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[Federal Register: July 8, 2010 (Volume 75, Number 130)]
[Rules and Regulations]               
[Page 39135-39143]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08jy10-2]                         

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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: cepdmail@wdc.usda.gov. 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

[[Page 39141]]

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

[[Page 39143]]

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
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