[Federal Register: June 10, 2010 (Volume 75, Number 111)]
[Proposed Rules]
[Page 32877-32899]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10jn10-21]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 80
[Docket No. FWS-R9-WSR-2009-0088; 91400-5110-POLI-7B; 91400-9410-POLI-
7B]
RIN 1018-AW65
Financial Assistance: Wildlife Restoration, Sport Fish
Restoration, Hunter Education and Safety
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, propose changes in the
regulations governing the Wildlife Restoration, Sport Fish Restoration,
and Hunter Education and Safety (Enhanced Hunter Education and Safety)
financial assistance programs. We conducted rulemaking 2 years ago to
amend these regulations, and based on experience gained since then, we
propose to adopt two recommendations that we received in response to
the prior proposed rule and to modify three provisions from the
subsequent final rule. We also propose to update the regulations to
reflect changes in law, regulation, policy, technology, and practice
during the past 25 years. In addition, this proposed rule simplifies
specific requirements of the establishing authorities of the Wildlife
Restoration and Sport Fish Restoration programs and clarifies terms in
those authorities as well as terms generally used in grant
administration. Finally, this proposed rule organizes the regulations
to follow the life cycle of a grant and rewords and reformats the
regulations following Federal plain language policy and current
rulemaking guidance.
DATES: We will accept comments received or postmarked on or before
August 9, 2010.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments to Docket No. FWS-R9-
WSR-2009-0088.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: RIN 1018-AW65; Division of Policy and Directives Management; U.S.
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington,
VA 22203.
We will not accept e-mail or faxes. We will post all public
comments on http://www.regulations.gov. This generally means that we
will post any personal information you provide us (see the Public
Comments section below for more information).
FOR FURTHER INFORMATION CONTACT: Joyce Johnson, Wildlife and Sport Fish
Restoration Program, Division of Policy and Programs, U.S. Fish and
Wildlife Service, 703-358-2156.
SUPPLEMENTARY INFORMATION:
Background
The U.S. Department of the Interior's (DOI) Fish and Wildlife
Service (Service) manages or co-manages 55 financial assistance
programs, 19 of which are managed, in whole or in part, by the
Service's Wildlife and Sport Fish Restoration Program. This proposed
rule would revise title 50, part 80, of the Code of Federal Regulations
(CFR), which is ``Administrative Requirements, Pittman-Robertson
Wildlife Restoration and Dingell-Johnson Sport Fish Restoration Acts.''
The primary users of these regulations are the fish and wildlife
agencies of the 50 States, the Commonwealths of Puerto Rico and the
Northern Mariana Islands, the District of Columbia, and the territories
of Guam, the U.S. Virgin Islands, and American Samoa. We use ``State''
or ``States'' in this document to refer to any or all of these
jurisdictions except the District of Columbia for purposes of the
Pittman-Robertson Wildlife Restoration Act and the two grant programs
and one subprogram under the Act because the Act does not authorize
funding for the District. The term, ``the 50 States,'' applies only to
the 50 States of the United States. It does not include the
Commonwealths of Puerto Rico and the Northern Mariana Islands, the
District of Columbia, or the territories of Guam, the U.S. Virgin
Islands, and American Samoa. These regulations tell States how they
may: (a) Use revenues from hunting and fishing licenses; (b) receive
annual apportionments from the Federal Aid to Wildlife Restoration Fund
and the Sport Fish Restoration and Boating Trust Fund; (c) receive
financial assistance from the Wildlife Restoration program, the Basic
Hunter Education and Safety subprogram, and the Enhanced Hunter
Education and Safety program; and (d) receive financial assistance from
the Sport Fish Restoration program, the Recreational Boating Access
subprogram, the Aquatic Resources Education subprogram, and the
Outreach and Communications subprogram. These programs provide
financial assistance to State fish and wildlife agencies to: (a)
Restore or manage wildlife and sport fish; (b) provide hunter-
education, hunter-development, and hunter-safety programs; (c) provide
recreational boating access; (d) enhance the public's understanding of
water resources, aquatic-life forms, and sport fishing; and (e) develop
responsible attitudes and ethics toward the aquatic environment. The
Catalog of Federal Domestic Assistance at http://www.cfda.gov describes
these programs under 15.611, 15.605, and 15.626.
The Pittman-Robertson Wildlife Restoration Act, as amended (50
Stat. 917; 16 U.S.C. 669-669k), and the Dingell-Johnson Sport Fish
Restoration Act, as amended (64 Stat. 430; 16 U.S.C. 777-777n, except
777e-1 and g-1), established the programs affected by this proposed
rule in 1937 and 1950 respectively. We refer to these acts in this
document and in the proposed rule as ``the Acts.'' They established a
hunting- and angling-based user-pay and user-benefit system in which
the State fish and wildlife agencies of the 50 States, the
Commonwealths, and the territories receive formula-based funding from a
continuing appropriation. The District of Columbia also receives
funding, but only under the Dingell-Johnson Sport Fish Restoration Act.
The Pittman-Robertson Wildlife Restoration Act does not authorize
funding for the District of
[[Page 32878]]
Columbia. Industry partners pay excise taxes on equipment and gear
manufactured for purchase by hunters, anglers, boaters, archers, and
recreational shooters. The Service distributes these funds to the fish
and wildlife agencies of the States that contribute matching funds,
generally derived from hunting and fishing license sales. In fiscal
year 2009, the States and other eligible jurisdictions received $336
million through the Wildlife Restoration and Enhanced Hunter Education
and Safety programs and $404 million through the Sport Fish Restoration
program.
Revisions of 50 CFR 80 during the past 25 years include one section
of 50 CFR 80 in 1987, another section in 1989, and two sections in
2001. We revised the license-certification section in 2008 to address
the greater number of license choices that many States have offered
hunters and anglers in recent years. We also revised other sections in
2008 to: (a) Comply with Federal policy on plain language and writing
style, (b) remove subject matter addressed adequately in other grant
regulations, or (c) correct obsolete references or legal requirements.
The focus of all revisions since 1987 was on specific issues. We have
not systematically reviewed and revised 50 CFR 80 since the early
1980's, so the regulations at this part do not fully reflect the
following laws and policies:
(a) The Wildlife and Sport Fish Restoration Programs Improvement
Act of 2000, Nov. 1, 2000, (Pub. L. 106-408). This amendment of the
Acts authorized the Enhanced Hunter Education and Safety program.
(b) Public Law 98-454, title VI, section 601(b), Oct. 5, 1984. This
law states that a Federal awarding agency must waive any required match
under $200,000 for grants to Guam, the Northern Mariana Islands, the
U.S. Virgin Islands, and American Samoa.
(c) 43 CFR 12.43, Uniform Administrative Requirements for Grants
and Cooperative Agreements to State and Local Governments, Mar. 11,
1988. This section of the CFR defines ``obligations'' in the context of
a grantee incurring costs under a grant. This definition does not apply
to ``obligations'' in the context of a Federal obligation of funds,
which involves the awarding agency making funds available for a grant,
the submission of an application, and the issuance and acceptance of an
award under specified terms and conditions.
(d) OMB Circular A-102, Grants and Cooperative Agreements with
State and Local Governments, Oct. 14, 1994, and amended Aug. 29, 1997.
This policy requires us to treat land acquisition and development, in
effect, as a phase of construction for the purpose of a grantee
submitting an assurance statement with the Application for Federal
Assistance.
(e) Department of the Interior Manual, 505 DM 2, ``Procurement
Contracts, Grant and Cooperative Agreements,'' Jan. 9, 2008. This DOI
manual chapter states that a grant-funded project could involve amounts
from more than one program or appropriation when different
relationships would otherwise be appropriate and beneficial for
different parts of the project.
(f) Service Manual chapter 522 FW 4, ``Comprehensive Management
System Grants,'' Nov. 30, 2004. This FWS manual chapter guides the
award and operation of a Comprehensive Management System grant, which
the establishing authorities authorize as an alternative to project-by-
project grants.
(g) Service Manual chapter 522 FW 16, ``Preagreement Costs,'' Oct.
13, 2005. This FWS manual chapter establishes conditions under which a
grantee may incur costs before the effective date of a grant. It
incorporates recommendations of a joint task force of Federal and State
officials.
(h) Service Manual chapter 522 FW 19, ``Program Income from Federal
Assistance Grants,'' Feb. 20, 2008. This chapter establishes that
States may: (a) Select the deduction or addition methods of applying
program income to Federal and non-Federal outlays, and (b) reduce
program income by an amount equal to the costs of generating it. The
chapter gives examples of the costs of generating program income. It
establishes criteria under which a Regional Director may approve an
applicant's request to use program income as match. It also requires
grant agreements to state that income earned by the grantee after the
grant period from grant-supported activities will be treated as: (a)
License revenue and used to support the administration of the State
fish and wildlife agency, or (b) additional funding for purposes
consistent with the grant or program that generated the income. The
chapter also allows the grantee to request that grant agreements
require that subgrantees account for program income earned after the
grant period. Finally, the chapter gives examples of program income and
states that the Service does not treat cooperative farming and grazing
arrangements as program income if the State fish and wildlife agency
designs the farming or grazing to advance its fish or wildlife
management objectives. Service Manual chapter 522 FW 16 is based on
recommendations of a joint task force of Federal and State officials.
(i) Director's guidance on ``Policy--Federal Aid Timber Sales,''
June 6, 2002. This guidance applies a Dec. 5, 2000, Solicitor's Opinion
to the Wildlife and Sport Fish Restoration program nationwide. That
Opinion stated that timber revenue from wildlife management practices
on lands bought under Wildlife Restoration or Sport Fish Restoration
grants is program income instead of proceeds from the sale of real
property.
(j) The Presidential memorandum of June 1, 1998, ``Plain Language
in Government Writing.'' This memorandum requires the use of plain
language in all proposed and final rulemaking documents published in
the Federal Register.
Updates to the Regulations
We have arranged the sections of the proposed rule into subparts of
related subject matter. The gaps in section numbers between each
subpart allow the addition of new sections in the future. We have
summarized the changes in the proposed rule by section or by group of
sections, and cross-referenced proposed section numbers to the
corresponding numbers in the currently published version of 50 CFR 80,
as amended by the final rule published in the Federal Register at 73 FR
43120 on July 24, 2008. We are referring to the 2008 version of 50 CFR
80 when we use the term ``current'' before a section number or before a
reference to 50 CFR 80.
Subpart A--General
Section 80.1 What does this part do?
This proposed section does not have a corresponding section in the
current regulations. It is a needed introduction to a part that covers
subjects as diverse as (a) hunting and fishing license revenue, and (b)
financial assistance under the three grant programs and four
subprograms authorized by the Acts.
Section 80.2 What terms do I need to know?
This proposed section defines the following terms that are not in
the corresponding ``Definitions'' section of the current Sec. 80.1:
Agency, angler, capital improvement, comprehensive management system
grant, construction, diversion, grant, grantee, match, project-by-
project grant, real property, sport fish, subaccount, useful life, and
wildlife. We defined ``agency'' as the State fish and wildlife agency.
We used this shorter form in headings and in most places in the text to
make the
[[Page 32879]]
headings and text easier to read. However, not all readers will consult
the definitions in Sec. 80.2 before reading the sections that are of
interest to them. To avoid any misunderstanding, we used the longer
``State fish and wildlife agency'' at the first opportunity in the text
of each section and in places where clarity on this issue was
especially important.
We defined ``construction'' to include land acquisition and the
clearing and reshaping of land as types or phases of construction. This
is consistent with OMB Circular A-102, Grants and Cooperative
Agreements with State and Local Governments, which treats land
acquisition and development as construction for purposes of grantees'
submitting an assurance statement at the time of application.
We limited the definition of ``wildlife'' to birds and mammals,
which have been the focus of this program since passage of the Pittman-
Robertson Wildlife Restoration Act in 1937. The Act was amended in 2000
to include the Wildlife Conservation and Restoration program and
accommodated this program by defining ``wildlife'' more broadly as
``any species of wild free-ranging fauna including fish.'' The more
limited definition in the proposed section is a common element in all
State definitions of ``wildlife.'' We add this more restrictive
definition to 50 CFR 80 to clarify that the broader definition in the
Act addresses the full scope of the Wildlife Conservation and
Restoration program.
The proposed section deletes ``common horsepower'' because the term
occurs only in the current Sec. 80.24, ``Recreational boating access
facilities.'' The proposed Sec. 80.51(b)(1), which would replace the
current Sec. 80.24, in part, uses the definition of ``common
horsepower'' instead of the term.
The proposed Sec. 80.2 also deletes ``resident angler'' because it
occurs only in the proposed Sec. 80.66, so we defined the term in that
proposed section. We deleted ``Wildlife and Sport Fish Restoration
Program funds'' from the proposed Sec. 80.2 because the proposed rule
does not use the term.
Subpart B--State Fish and Wildlife Agency Eligibility
Section 80.10 Who is eligible to receive the benefits of the Acts?
This proposed section restates the current Sec. 80.2,
``Eligibility,'' and Sec. 80.3, ``Assent legislation.''
Section 80.11 How does a State become ineligible to receive the
benefits of the Acts?
This proposed section restates, in part, the current Sec. 80.4,
``Diversion of license fees.'' It is consistent with the remedies for
noncompliance at 43 CFR 12.83, ``Enforcement.''
Section 80.12 Does an agency have to confirm that it wants to receive
an annual apportionment of funds?
This proposed section restates the current Sec. 80.9, ``Notice of
desire to participate.'' This requirement is based on a provision of
the Pittman-Robertson Wildlife Restoration Act. The proposed section
would no longer require States to notify the Service within 60 days of
receiving a certificate of apportionment that it wants to participate
in the benefits of the Acts. It would require a 60-day notice only in
the unlikely event that the State does not want to receive the annual
apportionment of funds.
Subpart C--License Revenue
Section 80.20 What does revenue from hunting and fishing licenses
include?
This proposed section clarifies that license revenue includes fees
for access to (a) property acquired or constructed with license
revenue, or (b) a recreational opportunity, product, or commodity
derived from property acquired, managed, maintained, or produced with
license revenue. The proposed section includes animal products among
the examples of personal property. This would correct the listing of
animal products among examples of real property in the current Sec.
80.4, ``Diversion of license fees.'' We clarify that only mineral
rights and standing timber are real property, but become personal
property when the owner extracts the minerals or harvests the timber.
The clarification on timber is based on a Dec. 5, 2000, Solicitor's
Opinion on Federal Aid Timber Sales. We also clarify in the proposed
section that State property acquired or produced with license revenue
could include intellectual property such as patents and copyrights.
Section 80.21 What if a State diverts license revenue from the control
of its fish and wildlife agency?
This proposed section restates the opening sentence of the current
Sec. 80.4, ``Diversion of license fees,'' and the current Sec.
80.4(c) and (d).
Section 80.22 What must a State do to resolve a declaration of
diversion?
This proposed section corresponds to and expands on the current
Sec. 80.4(a)(3), ``Diversion of license fees,'' and Sec. 80.4(d). The
proposed section mentions for the first time that an agency may receive
the market rental rate of the diverted property during the period of
diversion as an alternative to the actual income earned.
Section 80.23 Does a declaration of diversion affect a previous Federal
obligation of funds?
This proposed section restates the current Sec. 80.4(e)
``Diversion of license fees.''
Subpart D--License Certification
Section 80.30 Why must an agency certify the number of paid license
holders?
This proposed section restates and expands part of the first
sentence of the current Sec. 80.10(a), ``State certification of
licenses.''
Section 80.31 How does an agency certify the number of paid license
holders?
This proposed section restates the current Sec. 80.10(a)(3),
``State certification of licenses,'' and expands on the current Sec.
80.10(c). The proposed section would require for the first time that if
a State uses statistical sampling to eliminate multiple counting of
single individuals in the annual certification of the number of people
who hold paid licenses, it must sample: (a) Every 5 years, or (b) when
the State changes the structure of its licensing system in a way that
could affect the number of people who hold paid licenses, whichever
comes first.
Section 80.32 What is the certification period?
This proposed section restates the current Sec. 80.10(a)(1) and
(2), ``State certification of licenses.''
Section 80.33 How does an agency decide who to count as paid license
holders in the annual certification?
This proposed section restates the current Sec. 80.10(b)(1)-(6),
``State certification of licenses,'' but we made several significant
changes. We state clearly in the proposed Sec. 80.33(a)(1) that an
agency must count a person who has a paid license to hunt or fish even
if that person is not required to have a paid license or is unable to
hunt or fish. This reflects the view that any paid license holder meets
the requirements of the Acts and that license fees support the State
fish and wildlife agency even if the license holder does not engage in
the activity. We added a requirement at the proposed Sec. 80.33(a)
that the State fish and wildlife agency may count a person who has a
paid license only if
[[Page 32880]]
the issue of the license in the license holder's name is verifiable in
State records.
In the proposed Sec. 80.33(a)(4) and (b), we replaced ``State'' in
the current Sec. 80.10(b)(2) with ``State fish and wildlife agency.''
This would allow a State to use general-revenue funds to offset lost
revenues from hunting and fishing licenses issued free of charge to
veterans and other categories of license holders. The State could then
count the individuals holding these licenses as paid license holders
for annual certification purposes under certain conditions. We propose
this change based on a recommendation of a joint task force of Federal
and State officials.
In the proposed Sec. 80.33(a)(4), we changed the ``period in which
the license was purchased,'' which is the language of the current Sec.
80.10(b)(3), to ``period in which the license first becomes valid.''
This change would more accurately reflect the actual participation in a
hunting or fishing season by counting those who buy a license before
the opening of a season.
The current Sec. 80.10(b)(4)(i), reads ``The net revenue from the
[multiyear] license is in close approximation with the number of years
in which the license is legal.'' We changed this in the proposed
section at Sec. 80.33(b) to read, ``The State fish and wildlife agency
must receive net revenue from the multiyear license of at least $1 for
each year in which the license is valid.'' This change applies the same
net revenue standard to multiyear licenses as applies to single-year
licenses. We propose this change based on a recommendation of a joint
task force of Federal and State officials.
We changed ``legal'' to ``valid'' in Sec. 80.33(b) for the sake of
consistency with Sec. 80.33(a)(4). We added life-expectancy tables and
mortality tables as potential techniques to determine if a lifetime-
license holder remains a license holder in the proposed Sec.
80.33(b)(2), which corresponds to the current Sec. 80.10(b)(4)(ii).
Section 80.34 May an agency count license holders in the annual
certification if the agency receives funds from the State to cover
their license fees?
This proposed section does not have a corresponding section in the
current 50 CFR 80. It establishes the conditions under which the State
fish and wildlife agency may count a license holder if the State uses
general-revenue funds to offset lost revenues from hunting and fishing
licenses issued free of charge to veterans or another category of
license holder. This proposed section is linked to language in the
proposed Sec. 80.33(a)(4) and (b), which we discuss above.
Section 80.35 How does an agency calculate net revenue from a license?
This proposed section restates and expands on the current Sec.
80.10(b)(2), ``State certification of licenses,'' by adding examples of
the costs of issuing licenses to include automated license-system costs
and licensing-unit personnel costs.
Section 80.36 What must an agency do if it becomes aware of errors in
its data?
This proposed section does not have a corresponding section in the
current regulations, but the current Sec. 80.10(d), ``State
certification of licenses,'' indirectly acknowledges the possibility
that an agency may submit incorrect certified data. This proposed
section establishes a 90-day window for the State fish and wildlife
agency to submit revised certified data after it becomes aware of
errors in its data.
Section 80.37 May the Service recalculate an apportionment if an agency
submits revised data?
This proposed section restates and expands on the current Sec.
80.10(d), ``State certification of licenses.'' It explicitly states
that the Service may recalculate an apportionment if it receives
revised certified data on license holders before the Director approves
the final apportionment.
Section 80.38 May the Director correct a Service error in apportioning
funds?
This proposed section restates the last sentence of the current
Sec. 80.10(d), ``State certification of licenses.''
Subpart E--Eligible Activities
Section 80.50 What activities are eligible for funding under the
Pittman-Robertson Wildlife Restoration Act?
Section 80.51 What activities are eligible for funding under the
Dingell-Johnson Sport Fish Restoration Act?
These proposed sections restate and expand on the current Sec.
80.5, ``Eligible undertakings,'' Sec. 80.15(f)(1), ``Allowable
costs,'' and Sec. 80.24, ``Recreational boating access facilities.''
They list comprehensively the eligible activities for each program and
subprogram and use standard terms and parallel construction to describe
these activities in greater detail. In part, the proposed Sec. 80.51
responds to several recommendations that we received on the proposed
rule to amend 50 CFR 80 that was published in the Federal Register at
73 FR 24523 on May 5, 2008. These recommendations stated that we should
explicitly list outreach and communications and aquatic resource
education as eligible activities. The proposed Sec. 80.51 does not
include the following language of the current Sec. 80.5(b)(2):
``Additional funds resulting from expansion of the Sport Fish
Restoration Program must be added to existing State fishery program
funds available from traditional sources and not as a substitute
therefor.'' This language became part of the regulations after
enactment of a significant expansion of the sources of funding for the
Dingell-Johnson Sport Fish Restoration Act about 25 years ago. We did
not include it in the proposed rule because of its weak legislative
authority and the difficulty of enforcing it.
Section 80.52 What activities are ineligible for funding?
The proposed Sec. 80.52(a) and (b) restate and broaden the scope
of two ineligible activities in the current Sec. 80.6, ``Prohibited
activities.'' The proposed Sec. 80.52(c), ``Activities conducted for
the primary purpose of producing income,'' restates a similar
prohibition at the current Sec. 80.14(c), ``Application of Wildlife
and Sport Fish Restoration Program funds.'' The newly proposed
ineligible activity at Sec. 80.52(d) reads ``activities, projects, or
programs that promote or encourage opposition to regulated taking of
fish, hunting, or the trapping of wildlife.'' This language is based on
the intent of the drafters of the Wildlife and Sport Fish Restoration
Programs Improvement Act of 2000, which amended the Pittman-Robertson
Wildlife Restoration Act and the Dingell-Johnson Sport Fish Restoration
Act. The Improvement Act applied similar language to the Multistate
Conservation Grant program.
Section 80.53 Are administrative costs for State central services
eligible expenses?
This proposed section closely follows the language of the current
Sec. 80.15(e), ``Allowable costs,'' but it does not include the
unnecessary last sentence, which reads, ``Each State has a State Wide
Cost Allocation Plan that describes approved allocations of indirect
costs to agencies and programs within the State.''
Section 80.54 May an agency receive a grant to carry out part of a
larger project?
This proposed section does not have a corresponding section in the
current regulations. It states conditions under which a grant may carry
out part of a larger project. These conditions are based on advice from
the Department of
[[Page 32881]]
the Interior's Office of the Solicitor. It is also consistent with the
Department of the Interior Manual, 505 DM 2.18, ``Procurement
Contracts, Grants, and Cooperative Agreements,'' issued Jan. 9, 2008.
Section 80.55 How does a proposed project qualify as substantial in
character and design?
This proposed section corresponds to the current Sec. 80.13,
``Substantiality in character and design.'' The proposed section
applies to both projects and comprehensive management systems as a
result of the definition of ``project'' in the proposed Sec. 80.2.
Subpart F--Allocation of Funds by an Agency
Section 80.60 What is the relationship between the Basic Hunter
Education and Safety subprogram and the Enhanced Hunter Education and
Safety program?
This proposed section does not have a corresponding section in the
current regulations. It clarifies for the first time in regulation the
complex relationship between the Basic Hunter Education and Safety
subprogram and the Enhanced Hunter Education and Safety subprogram,
which was authorized by the Wildlife and Sport Fish Restoration
Programs Improvement Act of 2000.
Section 80.61 What requirements apply to funds for the Recreational
Boating Access subprogram?
This proposed section corresponds, in part, with the current Sec.
80.24, ``Recreational boating access facilities.'' The proposed Sec.
80.61(b) requires that Regional allocations average 15 percent over a
5-year period. Although this provision is not in the current Sec.
80.24, the Dingell-Johnson Sport Fish Restoration Act requires it. The
proposed Sec. 80.61 also introduces a new requirement to ensure that
Regional Offices will have information in time to ensure that the
Regional allocation will average 15 percent over a 5-year period. It
reads: ``A State must apply to use these allocated funds by the end of
the fourth consecutive Federal fiscal year after the Federal fiscal
year in which the funds first became available for allocation.'' The
current Sec. 80.24 states, ``Any portion of a State's 15-percent set
aside for the above purposes that remain unexpended or unobligated
after 5 years must revert to the Service for apportionment among the
States.'' The proposed Sec. 80.61(g) does not refer to an expenditure
of grant funds as does the current Sec. 80.24. It is unnecessary to
include such a reference because: (a) a Federal obligation must precede
an agency's expenditure, or (b) the agency's expenditure may be the
last step in completing a Federal obligation, thus occurring
simultaneously with the obligation.
Section 80.62 What limitations apply to spending on the Aquatic
Resource Education and Outreach and Communications subprograms?
This proposed section corresponds in part to the current Sec.
80.15(f), ``Allowable Costs.'' The proposed section corrects the
current section's incorrect reference to the two subprograms as a
single ``program.''
Section 80.63 Does an agency have to allocate costs in multipurpose
projects and facilities?
Section 80.64 How does an agency allocate costs in multipurpose
projects and facilities?
The proposed Sec. 80.63 and Sec. 80.64 correspond to the current
Sec. 80.15(d), ``Allowable costs.'' We added the following language in
Sec. 80.64, ``The agency must describe the method used to allocate
costs in multipurpose projects or facilities in the project statement
included in the grant application.''
Section 80.65 Does an agency have to allocate funds between marine and
freshwater fisheries projects?
This proposed section corresponds, in part, to the current Sec.
80.23, ``Allocation of funds between marine and freshwater fishery
projects.'' The proposed section includes the new language, ``The
subprograms authorized by the Dingell-Johnson Sport Fish Restoration
Act do not have to allocate funding in the same manner as long as the
State fish and wildlife agency equitably allocates Dingell-Johnson
Sport Fish Restoration funds as a whole between marine and freshwater
fisheries.''
Section 80.66 What requirements apply to the allocation of funds
between marine and freshwater fisheries projects?
This proposed section corresponds, in part, to the current Sec.
80.23, ``Allocation of funds between marine and freshwater fishery
projects.'' The proposed section defines a resident angler as ``one who
fishes for recreational purposes in the same State where he or she
maintains legal residence.'' The current regulations include this term
in the Definitions section, but the definition leaves out ``for
recreational purposes.'' The proposed section adds the following: ``(c)
* * * Agencies must use the National Survey of Fishing, Hunting, and
Wildlife-associated Recreation or another statistically reliable survey
or technique approved by the Director for this purpose. (d) If a State
uses statistical sampling, it must sample at the earlier of the
following: (1) Five years after the last statistical sample, or (2) The
first certification period affected by any change in the licensing
system that could affect the number of people who hold a paid license
to fish.'' We did not include in the proposed Sec. 80.66 this language
from the current Sec. 80.23 because it is unnecessary, ``Ongoing
marine project costs can be applied toward the State's saltwater
allocation.''
Section 80.67 May an agency finance an activity from more than one
annual apportionment?
Section 80.68 What requirements apply to financing an activity from
more than one annual apportionment?
The proposed Sec. 80.67 and Sec. 80.68 correspond to the current
Sec. 80.25, ``Multiyear financing under the Dingell-Johnson Sport Fish
Restoration program,'' but the proposed sections broaden the
authorization of multiyear financing. They also extend the multiyear-
financing option to projects under the Pittman-Robertson Wildlife
Restoration Act. The proposed Sec. 80.68(c) changes the current Sec.
80.25 by allowing interest and other financing costs subject to
restrictions in the Federal Cost Principles.
Subpart G--Application for a Grant
Section 80.80 How does an agency apply for a grant?
Section 80.81 What must an agency submit when applying for a
comprehensive management system grant?
Section 80.82 What must an agency submit when applying for a project-
by-project grant?
These proposed sections correspond to the current and less
comprehensive Sec. 80.11, ``Submission of proposals.'' The proposed
sections include detailed information on the information that grantees
must include in the application packages for comprehensive management
system grants and project-by-project grants. This information is based
on information in: (a) Service Manual Chapter 522 FW 4, ``Comprehensive
Management System Grant;'' (b) OMB Circular A-102, Grants and
Cooperative Agreements with State and Local Governments, Section
(c)(5); (c) the current 50 CFR 80.25(b)(3) on multiyear financing; and
(d) Service Manual chapter 522 FW 19, ``Program Income from Federal
Assistance Grants.''
[[Page 32882]]
Section 80.83 What is the Federal share of allowable costs?
This proposed section corresponds, in part, to the current Sec.
80.12, ``Cost sharing.'' It changes the current regulations by
authorizing the Regional Director to waive the 10-percent minimum
Federal share of allowable costs if an agency requests a waiver and
provides compelling reasons to justify it.
Section 80.84 How does the Service establish the non-Federal share of
allowable costs?
This proposed section does not have a corresponding section in the
current 50 CFR 80. It is based on the requirements of the Acts and 48
U.S.C. 1469a.
Section 80.85 What requirements apply to match?
The proposed Sec. Sec. 80.85(a) and (b)(1) correspond in part to
the current Sec. 80.12, ``Cost sharing.'' The proposed Sec.
80.85(b)(2) is new, but it is consistent with the Federal Cost
Principles. The proposed Sec. 80.85(c) is based upon Service policy
issued in Service Manual chapter 522 FW 17, which in turn is based on a
2005 recommendation of a joint task force of Federal and State
officials.
Subpart H--General Grant Administration
Section 80.90 What are the responsibilities of an agency?
This proposed section corresponds to and closely follows the
language of the current Sec. 80.18, ``Responsibilities.''
Section 80.91 What is a Federal obligation of funds and how does it
occur?
This proposed section does not have a corresponding section in the
current regulations. We proposed this section for the following
reasons:
(a) The nature of a Federal obligation is not defined in any
regulations or policies of the Wildlife and Sport Fish Restoration
program;
(b) Both State and Federal employees have at times expressed
different understandings of what a Federal obligation is.
(c) Some of the confusion is due to a parallel and related process,
in which grantees obligate funds available to them under a grant. These
``grantee obligations'' are discussed at 43 CFR 12.43 and 43 CFR 12.902
in the definitions of ``obligations,'' ``unliquidated obligations,''
and ``unobligated balance.'' We do not define or discuss grantee
obligations.
(d) We use the term ``obligation'' or ``obligate'' in the proposed
Sec. 80.60, Sec. 80.61, and Sec. 80.92.
Section 80.92 How long are funds available for a Federal obligation?
This proposed section restates and corrects the current Sec. 80.8,
``Availability of funds,'' which does not take into account the 1-year
availability of funds under the Enhanced Hunter Education and Safety
program or the 5-year availability of funds in the Recreational Boating
Access subprogram.
Section 80.93 When may an agency incur costs under a grant?
This proposed section corresponds, in part, to the current Sec.
80.15(c), ``Allowable costs.'' It leads to the subject of preagreement
costs in the proposed Sec. 80.94.
Section 80.94 May an agency incur costs before the effective date of
the grant period?
This proposed section corresponds, in part, to the current Sec.
80.15(c), ``Allowable costs,'' but describes the conditions under which
the State fish and wildlife agency may incur preagreement costs. The
proposed section is based on: (a) Service Manual Chapter 522 FW 16,
``Preagreement Costs,'' which is based on a 2004 recommendation of a
joint task force of Federal and State officials, and (b) the Federal
Cost Principles in OMB Circular A-87. The proposed section goes beyond
522 FW 16 by allowing the completion of a proposed project before the
grant's effective date as long as the grantee meets certain conditions.
Section 80.95 How does an agency receive Federal grant funds?
This proposed section corresponds to and expands on the current
Sec. 80.16, ``Payments.'' It states that under certain circumstances a
grantee may receive an advance of funds. An advance of funds is
authorized in 43 CFR 12.61, and the Acts do not prohibit it. The
current Sec. 80.16 also limits the means of requesting payment. The
proposed section recognizes the nearly universal use of electronic
payments by stating that State fish and wildlife agencies may request
funds on a standard form only if it cannot use the electronic payment
system.
Section 80.96 May an agency request funds in excess of the Federal
share?
This proposed section expands on the current Sec. 80.16,
``Payments,'' by clarifying that the grantee may request Federal grant
funds for construction work in excess of the proportional Federal share
of the project taking into account all previous advances and
reimbursements for the project. This proposed practice is consistent
with the Acts.
Section 80.97 May an agency barter goods or services to carry out a
grant-funded project?
Section 80.98 How must an agency report barter transactions?
The proposed Sec. 80.97 and Sec. 80.98 do not have corresponding
sections in the current regulations. We added them because of audit
findings in several States. The Office of the Inspector General also
recommended that the Service address inconsistencies in Service Manual
Chapter 522 FW 19 on program income and provide clear guidance on
reporting barter transactions.
Section 80.99 Are symbols available to identify projects?
Section 80.100 Do agencies have to display the symbols in this part on
completed projects?
The proposed Sec. 80.99 and Sec. 80.100 correspond to and closely
follow the language of the current Sec. 80.26, ``Symbols.'' The only
significant change is in the proposed Sec. 80.100, which allows
Regional Directors to authorize certain uses of the symbols instead of
or in addition to the Director of the U.S. Fish and Wildlife Service.
Subpart 1--Program Income
The proposed Sec. Sec. 80.120 through 80.126 explain: (a) What
program income is, (b) the conditions under which an agency may earn
it, (c) how to calculate it, and (d) how to apply it to Federal and
non-Federal outlays. Only the proposed Sec. 80.121, ``May an agency
earn program income?'', has a corresponding section at the current
Sec. 80.14(c), ``Application of Wildlife and Sport Fish Restoration
Program funds.'' The remaining sections in subpart I are based on
Service Manual chapter 522 FW 19, ``Program Income from Federal
Assistance Grants.'' This chapter incorporates recommendations of a
joint task force of Federal and State officials in 2004 and 2007.
Subpart J--Real Property
Section 80.130 Does an agency have to hold title to real property
acquired under a grant?
Section 80.131 Does an agency have to hold an easement acquired under a
grant?
The proposed Sec. 80.130 and Sec. 80.131 do not have
corresponding sections in
[[Page 32883]]
the current regulations. The Dingell-Johnson Sport Fish Restoration Act
states: ``Title to any real or personal property acquired by any State,
and to improvements placed on State-owned lands through the use of
funds paid to the State under the provisions of this Act, shall be
vested in such State.'' The Pittman-Robertson Wildlife Restoration Act
does not have a similar requirement. The Act uses the term ``title,''
which applies to ownership or possessory interests, but not to
easements or other nonownership or nonpossessory interests. The
proposed section Sec. 80.130 would require grantees under either Act
to hold title to the ownership interest in real property acquired under
a grant. The proposed Sec. 80.130 would prohibit the State fish and
wildlife agency from holding title to an undivided ownership interest
in the real property concurrently with a subgrantee or any other
entity. The proposed Sec. 80.131 would require grantees under both
Acts to hold easements acquired under a grant, but the proposed section
would allow the grantee to share certain rights and responsibilities
with another State agency or a subgrantee. The proposed Sec. 80.130
and Sec. 80.131 are based on input received from State agencies and a
joint task force of Federal and State officials.
Section 80.132 Does an agency have to control the land or water where
it completes capital improvements?
This proposed section requires the grantee to control lands or
waters on which it makes capital improvements with funds apportioned
under the Acts. The proposed section corresponds to and closely follows
the language of the current Sec. 80.20, ``Land control.'' This
language is only in the Dingell-Johnson Sport Fish Restoration Act, but
the current regulations apply the requirement to funding under both
Acts. The proposed section continues to apply it to funding under both
Acts in the interest of having standard requirements for all funding
under the Acts to the extent legally possible.
Section 80.133 Does an agency have to maintain acquired or completed
capital improvements?
This proposed section corresponds to and is consistent with the
language of the current Sec. 80.17, ``Maintenance.''
Section 80.134 How must an agency use real property?
This proposed section is consistent with the language of the
current Sec. 80.14(b), ``Application of Wildlife and Sport Fish
Restoration Program funds,'' the current Sec. 80.20, ``Land control,''
and Service Manual chapters 522 FW 18, ``Useful Life,'' 522 FW 21,
``Allowable Recreational Activities and Related Facilities on Federal
Assistance Lands,'' and 522 FW 22, ``Allowable Commercial Activities
and Related Facilities on Federal Assistance Lands.'' These Service
Manual chapters were based on recommendations of a joint task force of
Federal and State officials.
Section 80.135 What if an agency allows a use of real property that
interferes with the authorized purpose?
This proposed section corresponds to and closely follows the
language of the current Sec. 80.14(b), ``Application of Wildlife and
Sport Fish Restoration Program funds.'' It is also consistent with
Service Manual Chapter 522 FW 20, ``Loss of Control and Disposal of
Real Property.'' This chapter is based on the recommendation of a joint
task force of Federal and State officials.
Section 80.136 When is a use of real property that interferes with the
authorized purpose considered a diversion?
This proposed section does not have a corresponding section in the
current regulations, but it is based on the requirements of the current
Sec. 80.4, ``Diversion of license fees.''
Section 80.137 What if real property is no longer useful or needed for
its original purpose?
This proposed section corresponds, in part, to the current Sec.
80.14(b)(3), ``Application of Wildlife and Sport Fish Restoration
Program funds.'' One new element is that the director of an agency may
propose another eligible purpose for real property no longer useful or
needed for its original purpose. The director of the State fish and
wildlife agency must ask the Service Regional Director to approve the
proposed purpose. This section is based on a recommendation of a joint
task force of Federal and State officials. It also follows, in large
part, Service Manual chapter 522 FW 20, Loss of Control and Disposal of
Real Property, which is based on a recommendation of a joint task force
of Federal and State officials.
Subpart K--Amendments and Appeals
Section 80.150 How does an agency ask for an amendment of a grant?
This proposed section does not have a corresponding section in the
current regulations, but it is consistent with the current Sec. 80.11,
``Submission of proposals,'' and Office of Management and Budget
Circular A-102, Grants and Cooperative Agreements with State and Local
Governments, Paragraph 1.c.(5)(e). It is also consistent with 43 CFR
12.70.
Section 80.151 May an agency appeal a decision?
This proposed section corresponds to the current Sec. 80.7,
``Appeals,'' but expands it by providing timelines for appeals. It also
specifies that appeals to the Secretary are governed by 43 CFR 4,
subpart G.
Subpart L--Information Collection
Section 80.160 What are the information-collection requirements of this
part?
This proposed section corresponds to and expands on the current
Sec. 80.27, ``Information collection requirements.'' The proposed
section lists all information collection requirements in the proposed
rule that are subject to the Paperwork Reduction Act. The Office of
Management and Budget has approved all of these information collections
and assigned them control numbers.
Public Comments
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. We will not
accept comments sent by e-mail or fax or to an address not listed in
the ADDRESSES section. Finally, we will not consider hand-delivered
comments that we do not receive, or mailed comments that are not
postmarked, by the date specified in the DATES section.
Before including your address, phone number, e-mail address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
Required Determinations
Clarity of This Regulation
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one
[[Page 32884]]
of the methods listed in the ADDRESSES section. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that you find unclear, which sections or sentences are too long, the
sections where you feel lists or tables would be useful, etc.
Regulatory Planning and Review (E.O. 12866)
The Office of Management and Budget (OMB) has determined that this
rule is not significant and has not reviewed this rule under E.O.
12866. OMB bases its determination on the following four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
The Regulatory Flexibility Act requires an agency to consider the
impact of proposed rules on small entities, i.e., small businesses,
small organizations, and small government jurisdictions. If there is a
significant economic impact on a substantial number of small entities,
the agency must perform a Regulatory Flexibility Analysis. This is not
required if the head of an agency certifies the rule would not have a
significant economic impact on a substantial number of small entities.
The Small Business Regulatory Enforcement Fairness Act (SBREFA) amended
the Regulatory Flexibility Act to require Federal agencies to state the
factual basis for certifying that a rule would not have a significant
economic impact on a substantial number of small entities.
We have examined this proposed rule's potential effects on small
entities as required by the Regulatory Flexibility Act. We have
determined that the proposed changes do not have a significant impact
and do not require a Regulatory Flexibility Analysis because the
changes:
a. Give information to State fish and wildlife agencies that allows
them to apply for and administer grants more easily, more efficiently,
and with greater flexibility. Only State fish and wildlife agencies may
receive grants in the three programs affected by this regulation, but
small entities sometimes voluntarily become subgrantees of agencies.
Any impact on these subgrantees would be beneficial.
b. Address changes in law and regulation. This helps grant
applicants and recipients by making the regulation consistent with
current standards. Any impact on small entities that voluntarily become
subgrantees of agencies would be beneficial.
c. Change three provisions on license certification adopted in a
final rule published on July 24, 2008, based on subsequent experience.
These changes would impact only agencies and not small entities.
d. Clarify additional issues in the Pittman-Robertson Wildlife
Restoration Act and Dingell-Johnson Sport Fish Restoration Act. This
would help agencies comply with statutory requirements and increase
awareness of alternatives available under the law. Any impact on small
entities that voluntarily become subgrantees of agencies would be
beneficial.
e. Clarify that (1) cooperative farming or grazing arrangements and
(2) sales receipts retained by concessionaires or contractors are not
program income. This clarification allows States to expand projects
with small businesses and farmers without making these cooperative
arrangements or sales receipts subject to program income restrictions.
This clarification would be potentially beneficial to the small
entities that voluntarily become cooperative farmers, cooperative
ranchers, and concessionaires.
f. Add information that allows States to enter into agreements with
nonprofit organizations to share rights or responsibilities for
easements acquired under grants for the mutual benefit of both parties.
This addition would benefit the small entities that enter into these
agreements voluntarily.
g. Reword and reorganize the regulation to make it easier to
understand. Any impact on the small entities that voluntarily become
subgrantees of agencies would be beneficial.
The Service has determined that the changes primarily impact State
governments. The small entities affected by the changes are primarily
concessionaires, cooperative farmers, cooperative ranchers, and
subgrantees who voluntarily enter into mutually beneficial
relationships with an agency. The impact on small entities would be
very limited and beneficial in all cases.
Consequently, we certify that because this proposed rule would not
have a significant economic effect on a substantial number of small
entities, a Regulatory Flexibility Analysis is not required.
In addition, this proposed rule is not a major rule under SBREFA (5
U.S.C. 804(2)) and would not have a significant impact on a substantial
number of small entities because it does not:
a. Have an annual effect on the economy of $100 million or more.
b. Cause a major increase in costs or prices for consumers;
individual industries; Federal, State, or local government agencies; or
geographic regions.
c. Have significant adverse effects on competition, employment,
investment, productivity, innovation, or the ability of U.S.-based
enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 USC Ch.25; Pub. L. 104-
4) establishes requirements for Federal agencies to assess the effects
of their regulatory actions on State, local, and tribal governments and
the private sector. The Act requires each Federal agency, to the extent
permitted by law, to prepare a written assessment of the effects of a
proposed rule with Federal mandates that may result in the expenditure
by State, local, and tribal governments, in aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. We have determined the following under the
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.):
a. As discussed in the determination for the Regulatory Flexibility
Act, this proposed rule would not have a significant economic effect on
a substantial number of small entities.
b. The regulation does not require a small government agency plan
or any other requirement for expenditure of local funds.
c. The programs governed by the current regulations and enhanced by
the proposed changes potentially assist small governments financially
when they occasionally and voluntarily participate as subgrantees of an
agency.
d. The proposed rule clarifies and enhances the current regulations
allowing State, local, and tribal governments, and the private sector
to receive the benefits of grant funding in a more flexible, efficient,
and effective manner. They may receive these benefits as a subgrantee
of a State fish and wildlife agency, a cooperating farmer or rancher, a
concessionaire, a
[[Page 32885]]
concurrent holder of a grant-acquired easement, or a holder of
enforcement rights under an easement.
e. Any costs incurred by a State, local, and tribal government, or
the private sector are voluntary. There are no mandated costs
associated with the proposed rule.
f. The benefits of grant funding outweigh the costs. The Federal
Government provides up to 75 percent of the cost of each grant to the
50 States in the three programs affected by the proposed rule. The
Federal Government may also provide up to 100 percent of the cost of
each grant to the Commonwealths of Puerto Rico and the Northern Mariana
Islands, the District of Columbia, and the territories of Guam, the
U.S. Virgin Islands, and American Samoa. All 50 States and other
eligible jurisdictions voluntarily apply for grants in these programs
each year. This rate of participation is clear evidence that the
benefits of grant funding outweigh the costs.
g. This proposed rule would not produce a Federal mandate of $100
million or greater in any year, i.e., it is not a ``significant
regulatory action'' under the Unfunded Mandates Reform Act.
Takings
This proposed rule would not have significant takings implications
under E.O. 12630 because it would not have a provision for taking
private property. Therefore, a takings implication assessment is not
required.
Federalism
This proposed rule would not have sufficient Federalism effects to
warrant preparation of a Federalism assessment under E.O. 13132. It
would not interfere with the States' ability to manage themselves or
their funds. We work closely with the States in administration of these
programs, and they helped us identify those sections of the current
regulations in need of change and new issues in need of clarification
through regulation. In drafting the proposed rule, we received comments
from committees of the Association of Fish and Wildlife Agencies and
from the Joint Federal/State Task Force on Federal Assistance Policy.
The Director of the U.S. Fish and Wildlife Service and the President of
the Association of Fish and Wildlife Agencies jointly chartered the
Joint Federal/State Task Force on Federal Assistance Policy in 2002 to
identify issues of national concern in the three grant programs
affected by the proposed rule.
Civil Justice Reform
The Office of the Solicitor has determined under E.O. 12988 that
the rule would not unduly burden the judicial system and meets the
requirements of sections 3(a) and 3(b)(2) of the Order. The proposed
rule will benefit grantees because it:
(a) Updates the regulations to reflect changes in policy and
practice during the past 25 years;
(b) Makes the regulations easier to use and understand by improving
the organization and using plain language;
(c) Modifies three provisions in the final rule to amend 50 CFR 80
published in the Federal Register at 73 FR 43120 on July 24, 2008,
based on subsequent experience; and
(d) Adopts two recommendations on new issues received from State
fish and wildlife agencies in response to the proposed rule to amend 50
CFR 80 published in the Federal Register at 73 FR 24523 on May 5, 2008.
Paperwork Reduction Act
We examined the proposed rule under the Paperwork Reduction Act (44
U.S.C. 3501 et seq.). We may not collect or sponsor and you are not
required to respond to a collection of information unless it displays a
current OMB control number. The proposed 50 CFR 80.160 describes seven
information collections in the proposed rule. All of these collections
request information from State fish and wildlife agencies, and all have
current OMB control numbers.
OMB authorized and approved Governmentwide standard forms for three
of the seven information collections. These three information
collections are for the purposes of: (a) Application for a grant; (b)
certifications related to authority, capability, and legal compliance;
and (c) reporting on the use of Federal funds, match, and program
income.
OMB approved three other information collections in the proposed
rule under control number 1018-0109, but has not approved
Governmentwide standard forms for these collections. The purposes of
these information collections are to provide the Service with: (a) A
project statement in support of a grant application, (b) a report on
progress in completing a grant-funded project, and (c) a request to
approve an update or another change in information provided in a
previously approved application. OMB authorized these information
collections in its Circular A-102.
The Acts and the current 50 CFR 80.10 authorize the seventh
information collection. This collection allows the Service to learn the
number of people who have a paid license to hunt and the number of
people who have a paid license to fish in each State during a State-
specified certification year. The Service uses this information in
statutory formulas to apportion funds in the Wildlife Restoration and
Sport Fish Restoration programs among the States. OMB approved this
information collection on forms FWS 3-154a and 3-154b under control
number 1018-0007. The proposed rule does not change the information
required on forms FWS 3-154a and 3-154b. It merely establishes a common
approach for States to assign license holders to a certification year.
National Environmental Policy Act
We have analyzed this rule under the National Environmental Policy
Act, 42 U.S.C. 432-437(f) and part 516 of the Departmental Manual. This
rule does not constitute a major Federal action significantly affecting
the quality of the human environment. An environmental impact
statement/assessment is not required due to the categorical exclusion
for administrative changes provided at 516 DM 2, Appendix 1, section
1.10.
Government-to-Government Relationship With Tribes
We have evaluated potential effects on federally recognized Indian
tribes under the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), E.O. 13175, and 512 DM 2. We have
determined that there are no potential effects. This proposed rule
would not interfere with the tribes' ability to manage themselves or
their funds.
Energy Supply, Distribution, or Use (E.O. 13211)
E.O. 13211 addresses regulations that significantly affect energy
supply, distribution, and use and requires agencies to prepare
Statements of Energy Effects when undertaking certain actions. This
rule is not a significant regulatory action under E.O. 12866 and would
not affect energy supplies, distribution, or use. Therefore, this
action is not a significant energy action and no Statement of Energy
Effects is required.
List of Subjects in 50 CFR Part 80
Education, Fish, Fishing, Grants administration, Grant programs,
Hunting, Natural resources, Real property acquisition, Recreation and
recreation areas, Signs and symbols, Wildlife.
[[Page 32886]]
Proposed Regulation Promulgation
For the reasons discussed in the preamble, we propose to amend
title 50 of the Code of Federal Regulations, chapter I, subchapter F,
by revising part 80 to read as follows:
PART 80--ADMINISTRATIVE REQUIREMENTS, PITTMAN-ROBERTSON WILDLIFE
RESTORATION AND DINGELL-JOHNSON SPORT FISH RESTORATION ACTS
Subpart A--General
Sec.
80.1 What does this part do?
80.2 What terms do I need to know?
Subpart B--State Fish and Wildlife Agency Eligibility
80.10 Who is eligible to receive the benefits of the Acts?
80.11 How does a State become ineligible to receive the benefits of
the Acts?
80.12 Does an agency have to confirm that it wants to receive an
annual apportionment of funds?
Subpart C--License Revenue
80.20 What does revenue from hunting and fishing licenses include?
80.21 What if a State diverts license revenue from the control of
its fish and wildlife agency?
80.22 What must a State do to resolve a declaration of diversion?
80.23 Does a declaration of diversion affect a previous Federal
obligation of funds?
Subpart D--Licensee Certification
80.30 Why must an agency certify the number of paid license holders?
80.31 How does an agency certify the number of paid license holders?
80.32 What is the certification period?
80.33 How does an agency decide who to count as paid license holders
in the annual certification?
80.34 May an agency count license holders in the annual
certification if the agency receives funds from the State to cover
their license fees?
80.35 How does an agency calculate net revenue from a license?
80.36 What must an agency do if it discovers errors in its data?
80.37 May the Service recalculate an apportionment if an agency
submits revised data?
80.38 May the Director correct a Service error in apportioning
funds?
Subpart E--Eligible Activities
80.50 What activities are eligible for funding under the Pittman-
Robertson Wildlife Restoration Act?
80.51 What activities are eligible for funding under the Dingell-
Johnson Sport Fish Restoration Act?
80.52 What activities are ineligible for funding?
80.53 Are administrative costs for State central services eligible
expenses?
80.54 May an agency receive a grant to carry out part of a larger
project?
80.55 How does a proposed project qualify as substantial in
character and design?
Subpart F--Allocation of Funds by an Agency
80.60 What is the relationship between the Basic Hunter Education
and Safety subprogram and the Enhanced Hunter Education and Safety
program?
80.61 What requirements apply to funds for the Recreational Boating
Access subprogram?
80.62 What limitations apply to spending on the Aquatic Resource
Education and Outreach and Communications subprograms?
80.63 Does an agency have to allocate costs in multipurpose projects
and facilities?
80.64 How does an agency allocate costs in multipurpose projects and
facilities?
80.65 Does an agency have to allocate funds between marine and
freshwater fisheries projects?
80.66 What requirements apply to allocation of funds between marine
and freshwater fisheries projects?
80.67 May an agency finance an activity from more than one annual
apportionment?
>80.68 What requirements apply to financing an activity from more
than one annual apportionment?
Subpart G--Application for a Grant
80.80 How does an agency apply for a grant?
80.81 What must an agency submit when applying for a comprehensive-
management-system grant?
80.82 What must an agency submit when applying for a project-by-
project grant?
80.83 What is the Federal share of allowable costs?
80.84 How does the Service establish the non-Federal share of
allowable costs?
80.85 What requirements apply to match?
Subpart H--General Grant Administration
80.90 What are the responsibilities of an agency?
80.91 What is a Federal obligation of funds and how does it occur?
80.92 How long are funds available for a Federal obligation?
80.93 When may an agency incur costs under a grant?
80.94 May an agency incur costs before the effective date of the
grant period?
80.95 How does an agency receive Federal grant funds?
80.96 May an agency request funds in excess of the Federal share?
80.97 May an agency barter goods or services to carry out a grant-
funded project?
80.98 How must an agency report barter transactions?
80.99 Are symbols available to identify projects?
80.100 Do agencies have to display the symbols in this part on
completed projects?
Subpart I--Program Income
80.120 What is program income?
80.121 May an agency earn program income?
80.122 May an agency deduct the costs of generating program income
from gross income?
80.123 How may an agency use program income?
80.124 How may an agency use unexpended program income?
80.125 How must an agency treat income that it earns after the grant
period?
80.126 How must an agency treat income earned by a subgrantee after
the grant period?
Subpart J--Real Property
80.130 Does an agency have to hold title to real property acquired
under a grant?
80.131 Does an agency have to hold an easement acquired under a
grant?
80.132 Does an agency have to control the land or water where it
completes capital improvements?
80.133 Does an agency have to maintain acquired or completed capital
improvements?
80.134 How must an agency use real property?
80.135 What if an agency allows a use of real property that
interferes with the authorized purpose?
80.136 When is a use of real property that interferes with the
authorized purpose considered a diversion?
80.137 What if real property is no longer useful or needed for its
original purpose?
Subpart K--Amendments and Appeals
80.150 How does an agency ask for an amendment of a grant?
80.151 May an agency appeal a decision?
Subpart L--Information Collection
80.160 What are the information collection requirements of this
part?
Authority: 16 U.S.C. 669-669k; 16 U.S.C. 715 et seq.; 16 U.S.C.
777-777n, except 777e-1 and g-1; 18 U.S.C. 701; 26 U.S.C. 4161,
4162, 4181, 4182, 9503, and 9504; 48 U.S.C. 1469a; E.O. 12372.
Subpart A--General
Sec. 80.1 What does this part do?
This part of the Code of Federal Regulations tells States how they
may:
(a) Use revenues derived from State hunting and fishing licenses in
compliance with the Acts.
(b) Receive annual apportionments from the Federal Aid to Wildlife
Restoration Fund (16 U.S.C. 669(b)), if authorized, and the Sport Fish
Restoration and Boating Trust Fund (26 U.S.C. 9504).
(c) Receive financial assistance from the Wildlife Restoration
program, the Basic Hunter Education and Safety subprogram, and the
Enhanced Hunter Education and Safety grant program, if authorized.
(d) Receive financial assistance from the Sport Fish Restoration
program, the Recreational Boating Access
[[Page 32887]]
subprogram, the Aquatic Resources Education subprogram, and the
Outreach and Communications subprogram.
(e) Comply with the requirements of the Acts.
Sec. 80.2 What terms do I need to know?
The terms in this section pertain only to the regulations in this
part.
Acts means the Pittman-Robertson Wildlife Restoration Act of
September 2, 1937, as amended (16 U.S.C. 669-669k), and the Dingell-
Johnson Sport Fish Restoration Act of August 9, 1950, as amended (16
U.S.C. 777-777n, except 777e-1 and g-1).
Agency means a State fish and wildlife agency.
Angler means a person who fishes for sport fish for recreational
purposes as permitted by State law.
Capital improvement means an alteration, addition, or replacement
that increases the value of real property by at least $10,000. An
agency may use its own definition of capital improvement if its
definition includes all capital improvements as defined here.
Comprehensive management system grant means a grant that funds all
or part of a State's comprehensive management system. This system:
(1) Assesses the current, projected, and desired status of fish and
wildlife;
(2) Develops a strategic plan and carries it out through an
operational planning process; and
(3) Evaluates results. The planning period is at least 5 years
using a minimum 15-year projection of the desires and needs of the
State's citizens.
Construction means the act of building or significantly renovating,
altering, or repairing a structure. Acquiring, clearing, and reshaping
land and demolishing structures are types or phases of construction.
Examples of structures are buildings, roads, parking lots, utility
lines, fences, piers, wells, pump stations, ditches, dams, dikes,
water-control structures, fish-hatchery raceways, and shooting ranges.
Director means the Director of the U.S. Fish and Wildlife Service,
or his or her designated representative, who is delegated authority by
the Secretary to administer the Acts.
Diversion means any use of revenue from the license fees paid by
hunters and anglers for a purpose other than administration of the
State fish and wildlife agency.
Grant means an award of money, the principal purpose of which is to
transfer funds or property from a Federal agency to a grantee to
support or stimulate an authorized public purpose under the Acts. This
part uses the term grant for both a grant and a cooperative agreement
for convenience of reference. This use does not affect the legal
distinction between the two instruments. The meaning of grant in the
terms grant funds, grant-funded, and under the grant includes the
matching cash and any matching in-kind contributions in addition to the
Federal award of money.
Grantee means the State fish and wildlife agency that applies for
the grant and carries out grant-funded activities in programs
authorized by the Acts. The State fish and wildlife agency acts on
behalf of the State government, which is the legal entity and is
accountable for the use of Federal funds, matching funds, and matching
in-kind contributions.
Match means the value of any non-Federal in-kind contributions and
the portion of the costs of a grant-funded project or projects not
borne by the Federal government.
Project means one or more related undertakings in a project-by-
project grant that are necessary to fulfill a need or needs, as defined
by the State fish and wildlife agency, consistent with the purposes of
the appropriate Act. For convenience of reference in this part, the
meaning of project includes an agency's fish and wildlife program under
a comprehensive management system grant.
Project-by-project grant means an award of money based on a
detailed statement of a project or projects and other supporting
documentation.
Real property means one, several, or all interests, benefits, and
rights inherent in the ownership of a parcel of land or water including
anything above, below, or attached to it as a result of natural
processes or human actions.
Regional Director means the person appointed by the Director to
direct the Service's operations in one of its geographic Regions, or
his or her designated representative. This person's responsibility does
not extend to any administrative units that the Service's Washington
Office supervises directly in that geographic Region.
Secretary means the person appointed by the President to direct the
operation of the Department of the Interior, or his or her designated
representative.
Service means the U.S. Fish and Wildlife Service.
Sport fish means aquatic, gill-breathing, vertebrate animals with
paired fins, having material value for recreation in the marine and
fresh waters of the United States.
State means any State of the United States, the Commonwealths of
Puerto Rico and the Northern Mariana Islands, and the territories of
Guam, the U.S. Virgin Islands, and American Samoa. State also includes
the District of Columbia for purposes of the Dingell-Johnson Sport Fish
Restoration Act, the Sport Fish Restoration program, and its
subprograms. State does not include the District of Columbia for
purposes of the Pittman-Robertson Wildlife Restoration Act and the
programs and subprogram under the Act because the Pittman-Robertson
Wildlife Restoration Act does not authorize funding for the District.
References to ``the 50 States'' apply only to the 50 States of the
United States and do not include the Commonwealths of Puerto Rico and
the Northern Mariana Islands, the District of Columbia, or the
territories of Guam, the U.S. Virgin Islands, and American Samoa.
State fish and wildlife agency means the administrative unit
designated by State law or regulation to carry out State laws for
management of fish and wildlife resources. If an agency has other
jurisdictional responsibilities, the agency is considered the State
fish and wildlife agency only when exercising responsibilities specific
to management of the State's fish and wildlife resources.
Subaccount means a group of similar activities that the Service
tracks for purposes of financial accountability using a distinct
numeric code for each group. These groups correspond with programs,
subprograms, or a combination of subprograms.
Useful life means the period during which a federally funded
capital improvement is capable of fulfilling its intended purpose with
adequate routine maintenance.
Wildlife means the indigenous or naturalized species of birds or
mammals that are either:
(1) Wild and free-ranging;
(2) Held in a captive breeding program established to reintroduce
individuals of a depleted indigenous species into previously occupied
range; or
(3) Under the jurisdiction of a State fish and wildlife agency.
Subpart B--State Fish and Wildlife Agency Eligibility
Sec. 80.10 Who is eligible to receive the benefits of the Acts?
States acting through their fish and wildlife agencies are eligible
for benefits of the Acts only if they pass and maintain legislation
that:
(a) Assents to the provisions of the Acts;
(b) Ensures the conservation of fish and wildlife; and
(c) Requires that revenue from license fees paid by hunters and
anglers be:
[[Page 32888]]
(1) Controlled only by the State fish and wildlife agency; and
(2) Used only for administration of the State fish and wildlife
agency which includes only the functions required to manage the agency
and the fish- and wildlife-related resources for which the agency has
authority under State law.
Sec. 80.11 How does a State become ineligible to receive the benefits
of the Acts?
(a) A State becomes ineligible to receive the benefits of the Acts
if the Director finds that it:
(1) Does not pass legislation required at Sec. 80.10 or passes
legislation contrary to the Acts;
(2) Diverts revenue from license fees paid by hunters and anglers
or from property acquired with this revenue from the control of the
State fish and wildlife agency to purposes other than its
administration; or
(b) A State may become ineligible to receive the benefits of the
Acts if the Director finds that the State failed materially to comply
with any law, regulation, or term of a grant as it relates to
acceptance and use of funds under the Acts.
Sec. 80.12 Does an agency have to confirm that it wants to receive an
annual apportionment of funds?
No. However, if a State fish and wildlife agency does not want to
receive the annual apportionment of funds, it must notify the Service
in writing within 60 days of receiving a preliminary or final
certificate of apportionment.
Subpart C--License Revenue
Sec. 80.20 What does revenue from hunting and fishing licenses
include?
(a) Hunting and fishing license revenue includes:
(1) Proceeds that the State fish and wildlife agency receives from
the sale of State-issued general or special hunting or fishing
licenses, permits, stamps, tags, access and use fees, or other State
charges to hunt or fish for recreational purposes;
(2) Real, personal, or intellectual property acquired with license
revenue;
(3) Income from the sale, lease, or rental of, granting rights to,
or a fee for access to property acquired or constructed with license
revenue (see paragraph (b) of this section); or
(4) Income from the sale, lease, or rental of, granting rights to,
or a fee for access to a recreational opportunity, product, or
commodity derived from property acquired, managed, maintained, or
produced with license revenue (see paragraph (b) of this section);
(5) Interest, dividends, or other income earned on license revenue;
(6) Reimbursements for expenditures originally paid with license
revenue; and
(7) Payments received for services funded by license revenue.
(b) Property referred to in paragraphs (a)(3) and (a)(4) of this
section includes, but is not limited to:
(1) Real property, such as land owned in fee title, a leasehold
interest, easements, mineral rights, standing timber, and structures;
(2) Personal property, such as vehicles, equipment, tools,
supplies, annual crops, minerals extracted from the land, harvested
timber, animal products, cash, and securities; and
(3) Intellectual property, such as patents and copyrights.
Sec. 80.21 What if a State diverts license revenue from the control
of its fish and wildlife agency?
If a State violates the requirements of Sec. 80.10 by diverting
license revenue from the control of its fish and wildlife agency to
purposes other than the agency's administration, the Director may
declare the State to be in diversion. The State is ineligible to
receive benefits under the relevant Act from the date the Director
signs the declaration of diversion until the State resolves the
diversion.
Sec. 80.22 What must a State do to resolve a declaration of
diversion?
The State must complete the actions in paragraphs (a) through (f)
of this section to resolve a declaration of diversion. The State must
use a source of funds other than license revenue to fund the
replacement of license revenue.
(a) The State must enact adequate legislative prohibitions to
prevent future diversions of license revenue.
(b) The State fish and wildlife agency must regain all diverted
cash derived from license revenue and the interest lost up to the date
of repayment, and it must enter into State records the receipt of this
cash and interest.
(c) The agency must receive either the revenue earned from diverted
property during the period of diversion or the current market rental
rate of any diverted property, whichever is greater.
(d) The agency must take one of the following actions to resolve a
diversion of real, personal, or intellectual property:
(1) Regain management control of the property, which must be in
about the same condition as before diversion;
(2) Receive replacement property that meets the criteria in
paragraph (f) of this section; or
(3) Receive a cash amount at least equal to the current market
value of the diverted property only if the Regional Director agrees
that the actions described in paragraphs (d)(1) and (d)(2) of this
section are not possible.
(e) The agency must enter into State records the action taken,
current market value, amount received, and fish and wildlife benefits
if applicable.
(f) To be acceptable under paragraph (d)(2) of this section,
replacement property must have both:
(1) Market value that at least equals the current market value of
the diverted property, and
(2) Fish or wildlife benefits that at least equal those of the
property diverted, as approved by the Regional Director.
Sec. 80.23 Does a declaration of diversion affect a previous Federal
obligation of funds?
No. Federal funds obligated before the date that the Director
declares a diversion remain available for expenditure without regard to
the intervening period of the State's ineligibility. See Sec. 80.91
for when a Federal obligation occurs.
Subpart D--License Certification
Sec. 80.30 Why must an agency certify the number of paid license
holders?
A State fish and wildlife agency must certify the number of people
having paid licenses to hunt and paid licenses to fish because the
Service uses these data in statutory formulas to apportion funds in the
Wildlife Restoration and Sport Fish Restoration programs among the
States.
Sec. 80.31 How does an agency certify the number of paid license
holders?
(a) A State fish and wildlife agency certifies the number of paid
license holders by responding to the Director's annual request for the
following data:
(1) The number of people who have paid licenses to hunt in the
State during the State-specified certification period (certification
period); and
(2) The number of people who have paid licenses to fish in the
State during the certification period.
(b) The director of the agency must certify this information in the
format that the Director specifies. The director of the agency must
provide documentation to support the accuracy of this information at
the Director's request.
(c) The director of the agency is responsible for eliminating
multiple
[[Page 32889]]
counting of single individuals in the information that he or she
certifies and may use statistical sampling, automated record
consolidation, or other techniques approved by the Director for this
purpose. If a State uses statistical sampling, it must sample at the
earlier of the following:
(1) Five years after the last statistical sample; or
(2) The first certification period affected by a change in the
licensing system that could affect the number of people who hold a paid
license to hunt or a paid license to fish.
Sec. 80.32 What is the certification period?
A certification period must:
(a) Be 12 consecutive months;
(b) Correspond to the State's fiscal year or license year;
(c) Be consistent from year to year unless the Director approves a
change; and
(d) End at least 1 year and no more than 2 years before the
beginning of the Federal fiscal year in which the apportioned funds
first become available for expenditure.
Sec. 80.33 How does an agency decide who to count as paid license
holders in the annual certification?
(a) An agency must follow the rules in the following table in
deciding how to count paid license holders in the annual certification.
For any license holder to be counted, the State fish and wildlife
agency must be able to verify the license holder's name in State
records.
------------------------------------------------------------------------
How to count each license
Type of license holder holder
------------------------------------------------------------------------
(1) A person who has either a paid Once.
license to hunt or a paid license to
fish for sport or recreation even if
the person is not required to have a
paid license or is unable to hunt or
fish.
(2) A person who has more than one paid Once.
license to hunt because the person
either voluntarily obtained them or
was required to have more than one
license.
(3) A person who has more than one paid Once.
license to fish because the person
either voluntarily obtained them or
was required to have more than one
license.
(4) A person who has a single-year Once in the certification
license for which the State fish and period in which the license
wildlife agency receives at least $1 first becomes valid.
of net revenue. (Single-year licenses
are valid for any length of time less
than 2 years.).
(5) A person who has a multiyear Once in each certification
license. (Multiyear licenses may be period in which the license is
valid for either a specific or valid only if the license
indeterminate number of years, but meets the requirements in
must be valid for at least 2 years.). paragraph (b) of this section.
(6) A person holding a paid combination Twice: Once as a person who has
license permitting both hunting and a paid hunting license, and
fishing. once as a person who has a
paid fishing license.
(7) A person who has a license that Cannot be counted.
allows the license holder only to trap
animals or only to engage in
commercial activities.
------------------------------------------------------------------------
(b) For a multiyear license to be eligible under paragraph (a)(5)
of this section, the State fish and wildlife agency must receive net
revenue from the multiyear license of at least $1 for each year in
which the license is valid.
(1) The agency may compute net revenue from a multiyear license
annually or at the time of sale. It must base the net revenue on either
the:
(i) Duration of the license, in the case of a multiyear license
with a specified ending date; or
(ii) Expected lifespan of the license holder, in the case of a
lifetime license.
(2) The agency may use statistical sampling, life expectancy
tables, mortality tables, or other techniques approved by the Director
to decide how many multiyear-license holders remain alive in the
certification period.
Sec. 80.34 May an agency count license holders in the annual
certification if the agency receives funds from the State to cover
their license fees?
If a State fish and wildlife agency receives funds from the State
to cover fees normally charged for a category of licenses, the State
may count those license holders in the annual certification only under
the following conditions:
(a) The State funds must come from a source other than hunting- and
fishing-license revenue;
(b) The State funds must equal or exceed the fees that the license
holder would have paid for comparable hunting or fishing privileges;
(c) The agency must issue each license in the license holder's
name;
(d) The agency must receive and account for the State funds as
license revenue; and
(e) The license fees must meet all other requirements of this part.
Sec. 80.35 How does an agency calculate net revenue from a license?
The State fish and wildlife agency must calculate net revenue from
a license by subtracting the per-license costs of issuing the license
from the revenue generated by the license. Examples of costs of issuing
licenses are: agents' or sellers' fees; automated license-system costs;
licensing-unit personnel costs; and the costs of printing,
distribution, and control.
Sec. 80.36 What must an agency do if it becomes aware of errors in
its data?
A State fish and wildlife agency must submit revised certified data
on paid license holders within 90 days after it becomes aware of errors
in its certified data. The State may become ineligible to participate
in the benefits of the relevant Act if it becomes aware of errors in
its certified data and does not resubmit accurate certified data within
90 days.
Sec. 80.37 May the Service recalculate an apportionment if an agency
submits revised data?
If a State fish and wildlife agency submits revised certified data
on paid license holders, the Service may take one of the following
actions depending on the timing and effects of the revision:
(a) If an agency submits revised certified data on paid license
holders before the Director approves the final apportionment under the
Acts, the Service may recalculate the proposed apportionment.
(b) If an agency submits revised certified data on paid license
holders after the Director approves the final apportionment, the
Service may recalculate the apportionment only if it would not reduce
apportioned funds to other State fish and wildlife agencies.
Sec. 80.38 May the Director correct a Service error in apportioning
funds?
Yes. The Director may correct any error that the Service makes in
apportioning funds.
[[Page 32890]]
Subpart E--Eligible Activities
Sec. 80.50 What activities are eligible for funding under the
Pittman-Robertson Wildlife Restoration Act?
The following activities are eligible for funding under the
Pittman-Robertson Wildlife Restoration Act:
(a) Wildlife Restoration program.
(1) Restore or manage wildlife.
(2) Conduct research on problems of wildlife management if
necessary to administer wildlife resources efficiently.
(3) Select, restore, rehabilitate, or improve lands or waters as
habitat for wildlife.
(4) Acquire real property suitable or capable of being made
suitable for wildlife habitat or public access.
(5) Build structures or acquire equipment, goods, and services to:
(i) Restore, rehabilitate, or improve lands or waters as habitat
for wildlife; or
(ii) Provide public access.
(6) Operate or maintain:
(i) Projects that the State fish and wildlife agency completed
under the Pittman-Robertson Wildlife Restoration Act; or
(ii) Facilities that the agency acquired or constructed with funds
other than those authorized under the Pittman-Robertson Wildlife
Restoration Act if these facilities are necessary to carry out
activities authorized by the Pittman-Robertson Wildlife Restoration
Act.
(7) Manage wildlife areas and resources.
(b) Wildlife Restoration--Basic Hunter Education and Safety
subprogram.
(1) Teach the skills, knowledge, and attitudes necessary to be a
responsible hunter.
(2) Construct, operate, or maintain firearm and archery ranges for
public use.
(c) Enhanced Hunter Education and Safety program.
(1) Enhance programs for hunter education, hunter development, and
firearm and archery safety. Hunter-development programs introduce
individuals to and recruit them to take part in hunting, bow hunting,
target shooting, or archery.
(2) Enhance interstate coordination of hunter-education and
firearm- and archery-range programs.
(3) Enhance programs for education, safety, or development of bow
hunters and archers.
(4) Enhance construction and development of firearm and archery
ranges.
(5) Update safety features of firearm and archery ranges.
Sec. 80.51 What activities are eligible for funding under the
Dingell-Johnson Sport Fish Restoration Act?
The following activities are eligible for funding under the
Dingell-Johnson Sport Fish Restoration Act:
(a) Sport Fish Restoration program.
(1) Restore or manage sport fish.
(2) Conduct research on fish management or culture if necessary to
administer sport fish resources efficiently.
(3) Obtain data to guide and direct the regulation of fishing.
These data may be on: the size and geographic range of sport fish
populations; changes in sport fish populations due to fishing, other
human activities, or natural causes; and the effects of any measures or
regulations applied.
(4) Develop and adopt plans to restock sport fish and forage fish
in the natural areas or districts covered by the plans; and obtain data
to develop, carry out, and test the effectiveness of the plans.
(5) Select, restore, rehabilitate, or improve areas of land or
water adaptable as habitat for sport fish or as a buffer to protect
that habitat.
(6) Acquire real property suitable or capable of being made
suitable for sport fish habitat or as a buffer to protect that habitat,
or acquire real property for public access. Closures to sport fishing
must be based on the recommendations of the State fish and wildlife
agency for fish and wildlife management purposes.
(7) Build structures or acquire equipment, goods, and services to
provide public access to or to restore, rehabilitate, or improve areas
of water or land as habitat for sport fish.
(8) Construct, renovate, operate, or maintain pumpout and dump
stations. A pumpout station is a facility that pumps or receives sewage
from a type III marine sanitation device that the U.S. Coast Guard
requires on some vessels. A dump station, also referred to as a ``waste
reception facility,'' is specifically designed to receive waste from
portable toilets on vessels.
(9) Operate or maintain:
(i) Projects that the State fish and wildlife agency completed
under the Dingell-Johnson Sport Fish Restoration Act; or
(ii) Facilities that the agency acquired or constructed with funds
other than those authorized by the Dingell-Johnson Sport Fish
Restoration Act if these facilities are necessary to carry out
activities authorized by the Act.
(b) Sport Fish Restoration--Recreational Boating Access subprogram.
(1) Acquire land for new facilities, build new facilities, or
acquire, renovate, or improve existing facilities to create or improve
public access to the waters of the United States or improve the
suitability of these waters for recreational boating. A broad range of
access facilities and associated amenities can qualify for funding, but
the facilities must accommodate boats with any size of motor that is
reasonable and legal for use on the applicable body of water.
``Facilities'' includes auxiliary structures necessary to ensure safe
use of recreational boating access facilities.
(2) Conduct surveys to determine the adequacy, number, location,
and quality of facilities providing access to recreational waters for
all sizes of recreational boats.
(c) Sport Fish Restoration--Aquatic Resource Education subprogram.
Enhance the public's understanding of water resources, aquatic life
forms, and sport fishing, and develop responsible attitudes and ethics
toward the aquatic environment.
(d) Sport Fish Restoration--Outreach and Communications subprogram.
(1) Improve communications with anglers, boaters, and the general
public on sport fishing and boating opportunities.
(2) Increase participation in sport fishing and boating.
(3) Advance the adoption of sound fishing and boating practices
including safety.
(4) Promote conservation and responsible use of the aquatic
resources of the United States.
Sec. 80.52 What activities are ineligible for funding?
The activities below are ineligible for funding under the Acts,
except when necessary to carry out project purposes approved by the
Regional Director. Other activities may also be ineligible as a result
of Federal laws, regulations, or policies.
(a) Law enforcement activities.
(b) Public relations activities to promote the State fish and
wildlife agency, other State administrative units, or the State.
(c) Activities conducted for the primary purpose of producing
income.
(d) Activities, projects, or programs that promote or encourage
opposition to regulated taking of fish, hunting, or the trapping of
wildlife.
Sec. 80.53 Are administrative costs for State central services
eligible expenses?
Yes. Administrative costs in the form of overhead or indirect costs
for State central services outside of the State fish and wildlife
agency are eligible expenses under the Acts and must follow an approved
cost allocation plan. These expenses must not exceed 3
[[Page 32891]]
percent of the funds apportioned annually to the State under the Acts.
Sec. 80.54 May an agency receive a grant to carry out part of a
larger project?
Yes. A State fish and wildlife agency may receive a grant to carry
out part of a larger project involving other organizations working
toward the same goal, but using different sources of funding. The
agency may receive this funding only if the grant-funded part of the
larger project:
(a) Results in an identifiable outcome that is consistent with the
purposes of the grant program;
(b) Is substantial in character and design;
(c) Meets the requirements of Sec. Sec. 80.130 through 80.136 for
any real property acquired under the grant and any capital improvements
completed under the grant; and
(d) Meets all other requirements of the grant program.
Sec. 80.55 How does a proposed project qualify as substantial in
character and design?
A proposed project qualifies as substantial in character and design
if it:
(a) Describes a need within the purposes of the Acts;
(b) Has objectives to meet the need and has methods suitable to
meet the objectives; and
(c) Demonstrates the use of accepted principles of fish and
wildlife conservation and management, sound design, appropriate
procedures, and the likelihood of benefits commensurate with project
costs.
Subpart F--Allocation of Funds by an Agency
Sec. 80.60 What is the relationship between the Basic Hunter
Education and Safety subprogram and the Enhanced Hunter Education and
Safety program?
The relationship between the Basic Hunter Education and Safety
subprogram (Basic Hunter Education) and the Enhanced Hunter Education
and Safety program (Enhanced Hunter Education) is as follows:
------------------------------------------------------------------------
Basic Hunter Enhanced Hunter
Education funds Education funds
------------------------------------------------------------------------
(a) Which activities are Those listed in Sec. Those listed in Sec.
eligible for funding? 80.50(b). 80.50(c).
(b) How long are funds Two Federal fiscal One Federal fiscal
available for obligation? years. year.
(c) What if funds are not The Service may use The Service
fully obligated during the unobligated funds reapportions
period of availability? to carry out the unobligated funds
Migratory Bird to eligible States
Conservation Act for the following
(16 U.S.C. 715 et fiscal year. States
seq.). are eligible to
receive funds only
if their Basic
Hunter Education
funds were fully
obligated in the
preceding fiscal
year.
(d) What if funds are fully If Basic Hunter No special
obligated during the period Education funds are provisions apply.
of availability? fully obligated,
the agency may use
that fiscal year's
Enhanced Hunter
Education funds for
eligible activities
related to basic
hunter education,
enhanced hunter
education, or the
Wildlife
Restoration program.
------------------------------------------------------------------------
Sec. 80.61 What requirements apply to funds for the Recreational
Boating Access subprogram?
The requirements of this section apply to allocating and obligating
funds for the Recreational Boating Access subprogram.
(a) A State fish and wildlife agency must allocate funds from each
annual apportionment under the Dingell-Johnson Sport Fish Restoration
Act for use in the subprogram.
(b) Over each 5-year period, the total allocation for the
subprogram in each of the Service's geographic regions must average at
least 15 percent of the Sport Fish Restoration funds apportioned to the
States in that Region. As long as this requirement is met, an
individual State agency may allocate more or less than 15 percent of
its annual apportionment in a single Federal fiscal year with the
Regional Director's approval.
(c) The Regional Director calculates Regional-allocation averages
for separate 5-year periods that coincide with Federal fiscal years
2008-2012, 2013-2017, 2018-2022, and each subsequent 5-year period.
(d) If the total Regional allocation for a 5-year period is less
than 15 percent, the State agencies may, in a memorandum of
understanding, agree among themselves which of them will make the
additional allocations to eliminate the Regional shortfall.
(e) This paragraph applies if State fish and wildlife agencies do
not agree on which of them will make additional allocations to bring
the average Regional allocation to at least 15 percent over a 5-year
period. If the agencies do not agree:
(1) The Regional Director may require States in the Region to make
changes needed to achieve the minimum 15-percent Regional average
before the end of the fifth year; and
(2) The Regional Director must not require a State to increase or
decrease its allocation if the State has allocated at least 15 percent
over the 5-year period.
(f) An agency must apply to use these allocated funds by the end of
the fourth consecutive Federal fiscal year after the Federal fiscal
year in which the funds first became available for allocation.
(g) If the agency's application to use these funds has not led to a
Federal obligation by that time, these allocated funds become available
for reapportionment among the State fish and wildlife agencies for the
following fiscal year.
Sec. 80.62 What limitations apply to spending on the Aquatic Resource
Education and Outreach and Communications subprograms?
The limitations apply in this section to State fish and wildlife
agency spending on the Aquatic Resource Education and Outreach and
Communications subprograms.
(a) Each State's fish and wildlife agencies may spend a maximum of
15 percent of the annual amount apportioned to the State from the Sport
Fish Restoration and Boating Trust Fund for activities in both
subprograms. The 15-percent maximum applies to both subprograms as if
they were one.
(b) The 15-percent maximum for the subprograms does not apply to
the Commonwealths of Puerto Rico and the Northern Mariana Islands, the
District of Columbia, and the territories of Guam, the U.S. Virgin
Islands, and American Samoa. These jurisdictions may spend more than 15
percent of their annual apportionments for both subprograms with the
approval of the Regional Director.
[[Page 32892]]
Sec. 80.63 Does an agency have to allocate costs in multipurpose
projects and facilities?
Yes. A State fish and wildlife agency must allocate costs in
multipurpose projects and facilities. A grant-funded project or
facility is multipurpose if it carries out the purposes of:
(a) A single grant program under the Acts; and
(b) Another grant program under the Acts, a grant program not under
the Acts, or an activity unrelated to grants.
Sec. 80.64 How does an agency allocate costs in multipurpose projects
and facilities?
A State fish and wildlife agency must allocate costs in
multipurpose projects based on the uses or benefits for each purpose
that will result from the completed project or facility. The agency
must describe the method used to allocate costs in multipurpose
projects or facilities in the project statement included in the grant
application.
Sec. 80.65 Does an agency have to allocate funds between marine and
freshwater fisheries projects?
Yes. Each coastal State's fish and wildlife agency must equitably
allocate the funds apportioned under the Dingell-Johnson Sport Fish
Restoration Act between projects having benefits for marine fisheries
and projects having recreational benefits for freshwater fisheries.
(a) The subprograms authorized by the Dingell-Johnson Sport Fish
Restoration Act do not have to allocate funding in the same manner as
long as the State fish and wildlife agency equitably allocates Dingell-
Johnson Sport Fish Restoration funds as a whole between marine and
freshwater fisheries.
(b) The coastal States for purposes of this allocation are:
(1) Alabama, Alaska, California, Connecticut, Delaware, Florida,
Georgia, Hawaii, Louisiana, Maine, Maryland, Massachusetts,
Mississippi, New Hampshire, New Jersey, New York, North Carolina,
Oregon, Rhode Island, South Carolina, Texas, Virginia, and Washington;
(2) The Commonwealths of Puerto Rico and the Northern Mariana
Islands; and
(3) The territories of Guam, the U.S. Virgin Islands, and American
Samoa.
Sec. 80.66 What requirements apply to allocation of funds between
marine and freshwater fisheries projects?
The requirements of this section apply to allocation of funds
between marine and freshwater fisheries projects.
(a) When a State fish and wildlife agency allocates and obligates
funds it must meet the following requirements:
(1) The ratio of marine projects to total funds must be identical
to the ratio of resident marine anglers to the total number of resident
anglers in the State; and
(2) The ratio of freshwater fisheries projects to total funds must
be identical to the ratio of resident freshwater anglers to the total
number of resident anglers in the State.
(b) A resident angler is one who fishes for recreational purposes
in the same State where he or she maintains legal residence.
(c) Agencies must use a statistically reliable method to determine
the relative distribution of resident anglers in the State between
those that fish in marine environments and those that fish in
freshwater environments. Agencies must use the National Survey of
Fishing, Hunting, and Wildlife-associated Recreation or another
statistically reliable survey or technique approved by the Director for
this purpose.
(d) If a State uses statistical sampling, it must sample at the
earlier of the following:
(1) Five years after the last statistical sample; or
(2) The first certification period affected by any change in the
licensing system that could affect the number of people who hold a paid
license to fish.
(e) The amounts allocated from each year's apportionment do not
necessarily have to result in an equitable allocation for each year.
However, the amounts allocated over a variable period, not to exceed 3
years, must result in an equitable allocation between marine and
freshwater fisheries projects.
(f) Failure to allocate funds equitably between marine and
freshwater fisheries projects may result in the agency becoming
ineligible to use Sport Fish Restoration program funds until the agency
demonstrates to the Director's satisfaction that it has allocated funds
equitably.
Sec. 80.67 May an agency finance an activity from more than one
annual apportionment?
Yes. A State fish and wildlife agency may use funds from more than
one annual apportionment to finance high-cost projects, such as
construction or acquisition of lands or interests in lands, including
water rights. An agency may do this in either of the following ways:
(a) Finance the entire cost of the acquisition or construction from
a non-Federal funding source. The Service will reimburse funds to the
agency in succeeding apportionment years according to a scheduled
reimbursement plan approved by the Regional Director and subject to the
availability of funds.
(b) Negotiate an installment purchase or contract in which the
agency pays periodic and specified amounts to the seller or contractor.
The Service will reimburse or advance funds to the agency for each
payment subject to the availability of funds.
Sec. 80.68 What requirements apply to financing an activity from more
than one annual apportionment?
The following conditions apply to financing an activity from more
than one annual apportionment:
(a) A State fish and wildlife agency must agree to complete the
project even if Federal funds are not available. If an agency does not
complete the project, it must recover any expended Federal funds that
did not result in commensurate wildlife or sport fishery benefits. The
agency must then reallocate the recovered funds to approved projects in
the same program. Agencies do not have to recover expended Federal
funds for incomplete projects if the inability to complete the project
is beyond the control of the agency and the State government.
(b) The project statement included with the application must have a
complete schedule of payments to complete the project.
(c) Interest and other financing costs may be allowable subject to
the restrictions in the applicable Federal Cost Principles.
Subpart G--Application for a Grant
Sec. 80.80 How does an agency apply for a grant?
(a) An agency applies for a grant by sending the Regional Director:
(1) Completed standard forms approved by the Office of Management
and Budget for the grant application process; and
(2) Information required for a comprehensive management system
grant or a project-by-project grant.
(b) The director of the State fish and wildlife agency or his or
her designee must sign all standard forms submitted in the application
process.
(c) The agency must send copies of all standard forms and
supporting information to the State Clearinghouse or Single Point of
Contact before sending it to the Regional Director if the State
maintains this process under Executive Order 12372, Intergovernmental
Review of Federal Programs.
[[Page 32893]]
Sec. 80.81 What must an agency submit when applying for a
comprehensive-management-system grant?
A State fish and wildlife agency must submit all of the documents
required by this section to the Regional Director when applying for a
comprehensive-management-system grant.
(a) The following standard application forms, available on the
Federal Web site for electronic grant applications at www.grants.gov:
(1) Application for Federal assistance; and
(2) Assurances for nonconstruction, or assurances for construction
programs, or both if applicable. Agencies may submit these forms
annually to the Service's Regional Divisions of Wildlife and Sport Fish
Restoration for use with all applications for Federal assistance in the
programs and subprograms under the Acts.
(b) Supporting documentation explaining how the proposed work
complies with the Acts, the provisions of this part, and other
applicable laws and regulations.
(c) A statement of the agency's intent to carry out and fund part
or all of its comprehensive management system through a grant.
(d) A description of the agency's comprehensive management system
including inventory, strategic plan, operational plan, and evaluation.
``Inventory'' refers to the process or processes that an agency uses
to:
(1) Determine actual, projected, and desired resource and asset
status; and
(2) Identify management problems, issues, needs, and opportunities.
(e) A description of the State fish and wildlife agency program
covered by the comprehensive management system.
(f) Contact information for the State fish and wildlife agency
employee who is directly responsible for the integrity and operation of
the comprehensive management system.
(g) A description of how the public can take part in decision
making for the comprehensive management system.
Sec. 80.82 What must an agency submit when applying for a project-by-
project grant?
A State fish and wildlife agency must submit all of the documents
required by this section to the Regional Director when applying for a
project-by-project grant:
(a) Agencies must submit annually the following standard
application forms for grant programs, available on the Federal Web site
for electronic grant applications at www.grants.gov:
(1) Application for Federal assistance; and
(2) Assurances for nonconstruction, or assurances for construction
programs, or both if applicable. Agencies may submit these forms
annually to the Service's Regional Division of Wildlife and Sport Fish
Restoration for use with all applications for Federal assistance in the
programs and subprograms under the Acts.
(b) A project statement that describes each proposed project and
provides the following information:
(1) Need. Explain why the project is necessary and how it fulfills
the purposes of the relevant Act.
(2) Objectives. Base the objectives on the need.
(3) Results or benefits expected.
(4) Approach. Describe the methods used to achieve the stated
objectives. This information must demonstrate that the agency will use
sound design, appropriate procedures, and accepted fish and wildlife
conservation, management, or research principles.
(5) Useful life. Reference the method used to determine the useful
life of a capital improvement with a value greater than $100,000.
(6) Geographic location.
(7) Principal investigator. Record the principal investigator's
name, work address, and work telephone number for research projects
only.
(8) Program income. The agency must:
(i) Estimate the amount of program income that the project is
likely to generate.
(ii) Indicate the method or combination of methods (deduction,
addition, or matching) of applying program income to Federal and non-
Federal outlays.
(iii) Request the Regional Director's approval for the matching
method. Describe how the agency proposes to use the program income and
the expected results. Describe the essential need for using program
income as match.
(iv) Indicate whether the agency wants to treat program income that
it earns after the grant period as license revenue or additional
funding for purposes consistent with the grant or program.
(v) Indicate whether the agency wants to treat program income that
the subgrantee earns as license revenue, additional funding for the
purposes consistent with the grant or subprogram, or income subject
only to the terms of the subgrant agreement.
(9) Costs by project and subaccount. Show how the project will
yield benefits that address the need commensurate with estimated
project costs.
(10) Multipurpose projects. Describe the method for allocating
costs in multipurpose projects and facilities as described in
Sec. Sec. 80.63 and 80.64.
(11) Relationship with other grants. Describe the relationship
between this project and other work funded by Federal grants that is
planned, anticipated, or underway.
(12) Timeline. Describe significant milestones in completing the
project and any accomplishments to date.
(13) Multiyear projects. Include a schedule of payments to finish
the project if an agency proposes to use funds from two or more annual
apportionments to fund construction or the acquisition of lands or
interests in lands, including water rights.
(14) General. Demonstrate in the information described under
paragraphs (b)(1) through (b)(13) of this section that the proposed
activities are:
(i) Eligible for funding under the program;
(ii) Substantial in character and design; and
(iii) Comply with the Acts, this part, and other applicable laws
and regulations.
Sec. 80.83 What is the Federal share of allowable costs?
(a) The Regional Director must provide at least 10 percent and no
more than 75 percent of allowable costs incurred under a grant-funded
project to the fish and wildlife agencies of the 50 States.
(1) An agency proposes the specific Federal share by estimating the
Federal and match dollars on the application for Federal assistance.
(2) The Regional Director may waive the 10-percent minimum Federal
share of allowable costs if an agency requests a waiver and provides
compelling reasons to justify it.
(b) The Regional Director may provide funds to pay at least 75
percent and up to 100 percent of allowable costs incurred under a
grant-funded project in the Sport Fish Restoration program to the
District of Columbia's agency responsible for sport fishing. The
Regional Director decides which percentage within the 75-100 percent
range is fair, just, and equitable for the Federal share.
(c) The Regional Director may provide funds to pay at least 75
percent and up to 100 percent of allowable costs incurred for a grant-
funded project to a fish and wildlife agency of the Commonwealths of
Puerto Rico and the Northern Mariana Islands and the territories of
Guam, the U.S. Virgin Islands, and American Samoa. The Federal share
may be affected by the waiver process described at Sec. 80.84(c).
[[Page 32894]]
Sec. 80.84 How does the Service establish the non-Federal share of
allowable costs?
(a) To establish the non-Federal share of a grant-funded project
for the 50 States, the Regional Director approves an application for
Federal assistance in which the State fish and wildlife agency proposes
the specific non-Federal share by estimating the Federal and match
dollars, consistent with Sec. 80.83(a).
(b) To establish the non-Federal share of a grant-funded project
for the District of Columbia and the Commonwealth of Puerto Rico, the
Regional Director:
(1) Decides which percentage within the 75-100 percent range is
fair, just, and equitable for the Federal share;
(2) Subtracts the Federal share percentage from 100 percent to
determine the percentage of non-Federal share; and
(3) Applies the percentage of non-Federal share to the allowable
costs of a grant-funded project to determine the match requirement.
(c) To establish the non-Federal share of a grant-funded project
for the Commonwealth of the Northern Mariana Islands and the
territories of Guam, the U.S. Virgin Islands, and American Samoa, the
Regional Director must first calculate a preliminary percentage of non-
Federal share in the same manner as described in paragraph (b) of this
section. According to 48 U.S.C. 1469(a), the Regional Director must
then waive the first $200,000 of the preliminary match amount to
establish the final non-Federal share for each project that includes
funding from only one of the three grant programs under the Acts. If a
project includes funding from two or all three grant programs under the
Acts, the Regional Director must waive the first $200,000 of the
preliminary match amount in each of these programs.
Sec. 80.85 What requirements apply to match?
The requirements that apply to match include:
(a) Match may be in the form of cash or in-kind contributions.
(b) Unless authorized by Federal law, the State fish and wildlife
agency or any other entity must not:
(1) Use Federal funds or the value of a third-party in-kind
contribution acquired with Federal funds; or
(2) Use the cost or value of an in-kind contribution to satisfy a
match requirement if the cost or value has been or will be used to
satisfy a match requirement of another Federal grant, cooperative
agreement, or contract.
(c) The agency must fulfill match requirements at the:
(1) Grant level if the grant has funds from a single subaccount; or
(2) Subaccount level if the grant has funds from more than one
subaccount.
Subpart H--General Grant Administration
Sec. 80.90 What are the responsibilities of an agency?
A State fish and wildlife agency as a grantee is responsible for
all of the actions required by this section.
(a) Supervision to ensure that the work follows the terms of the
grant, including:
(1) Proper and effective use of funds;
(2) Maintenance of records;
(3) Submission of complete and accurate Federal financial reports
and performance reports by the due dates in the terms and conditions of
the grant; and
(4) Regular inspection and monitoring of work in progress.
(b) Selection and supervision of personnel to ensure that:
(1) Adequate and competent personnel are available to complete the
grant-funded work on schedule; and
(2) Project personnel meet time schedules, accomplish the proposed
work, meet objectives, and submit the required reports.
(c) Control of all assets acquired under the grant to ensure that
they serve the purpose for which acquired throughout their useful life.
(d) Compliance with all applicable Federal, State, and local laws
and regulations.
(e) Settlement of all procurement-related contractual and
administrative issues.
Sec. 80.91 What is a Federal obligation of funds and how does it
occur?
An obligation of funds is a legal liability to disburse funds
immediately or at a later date as a result of a series of actions. All
of these actions must occur to obligate funds for the formula-based
grant programs authorized by the Acts:
(a) The Service sends an annual certificate of apportionment to a
State fish and wildlife agency, which tells the agency how much funding
is available according to formulas in the Acts.
(b) The agency sends the Regional Director an application for
Federal assistance to use the funds available to it under the Acts and
commits to provide the required match to carry out projects that are
substantial in character and design.
(c) The Regional Director notifies the agency that he or she
approves the application for Federal assistance and states the terms
and conditions of the grant.
(d) The agency accepts the terms and conditions of the grant in one
of the following ways:
(1) Starts work on the grant-funded project by placing an order,
entering into a contract, awarding a subgrant, receiving goods or
services, or otherwise incurring allowable costs during the grant
period that will require payment immediately or in the future;
(2) Draws down funds for an allowable activity under the grant; or
(3) Sends the Regional Director a letter, fax, or e-mail accepting
the terms and conditions of the grant.
Sec. 80.92 How long are funds available for a Federal obligation?
Funds are available for a Federal obligation during the fiscal year
for which they are apportioned and until the close of the following
fiscal year except for funds in the Enhanced Hunter Education and
Safety program and the Recreational Boating Access subprogram. See
Sec. Sec. 80.60 and 80.61 for the length of time that funds are
available in this program and subprogram.
Sec. 80.93 When may an agency incur costs under a grant?
A State fish and wildlife agency may incur costs under a grant from
the effective date of the grant period to the end of the grant period
except for preagreement costs that meet the conditions in Sec. 80.94.
Sec. 80.94 May an agency incur costs before the effective date of the
grant period?
(a) Yes. A State fish and wildlife agency may incur costs of a
proposed project before the effective date of the grant period
(preagreement costs). However, an agency has no assurance of
reimbursement for preagreement costs until the Regional Director
approves an award that incorporates a proposal demonstrating that the
preagreement costs conform to all of the conditions in paragraph (b) of
this section. The agency cannot receive reimbursement for these costs
until after the effective date of the grant.
(b) Preagreement costs must meet the following requirements:
(1) The costs are necessary and reasonable for accomplishing the
grant objectives;
(2) The Regional Director would have approved the costs if the
State fish and wildlife agency incurred them during the grant period;
(3) The agency incurs these costs in anticipation of the grant and
in conformity with the negotiation of the award with the Regional
Director;
(4) The activities associated with the preagreement costs comply
with all
[[Page 32895]]
laws, regulations, and policies applicable to a grant-funded project;
and
(5) The agency does not complete the project before the grant's
effective date, except when the agency can demonstrate to the Regional
Director that doing so is necessary either to take advantage of
temporary circumstances favorable to the project or to meet legal
deadlines.
Sec. 80.95 How does an agency receive Federal grant funds?
(a) A State fish and wildlife agency may receive Federal grant
funds through either:
(1) A request for reimbursement; or
(2) A request for an advance of funds if the agency maintains or
demonstrates that it will maintain procedures to minimize time between
transfer of funds and disbursement by the agency or its subgrantee.
(b) An agency must use the following procedures to receive a
reimbursement or an advance of funds:
(1) Request funds through an electronic payment system designated
by the Regional Director; or
(2) Request funds on a standard form for that purpose only if the
agency is unable to use the electronic payment system.
(c) The Regional Director will reimburse or advance funds only to
the office or official designated by the agency and authorized by State
law to receive public funds for the State.
(d) All payments are subject to final determination of allowability
based on audit or a Service review. The State fish and wildlife agency
must repay any overpayment as directed by the Regional Director.
(e) The Regional Director may withhold payments pending receipt of
all required reports or documentation for the project.
Sec. 80.96 May an agency request funds in excess of the Federal
share?
(a) A State fish and wildlife agency must not request Federal grant
funds if the requested funds would exceed the Federal share of the
total reimbursements and requested advances from the beginning of the
grant period through the current request.
(b) An agency may request Federal grant funds for construction
work, including land acquisition, even if the requested funds would
temporarily violate the prohibition in paragraph (a) of this section
under the following conditions:
(1) The Regional Director and the director of the State fish and
wildlife agency jointly decide that the request is appropriate; and
(2) The agency will pay its proportional share of the project's
total allowable costs before it submits the final Federal financial
report.
Sec. 80.97 May an agency barter goods or services to carry out a
grant-funded project?
Yes. A State fish and wildlife agency may barter to carry out a
grant-funded project. A barter transaction is the exchange of goods or
services for other goods or services without the use of cash. Barter
transactions are subject to the Cost Principles at 2 CFR part 220, 2
CFR part 225, and 2 CFR part 230.
Sec. 80.98 How must an agency report barter transactions?
(a) A State fish and wildlife agency must follow the requirements
in the following table when reporting barter transactions in the
Federal financial report.
------------------------------------------------------------------------
If . . . Then the agency . . .
------------------------------------------------------------------------
(1) The goods or services exchanged (i) Does not have to report
have the same market value. bartered goods or services as
program income or grant
expenses in the Federal
financial report; and
(ii) Must disclose that barter
transactions occurred and
state what was bartered in the
Remarks section of the report.
(2) The market value of the goods or Must report the difference in
services relinquished exceeds the market value as grant expenses
market value of the goods and services in the Federal financial
received. report.
(3) The market value of the goods or Must report the difference in
services received exceeds the market market value as program income
value of the goods and services in the Federal financial
relinquished. report.
(4) The barter transaction was part of (i) Does not have to report
a cooperative farming or grazing bartered goods or services as
arrangement meeting the requirements program income or grant
in paragraph (b) of this section. expenses in the Federal
financial report; and
(ii) Must disclose that barter
transactions occurred and
identify what was bartered in
the Remarks section of the
Federal financial report.
------------------------------------------------------------------------
(b) For purposes of paragraph (a)(4) of this section, cooperative
farming or grazing is an arrangement in which an agency:
(1) Allows an agricultural producer to farm or graze livestock on
land under the control of the agency; and
(2) Designs the farming or grazing to advance the fish and wildlife
management objectives of the agency.
Sec. 80.99 Are symbols available to identify projects?
Yes. The following distinctive symbols are available to identify
projects funded by the Acts and products on which taxes and duties have
been collected to support the Acts:
(a) The symbol of the Pittman-Robertson Wildlife Restoration Act is
below.
[GRAPHIC] [TIFF OMITTED] TP10JN10.010
(b) The symbol of the Dingell-Johnson Sport Fish Restoration Act is
below.
[GRAPHIC] [TIFF OMITTED] TP10JN10.011
(c) The symbol of the Acts when used in combination is below.
[[Page 32896]]
[GRAPHIC] [TIFF OMITTED] TP10JN10.012
Sec. 80.100 Do agencies have to display the symbols in this part on
completed projects?
No. State fish and wildlife agencies do not have to display the
symbols in Sec. 80.99 on projects completed under the Acts. However,
the Service requests agencies to display the appropriate symbol
following these requirements or guidelines:
(a) Agencies may display the appropriate symbol(s) on:
(1) Areas such as wildlife management areas, shooting ranges, and
sportfishing and boating access facilities that were acquired,
developed, operated, or maintained with funds authorized by the Acts;
and
(2) Printed or Web-based material or other visual representations
of project accomplishments.
(b) Agencies may require subgrantees to display the appropriate
symbol or symbols in the places described in paragraph (a) of this
section.
(c) The Director or Regional Director may authorize agencies to use
the symbols in a manner other than as described in paragraph (a) of
this section.
(d) The Director or Regional Director may authorize other persons,
organizations, agencies, or governments to use the symbols for purposes
related to the Acts by entering into a written agreement with the user.
An applicant must state how it intends to use the symbol(s), to what it
will attach the symbol(s), and the relationship to the specific Act.
(e) The user of the symbol(s) must indemnify and defend the United
States and hold it harmless from any claims, suits, losses, and damages
from:
(1) Any allegedly unauthorized use of any patent, process, idea,
method or device by the user in connection with its use of the
symbol(s), or any other alleged action of the user; and
(2) Any claims, suits, losses, and damages arising from alleged
defects in the articles or services associated with the symbol(s).
(f) The appearance of the symbol(s) on projects or products
indicates that the manufacturer of the product pays excise taxes in
support of the respective Act(s), and that the project was funded under
the respective Act(s) (26 U.S.C. 4161, 4162, 4181, 4182, 9503, and
9504). The Service and the Department of the Interior make no
representation or endorsement whatsoever by the display of the
symbol(s) as to the quality, utility, suitability, or safety of any
product, service, or project associated with the symbol(s).
(g) No one may use any of the symbols in any other manner unless
the Director or Regional Director authorizes it. Unauthorized use of
the symbol(s) is a violation of 18 U.S.C. 701 and subjects the violator
to possible fines and imprisonment.
Subpart I--Program Income
Sec. 80.120 What is program income?
(a) Program income is gross income received by the grantee or
subgrantee and earned only as a result of the grant.
(b) Program income includes revenue from any of the following:
(1) Services performed under a grant;
(2) Use or rental of real or personal property acquired,
constructed, or managed with grant funds;
(3) Payments by concessionaires or contractors under an arrangement
with the agency or subgrantee to provide a service in support of grant
objectives on real property acquired, constructed, or managed with
grant funds;
(4) Sale of items produced under a grant;
(5) Royalties and license fees for copyrighted material, patents,
and inventions developed as a result of a grant; and
(6) Sale of a product of mining, drilling, forestry, or agriculture
on real property acquired or directly managed with grant funds.
(c) Program income does not include any of the following:
(1) License revenue collected by the agency for hunting or fishing,
including fees for special-area access or recreation;
(2) Interest on grant funds, rebates, credits, discounts, or
refunds;
(3) Sales receipts retained by concessionaires or contractors under
an arrangement with the agency to provide a service in support of grant
objectives on real property acquired, constructed, or managed with
grant funds;
(4) Cash received by the agency or volunteer hunter education
instructors to cover incidental costs of a hunter education class;
(5) Cooperative farming or grazing arrangements as described at
Sec. 80.98; or
(6) Proceeds from the sale of an interest in real property such as
fee title, easement, mineral rights, gas and oil rights, water rights,
or a leasehold interest for a lease with a term 10 years or longer.
Sec. 80.121 May an agency earn program income?
Yes. A State fish and wildlife agency may earn income from
activities incidental to the grant purposes as long as producing income
is not a primary purpose. The agency must account for income and
interest received from these activities in the project records and
dispose of it according to the terms of the grant.
Sec. 80.122 May an agency deduct the costs of generating program
income from gross income?
(a) A State fish and wildlife agency may deduct its costs of
generating program income from gross income when it calculates program
income as long as the agency does not do any of the following:
(1) Pay these costs with Federal or matching cash under a grant or
with any Federal cash unrelated to a grant;
(2) Cover these costs by using services or real or personal
property received as matching in-kind contributions under a Federal
grant; or
(3) Cover these costs by accepting volunteer services, donated
services, or donations of real or personal property.
(b) The agency may deduct the following costs, but other costs may
also qualify for deduction:
(1) Maintenance or operation of facilities that generate program
income if a grant funded the construction or operation of the facility;
(2) Publication of a pamphlet or book for sale if a grant funded
the writing of the book or pamphlet or the research that led to
publication of the book or pamphlet; and
(3) Costs of harvesting timber on lands if a grant funded
acquisition of the land, direct management of the land, planting the
trees, or managing the forest.
Sec. 80.123 How may an agency use program income?
(a) A State fish and wildlife agency may choose any of the three
methods listed in paragraph (b) of this section for applying program
income to Federal and non-Federal outlays. The agency may also use a
combination of these methods. The method or methods that the agency
chooses will apply to the program income that it earns during the grant
period and to the program income that any subgrantee earns during the
grant period. The agency must indicate the method that it wants to use
in the project statement that it submits with each application for
Federal assistance.
(b) The three methods for applying program income to Federal and
non-Federal outlays are shown in the following table:
[[Page 32897]]
------------------------------------------------------------------------
Requirements for using the
Method method
------------------------------------------------------------------------
(1) Deduction......................... (i) The agency must deduct the
program income from total
allowable costs to determine
the net allowable costs.
(ii) The agency must use program
income for current costs under
the grant unless the Regional
Director authorizes otherwise.
(iii) If the agency does not
indicate the method that it
wants to use in the project
statement, then it must use the
deduction method.
(2) Addition.......................... (i) The agency may add the
program income to the Federal
and matching funds under the
grant.
(ii) The agency must use the
program income for the purposes
of the grant and under the
terms of the grant.
(3) Matching.......................... (i) The agency must request the
Regional Director's approval in
the project statement.
(ii) The agency must explain in
the project statement the need
for using program income as
match, how it proposes to use
the program income as match,
and the expected results.
(iii) The Regional Director may
approve the use of the matching
method if the requirements of
paragraph (c) of this section
are met.
------------------------------------------------------------------------
(c) The Regional Director may approve the use of the matching
method if the proposed use of the program income would:
(1) Be consistent with the intent of the applicable Act or Acts;
and
(2) Result in at least one of the following:
(i) The agency substitutes program income for at least some of the
match that it would otherwise have to provide, and then uses this saved
match for other fish or wildlife-related projects;
(ii) The agency substitutes program income for at least some of the
apportioned Federal funds, and then uses the saved Federal funds for
additional eligible activities under the program; or
(iii) A net benefit to the program.
Sec. 80.124 How may an agency use unexpended program income?
If a State fish and wildlife agency has unexpended program income
on its final Federal financial report, the agency may use the income
under a subsequent grant. This subsequent grant must have purposes
consistent with the grant that generated the program income.
Sec. 80.125 How must an agency treat income that it earns after the
grant period?
(a) The State fish and wildlife agency must treat program income
that it earns after the grant period as either:
(1) License revenue for the administration of the agency; or
(2) Additional funding for purposes consistent with the grant or
the program.
(b) The agency must indicate its choice of one of the alternatives
in paragraph (a) of this section in the project statement that the
agency submits with each application for Federal assistance. If the
agency does not record its choice in the project statement, the agency
must treat the income earned after the grant period as license revenue.
Sec. 80.126 How must an agency treat income earned by a subgrantee
after the grant period?
(a) The State fish and wildlife agency must treat income earned by
a subgrantee after the grant period as:
(1) License revenue for the administration of the agency;
(2) Additional funding for purposes consistent with the grant or
the program; or
(3) Income subject only to the terms of the subgrant agreement and
any subsequent contractual agreements between the agency and the
subgrantee.
(b) The agency must indicate its choice of one of the above
alternatives in the project statement that it submits with each
application for Federal assistance. If the agency does not indicate its
choice in the project statement, the subgrantee does not have to
account for any income that it earns after the grant period unless
required to do so in the subgrant agreement or in any subsequent
contractual agreement.
Subpart J--Real Property
Sec. 80.130 Does an agency have to hold title to real property
acquired under a grant?
Yes. A State fish and wildlife agency must hold title to an
ownership interest in real property acquired under a grant to the
extent possible under State law.
(a) If State law does not authorize the fish and wildlife agency to
hold the title to real property, the State or one of its administrative
units may hold the title if the agency has the authority to manage the
real property for the purpose authorized under the grant. The agency,
the State, or another administrative unit of State government must not
hold title to an undivided ownership interest in the real property
concurrently with a subgrantee or any other entity.
(b) An ownership interest is an interest in real property that
gives the person who holds it the right to use and occupy a parcel of
land or water and to exclude others. Fee simple and leasehold interests
are ownership interests. An easement is not an ownership interest.
Another name for an ownership interest is a possessory interest.
Sec. 80.131 Does an agency have to hold an easement acquired under a
grant?
Yes. A State fish and wildlife agency must hold an easement
acquired under a grant, but it may share certain rights or
responsibilities as described in paragraph (b) of this section if
consistent with State law.
(a) Any sharing of rights or responsibilities does not diminish the
agency's responsibility to manage the easement for its authorized
purpose.
(b) The agency may share holding or enforcement of an easement only
in the following situations:
(1) The State or another administrative unit of State government
may hold an easement on behalf of its fish and wildlife agency.
(2) The agency may subgrant the concurrent right to hold the
easement to a nonprofit organization or to an agency of a local or
tribal government.
(3) The agency may subgrant a right of enforcement to a nonprofit
organization or to a local or tribal government. This right of
enforcement may allow the subgrantee to have reasonable access and
entry to property protected under the easement for purposes of
inspection, monitoring, and enforcement. The subgrantee's right of
enforcement must not supersede and must be concurrent with the agency's
right of enforcement.
Sec. 80.132 Does an agency have to control the land or water where it
completes capital improvements?
Yes. A State fish and wildlife agency must control the land or
water or both on which it completes capital improvements under a grant.
An agency must exercise this control through fee title, lease, or
another legally binding agreement. Control must be adequate for the
protection, maintenance, and use of the improvement for its authorized
purpose during its useful life.
[[Page 32898]]
Sec. 80.133 Does an agency have to maintain acquired or completed
capital improvements?
Yes. The State fish and wildlife agency must maintain capital
improvements acquired or completed under a grant to ensure that each
capital improvement continues to serve its authorized purpose during
its useful life.
Sec. 80.134 How must an agency use real property?
The State fish and wildlife agency must use real property that is
acquired, completed, operated, or maintained under a grant for the
purpose authorized in the grant. This requirement applies to a capital
improvement only during its useful life. The State agency may allow
secondary uses of real property acquired, completed, operated, or
maintained under a grant if the secondary uses do not interfere with
its authorized purpose.
Sec. 80.135 What if an agency allows a use of real property that
interferes with the authorized purpose?
(a) When a State fish and wildlife agency allows a use of real
property that interferes with its authorized purpose under a grant, the
agency must fully restore the real property to its authorized purpose.
If it cannot fully restore the real property to its authorized purpose
under the grant, the agency must replace the real property using non-
Federal funds. Replacement property must be of equal value at current
market prices and must have fish, wildlife, and public-use benefits
consistent with the purposes of the original grant.
(b) The State may have a reasonable time, up to 3 years from the
date of notification by the Regional Director, to restore the real
property to its authorized purpose or acquire replacement property. If
the State does not restore the real property to its authorized purpose
or acquire replacement property within 3 years, the State becomes
ineligible to receive new grants in the program or programs that funded
the original acquisition.
Sec. 80.136 When is a use of real property that interferes with the
authorized purpose considered a diversion?
If the State fish and wildlife agency allows a use of grant-funded
real property that interferes with the real property's purpose as
authorized under a grant, a diversion occurs only if both of the
following conditions apply:
(a) The agency used license revenue as match for the grant; and
(b) The interfering use has purposes other than management of the
fish- and wildlife-related resources for which the agency has authority
under State law.
Sec. 80.137 What if real property is no longer useful or needed for
its original purpose?
If the director of the State fish and wildlife agency and the
Regional Director jointly decide that grant-funded real property is no
longer useful or needed for its original purpose under the grant, the
director of the agency must:
(a) Propose another eligible purpose for the real property under
the grant program and ask the Regional Director to approve this
proposed purpose; or
(b) Request disposition instructions for the real property.
Subpart K--Amendments and Appeals
Sec. 80.150 How does an agency ask for an amendment of a grant?
(a) A State fish and wildlife agency must ask for an amendment of a
grant by sending the Service the following documents:
(1) The standard form approved by the Office of Management and
Budget as an application for Federal assistance. The agency may use
this form to update or request a change in the information that it
submitted in an approved application. The director of the agency or his
or her designee must sign this form.
(2) A statement attached to the application for Federal assistance
that explains:
(i) How the requested amendment would affect the information that
the agency submitted with the original grant application; and
(ii) Why the requested amendment is necessary.
(b) An agency must send any amendments of scope to the State
Clearinghouse or Single Point of Contact if the State maintains this
process under Executive Order 12372, Intergovernmental Review of
Federal Programs.
Sec. 80.151 May an agency appeal a decision?
An agency may appeal the Director's or Regional Director's decision
on any matter subject to this part.
(a) The State fish and wildlife agency must send the appeal to the
Director within 30 days of the date that the Director or Regional
Director mails or otherwise informs an agency of a decision.
(b) The agency may appeal the Director's decision under paragraph
(a) of this section to the Secretary within 30 days of the date that
the Director mailed the decision. An appeal to the Secretary must
follow procedures in title 43, part 4, subpart G, of the Code of
Federal Regulations, ``Special Rules Applicable to Other Appeals and
Hearings.''
Subpart L--Information Collection
Sec. 80.160 What are the information collection requirements of this
part?
(a) This part requires each State fish and wildlife agency to
provide the following information to the Service. The State agency
must:
(1) Certify the number of people who have paid licenses to hunt and
the number of people who have paid licenses to fish in a State during
the State-specified certification period (OMB control number 1018-
0007).
(2) Provide information for a grant application on a Government-
wide standard form (OMB control number 4040-0002).
(3) Certify on a Government-wide standard form that it:
(i) Has the authority to apply for the grant;
(ii) Has the capability to complete the project; and
(iii) Will comply with the laws, regulations, and policies
applicable to construction projects, nonconstruction projects, or both
(OMB control numbers 4040-0007 and 4040-0009).
(4) Provide a project statement that describes the need,
objectives, results expected, approach, location, explanation of costs,
and other information that demonstrates that the project is eligible
under the Acts and meets the requirements of the Federal Cost
Principles and the laws, regulations, and policies applicable to the
grant program (OMB control number 1018-0109).
(5) Change or update information provided to the Service in a
previously approved application (OMB control number 1018-0109).
(6) Report on a Government-wide standard form on the status of
Federal grant funds and any program income earned (OMB control number
0348-0061).
(7) Report as a grantee on progress in completing the grant-funded
project (OMB control number 1018-0109).
(b) The authorizations for information collection under this part
are in the Acts and in 43 CFR part 12, subpart C, ``Uniform
Administrative Requirements for Grants and Cooperative Agreements to
State and Local Governments.''
(c) Send comments on the information collection requirements to:
U.S. Fish and Wildlife Service, Information Collection Clearance
Officer, 4401 North Fairfax Drive, Suite 222, Arlington, VA 22203.
[[Page 32899]]
Dated: March 23, 2010.
Will Shafroth,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-13817 Filed 6-9-10; 8:45 am]
BILLING CODE 4310-55-P