
nature of the lease, such land is tantamount to private agricultural 
land; (ii) the duration of the lease is at least the length of any WHIP 
agreement; and (iii) no funds under the WHIP program are paid to a 
governmental entity.
    Comments: Ten respondents requested that NRCS allow stream systems, 
including stream bottoms, to be eligible, while another respondent 
requested that NRCS allow streams to be eligible if the activity is for 
dam removal. Six respondents requested that NRCS allow stream systems 
to be eligible when the landowner who operates the land within these 
landscapes is willing to participate. Two respondents supported the 
rationale to allow streams to be enrolled, particularly if it is public 
land that remains under private control during the contract period. Two 
respondents stated that the intent of WHIP was to limit WHIP's use in 
State Parks and wildlife areas, not where private land surrounds the 
stream or waterway.
    Response: NRCS will enroll streams and stream bottoms provided the 
governmental entity with authority over State or Federal waters 
provides documentation certifying that the stream and the stream bottom 
are considered private land. The processes for obtaining this approval 
will be outlined in 440 Conservation Programs Manual, Part 517, Section 
517.22 Eligibility.
    Comments: Section 1240N(b) directs the Secretary to ``make cost-
share payments to owners of lands referred to in subsection (a) to 
develop (A) upland wildlife habitat; (B) wetland wildlife habitat; (C) 
habitat for threatened and endangered species; (D) fish habitat; and 
other types of wildlife habitat approved by the Secretary, including 
habitat developed on pivot corners and irregular areas.'' One 
respondent supported Congress' addition of pivot corners into WHIP.
    Response: Prior to the 2008 Act, the existing WHIP regulation 
encompassed habitats on areas such as pivot corners; therefore, NRCS 
determined that it did not need to amend the final rule, although the 
preamble clarified that pivot corners were considered eligible lands.
    Comments: Several respondents requested that NRCS involve other 
agencies in the determination of public lands. Specifically, four 
respondents recommended that NRCS modify 636.4(c), to allow the USFWS 
and State agencies to be involved in determining land that is 
ineligible. Specifically, they request that NRCS revise paragraph (c) 
as follows: ``Ineligible land. NRCS will not provide cost-share 
assistance if after coordination with the State fish and wildlife 
agency and USFWS with respect to conservation practices on land * * *''
    Response: NRCS chooses to retain the interim final rule's language 
in Sec.  636.4 which does not specify consultation with State fish and 
wildlife agencies or USFWS. The State Conservationist may consult with 
the State fish and wildlife agency and USFWS on ineligible land 
determinations as stated in 440 Conservation Programs Manual, Part 517, 
Section 517.22; however, the final decision rests with the State 
Conservationist.
    Comments: One respondent requested that NRCS broaden the scope of 
Sec.  636.4(c)(3) to include not just threatened and endangered 
species, but also at-risk species. In essence, the respondent requested 
that NRCS not provide assistance on land where at-risk species may be 
adversely affected, while two additional respondents requested that 
NRCS expand the list to proposed or candidates for listing under ESA or 
likely to become candidates under ESA or similar classification under 
State law.
    Response: NRCS retains the reference to threatened and endangered 
species in Sec.  636.4(c)(3), since the proposed categorized species 
are broader categories of species that are experiencing population 
decline and such species may not undergo the same scrutiny and 
information gathering process in their labeling as threatened or 
endangered species.
    Comments: Section 636.4(c)(4) sets forth the types of lands 
ineligible for WHIP assistance. Three respondents requested that NRCS 
revise Sec.  636.4(c)(4) regarding ineligible land to read: ``Lands 
owned in fee title by an agency of the United States, other than land 
held in trust for Indian tribes, and (ii) lands owned in fee title by a 
State, including an agency or subdivision of a State or a unit of 
government.''
    Response: NRCS supports the recommended wording change and adopts 
it.

Person Eligibility

    Comments: Several respondents commented on person eligibility. One 
respondent supported NRCS' ability to grant waivers for persons and 
legal entities who exceed the Adjusted Gross Income (AGI) limitation as 
specified in 7 CFR part 1400. Section 1400.500 allows the Chief to 
grant a waiver ``for the protection of environmentally sensitive land 
of special significance.'' Such a waiver proves helpful to States like 
Hawaii, where high real estate prices, wealthy landowners, and critical 
natural resources exist. Two respondents questioned whether tribes were 
exempt from the AGI limitation.
    Response: Tribes are exempt from AGI limits in accordance with 7 
CFR part 1400, ``Farm Program Payment Limitation and Payment 
Eligibility for 2009 and Subsequent Crop, Program, or Fiscal Years.''
    Comments: One respondent requested that WHIP should reflect the 
policy outlined in 7 CFR part 1466, EQIP, which clearly exempts Indian 
tribes or Indians represented by the Bureau of Indian Affairs (BIA) 
from the limitations.
    Response: 7 CFR 1400.4 excludes tribes from payment limitation and 
eligibility provisions related to the AGI: ``Provisions of this part do 
not apply to Indian tribes as defined in section 1400.3.'' The 
regulation's corresponding preamble states the following:

    ``In this rule, section 1400.4 exempts Indian tribes, as defined 
in 1400.3, from all requirements of this part. Provisions of this 
part apply to persons or legal entities. Indian tribes are not 
included under the definition of person or legal entity as provided 
by the 2008 Act for the application of payment eligibility and 
payment limitation provisions. The 2008 Act does not impose any 
limitations or restrictions on programs payments and benefits to 
federally recognized Indian tribes. This exemption to the provisions 
of this part only applies to Indian tribes. The payment eligibility 
and payment limitation requirements remain applicable to individual 
American Indians or Alaska Natives receiving program payment and 
benefits as individuals, or through a group in which all members of 
the group are American Indians or Alaska Natives.''

    For this reason, persons and legal entities within the tribe will 
be subject to limitations in accordance with Sec.  636.4(a)(9); 
however, payments made to tribal groups may exceed the payment 
limitation if the BIA or a tribal official certifies that no one 
individual will receive more than the established payment limitation.
    Comments: As it relates to tribes, one respondent requested that 
NRCS form a partnership via a Memorandum of Agreement or MOU between 
NRCS and the tribe to ensure that tribal members comply with tribal law 
before applying for WHIP benefits as well as operational consideration. 
An individual tribal member must comply with a tribal management plan 
and be able to show proper documentation for land control pursuant to 
the tribal nation.

[[Page 71333]]

    Response: The NRCS policy is to work with all tribes to meet all of 
their resource needs. No changes were made to the final rule.
    Comments: Related to payment matters, one respondent requested that 
NRCS rephrase Sec.  636.9(c) to add: ``Deferment will be eligible for 
payments for foregone income when deferment of use is needed to meet 
habitat need and achieve program objectives.''
    Response: Section 1240N identifies that NRCS is to provide cost-
share assistance to private agricultural landowners to develop wildlife 
habitat. The statutory authority does not restrict cost-share 
assistance to any particular identified aspect of the cost of habitat 
development. As can be gleaned from other financial assistance 
programs, the costs associated for implementing a conservation 
practice, activity, or other fish and wildlife habitat development 
action includes the income forgone from its implementation, and thus, 
income foregone is an appropriate consideration for determining the 
level of cost-share assistance that should be made available under the 
program. Therefore, NRCS will review and develop payment rates wildlife 
habitat development actions where the income foregone by the WHIP 
participant to implement those actions is appropriate to be included in 
the cost-share payments made under the WHIP contract. NRCS has made 
editorial adjustments throughout the final rule to clarify that cost-
share assistance is available for the implementation of cost-share 
practices, activities, and other habitat development actions, and that 
such cost-share assistance includes income foregone. Therefore, NRCS 
has added a new term, ``conservation activities,'' to encompass the 
range of habitat development actions eligible for cost-share 
assistance, and incorporated the term throughout the final rule where 
appropriate.
    Comments: One respondent suggested that NRCS clarify when the 
operation and maintenance (O&M) agreement will be signed.
    Response: The O&M agreement will continue to be signed at the time 
that the WHIP plan of operations cost-share agreement is signed. In 
accordance with Sec.  636.8, the WHIP plan of operations forms the 
basis for the WHIP cost-share agreement, along with the O&M agreement. 
The WHIP plan of operations includes a schedule for the implementation 
and maintenance of the conservation activities, as determined by NRCS.

Section 636.5 National Priorities

    Section 636.5 provides that NRCS will establish national priorities 
to guide funding to the State offices, selection of WHIP cost-share 
agreements, and implementation priority for WHIP conservation 
practices.
    Comments: NRCS received over 20 comments pertaining to WHIP's 
national priorities. Nine respondents supported WHIP's national 
priorities outlined in section 636.5(a). Several others supported 
WHIP's priorities, but wanted to see pollinators addressed as part of 
the priorities. Several of those respondents wanted only native 
pollinators to be considered national priorities. Another respondent 
wanted honey bees to be a national priority. Six respondents requested 
giving priority to unique habitats or special geographic areas 
identified by the State, while two other respondents requested that 
natural disasters, such as catastrophic wildfires, insect and disease 
outbreaks, invasive, and other natural disasters be considered a 
national priority. Several respondents requested that WHIP address 
these priorities and other additional priorities identified in section 
8001 of the 2008 Act.
    Response: Although these are good comments, they are too specific. 
The existing WHIP national priorities are broad and include these 
recommendations.
    Comments: One respondent requested that WHIP address State, 
regional, or national conservation initiatives in its list of national 
priorities.
    Response: NRCS believes that it is not necessary to add this last 
recommendation to Sec.  636.5, since State, regional, and national 
conservation initiatives are already addressed in Sec.  636.6, 
``Establishing priority for enrollment in WHIP.''
    Comments: One respondent requested that NRCS add the following to 
its list of priorities: ``(a)(5) Protect, restore, develop, or enhance 
important migration and other movement corridors for wildlife.''
    Response: NRCS has added the above-mentioned migration or movement 
corridor to 636.5 (a)(5) as WHIP's fifth national priority since it is 
neither species nor land-use specific.
    Comments: Several organizations commented on WHIP's priority 
setting process. One respondent would like the process for establishing 
national priorities promulgated in the regulation, while others 
requested outside agency input.
    Response: NRCS is not making changes to the final rule in response 
to these comments because the rulemaking process enables respondents to 
comment on WHIP's national priorities. In addition, Sec.  636.5(b) 
articulates the policy to undertake periodic review of the agency's 
national priorities.

Section 636.6 Establishing Priority for Enrollment in WHIP

    Section 636.6 establishes the policies and procedures for enrolling 
lands in WHIP at the State and local levels.
    Comments: A majority of the comments received focused on priority 
setting, requesting that NRCS name specific priorities and policies in 
the regulation, while others commented on specific ranking criteria. 
Other respondents supported NRCS' emphasis on local input, while others 
raised concern about the Chief being able to limit the program to 
specific geographic areas. Finally, some respondents requested specific 
wording changes.
    For example, several respondents requested amending Sec.  636.6 to 
add after paragraph (a): ``These conservation initiatives may include 
such things as the North American Waterfowl Management Plan, the 
National Fish Habitat Action Plan, the Greater Sage-Grouse Conservation 
Strategy, the State Comprehensive Wildlife Conservation Strategies 
(also referred to as the State Wildlife Action Plan), the Northern 
Bobwhite Conservation Initiative, and State forest resource 
st