[Federal Register Volume 76, Number 147 (Monday, August 1, 2011)]
[Rules and Regulations]
[Pages 46150-46171]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-19206]
[[Page 46149]]
Vol. 76
Monday,
No. 147
August 1, 2011
Part IV
Department of the Interior
-----------------------------------------------------------------------
Fish and Wildlife Service
-----------------------------------------------------------------------
50 CFR Part 80
Financial Assistance: Wildlife Restoration, Sport Fish Restoration,
Hunter Education and Safety; Final Rule
Federal Register / Vol. 76, No. 147 / Monday, August 1, 2011 / Rules
and Regulations
[[Page 46150]]
-----------------------------------------------------------------------
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service, are revising
regulations governing the Wildlife Restoration, Sport Fish Restoration,
and Hunter Education and Safety (Enhanced Hunter Education and Safety)
financial assistance programs. We proposed a revision of these
regulations on June 10, 2010, to address changes in law, regulation,
policy, technology, and practice during the past 25 years. We also
proposed a clarification of some provisions of the issue-specific final
rule that we published on July 24, 2008. This final rule simplifies
specific requirements of the establishing authorities of the three
programs and clarifies terms in those authorities as well as terms
generally used in grant administration. We organized the final rule to
follow the life cycle of a grant, and we reworded and reformatted the
regulations following Federal plain language policy and current
rulemaking guidance.
DATES: The final rule is effective on August 31, 2011.
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
This final rule revises 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 its authority, 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 aquatic and related environments. The Catalog of Federal
Domestic Assistance at https://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 final rule
in 1937 and 1950 respectively. We refer to these acts in this document
and in the final 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 from a dedicated fund in the Treasury. 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 Columbia. Industry
partners pay excise taxes into a dedicated fund in the Treasury 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 2010, the States and other eligible
jurisdictions received $384 million in new funding through the Wildlife
Restoration and Enhanced Hunter Education and Safety programs and $363
million in new funding through the Sport Fish Restoration program.
We published a proposed rule in the June 10, 2010, Federal Register
[75 FR 32877] to revise the regulations governing 50 CFR part 80. We
reviewed and considered all comments that were delivered to the
Service's Division of Policy and Directives Management during a 60-day
period from June 10 to August 9, 2010, and all comments that were
entered on http://www.regulations.gov or postmarked during that period.
We received 10 comments from State agencies, 2 comments from nonprofit
organizations, and 2 comments from one individual. Most commenters
addressed several issues, so we reorganized the issues into 33 single-
issue comments. This final rule adopts the proposed rule that we
published on June 10, 2010, with changes based on the comments
received. We discuss these comments in the following section.
Response to Public Comments
We arranged the public comments under the relevant sections of the
rule. Each numbered comment is from only one agency, organization, or
individual unless it states otherwise. The comments summarize the
recommendations or opinions as the commenter presented them. We state
in the response to each comment whether we made any changes as a result
of the recommendation. We also state how we changed the rule, or we
refer the reader to the location of the change in the final rule.
Some public comments led us to reexamine sections beyond those that
the public addressed specifically. Based on this reexamination, we made
nonsubstantive changes throughout the document to improve clarity,
consistency, organization, or comprehensiveness. We addressed any
substantive changes that resulted from this reexamination in our
responses to the comments.
[[Page 46151]]
We use the term ``current'' to refer to 50 CFR part 80 or any
section or paragraph of 50 CFR part 80 that became effective after
publication of a final rule in the Federal Register at 73 FR 43120,
July 24, 2008. The term ``proposed'' refers to language that was in the
proposed rule published in the Federal Register at 75 FR 32877, June
10, 2010. The term ``new'' refers to the language of 50 CFR part 80 as
published in this final rule.
Subpart A--General
Section 80.2 What terms do I need to know?
Comment 1: Define personal property and law-enforcement activities.
Response 1: We defined personal property to include intellectual
property and gave examples at the new Sec. 80.2. We removed the
definition of intellectual property and all examples from the proposed
Sec. 80.20. To conform to these changes for personal property, we
moved the examples of real property from the proposed Sec. 80.20(b)(1)
to the definition at Sec. 80.2. We will consider proposing a
definition of law enforcement during the next revision of 50 CFR part
80, so we can receive public comments on a proposed definition.
Comment 2: Three commenters had concerns about the proposed
definition of wildlife, which includes only birds and mammals. One
commenter said that the narrow definition would cause conflicts with
States that define it more broadly. Another commenter requested that we
broaden the definition to include alligators. The third commenter noted
the proposed definition does not include snapping turtles or bullfrogs,
which are part of at least one State's hunting or sportfishing program.
Response 2: We did not make any changes in response to these
comments. The proposed rule's definition of wildlife is specific to
wild birds and mammals. This is a common element in all State
definitions of wildlife, and program regulations since 1956 have
limited the benefits of the Pittman-Robertson Wildlife Restoration Act
(Act) to wild birds and mammals. The Act did not define wildlife in the
original 1937 legislation, and none of its amendments defined wildlife
for purposes of projects under the Act. Although Public Law 106-553
(December 21, 2000) amended the Act and defined wildlife, the only
effects of the amendment were to authorize fiscal year 2001 funds for
the Wildlife Conservation and Restoration program and to clarify the
effect of the Federal Advisory Committee Act. Public Law 106-553's
definition of wildlife did not apply to projects under the Act
according to section 902(f).
Subpart C--License Revenue
Section 80.20 What does revenue from hunting and fishing licenses
include?
Comment 3: The opening statement in Sec. 80.20(a) reads, ``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 * * * '' This is a change from the
current Sec. 80.4, which reads, ``Revenues from license fees paid by
hunters and fishermen are any revenues the State receives from the sale
of licenses * * *'' This change could exclude as license revenue any
license fees collected by other State agencies on behalf of the State
fish and wildlife agencies.
Response 3: We changed the proposed Sec. 80.20(a) to read, ``All
proceeds from the sale of State-issued general or special hunting and
fishing licenses, permits, stamps, tags, access and use fees, and other
State charges to hunt or fish for recreational purposes.''
Subpart D--Certification of License Holders
Section 80.31 How does an agency certify the number of paid license
holders?
Comment 4: Insert ``or his or her designee'' after ``the director
of the [State] agency'' at Sec. 80.31(b) because another individual
may be responsible for submitting annual license- certification data
electronically to the Service on behalf of the agency director.
Response 4: We changed Sec. 80.31(b) to incorporate the
recommendation.
Section 80.33 How does an agency decide who to count as paid license
holders in the annual certification?
Comment 5: One commenter supported the language at Sec.
80.33(a)(1) allowing States to count license holders regardless of
whether the licensee engages in the activity. Two other commenters said
that the State should not count license holders in the annual
certification if the licensee does not hunt or fish.
Response 5: We did not make any changes based on this comment. Some
people buy a license because they plan to hunt or fish, but never do.
Others buy a license to take part in other outdoor activities on a
State Wildlife Management Area where it is required for entry. Some buy
a license solely to support wildlife and sport fish programs. Others
buy a lifetime license as a gift for a child who is too young to hunt
or fish. The Acts require States to count the number of paid hunting-
or fishing-license holders. They do not require States to count those
who actually hunt or fish.
Comment 6: Allow a State to verify a license holder in State
records using a unique identifier instead of a name. This will
accommodate a State that does not record the name of certain categories
of license holders, such as minors, out-of-State hunters and anglers,
and individuals who do not want to give their names for religious
reasons.
Response 6: We accepted the recommendation, but we need to ensure
that the agency can associate a license holder with the unique
identifier. We changed the proposed Sec. 80.33(a) to read: ``A State
fish and wildlife agency must count only those people who have a
license issued: (1) In the license holder's name, or (2) With a unique
identifier that is traceable to the license holder, who must be
verifiable in State records.''
Comment 7: Section 80.33(a)(4) does not allow a State director to
count all persons who have paid licenses to hunt or fish in the State-
specified certification period. This is inconsistent with the Acts and
the proposed Sec. 80.31(a).
Response 7: We did not make any changes based on this comment. We
use data from the annual certification of licenses to divide excise tax
revenue among the States. Section 80.33 provides an equitable way to
count: (a) Individuals holding licenses for a fixed period
corresponding to the license-certification year, and (b) other
individuals holding licenses for a period that starts on the date of
purchase and ends 365 days later (variable period). A State that sells
variable-period licenses should not be able to count them in two annual
certification periods if a State that sells only single-year fixed-
period licenses can count them in only one annual certification period.
Comment 8: Combination license holders should be counted as both
anglers and hunters at Sec. 80.33(a)(6) only if the State offers an
option to buy a separate license to hunt or fish. If no such option
exists, the State should conduct a survey or use other means to find
out how many license holders intend to hunt and how many intend to
fish. The same approach should apply to use permits and entrance fees
for wildlife management areas, to find out how many enter to hunt or
fish, and how many enter for other activities. States should count only
those who hunt or fish as paid license holders.
Response 8: The Acts require States to count the number of paid
hunting and
[[Page 46152]]
fishing license holders. They do not require States to count those who
actually hunt or fish, so we will not require surveys as the commenter
recommended.
Comment 9: The proposed Sec. 80.33(b) states that, for a multiyear
license to be counted in each certification period, a State fish and
wildlife agency must receive $1 per year of net revenue for each year
in which the license is valid. Clarify whether the agency can count the
multiyear license as a paid license if the agency spends the entire
multiyear license fee immediately after receiving it. Without this
clarification, an alternative interpretation is that the agency must
hold the fee over the lifetime of the license so that $1 of net revenue
is available in each year that the agency will count it as a paid
license.
Response 9: We added a new Sec. 80.35 on requirements for
multiyear licenses. Paragraph (b) of this new section addresses the
commenter's concern: ``The agency must receive net revenue from a
multiyear license that is in close approximation to the net revenue
received for a single-year license providing similar privileges:
(1) Each year during the license period, or
(2) At the time of sale as if it were a single-payment annuity,
which is an investment of the license fee that shows the agency would
have received at least the minimum required net revenue for each year
of the license period.''
Section 80.34 (new section 80.36) May an agency count license holders
in the annual certification if the agency receives funds from the State
to cover their license fees?
Comment 10: One commenter said that senior citizens in his State
must pay $11 for a license, of which the State fish and wildlife agency
receives about $9. The commenter said this $9 in net revenue allows the
State to count the license in only nine annual certification periods.
He compared this to the proposed Sec. Sec. 80.33(b) and 80.34 which
would allow a State to provide funds to its fish and wildlife agency to
cover fees normally charged for a category of license, such as senior
citizens or veterans. The agency would be able to count those license
holders in the annual certification for each year that the State covers
the fees. The commenter said this change would potentially shift funds
from States that offer low-cost licenses to those where the State
covers fees normally charged for a category of license. Two other
commenters opposed the proposed Sec. Sec. 80.33(b) and 80.34, and two
commenters supported these sections.
Response 10: We did not make any changes based on this comment. If
a State chooses to pay the hunting and fishing license fees for a
category of its citizens, it should be able to count the license
holders in the annual certification if the State and its fish and
wildlife agency satisfy the conditions at the new Sec. 80.36.
Comment 11: The proposed Sec. 80.34(b) requires that any funds
that a State provides to its fish and wildlife agency to cover fees for
a category of license holder must equal or exceed the fees that the
license holder would have paid. Why is this different from the standard
at the proposed Sec. 80.33(a)(4), which requires that the agency
receive at least $1 per year of net revenue?
Response 11: Licenses that provide similar privileges should not
have a lower fee just because the State is paying for it. We retained
this requirement with an additional clarification at the new Sec.
80.36(d).
Subpart E--Eligible Activities
Section 80.50 What activities are eligible for funding under the
Pittman-Robertson Wildlife Restoration Act?
Comment 12: Add as an eligible activity, ``Obtain data to guide and
direct the regulation of hunting.''
Response 12: We added the recommended eligible activity at a new
paragraph (a)(3).
Comment 13: The use of ``or'' in the proposed Sec. 80.50(a)(4)
allows funding for anything that simply provides public access. The
public access should be associated with a wildlife- or habitat-
management or conservation purpose.
Response 13: We changed the proposed Sec. 80.50(a)(4) to read,
``Acquire real property suitable or capable of being made suitable for:
(i) Wildlife habitat, or (ii) Public access for hunting and other
wildlife-oriented recreation.'' We also moved the proposed Sec.
80.50(a)(5)(ii) to the new Sec. 80.50(a)(6)(ii) and changed it to
read, ``Provide public access for hunting or other wildlife-oriented
recreation.''
Comment 14: Add coordination of grants as an eligible activity for
the Wildlife and Sport Fish Restoration programs. Add technical
assistance as an eligible activity for the Wildlife Restoration
program.
Response 14: We added ``Coordinate grants in the Wildlife
Restoration program and related programs and subprograms'' as an
eligible activity for the Wildlife Restoration program at the new Sec.
80.50(a)(8). We also added ``Coordinate grants in the Sport Fish
Restoration program and related programs and subprograms'' as an
eligible activity for the Sport Fish Restoration program at the new
Sec. 80.51(a)(11). We did not add technical assistance because we may
need to establish criteria to decide when it is appropriate, and we do
not want to do this without the benefit of public comment following a
proposed rule. However, the Regional Director may still approve
technical assistance as an eligible activity on a case-by-case basis
under the new section Sec. 80.52, which we discuss in Response 15.
Comment 15: The ``closed list'' of eligible activities could
exclude some creative projects that may be appropriate under the Act.
Response 15: We added a new section Sec. 80.52 which reads: ``An
activity may be eligible for funding even if this part does not
explicitly designate it as an eligible activity if: (a) The State fish
and wildlife agency justifies in the project statement how the activity
will help carry out the purposes of the Pittman-Robertson Wildlife
Restoration Act or the Dingell-Johnson Sport Fish Restoration Act, and
(b) The Regional Director concurs with the justification.''
Comment 16: One commenter was pleased that the proposed rule
included hunter development and recruitment as eligible for funding
under the Enhanced Hunter Education and Safety program. Another
commenter said that recruitment has no foundation in the Act. The
commenter also said that the Service could consider marketing,
promotion, and advertising that may be part of recruitment as public
relations, which is an ineligible activity.
Response 16: We disagreed with the commenter's view that
recruitment may be an ineligible activity. The Pittman-Robertson
Wildlife Restoration Act at 16 U.S.C. 669h-1 specifically allows the
use of funds for hunter-development programs, and recruitment may be
the first phase of hunter development. We made no changes based on this
comment.
Comment 17: The linkage that Sec. 80.50(c)(1) makes between hunter
development and target shooting is weak at best.
Response 17: Target shooting is an activity that develops certain
hunting skills and supplements hunter education and firearm safety. We
made no changes based on this comment.
Comment 18: The proposed rule should have said whether competitive
shooting events are eligible activities and more specifically whether a
grant could pay for prizes, scholarships, and awards associated with
competitive shooting events.
[[Page 46153]]
Response 18: If the State fish and wildlife agency, or more
typically, the subgrantee, holds the competitive shooting event for the
primary purpose of producing income, the event would not be eligible
for funding under the Pittman-Robertson Wildlife Restoration Act. We
will consider developing Service policy on competitive events in the
grant programs and subprograms authorized by the Acts. We made no
changes based on this comment.
Section 80.51 What activities are eligible for funding under the
Dingell-Johnson Sport Fish Restoration Act?
Comment 19: Add as an eligible activity for the Sport Fish
Restoration program, ``Stock fish for recreational purposes.''
Response 19: We incorporated the recommendation at the new Sec.
80.51(a)(5).
Comment 20: Change the second sentence at Sec. 80.51(b)(1) so that
it reads, ``A broad range of access facilities and associated amenities
can qualify for funding, but they must provide benefits to recreational
boaters.'' This change will align the regulation with the language of
the Act. The Service's policy at 517 FW 7.12(B) already ensures that
the facilities accommodate stakeholders who buy motorboat fuels or
angling gear.
Response 20: We changed the sentence as recommended.
Section 80.52 (80.53 in final rule) What activities are ineligible for
funding?
Comment 21: Clarify whether wildlife damage and predator control
are eligible for funding from (a) a grant in the Wildlife Restoration
program, or (b) license revenue.
Response 21: We will consider this issue during the next revision
of 50 CFR 80, so that the public will have the opportunity to offer
comments. We made no changes based on this comment.
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?
Comment 22: Explain at Sec. 80.60(c) that the Service reapportions
unobligated Enhanced Hunter Education funds to eligible States as
Wildlife Restoration funds and not Hunter Education funds.
Response 22: We changed Sec. 80.60(c) to incorporate this
recommendation.
Section 80.66 What requirements apply to allocation of funds between
marine and freshwater fisheries projects?
Comment 23: The proposed Sec. 80.66(a) requires the use of a
proportion based on the ratio of a State's resident marine anglers to
the State's total anglers. This ratio must equal the ratio of: (a) The
Sport Fish Restoration funds that the State allocates for marine
projects, to (b) the total Sport Fish Restoration funds. However, some
marine anglers also fish in freshwater, so a State has to allocate this
overlap when developing a ratio for marine and a ratio for freshwater
anglers. The Service has misinterpreted 16 U.S.C. 777(b)(1) which
reads, `` * * * [E]ach coastal State * * * shall equitably allocate
amounts apportioned to such State * * * between marine fish projects
and freshwater fish projects in the same proportion as the estimated
number of resident marine anglers and the estimated number of resident
freshwater anglers, respectively, bear to the estimated number of all
resident anglers in that State.'' This requires only a comparison of
the number of marine anglers to the number of freshwater anglers in the
same order as a comparison of the dollars allocated to marine projects
and the dollars allocated to freshwater projects. The relationship of
the numbers of the two types of anglers is a ratio, just as the
relationship of the two dollar amounts is a ratio. The two ratios are
in the ``same proportion'' as required by Sec. 777(b)(1). The proposed
rule incorrectly requires a proportion based on: (a) A comparison of
the funds allocated to marine fisheries projects with the total funds
allocated to marine and freshwater fisheries, and (b) a comparison of
marine anglers to the total number of marine and freshwater anglers.
Response 23: The commenter's recommendation would make the
allocation of funds simpler, but the proposed Sec. 80.66(a) is the
most reasonable interpretation of what the drafters of the legislation
intended. In any case, it would not be appropriate to impose a
different allocation method based on an alternative interpretation
without the benefit of public review. We made no changes based on this
comment, but we will review this issue before the next revision of 50
CFR 80.
Subpart G--Application for a Grant
Section 80.83 What is the Federal share of allowable cost?
Comment 24: Section 80.83(a) gives the Regional Director the
discretion to reimburse allowable costs on a sliding scale between 10
and 75 percent, but does not give guidance on how the Regional Director
should make that decision.
Response 24: The commenter's general concern was also applicable to
the other paragraphs of Sec. 80.83. We changed the proposed Sec.
80.83 to provide more detail on how the Regional Director decides on
the Federal share.
Subpart I--Program Income
Section 80.120 What is program income?
Comment 25: Explain at the proposed Sec. 80.120(c)(1) why hunting
and fishing license revenue collected as fees for special-area access
or recreation cannot be program income.
Response 25: We deleted the proposed Sec. 80.120(c)(1) from the
list of examples of revenue that cannot be program income. This
deletion is the result of a July 2010 determination that hunter-access
fees on lands leased with grant funds for public hunting may qualify as
program income under certain conditions.
Comment 26: Explain the basis of the distinction between leases
with terms greater than 10 years and leases with terms less than 10
years.
Response 26: Leases are legally complex. Their classification as
personal or real property varies significantly among the States and
even within a State depending on the type of property. The
classification of a lease as real or personal property is important
because it determines whether rent earned by a grantee from the lease
of real property acquired under a grant is classified as program income
or as proceeds from the disposition of real property. We proposed the
10-year threshold to simplify this complexity by adopting a common
standard for classifying leases as real or personal property for
purposes of the grant programs under the Acts. We chose 10 years
because it is a commonly accepted dividing line between long-term and
short-term leases, which often affects the lessees' rights and
responsibilities. We will present this subject in the context of a
future proposed rule that focuses on the acquisition and disposition of
all types of real property under a grant. Until we can develop a
proposed rule with that focus, we will rely on case-by-case legal
interpretations when faced with lease-related issues. We changed the
proposed Sec. 80.120(c)(6), which is the new Sec. 80.120(c)(5), to
read, ``Proceeds from the sale of real property.''
[[Page 46154]]
Section 80.123 How may an agency use program income?
Comment 27: One commenter stated that we should not require State
fish and wildlife agencies to obtain the Regional Director's approval
of the matching method for using program income if we do not require
the Regional Director's approval for other activities under a grant.
This commenter and another stated that all grants qualified for use of
the matching method under the criteria at Sec. 80.123(c), and both
commenters said that we should consider approving the use of the
matching method without conditions or give specific guidance on when
its use is appropriate. A third commenter also requested guidance on
when the matching method is appropriate.
Response 27: The statement at Sec. 80.123(c) that the Regional
Director may approve the use of the matching method is consistent with
other prior-approval requirements of this regulation. The Director has
delegated the authority to conduct grant programs to the Regional
Director with only a few exceptions. The definition of ``Regional
Director'' at Sec. 80.2 includes his or her designated representative,
and Regional Directors have generally delegated most decisions on grant
programs to the chiefs of their Regional Wildlife and Sport Fish
Restoration Program Divisions. We will consider proposing criteria for
approval of the matching method of using program income during the next
revision of 50 CFR 80 so the public will have the opportunity to offer
comments. We made no changes based on these comments.
Subpart J--Real Property
Section 80.130 Does an agency have to hold title to real property
acquired under a grant?
Comment 28: Do not restrict a State agency's ability in Sec.
80.130 to carry out a grant-funded project on lands to which it does
not have title. States may want to use grant funds to manage wildlife
on Federal lands under the terms of a cooperative agreement.
Response 28: Both Sec. Sec. 80.130 and 80.132 relate to the
commenter's concern. We based these sections on 16 U.S.C. 777g(a), 43
CFR 12.71(a) and (b), and the current regulation at Sec. 80.20, which
has been part of 50 CFR part 80 with only a minor change since 1982.
The final rule does not affect an agency's ability to manage Federal
lands cooperatively if this management does not include the completion
of a capital improvement.
Section 80.131 Does an agency have to hold an easement acquired under a
grant?
Comment 29: Replace ``subgrantee'' with ``third party'' because
``subgrant'' implies that grant funding passes to a subgrantee for use
at the subgrantee's discretion.
Response 29: A subgrantee is an entity that receives an award of
money or property. A subgrantee is accountable to the grantee for the
use of the money or property (see definitions of subgrant and
subgrantee at 43 CFR 12.43). The proposed Sec. 80.131(b) allows the
grantee to subgrant only a concurrent right to hold the easement or a
right of enforcement. The grantee will be able to set the terms of the
subgrant agreement and ensure that the subgrantee's right will not
supersede and will be concurrent with the agency's right of
enforcement. Since a third party is not necessarily a subgrantee, the
grantee may not be able to set the terms of any agreement on the right
of enforcement or a concurrent right to hold the easement. We made no
changes based on this comment.
Comment 30: Define ``concurrent right to hold.''
Response 30: We defined the term at the new Sec. 80.131(b)(2).
Section 80.132 Does an agency have to control the land or water where
it completes capital improvements?
See Comments 31 and 32 and our responses.
Section 80.134 How must an agency use real property?
Comment 31: Instead of requiring a grantee to use real property for
the uses in the grant, the regulation should state that the property
must continue to serve the purpose of the grant and must be used for
the administration of the fish and wildlife programs.
Response 31: The new Sec. 80.134(a) states, ``If a grant funds
acquisition of an interest in a parcel of land or water, the State fish
and wildlife agency must use it for the purpose authorized in the
grant.'' The requirement to use property for the administration of fish
and wildlife programs applies only if: (a) The administration of fish
and wildlife programs is a purpose of the grant-funded project that
acquired, completed, operated, or maintained the real property; or (b)
license revenue funded all or part of the project [see the proposed 50
CFR 80.10(c)(2)]. We made no changes based on this comment.
Comment 32: Clarify that grant projects on property other than that
acquired with grant funds fall within the requirements of Sec. 80.134.
Response 32: The comment applies to Sec. 80.132 as well as Sec.
80.134. We changed Sec. Sec. 80.132 and 80.134 to incorporate the
recommendation and to clarify in Sec. 80.134 the differences in use
requirements for specific types of grant-funded projects.
Section 80.137 What if real property is no longer useful or needed for
its original purpose?
Comment 33: The proposed Sec. 80.137 says that if a State fish and
wildlife agency's director and the Service's Regional Director jointly
decide that grant-funded real property is no longer useful or needed
for its original purpose, the State agency's director may request
disposition instructions. Provide guidance on how the Service and State
agency will cooperatively formulate these instructions.
Response 33: We changed the proposed Sec. 80.137(b) so that it
reads: ``Request disposition instructions for the real property under
the process described at 43 CFR 12.71, `Administrative and Audit
Requirements and Cost Principles for Assistance Programs'.''
Required Determinations
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 final 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
[[Page 46155]]
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 final rule's potential effects on small
entities as required by the Regulatory Flexibility Act. We have
determined that the changes in the final rule will 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 rule helps grant
applicants and recipients by making the regulations 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
clarification will 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 concessioners 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 concessioners.
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
concessioners, 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 final 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 final 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 U.S.C. 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 final 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 final 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 changes potentially assist small governments financially when they
occasionally and voluntarily participate as subgrantees of an agency.
d. The final 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
concessioner, a 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 final 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 final 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 final 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 final rule does not have significant takings implications
under E.O. 12630 because it does not have a provision for taking
private property. Therefore, a takings implication assessment is not
required.
Federalism
This final rule does not have sufficient Federalism effects to
warrant preparation of a Federalism assessment under E.O. 13132. It
will not interfere with the States' ability to manage themselves or
their funds. We work
[[Page 46156]]
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 final 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 final
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 final 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 four provisions in the final rule to amend 50 CFR part
80 published in the Federal Register at 73 FR 43120 on July 24, 2008,
based on subsequent experience; and
d. Addresses four new issues that State fish and wildlife agencies
raised in response to the proposed rule to amend 50 CFR part 80
published in the Federal Register at 73 FR 24523, May 5, 2008.
Paperwork Reduction Act
We examined the final 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 final rule at 50 CFR 80.160 describes
eight information collections. 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 four
of the eight information collections. These four information
collections are for the purposes of: (a) Application for a grant; (b)
assurances related to authority, capability, and legal compliance for
nonconstruction programs, (c) assurances related to authority,
capability, and legal compliance for construction programs; and (d)
reporting on the use of Federal funds, match, and program income.
OMB approved three other information collections in the final 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 eighth
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 final 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 8.5A(3).
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 final rule will
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 will
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.
Final Regulation Promulgation
For the reasons discussed in the preamble, we amend title 50 of the
Code of Federal Regulations, chapter I, subchapter F, by revising part
80 to read as set forth below:
Title 50--Wildlife and Fisheries
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--Certification of License Holders
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?
[[Page 46157]]
80.33 How does an agency decide who to count as paid license holders
in the annual certification?
80.34 How does an agency calculate net revenue from a license?
80.35 What additional requirements apply to multiyear licenses?
80.36 May an agency count license holders in the annual
certification if the agency receives funds from the State to cover
their license fees?
80.37 What must an agency do if it becomes aware of errors in its
certified license data?
80.38 May the Service recalculate an apportionment if an agency
submits revised data?
80.39 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 May an activity be eligible for funding if it is not
explicitly eligible in this part?
80.53 Are costs of State central services eligible for funding?
80.54 What activities are ineligible for funding?
80.55 May an agency receive a grant to carry out part of a larger
project?
80.56 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 the 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 grantee's responsibilities?
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 beginning of the grant
period?
80.95 How does an agency receive Federal grant funds?
80.96 May an agency use Federal funds without using match?
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 Does an agency have to display one of the symbols in this
part on a completed project?
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 its authorized purpose?
80.136 Is it a diversion if an agency does not use grant-acquired
real property for its authorized purpose?
80.137 What if real property is no longer useful or needed for its
original purpose?
Subpart K--Revisions and Appeals
80.150 How does an agency ask for revision 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. 777-777n, except 777e-1
and g-1.
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 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. (1) Capital improvement means:
(i) A structure that costs at least $10,000 to build; or
(ii) The alteration, renovation, or repair of a structure if it
increases the structure's useful life or its market value by at least
$10,000.
(2) An agency may use its own definition of capital improvement if
its definition includes all capital improvements as defined here.
Comprehensive management system is a State fish and wildlife
agency's method of operations that links programs, financial systems,
human resources, goals, products, and services. It assesses the
current, projected, and
[[Page 46158]]
desired status of fish and wildlife; it develops a strategic plan and
carries it out through an operational planning process; and it
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. A comprehensive-management-system grant funds all or part of
a State's comprehensive management system.
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:
(1) The person whom the Secretary:
(i) Appointed as the chief executive official of the U.S. Fish and
Wildlife Service, and
(ii) Delegated authority to administer the Acts nationally; or
(2) A deputy or another person authorized temporarily to administer
the Acts nationally.
Diversion means any use of revenue from hunting and fishing
licenses for a purpose other than administration of the State fish and
wildlife agency.
Fee interest means the right to possession, use, and enjoyment of a
parcel of land or water for an indefinite period. A fee interest, as
used in this part, may be the:
(1) Fee simple, which includes all possible interests or rights
that a person can hold in a parcel of land or water; or
(2) Fee with exceptions to title, which excludes one or more real
property interests that would otherwise be part of the fee simple.
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, under a grant, 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.
Lease means an agreement in which the owner of a fee interest
transfers to a lessee the right of exclusive possession and use of an
area of land or water for a fixed period, which may be renewable. The
lessor cannot readily revoke the lease at his or her discretion. The
lessee pays rent periodically or as a single payment. The lessor must
be able to regain possession of the lessee's interest (leasehold
interest) at the end of the lease term. An agreement that does not
correspond to this definition is not a lease even if it is labeled as
one.
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.
Personal property means anything tangible or intangible that is not
real property.
(1) Tangible personal property includes:
(i) Objects, such as equipment and supplies, that are moveable
without substantive damage to the land or any structure to which they
may be attached;
(ii) Soil, rock, gravel, minerals, gas, oil, or water after
excavation or extraction from the surface or subsurface;
(iii) Commodities derived from trees or other vegetation after
harvest or separation from the land; and
(iv) Annual crops before or after harvest.
(2) Intangible personal property includes:
(i) Intellectual property, such as patents or copyrights;
(ii) Securities, such as bonds and interest-bearing accounts; and
(iii) Licenses, which are personal privileges to use an area of
land or water with at least one of the following attributes:
(A) Are revocable at the landowner's discretion;
(B) Terminate when the landowner dies or the area of land or water
passes to another owner; or
(C) Do not transfer a right of exclusive use and possession of an
area of land or water.
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 a 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. Examples
of real property include fee and leasehold interests, conservation
easements, and mineral rights.
(1) A parcel includes (unless limited by its legal description) the
air space above the parcel, the ground below it, and anything
physically and firmly attached to it by a natural process or human
action. Examples include standing timber, other vegetation (except
annual crops), buildings, roads, fences, and other structures.
(2) A parcel may also have rights attached to it by a legally
prescribed procedure. Examples include water rights or an access
easement that allows the parcel's owner to travel across an adjacent
parcel.
(3) The legal classification of an interest, benefit, or right
depends on its attributes rather than the name assigned to it. For
example, a grazing ``lease'' is often a type of personal property known
as a license, which is described in the definition of personal property
in this section.
Regional Director means the person appointed by the Director to be
the chief executive official of one of the Service's geographic
Regions, or a deputy or another person temporarily authorized to
exercise the authority of the chief executive official of one of the
Service's geographic Regions. 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 a deputy or another
person who is temporarily authorized to direct the operation of the
Department.
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
[[Page 46159]]
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 record of financial transactions for groups of
similar activities based on programs and subprograms. Each group has a
unique number. Different subaccounts also distinguish between benefits
to marine or freshwater fisheries in the programs and subprograms
authorized by the Dingell-Johnson Sport Fish Restoration Act.
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 hunting and fishing licenses be:
(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 State becomes ineligible to receive the benefits of the Acts if
it:
(a) Fails materially to comply with any law, regulation, or term of
a grant as it relates to acceptance and use of funds under the Acts;
(b) Does not have legislation required at Sec. 80.10 or passes
legislation contrary to the Acts; or
(c) Diverts hunting and fishing license revenue from:
(1) The control of the State fish and wildlife agency; or
(2) Purposes other than the agency's administration.
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 after receiving a preliminary certificate of
apportionment.
Subpart C--License Revenue
Sec. 80.20 What does revenue from hunting and fishing licenses
include?
Hunting and fishing license revenue includes:
(a) All proceeds from State-issued general or special hunting and
fishing licenses, permits, stamps, tags, access and use fees, and other
State charges to hunt or fish for recreational purposes. Revenue from
licenses sold by vendors is net income to the State after deducting
reasonable sales fees or similar amounts retained by vendors.
(b) Real or personal property acquired with license revenue.
(c) Income from the sale, lease, or rental of, granting rights to,
or a fee for access to real or personal property acquired or
constructed with license revenue.
(d) 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 real or personal property acquired, managed,
maintained, or produced by using license revenue.
(e) Interest, dividends, or other income earned on license revenue.
(f) Reimbursements for expenditures originally paid with license
revenue.
(g) Payments received for services funded by license revenue.
Sec. 80.21 What if a State diverts license revenue from the control
of its fish and wildlife agency?
The Director may declare a State to be in diversion if it 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 State is then ineligible to receive
benefits under the relevant Act from the date the Director signs the
declaration until the State resolves the diversion. Only the Director
may declare a State to be in diversion, and only the Director may
rescind the declaration.
Sec. 80.22 What must a State do to resolve a declaration of
diversion?
The State must complete the actions in paragraphs (a) through (e)
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) If necessary, the State must enact adequate legislative
prohibitions to prevent diversions of license revenue.
(b) The State fish and wildlife agency must replace all diverted
cash derived from license revenue and the interest lost up to the date
of repayment. 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 (e) of this section; or
(3) Receive a cash amount at least equal to the current market
value of the diverted property only if the Director agrees that the
actions described in paragraphs (d)(1) and (d)(2) of this section are
impractical.
(e) To be acceptable under paragraph (d)(2) of this section:
(1) Replacement property must have both:
(i) Market value that at least equals the current market value of
the diverted property; and
(ii) Fish or wildlife benefits that at least equal those of the
property diverted.
[[Page 46160]]
(2) The Director must agree that the replacement property meets the
requirements of paragraph (e)(1) of this section.
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--Certification of License Holders
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 information:
(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 agency director or his or her designee:
(1) Must certify the information at paragraph (a) of this section
in the format that the Director specifies;
(2) Must provide documentation to support the accuracy of this
information at the Director's request;
(3) Is responsible for eliminating multiple counting of the same
individuals in the information that he or she certifies; and
(4) May use statistical sampling, automated record consolidation,
or other techniques approved by the Director for this purpose.
(c) If an agency director uses statistical sampling to eliminate
multiple counting of the same individuals, he or she must ensure that
the sampling is complete by the earlier of the following:
(1) Five years after the last statistical sample; or
(2) Before completing the first certification following any change
in the licensing system that could affect the number of license
holders.
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) A State fish and wildlife agency must count only those people
who have a license issued:
(1) In the license holder's name; or
(2) With a unique identifier that is traceable to the license
holder, who must be verifiable in State records.
(b) An agency must follow the rules in this table in deciding how
to count license holders in the annual certification:
------------------------------------------------------------------------
How to count each license
Type of license holder holder
------------------------------------------------------------------------
(1) A person who has either a paid Once.
hunting license or a paid sportfishing
license 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.
hunting license 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.
sportfishing license because the
person either voluntarily obtained
them or was required to have more than
one license.
(4) A person who has a paid single-year Once in the certification
hunting license or a paid single-year period in which the license
sportfishing license for which the first becomes valid.
agency receives at least $1 of net
revenue. (Single-year licenses are
valid for any length of time less than
2 years.)
(5) A person who has a paid multiyear Once in each certification
hunting license or a paid multiyear period in which the license is
sportfishing license for which the valid.
agency receives at least $1 of net
revenue for each year in which the
license is valid. (Multiyear licenses
must also meet the requirements at
Sec. 80.35.)
(6) A person holding a paid single-year Twice in the first
combination license permitting both certification period in which
hunting and sportfishing for which the the license is valid: once as
agency receives at least $2 of net a person who has a paid
revenue. hunting license, and once as a
person who has a paid
sportfishing license.
(7) A person holding a paid multiyear Twice in each certification
combination license permitting both period in which the license is
hunting and sportfishing for which the valid; once as a person who
agency receives at least $2 of net has a paid hunting license,
revenue for each year in which the and once as a person who has a
license is valid. (Multiyear licenses paid sportfishing license.
must also meet the requirements in
Sec. 80.35.)
(8) A person who has a license that Cannot be counted.
allows the license holder only to trap
animals or only to engage in
commercial fishing or other commercial
activities.
------------------------------------------------------------------------
Sec. 80.34 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 vendors' fees, automated license-system costs, licensing-
unit personnel costs, and the costs of printing and distribution.
[[Page 46161]]
Sec. 80.35 What additional requirements apply to multiyear licenses?
The following additional requirements apply to multiyear licenses:
(a) A multiyear license may be valid for either a specific or
indeterminate number of years, but it must be valid for at least 2
years.
(b) The agency must receive net revenue from a multiyear license
that is in close approximation to the net revenue received for a
single-year license providing similar privileges:
(1) Each year during the license period; or
(2) At the time of sale as if it were a single-payment annuity,
which is an investment of the license fee that results in the agency
receiving at least the minimum required net revenue for each year of
the license period.
(c) An agency may spend a multiyear license fee as soon as the
agency receives it as long as the fee provides the minimum required net
revenue for the license period.
(d) The agency must count only the licenses that meet the minimum
required net revenue for the license period based on:
(1) The duration of the license in the case of a multiyear license
with a specified ending date; or
(2) Whether the license holder remains alive.
(e) The agency must obtain the Director's approval of its proposed
technique to decide how many multiyear-license holders remain alive in
the certification period. Some examples of techniques are statistical
sampling, life-expectancy tables, and mortality tables.
Sec. 80.36 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 for some license holders, the agency may count those
license holders in the annual certification only under the following
conditions:
(a) The State funds to cover license fees must come from a source
other than hunting- and fishing-license revenue.
(b) The State must identify funds to cover license fees separately
from other funds provided to the agency.
(c) The agency must receive at least the average amount of State-
provided discretionary funds that it received for the administration of
the State's fish and wildlife agency during the State's five previous
fiscal years.
(1) State-provided discretionary funds are those from the State's
general fund that the State may increase or decrease if it chooses to
do so.
(2) Some State-provided funds are from special taxes, trust funds,
gifts, bequests, or other sources specifically dedicated to the support
of the State fish and wildlife agency. These funds typically fluctuate
annually due to interest rates, sales, or other factors. They are not
discretionary funds for purposes of this part as long as the State does
not take any action to reduce the amount available to its fish and
wildlife agency.
(d) The agency must receive State funds that are at least equal to
the fees charged for the single-year license providing similar
privileges. If the State does not have a single-year license providing
similar privileges, the Director must approve the fee paid by the State
for those license holders.
(e) The agency must receive and account for the State funds as
license revenue.
(f) The agency must issue licenses in the license holder's name or
by using a unique identifier that is traceable to the license holder,
who must be verifiable in State records.
(g) The license fees must meet all other requirements of 50 CFR 80.
Sec. 80.37 What must an agency do if it becomes aware of errors in
its certified license 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. 80.38 May the Service recalculate an apportionment if an agency
submits revised data?
The Service may recalculate an apportionment of funds based on
revised certified license data under the following conditions:
(a) If the Service receives revised certified data for a pending
apportionment before the Director approves the final apportionment, the
Service may recalculate the pending apportionment.
(b) If the Service receives revised certified data for an
apportionment after the Director has approved the final version of that
apportionment, the Service may recalculate the final apportionment only
if it would not reduce funds to other State fish and wildlife agencies.
Sec. 80.39 May the Director correct a Service error in apportioning
funds?
Yes. The Director may correct any error that the Service makes in
apportioning funds.
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 and manage wildlife for the benefit of the public.
(2) Conduct research on the problems of managing wildlife and its
habitat if necessary to administer wildlife resources efficiently.
(3) Obtain data to guide and direct the regulation of hunting.
(4) Acquire real property suitable or capable of being made
suitable for:
(i) Wildlife habitat; or
(ii) Public access for hunting or other wildlife-oriented
recreation.
(5) Restore, rehabilitate, improve, or manage areas of lands or
waters as wildlife habitat.
(6) Build structures or acquire equipment, goods, and services to:
(i) Restore, rehabilitate, or improve lands or waters as wildlife
habitat; or
(ii) Provide public access for hunting or other wildlife-oriented
recreation.
(7) 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.
(8) Coordinate grants in the Wildlife Restoration program and
related programs and subprograms.
(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.
[[Page 46162]]
(2) Enhance interstate coordination of hunter-education and
firearm- and archery-range programs.
(3) Enhance programs for education, safety, or development of bow
hunters, archers, and shooters.
(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 and manage sport fish for the benefit of the public.
(2) Conduct research on the problems of managing fish and their
habitat and the problems of fish 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:
(i) Size and geographic range of sport fish populations;
(ii) Changes in sport fish populations due to fishing, other human
activities, or natural causes; and
(iii) 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) Stock fish for recreational purposes.
(6) Acquire real property suitable or capable of being made
suitable for:
(i) Sport fish habitat or as a buffer to protect that habitat; or
(ii) Public access for sport fishing. Closures to sport fishing
must be based on the recommendations of the State fish and wildlife
agency for fish and wildlife management purposes.
(7) Restore, rehabilitate, improve, or manage:
(i) Aquatic areas adaptable for sport fish habitat; or
(ii) Land adaptable as a buffer to protect sport fish habitat.
(8) Build structures or acquire equipment, goods, and services to:
(i) Restore, rehabilitate, or improve aquatic habitat for sport
fish, or land as a buffer to protect aquatic habitat for sport fish; or
(ii) Provide public access for sport fishing.
(9) 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.
(10) 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.
(11) Coordinate grants in the Sport Fish Restoration program and
related programs and subprograms.
(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
they must provide benefits to recreational boaters. ``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 May an activity be eligible for funding if it is not
explicitly eligible in this part?
An activity may be eligible for funding even if this part does not
explicitly designate it as an eligible activity if:
(a) The State fish and wildlife agency justifies in the project
statement how the activity will help carry out the purposes of the
Pittman-Robertson Wildlife Restoration Act or the Dingell-Johnson Sport
Fish Restoration Act; and
(b) The Regional Director concurs with the justification.
Sec. 80.53 Are costs of State central services eligible for funding?
Administrative costs in the form of overhead or indirect costs for
State central services outside of the State fish and wildlife agency
are eligible for funding under the Acts and must follow an approved
cost allocation plan. These expenses must not exceed 3 percent of the
funds apportioned annually to the State under the Acts.
Sec. 80.54 What activities are ineligible for funding?
The following activities are ineligible for funding under the Acts,
except when necessary to carry out project purposes approved by the
Regional Director:
(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 the regulated taking of fish, hunting, or the trapping of
wildlife.
Sec. 80.55 May an agency receive a grant to carry out part of a
larger project?
A State fish and wildlife agency may receive a grant to carry out
part of a larger project that uses funds unrelated to the grant. The
grant-funded part of the larger project must:
(a) Result in an identifiable outcome consistent with the purposes
of the grant program;
(b) Be substantial in character and design;
(c) Meet 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) Meet all other requirements of the grant program.
Sec. 80.56 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 consistent with the Acts;
(b) States a purpose and sets objectives, both of which are based
on the need;
[[Page 46163]]
(c) Uses a planned approach, appropriate procedures, and accepted
principles of fish and wildlife conservation and management, research,
or education; and
(d) Is cost effective.
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 at Sec. Those listed at
eligible for funding?. 80.50(a) and (b). 80.50(c), but see
80.60(d) under
Basic Hunter
Education funds.
(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 as Wildlife
(16 U.S.C. 715 et Restoration funds
seq.). for the following
fiscal year. States
are eligible to
receive funds only
if their Basic
Hunter Education
funds were fully
obligated in the
preceding fiscal
year for activities
at Sec. 80.50(b).
(d) What if funds are fully If Basic Hunter No special
obligated during the period Education funds are provisions apply.
of availability? fully obligated for
activities listed
at 80.50(b), 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) A Federal obligation of these allocated funds must occur 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 the Outreach and Communications subprograms?
The limitations in this section apply to State fish and wildlife
agency spending on the Aquatic Resource Education and Outreach and
Communications subprograms.
(a) Each State's fish and wildlife agency 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.
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
[[Page 46164]]
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 with benefits for marine fisheries and
projects with 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 total funds obligated for marine fisheries
projects to total funds obligated for marine and freshwater fisheries
projects combined must equal the ratio of resident marine anglers to
the total number of resident anglers in the State; and
(2) The ratio of total funds obligated for freshwater fisheries
projects to total funds obligated for marine and freshwater fisheries
projects combined must equal 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 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
Regional Director for this purpose.
(d) If an agency uses statistical sampling 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, the sampling must be complete by the earlier of the
following:
(1) Five years after the last statistical sample; or
(2) Before completing the first certification following any change
in the licensing system that could affect the number of sportfishing
license holders.
(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) Agencies that fail to allocate funds equitably between marine
and freshwater fisheries projects may become ineligible to use Sport
Fish Restoration program funds. These agencies must remain ineligible
until they demonstrate to the Director that they have allocated the
funds equitably.
Sec. 80.67 May an agency finance an activity from more than one
annual apportionment?
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 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
according to a plan that schedules either reimbursements or advances of
funds immediately before need. The Service will reimburse or advance
funds to the agency according to a plan approved by the Regional
Director and 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.
(b) The project statement included with the application must have a
complete schedule of payments to finish 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 that are:
(i) Approved by the Office of Management and Budget for the grant
application process; and
(ii) Available on the Federal Web site for electronic grant
applications at http://www.grants.gov; 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
supports this process under Executive Order 12372, Intergovernmental
Review of Federal Programs.
Sec. 80.81 What must an agency submit when applying for a
comprehensive-management-system grant?
A State fish and wildlife agency must submit the following
documents when applying for a comprehensive-management-system grant:
(a) The standard form for an application for Federal assistance in
a mandatory grant program.
(b) The standard forms for assurances for nonconstruction programs
and construction programs as applicable. Agencies may submit these
standard forms for assurances annually to the
[[Page 46165]]
Regional Director for use with all applications for Federal assistance
in the programs and subprograms under the Acts.
(c) A statement of cost estimates by subaccount. Agencies may
obtain the subaccount numbers from the Service's Regional Division of
Wildlife and Sport Fish Restoration.
(d) Supporting documentation explaining how the proposed work
complies with the Acts, the provisions of this part, and other
applicable laws and regulations.
(e) A statement of the agency's intent to carry out and fund part
or all of its comprehensive management system through a grant.
(f) 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.
(g) A description of the State fish and wildlife agency program
covered by the comprehensive management system.
(h) Contact information for the State fish and wildlife agency
employee who is directly responsible for the integrity and operation of
the comprehensive management system.
(i) A description of how the public can take part in decisionmaking
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 the following
documents when applying for a project-by-project grant:
(a) The standard form for an application for Federal assistance in
a mandatory grant program.
(b) The standard forms for assurances for nonconstruction programs
and construction programs as applicable. Agencies may submit these
standard forms for assurances annually to the Regional Director for use
with all applications for Federal assistance in the programs and
subprograms under the Acts.
(c) 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) Purpose and Objectives. State the purpose and objectives, and
base them on the need. The purpose states the desired outcome of the
proposed project in general or abstract terms. The objectives state the
desired outcome of the proposed project in terms that are specific and
quantified.
(3) Results or benefits expected.
(4) Approach. Describe the methods used to achieve the stated
objectives.
(5) Useful life. Propose a useful life for each capital
improvement, and 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 for research projects. Record the
principal investigator's name, work address, and work telephone number.
(8) Program income.
(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) Budget narrative. Provide costs by project and subaccount with
additional information sufficient to show that the project is cost
effective. Agencies may obtain the subaccount numbers from the
Service's Regional Division of Wildlife and Sport Fish Restoration.
Describe any item that requires the Service's approval and estimate its
cost. Examples are preaward costs and capital expenditures for land,
buildings, and equipment. Include a schedule of payments to finish the
project if an agency proposes to use funds from two or more annual
apportionments.
(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 any 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) General. Provide information in the project statement that:
(i) Shows that the proposed activities are eligible for funding and
substantial in character and design; and
(ii) Enables the Service to comply with the applicable requirements
of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 and
4331-4347), the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.), the National Historic Preservation Act (16 U.S.C. 470s), and
other laws, regulations, and policies.
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 the allowable costs of a grant-funded project
to the fish and wildlife agencies of the 50 States. The Regional
Director generally approves any Federal share from 10 to 75 percent as
proposed by one of the 50 States if the:
(1) Funds are available; and
(2) Application is complete and consistent with laws, regulations,
and policies.
(b) The Regional Director may provide funds to the District of
Columbia to pay 75 to 100 percent of the allowable costs of a grant-
funded project in a program or subprogram authorized by the Dingell-
Johnson Sport Fish Restoration Act. The Regional Director decides on
the specific Federal share between 75 and 100 percent based on what he
or she decides is fair, just, and equitable. The Regional Director may
reduce the Federal share to less than 75 percent of allowable project
costs only if the District of Columbia voluntarily provides match to
pay the remaining allowable costs. However, the Regional Director must
not reduce the Federal share below 10 percent unless he or she follows
the procedure at paragraph (d) of this section.
(c) The Regional Director may provide funds to pay 75 to 100
percent of the allowable costs of a project funded by a grant 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 Regional Director decides on the
specific Federal share between 75 and 100 percent based on what he or
she decides is fair, just, and equitable. The Regional Director may
reduce the Federal share to less than 75 percent of allowable project
costs only if the Commonwealth or territorial fish and
[[Page 46166]]
wildlife agency voluntarily provides match to pay the remaining
allowable costs. However, the Regional Director must not reduce the
Federal share below 10 percent unless he or she follows the procedure
at paragraph (d) of this section. The Federal share of allowable costs
for 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 may be affected by the waiver process described at Sec.
80.84(c).
(d) The Regional Director may waive the 10-percent minimum Federal
share of allowable costs if the State, District of Columbia,
Commonwealth, or territory requests a waiver and provides compelling
reasons to justify why it is necessary for the Federal government to
fund less than 10 percent of the allowable costs of a project.
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 is fair, just, and equitable for the
Federal share consistent with Sec. 80.83(b) through (d);
(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. Following 48 U.S.C. 1469a, the Regional Director must then
waive the first $200,000 of match to establish the final non-Federal
match requirement for a project that includes funding from only one
grant program or subprogram. If a project includes funds from more than
one grant program or subprogram, the Regional Director must waive the
first $200,000 of match applied to the funds for each program and
subprogram.
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 as match Federal funds or the value of an 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 grantee's responsibilities?
A State fish and wildlife agency as a grantee is responsible for
all of the actions required by this section.
(a) Compliance with all applicable Federal, State, and local laws
and regulations.
(b) 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.
(c) 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.
(d) Settlement of all procurement-related contractual and
administrative issues.
(e) Giving reasonable access to work sites and records by employees
and contractual auditors of the Service, the Department of the
Interior, and the Comptroller General of the United States.
(1) Access is for the purpose of:
(i) Monitoring progress, conducting audits, or other reviews of
grant-funded projects; and
(ii) Monitoring the use of license revenue.
(2) Regulations on the uniform administrative requirements for
grants awarded by the Department of the Interior describe the records
that are subject to these access requirements.
(3) The closeout of an award does not affect the grantee's
responsibilities described in this section.
(f) Control of all assets acquired under the grant to ensure that
they serve the purpose for which acquired throughout their useful life.
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.
[[Page 46167]]
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 preaward costs that meet the conditions in Sec. 80.94.
Sec. 80.94 May an agency incur costs before the beginning of the
grant period?
(a) A State fish and wildlife agency may incur costs of a proposed
project before the beginning of the grant period (preaward costs).
However, the agency has no assurance that it will receive reimbursement
until the Regional Director awards a grant that incorporates a project
statement demonstrating that the preaward costs conform to all of the
conditions in paragraph (b) of this section.
(b) Preaward 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 preaward costs comply with
all laws, regulations, and policies applicable to a grant-funded
project.
(5) The agency must:
(i) Obtain the Regional Director's concurrence that the Service
will be able to comply with the applicable laws, regulations, and
policies before the agency starts work on the ground; and
(ii) Provide the Service with all the information it needs with
enough lead time for it to comply with the applicable laws,
regulations, and policies.
(6) The agency must not complete the project before the beginning
of the grant period unless the Regional Director concurs that doing so
is necessary to take advantage of temporary circumstances favorable to
the project or to meet legal deadlines. An agency completes a project
when it incurs all costs and finishes all work necessary to achieve the
project objectives.
(c) The agency can receive reimbursement for preaward costs only
after the beginning of the grant period.
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 use Federal funds without using match?
(a) The State fish and wildlife agency must not draw down any
Federal funds for a grant-funded project under the Acts in greater
proportion to the use of match than total Federal funds bear to total
match unless:
(1) The grantee draws down Federal grant funds to pay for
construction, including land acquisition;
(2) An in-kind contribution of match is not yet available for
delivery to the grantee or subgrantee; or
(3) The project is not at the point where it can accommodate an in-
kind contribution.
(b) If an agency draws down Federal funds in greater proportion to
the use of match than total Federal funds bear to total match under the
conditions described at paragraphs (a)(1) through (a)(3) of this
section, the agency must:
(1) Obtain the Regional Director's prior approval, and
(2) Satisfy the project's match requirement 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, or 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 (i) Does not have to report bartered
exchanged have the same market goods or services as program income
value,. 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 Must report the difference in market
or services relinquished exceeds value as grant expenses in the
the market value of the goods and Federal financial report.
services received,.
(3) The market value of the goods Must report the difference in market
or services received exceeds the value as program income in the
market value of the goods and Federal financial report.
services relinquished,.
(4) The barter transaction was (i) Does not have to report bartered
part of a cooperative farming or goods or services as program income
grazing arrangement meeting the or grant expenses in the Federal
requirements in paragraph (b) of financial report; and
this section,. (ii) Must disclose that barter
transactions occurred and identify
what was bartered in the Remarks
section of the Federal financial
report.
------------------------------------------------------------------------
[[Page 46168]]
(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 agency's control; and
(2) Designs the farming or grazing to advance the agency's fish and
wildlife management objectives.
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
follows:
[GRAPHIC] [TIFF OMITTED] TR01AU11.031
(b) The symbol of the Dingell-Johnson Sport Fish Restoration Act
follows:
[GRAPHIC] [TIFF OMITTED] TR01AU11.032
(c) The symbol of the Acts when used in combination follows:
[GRAPHIC] [TIFF OMITTED] TR01AU11.033
Sec. 80.100 Does an agency have to display one of the symbols in this
part on a completed project?
No. A State fish and wildlife agency does not have to display one
of the symbols in Sec. 80.99 on a project completed under the Acts.
However, the Service encourages agencies to display the appropriate
symbol following these requirements or guidelines:
(a) An agency 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) An agency may require a subgrantee 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 an agency 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 during the grant
period.
(b) Program income includes revenue from:
(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 concessioners 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; or
(6) Sale of a product of mining, drilling, forestry, or agriculture
during the period of a grant that supports the:
(i) Mining, drilling, forestry, or agriculture; or
(ii) Acquisition of the land on which these activities occurred.
(c) Program income does not include:
(1) Interest on grant funds, rebates, credits, discounts, or
refunds;
(2) Sales receipts retained by concessioners 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;
(3) Cash received by the agency or by volunteer instructors to
cover incidental costs of a class for hunter or aquatic-resource
education;
(4) Cooperative farming or grazing arrangements as described at
Sec. 80.98; or
(5) Proceeds from the sale of real property.
Sec. 80.121 May an agency earn program income?
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 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 the costs of
generating program income from gross income when it calculates program
income as long as the agency does not:
[[Page 46169]]
(1) Pay these costs with:
(i) Federal or matching cash under a Federal grant; or
(ii) Federal cash unrelated to a grant.
(2) Cover these costs by accepting:
(i) Matching in-kind contributions for a Federal grant; or
(ii) Donations of services, personal property, or real property
unrelated to a Federal grant.
(b) Examples of costs of generating program income that may qualify
for deduction from gross income if they are consistent with paragraph
(a) of this section are:
(1) Cost of estimating the amount of commercially acceptable timber
in a forest and marking it for harvest if the commercial harvest is
incidental to a grant-funded habitat-management or facilities-
construction project.
(2) Cost of publishing research results as a pamphlet or book for
sale if the publication is incidental to a grant-funded research
project.
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 in the following table:
------------------------------------------------------------------------
Method Requirements for using the 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 how the agency
proposes to use the program income, the
expected results, and why it is
essential to use program income as
match.
(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, it may use the income under a
subsequent grant for any activity eligible for funding in the grant
program that generated the 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?
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) Some States do not authorize their fish and wildlife agency to
hold the title to real property that the agency manages. In these
cases, the State or one of its administrative units may hold the title
to grant-funded real property as long as the agency has the authority
to manage the real property for its authorized purpose 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. Ownership interests include fee
and leasehold interests but not easements.
[[Page 46170]]
Sec. 80.131 Does an agency have to hold an easement acquired under a
grant?
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 a local or tribal
government. A concurrent right to hold an easement means that both the
State agency and the subgrantee hold the easement and share its rights
and responsibilities.
(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 parcel of
land and water on which it completes a grant-funded capital
improvement. An agency must exercise this control by holding title to a
fee or leasehold interest or through 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 even
if the agency did not acquire the parcel with grant funds.
Sec. 80.133 Does an agency have to maintain acquired or completed
capital improvements?
Yes. A State fish and wildlife agency is responsible for
maintaining 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?
(a) If a grant funds acquisition of an interest in a parcel of land
or water, the State fish and wildlife agency must use it for the
purpose authorized in the grant.
(b) If a grant funds construction of a capital improvement, the
agency must use the capital improvement for the purpose authorized in
the grant during the useful life of the capital improvement. The agency
must do this even if it did not use grant funds to:
(1) Acquire the parcel on which the capital improvement is located;
or
(2) Build the structure in which the capital improvement is a
component.
(c) If a grant funds management, operation, or maintenance of a
parcel of land or water, or a capital improvement, the agency must use
it for the purpose authorized in the grant during the grant period. The
agency must do this even if it did not acquire the parcel or construct
the capital improvement with grant funds.
(d) A State agency may allow commercial, recreational, and other
secondary uses of a grant-funded parcel of land or water or capital
improvement if these secondary uses do not interfere with the
authorized purpose of the grant.
Sec. 80.135 What if an agency allows a use of real property that
interferes with its 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.
(b) If the agency cannot fully restore the real property to its
authorized purpose, it must replace the real property using non-Federal
funds.
(c) The agency must determine that the replacement property:
(1) Is of at least equal value at current market prices; and
(2) Has fish, wildlife, and public-use benefits consistent with the
purposes of the original grant.
(d) The Regional Director may require the agency to obtain an
appraisal and appraisal review to estimate the value of the replacement
property at current market prices if the agency cannot support its
assessment of value.
(e) The agency must obtain the Regional Director's approval of:
(1) Its determination of the value and benefits of the replacement
property; and
(2) The documentation supporting this determination.
(f) The agency 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 agency does not restore the real property to its authorized purpose
or acquire replacement property within 3 years, the Director may
declare the agency ineligible to receive new grants in the program or
programs that funded the original acquisition.
Sec. 80.136 Is it a diversion if an agency does not use grant-
acquired real property for its authorized purpose?
If a State fish and wildlife agency does not use grant-acquired
real property for its authorized purpose, 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 unauthorized use is for a purpose 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 under
the process described at 43 CFR 12.71, ``Administrative and Audit
Requirements and Cost Principles for Assistance Programs.''
Subpart K--Revisions and Appeals
Sec. 80.150 How does an agency ask for revision of a grant?
(a) A State fish and wildlife agency must ask for revision of a
project or 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 revision would affect the information that
the agency
[[Page 46171]]
submitted with the original grant application; and
(ii) Why the requested revision is necessary.
(b) An agency must send any requested revision of the purpose or
objectives of a project or grant 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 43 CFR part 4, subpart G, ``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 Governmentwide
standard form (OMB control number 4040-0002).
(3) Certify on a Governmentwide 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 nonconstruction projects, construction projects, or both
(OMB control numbers 4040-0007 and 4040-0009).
(4) Provide a project statement that describes the need, purpose
and objectives, results or benefits expected, approach, geographic
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 Governmentwide 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, MS 2042-PDM, Arlington, VA 22203.
Dated July 19, 2011.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-19206 Filed 7-29-11; 8:45 am]
BILLING CODE 4310-55-P