[Federal Register Volume 75, Number 130 (Thursday, July 8, 2010)]
[Rules and Regulations]
[Pages 39135-39143]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-16656]
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DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
7 CFR Part 1455
RIN 0560-AH98
Voluntary Public Access and Habitat Incentive Program
AGENCY: Farm Service Agency and Commodity Credit Corporation, USDA.
ACTION: Interim rule.
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SUMMARY: This rule establishes the Commodity Credit Corporation (CCC)
regulations for the Voluntary Public Access and Habitat Incentive
Program (VPA-HIP). This is a new program authorized by the Food,
Conservation, and Energy Act of 2008 (the 2008 Farm Bill). The purpose
of VPA-HIP is to provide grants to State and tribal governments to
encourage owners and operators of privately-held farm, ranch, and
forest land to voluntarily make that land available for access by the
public for wildlife-dependent recreation, including hunting, fishing,
and other compatible recreation and to improve fish and wildlife
habitat on their land, under programs administered by State or tribal
governments.
DATES: Effective Date: This interim rule is effective July 8, 2010.
Comment Date: We will consider comments that we receive by
September 7, 2010.
ADDRESSES: We invite you to submit comments on this interim rule. In
your comment, include the volume, date, and page number of this issue
of the Federal Register. You may submit comments by any of the
following methods, however, we strongly encourage using the first
address to submit your comment through http://www.regulations.gov:
Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
Mail: Director, Conservation and Environmental Programs
Division (CEPD), U.S. Department of Agriculture (USDA) FSA CEPD, STOP
0513, 1400 Independence Avenue, SW., Washington, DC 20250-0513.
Hand Delivery or Courier: Deliver comments to the above
address.
Comments may be inspected at the mail address listed above between
8 a.m. and 4:30 p.m., Monday through Friday, except holidays. A copy of
this interim rule is available through the Farm Service Agency (FSA)
home page at http://www.fsa.usda.gov/.
FOR FURTHER INFORMATION CONTACT: Robert Stephenson, Director, CEPD;
telephone 202-720-6221; e-mail: [email protected]. Persons with
disabilities who require alternative means for communication (Braille,
large print, audiotape, etc.) should contact the USDA Target Center at
202-720-2600 (voice and TDD).
SUPPLEMENTARY INFORMATION:
Background
Section 2606 (16 U.S.C. 3839bb-5) of the 2008 Farm Bill (Pub. L.
110-246) authorizes a new VPA-HIP. VPA-HIP provides a new opportunity
for State and tribal governments to apply for grants to encourage
owners and operators of privately-held farm, ranch, and forest land to
voluntarily make that land available for access by the public for
wildlife-dependent recreation, including hunting, fishing, and other
[[Page 39136]]
compatible recreation and to improve fish and wildlife habitat on their
land under programs administered by State or tribal governments.
Only State and tribal governments are eligible for VPA-HIP. Grants
will be awarded through a competitive Request for Applications (RFA)
process. State and tribal governments may propose to use VPA-HIP grant
funding to expand existing public access programs or create new public
access programs, or provide incentives to improve habitat on enrolled
program lands. As specified in the 2008 Farm Bill, funding priority
will be given to applications that will use the grant money in a public
access program to address the following program objectives:
(1) Maximize participation by landowners;
(2) Ensure that land enrolled in the program has appropriate
wildlife habitat;
(3) Provide incentives to strengthen wildlife habitat improvement
efforts on Conservation Reserve Enhancement Program (CREP) land;
(4) Supplement funding and services from other Federal, State,
tribal government, or private resources that is provided in the form of
cash or in-kind services; and
(5) Provide information to the public about the location of public
access land.
CCC will evaluate how applications enhance fish and wildlife
habitat on lands and waters made available for public access and use
additional evaluation criteria, as specified in this rule and in the
RFA, to select the applications that best support these program goals.
The 2008 Farm Bill authorizes $50 million for VPA-HIP through 2012. We
anticipate that more applications will be received than available
funding, so this will be a competitive grant program.
Currently, 26 States have public access programs for hunting,
fishing, and other related activities. These programs provide rental
payments and other incentives, such as technical or conservation
services to landowners who allow the public to hunt, fish or otherwise
appropriately recreate on their land. An unknown number of tribal
governments have similar public access programs. The majority of the
existing programs have limited scope and budgets; most existing
programs have an annual budget of under a million dollars per year. The
goals of these existing programs include providing access for wildlife-
associated recreation, wildlife management, helping local economies
that depend on revenue from hunters, and encouraging conservation. The
funding provided by VPA-HIP will help State and tribal governments
address many issues that can greatly increase access and recreational
experiences. Grant recipients will be able to use the funding to
provide higher rental payments, provide technical and conservation
services to landowners, and increase acreage enrolled for public access
while fulfilling grant requirements under VPA-HIP. VPA-HIP will
specifically give priority to applications that will use the funds to
maximize landowner participation and public use, and make information
about public access land widely available. Provisions requiring
appropriate wildlife habitat will address concerns about limited
wildlife population associated with poor or inadequate wildlife
habitat. Nothing in VPA-HIP or regulation preempts liability laws that
may apply to activities on any property related to grants made in this
program.
Terms Used in This Rule
The 2008 Farm Bill uses the term ``farm, ranch, or forest land''
and only provides that the grants allowed by VPA-HIP be directed at
access to ``privately-held'' lands. In implementing VPA-HIP, for
consistency with other USDA programs, the ``farmland'' definition in
this rule draws on the definition used in general for Farm Programs
that is in 7 CFR 718.2 and which basically encompasses all land on any
property that includes cropland including forest land used for the
production of timber. There is no need for a separate definition for
``ranch land'' and hence the ``ranch land'' definition will simply
refer back to the ``farmland'' definition. In this rule, the term
``forest land'' is given the same meaning that the USDA Forest Service
uses in its Forest Inventory and Analysis Program. This definition is
documented in the Forest Service General Technical Report WO-78,
``Forest Resources of the United States, 2007.'' We are adding the
definition into 7 CFR 1455.2(b). These definitions should be broad
enough to cover within them all properties that are within the intended
scope of the 2008 Farm Bill and of this rule. In turn, this rule
defines ``privately-held'' land to mean land owned or operated by an
individual or entity that is not a government or Tribe or subdivision
or agency of a government or Tribe. For example, State and tribal
governments cannot use funding from VPA-HIP to encourage public access
on local government land, State-owned forest land, or land owned by a
public university.
The terms ``State'' and ``State government'' as used in this rule
mean any State or local government, including, but not limited to
State, city, town, or county government, State Universities, and other
units of State government. This is consistent with the way the term
``State government'' is used in other CCC programs.
The term ``tribal government'' refers to Federally-recognized
tribes as defined in section 4(e) of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450b(e)). This definition is
consistent with other CCC and FSA regulations.
The term ``wildlife-dependent recreation'' refers to activities
such as hunting, fishing, wildlife observation, photography, and
environmental education and interpretation.
Eligibility, Application Process
Only State and tribal governments may apply for grants under VPA-
HIP.
On behalf of CCC, FSA will publish periodic VPA-HIP RFA's via
http://www.grants.gov. Applications will be evaluated and selections
made using the criteria specified in this rule and in the RFA.
The result of a successful application will be a grant for up to 3
years, consistent with the time limits in the 2008 Farm Bill and the
terms of the grant. Successful applicants will be required to sign a
grant agreement with CCC. The grant agreement will include reporting
and recordkeeping requirements that are consistent with other FSA and
CCC programs. Under the 2008 Farm Bill CCC is, to the maximum extent
practicable, to make $50 million of CCC funds available under VPA-HIP
through the 2012 fiscal year (which ends in September 30, 2012). This
is not, however, an entitlement program, and it is possible that not
all of the funds will be expended should there not be sufficient
desirable applications offered. All projects are subject to the
approval of CCC and the regulation reserves CCC's right to reject any
and all projects for any reason deemed sufficient to the agency.
Application Selection Criteria
As discussed earlier, the 2008 Farm Bill requires that CCC give
priority to applications that address five program objectives. These
program objectives were used to develop the criteria that will be used
to evaluate applications and select grant recipients. This section
describes those evaluation criteria.
The first program objective required by the 2008 Farm Bill is that
CCC give priority to applications that ``maximize participation by
offering a program the terms of which are likely to meet with
widespread acceptance among
[[Page 39137]]
landowners.'' Maximizing voluntary participation and achieving
widespread acceptance can include activities and performance goals
which may include but are not limited to:
Increasing the number of acres made available for access
by the public,
Increasing the number of acres of appropriate fish and
wildlife habitat,
Increasing the number of landowners participating in the
in the State and tribal government programs.
Measuring or assessing impact of program delivery can be done by
activities such as participation surveys, the number of acres enrolled,
and the amount and nature of inquiry correspondence. A successful
application should describe how the program will address maintaining
and enhancing wildlife habitat, any foreseen enrollment barriers, as
well as describing any financial incentives the program may provide to
landowners. As discussed earlier, the landowners incentivized by this
program must be private land owners. Incentives may include, but are
not limited to compensation for public access to land, and technical
and conservation services provided.
A second program objective required by the 2008 Farm Bill that will
be used as an evaluation criterion is ``to ensure that the land
enrolled under the State or tribal government program has appropriate
wildlife habitat.'' State and tribal governments with existing
wildlife-dependent public access programs such as walk-in hunting, open
fields, bird watching access, or similar programs must ensure that land
enrolled in these programs have appropriate habitat for the wildlife.
The application should describe how the grantee will ensure that the
habitat for the wildlife on land already enrolled in the program will
be maintained throughout the duration of the grant. State and tribal
governments that are initiating new wildlife-dependent public access
programs should demonstrate that they have the expertise to ensure that
they can successfully carry out the objectives of VPA-HIP.
State and Tribal, as applicable, Wildlife Action Plans may help
States and Tribes to identify likely opportunities. Congress charged
each State with developing a Statewide wildlife action plan to make the
best use of the Federal funds provided through certain Federal
programs. These plans should provide vital information to help conserve
wildlife and vital natural areas before they become more rare and more
costly to protect. State fish and wildlife agencies developed these
strategic action plans by working with a broad array of partners,
including scientists, sportsmen, conservationists and members of the
community.
The wildlife action plans were required to assess the condition of
each State's wildlife and habitats, identify the problems they face,
and outline the actions that are needed to be conserve them over the
long term. The wildlife action plans identify a variety of actions
aimed at preventing wildlife from declining to the point of becoming
endangered. By focusing on conserving the natural lands and clean
waters that provide habitat for wildlife, the plans have important
benefits for wildlife and people.
In addition to specific conservation projects and actions, the
plans describe many ways we can educate the public and private
landowners about effective conservation practices. Finally, the plans
also identify the information needed to improve knowledge about what
kinds of wildlife are in trouble so we can decide what action to take.
A third program objective required by the 2008 Farm Bill that will
be used as an evaluation criteria is ``to strengthen wildlife habitat
improvement efforts'' on land enrolled in CREP. CREP is a CCC program
that supports the Conservation Reserve Program (CRP) in some States
with additional funding for specific environmental activities. Under
CREP, CCC enters into an agreement with State officials who commit
financial and other resources to target areas of important
environmental need. Currently, 31 States have CREP agreements with CCC.
VPA-HIP applications that explain in detail how their application will
strengthen wildlife habitat improvement efforts on land enrolled
according to a CREP agreement will, all else being equal, receive
priority over applications that do not provide such detailed
explanation where CREP agreements are in place. States and Tribes
without CREP agreements will not be able to address this objective, but
will still be eligible to apply for and receive grants based on other
applicable evaluation criteria.
State and tribal governments that choose to integrate CREP with
public access should describe how increased public access for the
purposes of wildlife dependent recreation will benefit both VPA-HIP and
CREP. Integrations of conservation activities with hunting, fishing,
and wildlife viewing may allow for land management that balances game
species population growth and fosters a higher quality of habitat
conditions. State and tribal governments should cite the specific
activities and conservation practices that they intend to target, such
as increasing and improving CREP wildlife food plots, nesting areas,
shallow water areas for wildlife, and wildlife habitat corridors.
Activities and practices described in the application should
provide support for the healthy development and maintenance of
appropriate wildlife habitat. State or tribal governments must ensure
that their VPA-HIP application is consistent with the purposes and
provisions of CRP and CREP when the enrolled acres coincide. State or
tribal governments that consider using VPA-HIP funding as a ``cost-
share'' as opposed to an incentive or other form of payment, need to be
aware that the CRP legislative authority and the implementing
regulations in 7 CFR 1410.40 require that a CRP participant refund
USDA's CRP or CREP cost-share assistance if it receives any other
Federal cost-share assistance. Funding provided through VPA-HIP as a
cost-share would, for the purposes of 7 CFR 1410.40, be considered to
be such other Federal cost-share assistance.
A fourth program objective required by the 2008 Farm Bill that will
be used as an evaluation criterion is the extent to which the proposed
program will ``use additional Federal, State, tribal government, or
private resources in carrying out the program.'' The application should
specify how those resources will be used for various activities and
planning that strengthen the feasibility of program success and help
achieve intended benefits. Many programs have similar goals and
intended benefits that complement the VPA-HIP goals. Applications that
include combining VPA-HIP funds with other program resources that have
similar goals, such as State public access programs, Natural Resource
Conservation Service's Wildlife Habitat Incentive Program, wildlife and
conservation non-government organizations, will, all else being equal,
be given a priority over applications that do not.
These other program resources may be either monetary or in-kind
services. In-kind services can aid program delivery and planning and
must be quantified in units such as hours of staff time (labor value),
office space (rental value), technical or conservation services
(service value), equipment (product value), or the like.
For State and tribal governments that choose to include additional
State or local funds in their application, commitments must be
documented by an appropriate authority that will be supplying those
resources.
[[Page 39138]]
The fifth program objective required by the 2008 Farm Bill that
will be used as an evaluation criterion is ``to make available to the
public the location of land enrolled.'' A common barrier to
participation in existing State public access programs is a lack of
detailed information on where such land is and how to legally access
it. For State and Tribal VPA-HIP programs, public disclosure of private
lands enrolled in VPA-HIP may be conveyed through a variety of media
including, but not limited to, Web site listings, printed listings or
map books, online access maps, and recorded telephone information.
Process for Evaluation of Applications and Award of Grants
After State and tribal governments submit applications, FSA, on
behalf of CCC, will conduct an initial screening of all applications to
determine whether the applicant is eligible and whether the application
is complete and sufficiently responsive to the requirements specified
in the RFA so as to allow for an informed review. Incomplete
applications will not be evaluated further. CCC will notify applicants
of the status of their initial screening, if time allows. Applicants
may revise their applications and re-submit them prior to the published
deadline if there is sufficient time to do so. FSA will appoint an
inter-agency review panel to evaluate the applications. State and
tribal government applications will be considered using the same
selection criteria.
If the amount requested in the applications exceeds the available
funding, FSA may use additional criteria for selection which could
include, but not be limited to:
The distribution of funds between State and tribal
governments;
The distribution of funds between new programs and
existing programs; and
The need to target funding to address specific types of
wildlife dependent recreation and public access.
We expect interest in VPA-HIP to exceed the available funding.
Through VPA-HIP, grants to any individual State or Tribe will be no
more than $2 million per year and no less than $75,000 per year.
We considered allocating the funding equally across all eligible
applicants, or providing funding only to applicants that already have
public access programs, but decided that it would be more effective to
have a fully competitive RFA process. Since the 2008 Farm Bill requires
that we give ``priority'' to applicants that address certain VPA-HIP
goals, we decided that providing funding on a competitive basis to
applicants that best meet those objectives would be appropriate.
The evaluation criteria will be carefully constructed to fairly
consider expected benefits from both existing and new programs so as
not to favor existing programs over applications for new programs. For
example, an existing program might score high on a feasibility
criterion and have specific methods in place to demonstrate wildlife
habitat monitoring, but a new program might be able to demonstrate
greater expected benefits, since that program would be starting from a
baseline of zero benefits.
Responsibilities of Participants
Successful applicants will be required to sign an agreement with
CCC and provide detailed budget and schedule information. The agreement
will require periodic financial and program achievement reports.
The agreement will also require compliance with other USDA
regulations that apply to grants, including civil rights, restrictions
on lobbying, and drug-free workplace. Grantees will be required to
comply with audit requirements in 7 CFR part 3052.
During the term of the grant, the grantee will be required to
obtain prior approval for any changes to the scope, objectives, or
funding allocation of the approved agreement. Failure to obtain prior
approval of such changes may be considered a violation and in such case
the grantee may be required to return all grant funds. Funds cannot be
used to pay for buildings or fixed equipment. The list of prohibited
grant funding uses is specified in the rule and will be specified in
the agreement.
Reductions for Inconsistent Migratory Bird Hunting Opening Dates
The 2008 Farm Bill requires that, before a grant may be awarded,
FSA examine migratory bird hunting season dates for an applicant who is
a State government. If a State government has different opening dates
for migratory bird hunting for residents versus non-residents, the
grant amount will be reduced by 25 percent. Inconsistent migratory bird
hunting opening dates will not be an evaluation factor in selecting
applications; it will be taken into account only after applications are
selected. This reduction will not be applied to applications made by
tribal governments, as specified in the 2008 Farm Bill.
This reduction will apply to all applications by State governments,
even for applications when the purpose of the grant is not related to
migratory bird hunting in a State. Opening dates must remain consistent
throughout the term of the grant. If opening dates for migratory bird
hunting are changed by a State during the term of the grant such that
the dates are inconsistent for residents and non-residents, 25 percent
of the grant funding must be refunded.
Relationship to Other Laws
The 2008 Farm Bill provides that VPA-HIP does not preempt a State
or tribal government law including any State or tribal liability law.
The government-wide debarment and suspension (non procurement)
provisions of the Federal Acquisition Regulations (FAR), as adopted in
7 CFR 3017, will apply only to contractors and subcontractors. If a
grantee chooses to use grant awards to contract or sub-contract with a
person or company, then that person or company must not have been
suspended or debarred under the FAR prior to or during contracting.
Miscellaneous
The appeals provisions in 7 CFR parts 11 and 780 will apply to VPA-
HIP. Highly erodible land and wetland conservation provisions in 7 CFR
part 12 will apply to VPA-HIP. Any State or tribal government that
violates highly erodible land and wetland conservation provisions will
be ineligible for program benefits; if it is determined after a payment
is issued for VPA-HIP that a violation occurred, then repayment of the
benefit plus interest would be required.
Outreach to Tribal Governments
As part of implementing VPA-HIP, FSA will conduct outreach efforts
to inform the Tribal Governments of federally-recognized tribes about
VPA-HIP. Two primary mechanisms for initiating the outreach efforts
will include the National Congress of American Indians (NCAI) and the
contact lists of federally recognized tribes.
Notice and Comment
CCC is not 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. CCC is authorized by section 2904 of the 2008 Farm
Bill to issue an interim rule effective on publication with an
opportunity for comment.
Executive Order 12866
This rule has been determined to be significant and was reviewed by
the Office of Management and Budget
[[Page 39139]]
(OMB) under Executive Order 12866. The cost benefit analysis is
summarized below and is available from the contact information listed
above.
Summary of Economic Impacts
The 2008 Farm Bill provides CCC funds through VPA-HIP for fiscal
years 2009 through 2012; total available funding is $50 million. Based
on the current number of States (at least 15) that could meet all five
evaluation criteria with existing public access programs, we expect to
receive applications for more than the full amount of available
funding.
The benefits from a public access program stem from the value
placed on hunting, fishing, and other outdoor recreation activities are
a function of the number of times these activities are undertaken and
the satisfaction from these opportunities. The benefits will be where
landowners permit access. VPA-HIP benefits are the sum of:
Value from increased access to hunting, fishing, and
outdoor recreation opportunities;
Savings from reduced transaction costs between landowners
and outdoor recreationists;
Enhanced wildlife populations from expanded and improved
wildlife habitat; and
Expanded economic activity such as equipment sales, and
increased restaurant and motel expenditures.
VPA-HIP is expected to provide $50 million, the total authorized
funding, to States and tribal governments. The expected benefits to
hunters and other users of public access land due to the resulting
expansions and improvements to State and tribal government public
access programs are expected to exceed $51 million.
Regulatory Flexibility Act
This rule is not subject to the Regulatory Flexibility Act since
CCC is not required to publish a notice of proposed rulemaking for this
rule. CCC is authorized by section 2904 of the 2008 Farm Bill to issue
an interim rule effective on publication with an opportunity for
comment.
Environmental Review
The State or Tribal government applying for VPA-HIP funds will be
required to prepare a Programmatic Environmental Assessment (PEA) in a
manner consistent with the provisions of the National Environmental
Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations of the Council
on Environmental Quality (40 CFR parts 1500-1508), and FSA regulations
for compliance with NEPA (7 CFR part 799). The PEA must assess the
current public access program, if one exists, and the proposed
alternative policies for implementation of the current or proposed
public access program if funding is received from FSA. The purpose of
the PEA is to evaluate the impacts of expanding public access,
including but not limited to, those associated with general ranch
maintenance, conservation efforts, weed control, fire protection,
roads, fences, and parking area maintenance. Consistent with 40 CFR
1501.4(c), the PEA will be used to determine if the receipt of Federal
funds will constitute a major Federal action significantly affecting
the quality of the human environment and if an Environmental Impact
Statement needs to be prepared.
Executive Order 12372
This program is not subject to Executive Order 12372, which
requires consultation with State and local officials. See the notice
related to 7 CFR part 3015, subpart V, published in the Federal
Register on June 24, 1983 (48 FR 29115).
Executive Order 12988
This interim rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule does not preempt State and or local
laws, and regulations, or policies unless they present an
irreconcilable conflict with this rule. Before any judicial action may
be brought concerning the provisions of this rule, appeal provisions of
7 CFR parts 11 and 780 must be exhausted. As specified in the 2008 Farm
Bill, this interim rule does not preempt a State or tribal government
law, including any State or tribal government liability law.
Executive Order 13132
The policies contained in this rule do not have any substantial
direct effect on States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Nor does this
rule impose substantial direct compliance costs on State and local
governments. Therefore, consultation with the States is not required.
Executive Order 13175
The policies contained in this rule do not impose substantial
unreimbursed direct compliance costs on Indian tribal governments or
have tribal implications that preempt tribal law.
USDA will undertake, within 6 months after this rule becomes
effective, a series of at least six regulation Tribal consultation
sessions to gain input by Tribal officials concerning the impact of
VPA-HIP on Tribal governments, communities, and individuals. These
sessions will establish a baseline of consultation for future actions,
should any become necessary, regarding the VPA-HIP regulations. Reports
from these sessions for consultation will be made part of the USDA
annual reporting on Tribal Consultation and Collaboration. USDA will
respond in a timely and meaningful manner to all Tribal government
requests for consultation concerning the VPA-HIP regulation and will
provide additional venues, such as webinars and teleconferences, to
periodically host collaborative conversations with Tribal leaders and
their representatives concerning ways to improve VPA-HIP in Indian
country.
Tribal governments will be notified of VPA-HIP by direct
notification of the Tribal elected official via regular mail; by e-mail
notification to the Tribal elected official; and by notifying the
National Congress of American Indians and other intertribal
organizations relevant to VPA-HIP. Additional notification will be
given to key intertribal organizations working with individual Indian
farmers and through outreach to nonprofit and community based
organizations known to work the Tribal producers. FSA will also ensure
that review panel membership described in this rule has appropriate
representation reflecting Tribal governments and intertribal
organizations knowledgeable of recreational use on Tribally-owned
lands.
Unfunded Mandates
This rule contains no Federal mandates under the regulatory
provisions of Title II of the Unfunded Mandate Reform Act of 1995
(UMRA, Pub. L. 104-4). In addition, CCC is not required to publish a
notice of proposed rulemaking for this rule. Therefore, this rule is
not subject to the requirements of sections 202 and 205 of UMRA.
Federal Assistance Program
The title and number of the Federal assistance program in the
Catalog of Federal Domestic Assistance, to which this rule applies, is
the Voluntary Public Access and Wildlife Habitat Incentive Program--
10.093.
Paperwork Reduction Act
The regulations in this rule are exempt from the requirements of
the Paperwork Reduction Act (44 U.S.C. chapter 35), as specified in
section 2904 of the 2008 Farm Bill, which provides that these
regulations be promulgated
[[Page 39140]]
and the programs administered without regard to the Paperwork Reduction
Act.
E[dash]Government Act Compliance
CCC is committed to complying with the E-Government Act, to promote
the use of the Internet and other information technologies to provide
increased opportunities for citizen access to Government information
and services, and for other purposes.
List of Subjects in 7 CFR Part 1455
Agriculture, Animals, Environmental protection, Fishing, Forests
and forest products, Grant programs, Hunting, Indians, Indians-lands,
Natural resources, Recreation and recreation areas, Rural areas, State
and local governments, Wildlife.
0
For the reasons discussed above, this rule adds 7 CFR part 1455 as
follows:
PART 1455--VOLUNTARY PUBLIC ACCESS AND HABITAT INCENTIVE PROGRAM
Sec. 1455.1 Purpose and administration.
Sec. 1455.2 Definitions.
Sec. 1455.10 Eligible grant applicants.
Sec. 1455.11 Application procedure.
Sec. 1455.20 Criteria for grant selection.
Sec. 1455.21 Responsibilities of grantee.
Sec. 1455.30 Reporting requirements.
Sec. Sec. 1455.31 Miscellaneous.
Authority: 15 U.S.C. 714b and 714c; 16 U.S.C. 3839.
Sec. 1455.1 Purpose and administration.
(a) The purpose of this part is to specify requirements and
definitions for the Voluntary Public Access and Habitat Incentive
Program (VPA-HIP).
(b) VPA-HIP provides, within funding limits, grants to State and
tribal governments to encourage owners and operators of privately-held
farm, ranch, and forest land to voluntarily make that land available
for access by the public for wildlife-dependent recreation, including
hunting and fishing under programs administered by State and tribal
governments. VPA-HIP is not an entitlement program and no grant will be
made unless the application is acceptable to the Commodity Credit
Corporation (CCC). CCC may reject a application for any reason deemed
sufficient by CCC.
(c) The regulations in this part are administered under the general
supervision and direction of the Executive Vice President, CCC, or a
designee, or the Deputy Administrator, Farm Programs (Deputy
Administrator), Farm Service Agency (FSA).
Sec. 1455.2 Definitions.
(a) The definitions in part 718 of this chapter apply to this part
and all documents issued in accordance with this part, except as
otherwise provided in this section.
(b) The following definitions apply to this part:
Appropriate wildlife habitat means habitat that is suitable or
proper, as determined by the applicable State or tribal government, to
support fish and wildlife populations in the area.
Farm land means the land that meets definition of ``farmland'' in
Sec. 718.2 of this title.
Forest land means land at least 120 feet wide and 1 acre in size
with at least 10 percent cover (or equivalent stocking) by live trees
of any size, including land that formerly had such tree cover and that
will be naturally or artificially regenerated. Forest land includes
transition zones, such as areas between forest and nonforest lands that
have at least 10 percent cover (or equivalent stocking) with live trees
and forest areas adjacent to urban and built-up lands. Roadside,
streamside, and shelterbelt strips of trees must have a crown width of
at least 120 feet and continuous length of at least 363 feet to qualify
as forest land. Unimproved roads and trails, streams, and clearings in
forest areas are classified as forest if they are less than 120 feet
wide or an acre in size. Tree-covered areas in agricultural production
settings, such as fruit orchards, or tree-covered areas in urban
settings, such as city parks, are not considered forest land.
Privately-held land means farm, ranch, or forest land that is owned
or operated by an individual or entity that is not an entity of any
government unit or Tribe.
Ranch land means land that meets the definition of ``farmland.''
State or State government means any State or local government,
including State, city, town, or county government.
Tribal government means any Federally-recognized Indian tribe,
band, nation, or other organized group, or community, including
pueblos, rancherias, colonies and any Alaska Native Village, or
regional or village corporation as defined in or established pursuant
to the Alaska Native Claims Settlement Act (43 U.S.C. 1601-1629h),
which is recognized as eligible for the special programs and services
provided by the United States to Indians because of their status as
Indians.
Wildlife-dependent recreation means a land use involving hunting,
fishing, wildlife-observation, photography, environmental education and
interpretation, or other activities as determined by CCC.
Sec. 1455.10 Eligible grant applicants.
(a) A State or Tribal government may apply for a VPA-HIP grant.
(b) Any applications received by an individual or entity that is
not a State or tribal government will not be considered.
Sec. 1455.11 Application procedure.
(a) Request for applications (RFA). CCC will issue periodic RFAs
for VPA-HIP on www.grants.gov, subject to available funding. Unless
otherwise specified in the applicable RFA, applicants must file an
original and one hard copy of the required forms and an application.
(b) Single application. A State or tribal government must include
all proposed activity under a single application per RFA review period.
Multiple applications from an applicant during a single RFA period will
not be considered. The applicant is the individual State or Tribe; any
application from any unit of the State or tribal government must be
coordinated for a single submission of one application from the State
or Tribe.
(c) Incomplete applications. Incomplete applications will not be
considered for funding. However, incomplete applications may be
returned, and may be resubmitted, if time permits.
(d) Providing data. Data furnished by grant applicants will be used
to determine eligibility for the VPA-HIP benefits. Furnishing the data
is voluntary; however, the failure to provide data could result in
program benefits being withheld or denied.
(e) Required forms. The following forms must be completed, signed,
and submitted as part of the application; other forms may be required,
as specified in the applicable RFA:
(1) Application for Federal Assistance;
(2) Budget Information--Non-Construction Programs; and
(3) Assurances--Non-Construction Programs.
(f) Application. Each application must contain the following
elements; additional required elements may be specified in the
applicable RFA:
(1) Title page;
(2) Table of contents;
(3) Executive summary, which includes;
(i) Activities. Provide a summary of the application that briefly
describes activities proposed to be funded under the grant.
(ii) Objectives, funding, performance, and other resources. Include
objectives and tasks to be accomplished, the amount of funding
requested, how the
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work will be performed, whether organizational staff, consultants or
contractors will be used, and whether other resources will be used;
(4) Eligibility certification that certifies that the applicant is
a State or tribal government and the individual submitting the
application is acting in a representative capacity on behalf of the
State or tribal government;
(5) Application narrative that must include, but is not limited to,
the following:
(i) Project Title. The title of the proposed project must be brief
(not to exceed 75 characters) yet describe the essentials of the
project.
(ii) Information sheet. A separate one-page information sheet
listing each of the evaluation criteria referenced in the RFA, followed
by the page numbers of all relevant material and documentation
contained in the application that address or support the criteria.
(iii) Objectives of the project. This section must include the
following:
(A) A description of how the VPA-HIP funding will be used to
encourage public access to private farm, ranch, and forest land for
hunting, fishing, and other recreational purposes;
(B) A description of the methods that will be used to achieve the
provisions of paragraph (f)(5)(iii)(A) of this section;
(C) A description of how and to what extent the proposed program
will meet with widespread acceptance among landowners;
(D) A detailed description of how and to what extent the land
enrolled will have appropriate wildlife habitat and how program funds
may be used to improve those habitats;
(E) A detailed description of how and to what extent public hunting
and other recreational access will be increased on land enrolled under
a Conservation Reserve Enhancement Program as specified under Sec.
1410.50 of this chapter, or if Conservation Reserve Enhancement Program
land is not available, specify that there is no impact;
(F) A detailed description of how any additional Federal, State,
tribal government, or private resources will be used to carry out grant
activities; and
(G) A detailed description of how the public will be made aware of
the location of the land enrolled.
(iv) Work plan. Applications must discuss the specific tasks to be
completed using grant and matching funds. The work plan should show how
customers will be identified, key personnel to be involved with
administration of the grant, and the evaluation methods to be used to
determine the success of specific tasks and overall objectives of a
VPA-HIP grant. The budget must present a breakdown of the estimated
costs associated with VPA-HIP activities and allocate these costs to
each of the tasks to be undertaken. Additional funds from Federal,
State, tribal government, or private resources as well as grant funds
and resources provided in kind must be accounted for in the budget.
(v) Performance evaluation criteria. Applications should discuss
how the State or tribal government will evaluate whether the program
for which the grant is being sought will meet the stated goals for the
State or tribal program, including but not limited to landowner and
recreationist participation, outreach, and cost-effectiveness.
(vii) Other similar efforts. The applicant must describe its
previous accomplishments and outcomes in public access activities, if
any.
(viii) Qualifications of personnel. Applicants must describe the
qualifications of personnel expected to perform key tasks, and whether
these personnel are to be full- or part-time employees or contract
personnel.
Sec. 1455.20 Criteria for grant selection.
(a) Incomplete or non-responsive applications will not be
evaluated. Applicants may revise their applications and re-submit them
prior to the published deadline if there is sufficient time to do so.
(b) After all applications have been evaluated using the evaluation
criteria and scored in accordance with the point allocation specified
in the RFA, a list of all applications in ranked order, together with
funding level recommendations, will be submitted to the Deputy
Administrator, FSA.
(c) Unless supplemented in a RFA, applications for grants for VPA-
HIP will be evaluated using the criteria listed in this section. The
distribution of points to be awarded per criterion will be identified
in the RFA.
(1) Benefits. The application will be evaluated to determine
whether and to what extent the project's anticipated outcomes promote
improvement of public access for wildlife-dependent recreation and
intended environmental benefits.
(2) Project description and feasibility. The application will be
evaluated on the extent and quality to which the applicant demonstrates
a reasonable approach to the project, sufficient resources to complete
the project, and a capability to complete the project in a timely
manner.
(3) Widespread acceptance and maximizing participation of
landowners. The application will be evaluated based on the applicant's
plan for encouraging the participation of owners and operators of
privately-held farm, ranch, and forest land, and for engaging the
public users. Additionally, the extent to which the applicant has
identified and established relationships with the partners necessary to
achieve the project's goals will be evaluated.
(4) Appropriate wildlife habitat. The application will be evaluated
to determine whether the applicant demonstrates expertise in providing
technical assistance with respect to establishing and maintaining
appropriate wildlife habitat on public access land.
(5) Strengthening wildlife habitat for lands under the Conservation
Reserve Enhancement Program (CREP). The application will be evaluated
to determine whether the project proposes to provide incentives to
increase public hunting and other recreational access on land enrolled
under CREP as authorized by Sec. 1410.50.
(6) Additional private, Federal, State, or tribal government
resources. The application will be evaluated to determine the extent to
which the support letters provided by other organizations involved with
the project demonstrate specific and quantified commitments to the
project. Applications that demonstrate additional resources will
receive more points, all else being equal, than those that do not.
(7) Making available the location of enrolled land. The application
will be evaluated to determine how the project proposes to make
available to the public the location of the land enrolled.
(8) Performance evaluation criteria. The application will be
evaluated to determine whether the applicant has included outcome-based
performance measures.
(9) Administrative capabilities. The application will be evaluated
to determine whether the grant applicant has a track record of
administering the project or, in the absence of a track record, the
capacity to administer the project. Applicants that have demonstrated
capable financial systems and audit controls, personnel and program
administration performance measures, and clear rules of governance will
receive more points than those not evidencing this capacity.
(10) Delivery. The application will be evaluated to determine
whether the applicant has a track record in implementing public access
or similar programs or, in the absence of an actual track record, the
capacity to implement a public access program. The applicant's
potential for delivering an effective
[[Page 39142]]
public access program and the expected effects of that program will
also be assessed.
(11) Work plan and budget. The work plan will be reviewed for
detailed actions and an accompanying timetable for implementing the
components of the application. Clear, logical, realistic, and efficient
plans will result in a higher score. Budgets will be reviewed for
completeness and whether and to what extent additional resources were
committed by Federal, State, or tribal government, and private
resources.
(12) Qualifications of those performing the tasks. The application
will be reviewed to determine if key personnel have appropriate
knowledge, skills, and abilities with respect to wildlife-dependent
recreation including hunting or fishing on privately-held farm, ranch,
and forest land, funds control, grants management, performance
monitoring and evaluation, or other activities relevant to the success
of the proposed public access program.
Sec. 1455.21 Additional Responsibilities of Grantee.
(a) Before receiving grant funding, the grantee will be required to
sign an agreement similar in form and substance to the form of
agreement published within or as an appendix to the RFA. The agreement
will require the grantee to commit to do all of the following:
(1) Take all practicable steps to develop continuing sources of
financial support from other Federal, State, tribal government, or
private resources;
(2) Make arrangements for the monitoring and evaluation of the
activities related to implementation of the public access program of
the owners or operators that enroll farm, ranch, and forest land; and
(3) Provide an accounting for the money received by the grantee
under this subpart.
(b) Grantees will be required to monitor funds or services as
specified in paragraph (c) of this section, and must agree to that
monitoring before grant funds are awarded.
(c) The grantee must certify that the grant funds and services will
not be used for ineligible purposes. Specifically, grant funds and
services may not be used to:
(1) Duplicate or replace current services; however, grant funds may
be used to expand the level of effort or service beyond what is
currently being provided;
(2) Pay costs of preparing the application for funding under VPA-
HIP;
(3) Pay costs of the project incurred prior to the date of grant
approval;
(4) Fund political activities;
(5) Pay any judgment or debt owed to the United States;
(6) Pay for the design, repair, rehabilitation, acquisition, or
construction of a building or facility (including a processing
facility);
(7) Purchase, rent or pay for the installation of fixed equipment,
other than property identification signs;
(8) Pay for the repair of privately owned vehicles; or
(9) Pay for research and development not directly related to
quantifying the performance of VPA-HIP lands enrolled with funding from
VPA-HIP.
(d) Grant agreements under this part will be for a term of up to 3
years.
(e) Grantees that are States will have the grant amount reduced by
25 percent if opening dates for migratory bird hunting in the State are
not consistent for residents and non-residents. This paragraph does not
apply to grantees that are Tribal governments.
(f) Failure of the grantee to execute a grant agreement in a timely
fashion, as determined by the CCC, will be construed to be a withdrawal
from VPA-HIP.
Sec. 1455.30 Reporting requirements.
(a) Grantees must provide the following to FSA:
(1) A ``Financial Status Report'' listing expenditures according to
agreed upon budget categories, on a periodic basis as specified in the
grant document.
(2) Annual performance reports that compare accomplishments to the
objectives stated in the application, and that also:
(i) Identify all tasks completed to date and provide documentation
supporting the reported results;
(ii) If the original schedule provided in the work plan is not
being met, the report must discuss the problems or delays that may
affect completion of the project;
(iii) List objectives for the next reporting period; and
(iv) Discuss compliance with any special conditions on the use of
award funds. Reports are due as provided in paragraph (a)(1) of this
section.
(3) Final project performance reports, inclusive of supporting
documentation. The final performance report is due within 90 days of
the completion of the project.
(b) All reports submitted to the Agency will be held in confidence
to the extent permitted by law.
Sec. 1455.31 Miscellaneous.
(a) Inspection. Grantees must permit periodic inspection of the
program operations by a CCC representative, as determined by CCC.
(b) Performance evaluation. CCC will incorporate performance
criteria in grant award documentation and will regularly evaluate the
progress and performance of grant awardees.
(c) Suspend, terminate, or require refund. CCC may elect to suspend
or terminate a grant in all or part, or funding of a particular
workplan activity, and require refund of part or all of the grant, with
interest, where CCC has determined:
(1) That the grantee or subrecipient of grant funds has
demonstrated insufficient progress in complying with the terms of the
grant agreement;
(2) The opening dates for migratory bird hunting in a State have
been changed so as to be not consistent for residents and non-residents
during the term of the grant;
(3) There is reasonable evidence that shows joint funding has not
been or will not be forthcoming on a timely basis; or
(4) Such other cause as CCC identifies in writing to the grantee
based on reasonable evidence (including but not limited to the use of
Federal grant funds for ineligible purposes).
(d) Advance or reimbursement. Grantees must use the request for
advance or reimbursement form, which will be provided by CCC, to
request advances or reimbursements;
(e) Appeals. Appeals will be handled according to 7 CFR parts 11
and 780.
(f) Environmental review. All grants made under this subpart are
subject to the requirements of 7 CFR part 799.
Applicants for grant funds must consider and document within their
plans the important environmental factors within the planning area and
the potential environmental impacts of the plan on the planning area,
as well as the alternative planning strategies that were reviewed.
(g) Civil rights. CCC prohibits discrimination in all its programs
and activities on the basis of race, color, national origin, age,
disability, and where applicable, sex, marital status, familial status,
parental status, religion, sexual orientation, genetic information,
political beliefs, reprisal, or because all or a part of an
individual's income is derived from any public assistance program. VPA-
HIP will also be administered in accordance with all other applicable
civil rights law.
(h) Other USDA regulations. The grant program under this part is
subject to the provisions of the following regulations, as applicable:
(1) 7 CFR part 3015, Uniform Federal Assistance Regulations;
(2) 7 CFR part 3016, Uniform Administrative Requirements for Grants
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and Cooperative Agreements to State and Local Governments;
(3) 7 CFR part 3017, Governmentwide Debarment and Suspension
(nonprocurement) and Governmentwide Requirements for Drug-Free
Workplace (Grants);
(4) 7 CFR part 3018, New Restrictions on Lobbying;
(5) 7 CFR part 3019, Uniform Administrative Requirements for Grants
and Agreements with Institutions of Higher Education, Hospitals and
Other Non-profit Organizations; and
(6) 7 CFR part 3052, Audits of States, Local Governments and Non-
profit Organizations.
(i) Audit. Grantees must comply with the audit requirements of 7
CFR part 3052. The audit requirements apply to the years in which grant
funds are received and years in which work is accomplished using grant
funds.
(j) Change in scope or objectives. The Grantee must obtain prior
approval from FSA for any change to the scope or objectives of the
approved project. Failure to obtain prior approval of changes to the
scope of work or budget may result in suspension, termination, or
recovery of grant funds.
(k) Exceptions. CCC may, in individual cases, make an exception to
any requirement or provision of this part, provided that any such
exception is not inconsistent with any applicable law or opinion of the
Comptroller General, and provided further, that CCC determines that the
application of the requirement or provision would adversely affect the
Federal Government's interest.
(l) Enforcement and refunds; liens and schemes or devices. Grantees
must comply with all conditions of the grant and any monies not spent
or improperly spent must be returned immediately with interest to run
at the normal rate for CCC obligations. Interest charges will be
computed from the date of the CCC disbursement. Grantees must insure
that parties that receive funds from the grantee comply with the
grantee's application and return funds made available by the grantee
where there is no such compliance. Any scheme or device to avoid any
limits of this part will be considered to be a program violation with
respect to any grant to which that scheme or device is related. Grant
funds will be made available to the States or Tribes that are grantees
under this part without regard to the claims of others, unless CCC
determines otherwise.
Signed at Washington, DC, on June 30, 2010.
Jonathan W. Coppess,
Executive Vice President, Commodity Credit Corporation, and
Administrator, Farm Service Agency.
[FR Doc. 2010-16656 Filed 7-7-10; 8:45 am]
BILLING CODE 3410-05-P