[Federal Register Volume 79, Number 80 (Friday, April 25, 2014)]
[Proposed Rules]
[Pages 23209-23231]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-08998]
[[Page 23209]]
Vol. 79
Friday,
No. 80
April 25, 2014
Part V
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 86
Boating Infrastructure Grant Program; Proposed Rule
Federal Register / Vol. 79 , No. 80 / Friday, April 25, 2014 /
Proposed Rules
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 86
[Docket No. FWS-R9-WSR-2011-0083; FVWF941009000007B-XXX-FF09W11000]
RIN 1018-AW64
Boating Infrastructure Grant Program
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose
changes in the regulations governing the administration of the national
Boating Infrastructure Grant Program (BIG). We published a proposed
rule in the Federal Register on March 28, 2012. We received 22
responses from the public during the 60-day comment period that ended
May 29, 2012. Fifteen of the responses contained comments applicable to
the proposed rule, and 11 asked for more time to review the proposed
rule. Some comments expressed full support, and others suggested
changes. We amend the proposed rule based on these comments and our
further review and consideration of the proposed rule. The amended
proposed rule gives the public a 90-day comment period.
DATES: We will accept comments received or postmarked on or before July
24, 2014.
ADDRESSES: You may submit comments, identified by docket number FWS-R9-
WSR-2011-0083, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail: Public Comments Processing, Attn: Docket No.
FWS-R9-WSR-2011-0083; U.S. Fish and Wildlife Service; Division of
Policy and Directives Management; 4401 North Fairfax Drive, MS 2042-
PDM; Arlington, VA 22203.
Hand Delivery/Courier: U.S. Fish and Wildlife Service;
Division of Policy and Directives Management; 4501 North Fairfax Drive,
Room 2042 PDM; Arlington, VA 22203.
We will not accept email or faxes. All submissions received must
include the agency name and docket number or Regulatory Information
Number (RIN) for this rulemaking. We will post all comments received
without change to http://www.regulations.gov, including any personal
information provided. For detailed instructions on submitting comments
and other information on the rulemaking process, see the ``Public
Comments'' heading of the SUPPLEMENTARY INFORMATION section of this
document.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Lisa E. Van Alstyne, Wildlife and
Sport Fish Restoration Program, Division of Policy and Programs, U.S.
Fish and Wildlife Service, 703-358-1942.
SUPPLEMENTARY INFORMATION:
Background
We published a proposed rule for the Boating Infrastructure Grant
Program on March 28, 2012 (77 FR 18767). We received 22 responses from
the public. Fifteen included comments applicable to the proposed rule,
and 11 included requests for more time to review the proposed rule and
asked us to extend or reopen the comment period. We decided to respond
to applicable comments and offer a second comment period. We respond by
clarifying certain sections, leaving sections unchanged where we
received support, and making changes based on our further review.
In the proposed rule published on March 12, 2012, we suggested new
names for the Tier 1 and Tier 2 subprograms to reflect their role in
BIG. Several commenters stated they did not agree with the name changes
from ``Tier 1'' to ``BIG-Basic'' and from ``Tier 2'' to ``BIG-
Competitive.'' Their concern was that the term ``Basic'' misrepresents
the intent of the program and compared to ``Competitive,'' the public
could misunderstand it as being a noncompetitive program, when Tier 1
programs may be highly competitive on a State level. We received no
other recommendations for new terms to replace the tiered system, but
in this amended proposed rule, we propose using ``BIG Standard'' and
``BIG Select.'' These names relate to the level and action taken
nationally for each grant program. We award BIG Standard grants to
States for up to a standard amount that we announce each year for
eligible projects. We award BIG Select grants based on a national
selection process. We use the terms ``BIG Standard'' and ``BIG Select''
in this amended proposed rule and ask for comments on their use.
We amend sections of the amended proposed rule by:
(1) Removing Sec. 86.44.
(2) Renumbering Sec. Sec. 86.45 through 86.47 as Sec. Sec. 86.44
through 86.46.
(3) Adding a new Sec. 86.60 and redesignating Sec. 86.60 in the
proposed rule as Sec. 86.61 in the amended proposed rule.
Response to Public Comments
We arrange the public comments by sections of the proposed rule.
Some comments relate to topics that apply to more than one section of
the proposed rule. We discuss some of these as they apply to the entire
proposed rule or address them in only one applicable section. We will
not duplicate a response we give in one section in another section, but
will add information if needed to clarify. We do not present comments
exactly as stated unless we enclose text with quotes. Some comments
represent recommendations or opinions from several commenters with
similar ideas or positions. We state in the response to each comment
any action taken and explain our response. Some public comments led us
to reexamine sections beyond those that the public commented on
specifically. Based on this reexamination, we amend the proposed rule
to improve clarity, consistency, organization, or comprehensiveness. We
change the proposed rule for clarifications and uniformity that we do
not discuss. We do not explain minor changes made that do not
significantly affect the amended proposed rule. We discuss any
substantive changes that resulted from this reexamination in our
responses to the comments.
We use the terms ``current'' or ``current rule'' to refer to 50 CFR
part 86 or any section or paragraph of 50 CFR part 86 that became
effective after publication of a final rule in the Federal Register at
66 FR 5282, January 18, 2001. We use the terms ``proposed'' or
``proposed rule'' to refer to the proposed rule published in the
Federal Register at 77 FR 18767, March 28, 2012. We use the term
``amended'' or ``amended proposed rule'' to refer to this proposed
rule, amended from the proposed rule published on March 28, 2012.
We received some comments that asked questions relating to general
grant management and some that ask for more guidance, but not at the
level of this rulemaking. We do not discuss these questions in our
comment review unless we amend the proposed rule based on the comment
or it is relevant to changes we make. We will consider the concerns
raised and respond through another form of communication, training, or
information-sharing Web sites. We share grant information on our
Financial Assistance Wiki at http://fawiki.fws.gov.
We include all sections of the amended proposed rule and indicate
if we received no comments.
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Subpart A--General
Section 86.1 What does this part do?
Comment 1: Several comments state concern that calling Tier 1
``Basic'' and Tier 2 ``Competitive'' is misleading, suggesting that
grantees may use Tier 1 funds only for basic boating needs and that the
selection process is not competitive.
Response 1: We agree with their comments. As discussed in the
background for this amended proposed rule, the names of the subprograms
must not be misleading or suggest limitations that do not apply to the
type of projects funded under either subprogram. We must be clear that
both subprograms are competitive. States develop their process for
project review and selection for both subprograms and forward Tier 2
applications for a national ranking. We amend this section to describe
Tier 1 as ``BIG Standard'' and Tier 2 as ``BIG Select.'' States
determine BIG Standard grants at the State level and may apply for a
grant for one or multiple projects for an amount up to the maximum
stated in the annual Request for Applications (RFA). We score and rank
BIG Select grants through the national competitive process. We welcome
comments on these terms.
Section 86.2 What is the purpose of BIG?
Comment 2: You should not identify producing information and
educational materials as a purpose of BIG.
Response 2: Producing and distributing information about BIG is in
the current rule at 50 CFR 86.11 describing what the national BIG
Program does. It is an eligible action, but the Sportfishing and
Boating Safety Act of 1998 (Act) does not identify it as a purpose. We
amend the proposed rule to remove it from Sec. 86.2(b), but it will
remain an eligible action at Sec. 86.11.
Section 86.3 What terms do I need to know?
Capital Improvement
Comment 3: Recommend that the definition for capital improvement
have a threshold of $10,000 to be consistent with 50 CFR part 80.
Response 3: We do not make the requested change. In an upcoming
rulemaking action, we will propose to amend the definition in 50 CFR 80
to agree with the $25,000 threshold.
Comment 4: From this definition, it is not clear if a grant is a
single capital improvement or if a single grant can include multiple
capital improvements. Need to clarify to apply to useful life.
Response 4: We do not change the definition based on this comment.
We make clarifications in Sec. 86.75 for how to apply the definition
of capital improvement to grants and useful life.
Comment 5: Consider the total cost of the project instead of the
cost of each structure when determining useful life.
Response 5: We do not change the definition for capital
improvement. How to apply the definition as it relates to useful life
is in Sec. 86.75. We amend Sec. 86.75 to propose an option to have
one useful life for a grant based on the value of each capital
improvement.
Construction
Comment 6: Remove the word ``acquiring'' in the definition of
construction.
Response 6: We amend the term as suggested. Although acquiring land
is part of construction in general terms, it is an ineligible action in
BIG.
Eligible Vessel
Comment 7: You expanded the definition and removed the word
`motorized.' This will allow solo outrigger canoes and dragon boats to
be eligible vessels. Allowing non-motorized boats also conflicts with
Sec. 86.13 because these boats do not need a pumpout or 6 feet of
water depth. Recommend adding `motorized' to the definition and
amending the definition to allow sailboats 26 feet or longer with no
motors.
Response 7: We do not change the proposed definition as requested
in this comment. We amend the term to clarify the vessels not included.
Outrigger canoes and dragon boats are specialty vessels that do not
typically travel long distances from one place to another, have no
deck, and are not designed for people to live or spend any length of
time on board for common recreational purposes. We do not consider them
the type of transient vessel that we should include as an eligible
vessel.
The word `motorized' is not in 16 U.S.C. 777g-1. When we included
the word in the current rule, it had the unintended consequence of
excluding nonmotorized, live aboard, recreational sailboats used
throughout the country to travel from place to place. The term as
presented in the amended proposed rule clarifies the intent of the
program.
Maintenance
Comment 8: Clarify the term ``maintenance.''
Response 8: We replace the word `routine' with `operational' to
clarify the definition. We add a clarifying sentence and examples of
maintenance actions that are eligible. See also Sec. 86.14 for other
changes that relate to maintenance.
Real Property
Comment 9: Add the word ``permanent'' to breakwaters in the
definition of real property.
Response 9: We amend the term as suggested.
Comment 10: Remove ``fixed'' in front of ``docks'' from definition.
Response 10: We do not make this change. Removable docks are
personal property and not real property.
Transient
Comment 11: Modify the definition so it is clear that day-use
facilities are acceptable.
Response 11: We amend the definition to clarify that either day use
or staying up to 10 days is acceptable.
Terms Added or Amended
To clarify the proposed rule, we add definitions for
``Contractor,'' ``Marketing,'' ``Personal property,'' ``Program
income,'' ``Project cost,'' and ``Public communication.'' We amend the
definitions for ``Match'' and ``Operation'' and add examples for
operation.
Subpart B--Program Eligibility
Section 86.10 Who may apply for a BIG grant?
No comments.
Section 86.11 What activities are eligible for funding?
We received several comments supporting the proposed changes in
this section. We acknowledge the support, in addition to comments
requesting changes. We replace proposed Sec. 86.11(b) to address
preaward costs. We add Sec. 86.11(c) to address funding pumpouts
through the Clean Vessel Act program (CVA). We move the proposed Sec.
86.11(b) to the end of this section at Sec. 86.11(d).
We received several comments asking us to clarify actions as they
relate to marketing, public relations, and information and education.
In addition to adding terms at Sec. 86.3, we amend this section to
move Sec. 86.11(a)(6) to (5) and add examples of information and
education. We move Sec. 86.11(a)(7) to (6) and include the use of BIG
funds for monitoring BIG project performance and accomplishments.
We received some comments that supported including as eligible
actions services that support clean boating and good environmental
practices at facilities. Other commenters suggested that they support
the concept, but not as an eligible action under BIG. Some thought this
section was too open and
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could lend too much flexibility to the use of BIG funds. Others thought
it might be difficult to manage the possible project options that could
result.
After much consideration we remove Sec. 86.11(a)(5) in the amended
proposed rule. We discuss these positive practices later in the amended
proposed rule, but only as they apply to BIG-funded facility
construction and physical amenities. We believe the changes allow the
program to move forward with positive actions in the framework of
acceptable, eligible projects.
Comment 12: Add the current Sec. 86.20(e) on preliminary costs to
the proposed Sec. 86.11(a)(2).
Response 12: We do not change Sec. 86.11(a)(2). We capture all of
the eligible actions from the current rule at Sec. 86.20(e) in the
proposed rule at Sec. 86.11(a)(2). We amend the proposed rule to
include a new Sec. 86.11(b) to clarify preaward costs.
Comment 13: Change the proposed rule at Sec. 86.11(a)(3) to read,
``one-time dredging of . . .''
Response 13: We do not make this change. We propose to limit the
amount of funds the applicant can request for dredging actions, but not
limit how often it can ask for funding to dredge the same basin. The
proposed rule limits dredging to 10 percent of the BIG-funded facility
costs. A BIG-funded project that includes dredging must use at least 90
percent of the grant for other eligible costs. This requirement places
the burden on the grantee to show that the majority of its BIG-funded
actions are not dredge related. If a BIG-funded facility succeeds in
securing other BIG funds in the future to dredge in the same basin, it
shows that the project is acceptable to reviewers and competed well
with the dredge project included. We expect dredging to have a small
funding impact on the program, and we propose not to include
unnecessary restrictions.
Comment 14: Grantees should fund pumpouts exclusively through CVA
and it should not be an eligible action under BIG.
Response 14: The primary purpose of BIG is to build and maintain a
facility for eligible vessels. By definition, eligible vessels are
transient recreational vessels at least 26 feet long. The vast majority
of eligible vessels will have a marine sanitation device that eligible
users will want to empty when they use a BIG-funded facility. We are
consistent with the current rule by requiring a pumpout as an eligible
action for all BIG-funded facilities, unless another is available
within 2 miles or the exceptions apply that we describe in Sec.
86.43(n)(1).
Not all States participate in CVA. States that do participate in
CVA may not be able to fund a pumpout at the BIG project location with
CVA money due to grant unavailability or for administrative reasons.
Pumpouts will remain an eligible action in BIG, but to emphasize the
preference to use CVA when available, we add Sec. 86.11(c). This
paragraph allows States to limit the use of BIG funds for pumpouts and
direct BIG subgrantees in their State to CVA or other funding sources.
We encourage subgrantee applicants to work with their States to secure
CVA funding before including the action as a cost in a BIG application.
If an applicant includes a pumpout as part of its BIG-funded project,
we expect the applicant to explain its efforts to secure CVA funding
and state why it is not available. As CVA does not require allocating
costs among recreational users the same way as BIG does, most
applicants will find they receive more funds for their pumpout facility
from a CVA grant than from a BIG grant. We expect that requests for
funding a pumpout through BIG will be limited to projects in a State
that does not participate in CVA, does not have CVA funds available, or
has legal or administrative restrictions.
Comment 15: We received a few comments suggesting that using BIG
funds to support clean boating and good environmental practices as
stated in Sec. 86.11(a)(5) could deplete BIG funds for actions not
directly benefitting the purpose of BIG. Another comment suggested we
say, ``include interpretive signs regarding clean boating and good
environmental practices at eligible facilities.'' One commenter was
concerned that grantees would use BIG funds directly for Clean Marina
programs in States. Another comment supported services that support
clean boating and good environmental practices because these practices
support Service goals, but stated that we should define the eligible
services.
Response 15: We discuss in the narrative introducing comments for
Sec. 86.11 that we remove Sec. 86.11(a)(5) from the amended proposed
rule. We do not amend the proposed rule to include interpretive signs
because signs that tell boaters how to use the facility are already
eligible costs. We do not intend to fund Clean Marina actions directly
through BIG, but some actions eligible under BIG may support clean
boating and environmentally sound practices. We discuss services and
practices throughout the amended proposed rule as they apply to the
purpose of BIG.
Comment 16: Production of information and educational materials
should be limited to BIG Basic grants for widespread promotion of BIG
and not focused on one facility.
Response 16: We do not make this change. Other comments support the
ability of marinas to use BIG funds to advertise their project, and we
agree.
Comment 17: Add design and construction of boat wash stations as
eligible under BIG.
Response 17: We do not make this change and do not support this
activity as an eligible cost under BIG. The primary purpose of boat
wash stations is to remove aquatic invasive species and other
transportable elements from a boat that a person trailers to another
location. Trailered boats are not eligible vessels, so this is not an
eligible cost. Boat wash stations are eligible actions for States under
the Sport Fish Restoration program.
Comment 18: Allowing other activities to be eligible with Service
approval is too vague, and the process is not clear.
Response 18: We move this language from Sec. 86.11(b) to (d) and
add that we will describe any other approved actions eligible for
funding in the annual RFA. We do not expect these actions to happen
often. This paragraph gives the Service the ability to add or expand
eligible BIG actions that will benefit applicants and the public while
informing applicants so that all may include the added action if they
choose.
Section 86.12 What construction and services does boating
infrastructure include?
Comment 19: Pumpouts should not be included as boating
infrastructure, and grantees should fund them through CVA.
Response 19: We discuss the need for installing pumpouts in
Response 14. For these reasons, we support pumpouts as boating
infrastructure. We do not make the requested change.
Comment 20: ``Oil recycling, bilge-water cleaning, absorbent fuel
collars, and other services and structures that support clean and safe
boating'' should not be part of boating infrastructure.
Response 20: We amend Sec. 86.12(e) to include ``equipment and
structures for collecting, disposing, or recycling liquid or solid
waste from eligible vessels.'' This change eliminates disposable items
as eligible, places emphasis on equipment and structures, and focuses
on the needs of eligible vessels.
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Section 86.13 What design features must a BIG-funded facility have ?
We acknowledge comments in support of parts of this section. We
delete Sec. 86.13(c). We amend Sec. 86.13(b) and direct you to Sec.
86.43(n) for more information on pumpout waivers. We add at Sec.
86.13(c) in the amended proposed rule that we will consider water
access less than 6 feet deep if the State can demonstrate it will serve
the typical eligible users at that location. We add Sec. 86.13(d) to
clarify that all design features do not have to be part of the proposed
BIG-funded project, but can be an existing part of the marina, a
feature added in a prior BIG grant, or a feature funded through other
sources.
Comment 21: Change Sec. 86.13(b) and (c) of the proposed rule on
waivers and signs to remove the responsibility of the marina owner from
telling boaters where the nearest pumpout is and posting signs.
Response 21: We amend Sec. Sec. 86.13 and 86.43 as discussed above
to clarify the process to request a waiver from the pumpout
requirements in the grant application. We remove the requirement for
posting signs, allowing you to inform boaters using other communication
methods.
Comment 22: Change this section to recommend pumpouts instead of
requiring them.
Response 22: We discuss our support of pumpouts in Responses 14 and
19. For these reasons, we support pumpouts as a required design
feature, with the exceptions we allow at Sec. 86.43(n)(1).
Comment 23: This section contains both operational and design
features. Recommend you distinguish them.
Response 23: We agree and change the section to show both types of
features.
Section 86.14 How can I receive BIG funds for maintenance?
We received several comments that support grantees being
responsible for maintenance of the BIG-funded facility for its useful
life. The Act lists maintenance as one of the purposes of BIG, so we
must allow maintenance and balance it with need and responsibility. We
amend the proposed rule to emphasize ``facility'' maintenance, allow
maintenance only during the grant period, and describe the need for
grantees to apply user fees to maintenance after the grant period. We
leave the flexibility for States to decide maintenance needs and
priorities in BIG Standard grants. Based on one comment, we reviewed
the proposed rule to clarify the use of the term `maintenance' and make
it consistent throughout the amended proposed rule. This section has
significant changes in the amended proposed rule.
Comment 24: You should not allow maintenance as an eligible expense
under BIG.
Response 24: As discussed above, the Act clearly states facility
maintenance is an eligible purpose under BIG.
Comment 25: You must prohibit grantees and subgrantees from asking
for BIG funding in the future when they charge user fees. Further, when
a grantee or subgrantee accepts grant funds they agree to maintain the
project for the useful life.
Response 25: We amend the language to clarify that only maintenance
done during the grant period is eligible for BIG funding. Applicants
must clearly show maintenance is necessary and reasonable for the BIG-
funded project. We add a new Sec. 86.14(a)(2) to emphasize that
grantees and subgrantees may apply fees toward maintenance. We add in
the new Sec. 86.14(b)(2) that if a grantee uses BIG funds for
maintenance at a facility that has received BIG funds in the past, the
useful life must be extended. This continues the responsibility of the
operator and gives extended benefits to the public. We also add Sec.
86.14(b)(3) to allow a State to limit or exclude funding maintenance to
subgrantees in its State. The amended Sec. 86.14(c) allows maintenance
for BIG Select projects only during the grant period and only if the
maintenance directly supports the project.
We cannot guarantee future BIG funding to grantees and subgrantees,
so they must commit to using other funding sources for maintaining a
BIG-funded facility for its useful life.
Comment 26: Maintenance seems to be restricted to structures and
equipment, which is more restrictive than the current rule.
Response 26: The current rule defines maintain as activities that
``allow the facility to continue to function, such as repairing docks.
These activities exclude routine janitorial activities.'' We clarify
the term ``maintenance'' in this amended proposed rule, but we do not
make it more restrictive.
Section 86.15 How can dredging qualify as an eligible action?
We received comments supporting the approach to limit funds for
dredging. We also received comments asking us to limit dredging
projects to the existing channel and designated slips, allow one-time-
only dredging, and remove dredging as an eligible activity. As stated
in Response 13, we propose to allow dredging under the restrictions
discussed and not add any other restrictions or limitations. We add a
general explanation of dredging in the amended proposed rule to clarify
that dredging in this part includes all actions related to dredging.
The limits on using BIG funds for dredging include all these actions.
Comment 27: How does an applicant certify it has resources to
maintain the dredge project?
Response 27: We do not change this section based on this comment.
We require a grantee or subgrantee to maintain a dredge project for its
useful life, as we would for any other actions that are part of the
project and have a useful life. When reviewing an application, we will
consider the information the applicant presents to support its ability
to maintain the dredge project. By signing the application, an
applicant certifies to all BIG requirements.
Section 86.16 What actions are ineligible for BIG funding?
We received several comments supporting as ineligible actions:
retail businesses, parking lots, roads, administering or managing the
facility, and purchasing or operating boats to transport boaters. Based
on comments and our review we added Sec. 86.16(a)(10) to include as
ineligible: supplies and other expendable personal property not
directly related to the project objectives.
Comment 28: You should reword this section to clarify which actions
you consider marketing.
Response 28: We amend this section to add examples of marketing
activities.
Section 86.17 Who must own the site of a BIG-funded facility?
Based on comments received for this section, we define the term
``contractor'' at Sec. 86.3.
Comment 29: What does an applicant do to show a contractual
arrangement for operation of a site?
Response 29: We do not change this section based on this question.
If the applicant does not own the site where a BIG-funded project is
proposed, the applicant will work with us to document an acceptable
arrangement to ensure that the site will be available for the useful
life of the BIG-funded facility.
Comment 30: Requiring the Service to approve general management
activities seems cumbersome.
Response 30: We do not intend to review all business management
activities, but if the applicant is not the operator, we must assess
the operator's ability to manage a BIG-funded facility before we award
a grant in this competitive program.
[[Page 23214]]
Section 86.18 How can I ensure that BIG-funded projects continue to
serve their intended purpose for their useful life?
We received several comments supporting the obligation to record a
Federal interest. We amend this section to include flexibility to allow
the Regions to consider options for low-value or low-risk improvements
and for States to pass along the requirement to subgrantees. Some
commenters asked us about the process for carrying out this section. We
will publish procedural guidance and examples at http://fawiki.fws.gov.
Section 86.19 What if a project would benefit both eligible and
ineligible users?
We amend this section to make allocating costs simpler. We
emphasize that you must allocate costs if part of the BIG-funded
facility or a discrete element will benefit both eligible and
ineligible users. Under the current rule, we may reject applications
before scoring if the applicant does not allocate costs correctly. We
amend the proposed rule to allow us to work with applicants to clarify
how you allocate costs before the Director approves awards. We also
propose an exception to allocating costs where there are secondary uses
or purposes that would benefit all users that do not exclude eligible
users from the primary purpose. We give examples on how to allocate
costs. We invite comments that tell us if these changes improve the
approach to allocating costs.
Comment 31: How is it possible to assign 100 percent of project
costs to the BIG grant when there is a match requirement?
Response 31: We add a definition to proposed Sec. 86.3 for the
term ``project cost'' to clarify that we mean the Federal share and all
non-Federal funds given as match or added to the Federal grant to
complete the project.
Comment 32: Staff is not always available at BIG facilities to
monitor, so how do we enforce facility use?
Response 32: This section addresses only costs associated with the
project and not the actual use. We emphasize that you need to describe
the project in your application considering design and anticipated use
and how you will allocate costs based on your analysis.
Comment 33: What is a ``discrete element?''
Response 33: We add a description for what we consider a ``discrete
element.''
Comment 34: It is difficult to post signs in mixed-use areas and
enforce them.
Response 34: We amend this paragraph to include only the need to
inform ineligible boaters of areas or actions that are fully restricted
or limited. For example, if you design slips for only eligible users
and you assign 100 percent of costs to BIG funding, you must inform the
public that these slips are limited to eligible users. If you design a
tie-up area for exclusive use by eligible boats during certain periods,
but all others may use during ``off periods,'' you must include details
in your application and explain how you allocate costs. When the
project is complete, you must inform all users. If you propose an
action where you expect mixed use, you must describe it in your
application, allocate costs accordingly, and you do not need to post
any signs.
Comment 35: Changes over time may lead to an unexpected use of a
BIG-funded facility. States cannot predict and may not be aware of the
changes when they occur.
Response 35: The State is ultimately responsible for the grant.
Section 86.18(e) explains that the grantee must have a contract with
subgrantees that includes minimum requirements. The contract must
prohibit the subgrantee from altering the ownership, purpose, or use of
the BIG-funded facility without approval. The State may include other
requirements to protect its interest in the grant project. If the State
becomes aware of changes, it must contact us to find out how to address
them.
Subpart C--Federal Funds and Match
Section 86.30 What is the source of BIG funds?
No comments.
Section 86.31 How does the Service know how much money will be
available for BIG grants each year?
No comments.
Section 86.32 What are the match requirements?
We received support for making land or an interest in land
ineligible.
Comment 36: We disagree with excluding the value of structures
completed before the beginning of the funding period.
Response 36: We amend this section to allow the value of a
structure completed before the beginning of the funding period if the
Service approves it as a preaward cost. We considered how we might
allow the value of existing buildings that you may want to repurpose as
part of the BIG-funded facility, but we do not change this section in
this regard. We were unable to find a method that we could fairly and
simply apply to the situation because of the many variables, such as
the entire building not being used for the project, the building
benefitting both eligible and ineligible users, and the repurposing
being part of other projects. We welcome suggestions on approaches for
using the value of existing structures as part of the BIG-funded
project.
Section 86.33 What information must I provide on match commitments, and
where do I provide it?
We clarify this section and remove the requirement for a letter
signed by a third party's authorized representative when they intend to
provide match. This is consistent with the changes at Sec. 86.43 that
remove the requirement for letters of commitment in an application.
This requirement complicates the grant process because third party
information often changes between the time of the grant application and
project completion.
Section 86.34 What if a partner is not willing or able to follow
through on a match commitment?
We received comments asking us to remove or simplify this section.
We amend this section to remove some of the notices you must give us
and emphasize that States are ultimately responsible for all actions
and funding commitments in the grant. We still require States to tell
us how it will compensate for loss of match if a partner does not
follow through on its commitment.
Subpart D--Application for a Grant
We make changes to this subpart in the amended proposed rule by
deleting Sec. 86.44 and incorporating the information into Sec.
86.43. The ``other documents and information'' discussed in Sec. 86.44
are now included in the project statement.
Section 86.40 What are the differences between BIG Basic grants and BIG
Competitive grants?
We received support in setting a minimum award for BIG Basic (now
BIG Standard) grants that may increase as funds allow, but will not
decrease. We received support for the $1.5 million limit for BIG
Competitive (now BIG Select) grants, but also concern that the limit
may not be reasonable in future years. We amend this section to say we
``may'' limit BIG Select to a maximum of $1.5 million, but we will post
the maximum award in the annual RFA. This allows the Service to respond
to current need.
Comment 37: We want the Service to allow States to apply for
multiple BIG
[[Page 23215]]
Standard projects using separate applications as long as they do not
exceed the maximum funding limit.
Response 37: We agree and amend this section to allow the Service
Regions to decide how the State should apply for BIG Standard grants as
long as they do not exceed the maximum annual award.
Comment 38: Verify that States can ask for an amount that is less
than the BIG Standard annual funding limit.
Response 38: We do not change this section based on this comment.
The proposed rule says States may request any amount ``up to'' the
annual funding limit. We will emphasize this in the annual RFA.
Section 86.41 How do I apply for a grant?
We amend this section to require States to send applications
through http://www.grants.gov.
Comment 39: Emphasize that subgrantees must apply to the State and
not directly to the Service.
Response 39: We amend Sec. 86.41(a) to tell subgrantees they must
send an application to the State following State rules.
Section 86.42 What do I have to include in an application?
A comment asked us to remove information related to postaward
actions. We do not make the change requested in this comment because
this section addresses the application process.
Section 86.43 What information must I put in the project statement?
As discussed in the introductory paragraph to this subpart, we
incorporate information from Sec. 86.44 in the proposed rule into
Sec. 86.43 in the amended proposed rule. We separate `purpose' and
`objectives' to emphasize the differences between them, changing from
paragraph (b) to paragraphs (b) and (c). Paragraphs (c) through (f) of
this section are now (d) through (g). Paragraphs (g) through (i) are
now (i) through (k). We delete paragraph (j), Multipurpose projects and
equitable cost for BIG-funded facilities, and add the information to
paragraph (i), Budget narrative. We amend Sec. 86.43(i) to emphasize
the need for good cost estimates in your budget narrative. We delete
paragraph (m), Grantee's contact, and add paragraph (h), Project
officer. Paragraphs (k) through (l) are now (l) through (m). We add
paragraphs (n), General, and (o), Ranking criteria. Our responses to
comments reference the proposed rule unless we specify otherwise.
We received several comments regarding grant management issues such
as State control of the project, relationships to other grants,
preaward costs, and timeline. We will address these items through
training and grant management venues. We change the amended proposed
rule as described in the introductory paragraph to this subpart.
Comment 40: In Sec. 86.43(d)(2) delete ``known contractor'' or
explain what a contractor is.
Response 40: We keep the phrase ``known contractor'' because a
State or subgrantee may assign a major role to a contractor. If you
know who your contractor will be when you submit your application, you
must include this information. We added the definition of a contractor
at Sec. 86.3 to clarify.
Comment 41: Amend Sec. 86.43(e) to make useful life information
optional. It is unreasonable to expect a design at the time they apply.
Response 41: We do not make the requested change. If the
application includes a capital improvement, the applicant should be
able to estimate the useful life. We give further guidance at
Sec. Sec. 86.74 and 86.75.
Comment 42: In Sec. 86.43(i) remove the word ``must'' as some
operators do not charge a fee.
Response 42: We do not change this section. The proposed rule
requires that a BIG-funded project charge fees similar to those charged
at other facilities in the area with the same services. If all of the
comparable facilities in the area offer services without charge, then
the BIG-funded facility may also offer services without charge. We
amend Sec. 86.90 to clarify. If an operator charges a fee, it must be
in line with that charged by other local facilities.
Section 86.44 What other documents and information must I include in a
grant application?
We remove this entire section in the amended proposed rule as
described above. We remove the information found in Sec. 86.44(a)(3)
of the proposed rule and no longer require letters of commitment from
partners. We received comments asking where to ask for a waiver from
the requirement to have a pumpout. We describe in Sec. 86.43(n) of the
amended proposed rule how to ask for a waiver in the application.
Section 86.45 What if my BIG project needs more than the awarded
Federal share and required match to complete?
This is Sec. 86.44 in the amended proposed rule.
We received comments that support this section asking for discrete,
stand-alone projects and supporting a fair, competitive process. Based
on comments received and our review we: (1) Move Sec. 86.45(a)(3) in
the proposed rule to Sec. 86.44(a)(2) in the amended proposed rule and
Sec. 86.45(a)(2) in the proposed rule to Sec. 86.44(a)(3) in the
amended proposed rule;
(2) Add Sec. 86.44(b) to the amended proposed rule to address
actions if you do not have enough funds and cannot complete a project;
and
(3) Move Sec. 86.45(b) and (c) in the proposed rule to Sec.
86.44(c) and (d), respectively, in the amended proposed rule with no
further changes.
Comment 43: We recommend that all grant applications include a cost
analysis and if a BIG Select project does not have enough funds to
complete the project, the Service make it a priority and automatically
award that project a grant from BIG Standard.
Response 43: Both BIG Standard and BIG Select are competitive
programs, BIG Standard at the State level and BIG Select at the
national level. Allowing BIG Select projects automatically to receive
BIG Standard grant funds to complete a project would make the grants
noncompetitive, reduce State control of BIG Standard grants, and allow
applicants to be careless with cost estimates. We do not make this
change.
Section 86.46 If the Service does not select my grant application for
funding, can I apply for the same project the following year?
This section is now Sec. 86.45 in the amended proposed rule.
We received one comment supporting the clarity on unsuccessful
applications.
Section 86.47 What changes can I make in a grant application after I
submit it?
This section is now Sec. 86.46 in the amended proposed rule.
We amend this section to allow the Service and the applicant to
discuss the approach in the application for how to allocate costs
between eligible and ineligible benefits during the period between when
they apply and when the Service awards the grant. Currently, if the
grantee does not allocate costs properly, we consider the application
ineligible and we do not score it. This practice results in rejecting
potentially good projects based solely on improperly allocating costs.
This change allows us to score the application and gives the applicant
the chance to adjust costs prior to the Director approving awards.
[[Page 23216]]
Subpart E--Project Selection
Section 86.50 Who ranks BIG Competitive applications?
No comments.
Section 86.51 What criteria does the Service use to evaluate BIG
Competitive applications?
We received many comments and recommendations for the scoring
criteria, and we respond by making significant changes from the
proposed rule. We more accurately describe what the ranking criteria
relate to by changing headings to paragraph (a) ``Need, Access, and
Cost Efficiency,'' paragraph (b) is ``Match and Partnerships,'' and
paragraph (c) ``Innovation.''
We switch criteria at Sec. 86.51(a)(2) and (a)(3), but do not
change the language. We move criteria at Sec. 86.51(b)(2) to (b)(1)
and clearly state that the criterion at paragraph (b)(1) is to consider
match greater than the minimum required. We amend Sec. 86.51(b)(2) to
address in-kind contributions at any level.
We amend Sec. 86.51(c)(1) to address innovations that improve
eligible user access. We amend Sec. 86.51(c)(2) to address innovations
that improve the overall BIG-funded project. We add Sec. 86.51(c)(3)
to include a criterion for a marina that demonstrates a high level of
commitment to environmental compliance, sustainability, and stewardship
through a recognized program. We offer this provision because the
actions these marinas have taken to receive this recognition indicates
they exceed required compliance and show they are applying innovation
and forward thinking to operating the facility where the BIG-funded
project is located. This action demonstrates commitment to maintaining
the high quality of the facility where the BIG-funded project is
located, which will help to attract boaters, keep boaters, and extend
the useful life of the BIG-funded project.
We reduce the points for each criterion and now have a maximum
total of 36 points instead of 100. We may award up to 20 points (56
percent) for ``Need, Access, and Cost Efficiency,'' 10 points (28
percent) for ``Match and Partnerships,'' and 6 points (16 percent) for
``Innovation.''
The criteria for Innovation clearly discuss the physical
components, technology, and techniques used to improve access,
improvements to the BIG-funded project that will extend useful life,
and actions taken to improve operations beyond basic regulatory
requirements. Many of the considerations for ``Innovation'' directly
relate to construction actions or improving useful life of the
facility.
Section 86.52 What does the Service consider when evaluating a project
on the need for more or improved boating infrastructure?
We received no comments. We add a new paragraph at Sec. 86.52(c)
in the amended proposed rule that considers access created for eligible
vessels by reducing wave action, increasing depth, or other physical
improvements. We move Sec. 86.52(c) and (d) to Sec. 86.52(d) and (e),
respectively.
Section 86.53 What does the Service consider when evaluating a project
on boater access to significant destinations and services that support
transient boater travel?
This section was moved to Sec. 86.54 in the amended proposed rule
to reflect the changes at Sec. 86.51. We amend Sec. 86.53(a)(3) to
change from the word ``credibility'' to ``reliability.'' We received
one comment that fully supports this section and another that wants it
removed because of perceived difficulty in assessing all the variables.
We add paragraph (b) to tell you that you must describe the benefits in
the project statement under Need. We add paragraph (c) to say that we
will consider all benefits to eligible users described in the project
statement and add paragraph (d) to give an example on how we may apply
this criterion. The current method assesses cost benefits based on the
number of slips. We change the requirement to assess cost benefits as
they relate to the needs described in the project statement.
Section 86.54 What does the Service consider on benefits to eligible
users that justify the cost of the project?
This section was moved to Sec. 86.53 in the amended proposed rule
to reflect the changes at Sec. 86.51.
Comment 44: When you evaluate a project based on access to
significant destinations and services that support transient boater
travel, the process favors projects close to developed areas. Many
areas of interest may be isolated and in quiet, rustic areas. We feel
this system penalizes those projects.
Response 44: When we consider significant destinations, it means an
area where eligible users would want to travel. You must describe the
need for access to the remote, rustic area in the project statement.
You must include information that addresses Sec. 86.54 (a)-(c). You
should also include supporting information and demonstrate to reviewers
how the project destination will successfully attract eligible users.
It is possible for these projects to receive points for this criterion.
Section 86.55 What does the Service consider when evaluating a project
for partnerships?
We changed this section in the amended proposed rule to ``What does
the Service consider as a partner for the purposes of these ranking
criteria?''
Section 86.56 What does the Service consider when evaluating a project
that includes greater than the minimum match?
We add a section to the amended proposed rule to separate match and
have a criterion for greater than minimum match and a criterion for in-
kind match. The new section in the amended proposed rule is Sec. 86.57
``What does the Service consider when evaluating in-kind contributions
that a partner brings to a project?'' We present amendments, comments,
and responses for Sec. Sec. 86.55 through 57 together because they all
discuss the criteria related to partners and the subject matter
overlaps.
We reorganize the sections in the amended proposed rule to reflect
the changes in the criteria at Sec. 86.51(b) that address one
criterion for greater than minimum match and a second criterion for in-
kind match. We simplify Sec. 86.55 for what qualifies as a partner
under this amended proposed rule by removing the requirement for at
least 1 percent match, a letter of commitment, and other requirements
that place extra emphasis on the number of partners or the specific
contributions of a specific partner. We expand Sec. 86.56 to allow
that the greater than minimum match may come from any grantee, single
partner, or combination of grantee and partners. We include a table
that designates the points we will award for increased match. We add
Sec. 86.57 to the amended proposed rule to give direction on in-kind
contributions that a partner brings.
Some comments questioned the need to consider partners for each
application because BIG as a program offers the opportunity for Federal
and State agencies to form partnerships with private subgrantees. The
Act states that, ``in awarding grants,'' we give priority to projects
that include public/private partnerships, so we must consider the
partnerships in each application. Public/private partnerships leverage
Federal and other public funds with private funds to increase support
for the project. We must include review of private partnerships for all
applications and will give greater consideration for projects that
include a private contribution.
[[Page 23217]]
We also received comments that convey the difficulties in
sustaining partnerships in a project that may take several years to
begin construction and several more to complete. Often, a partner
cannot fulfill the commitment. We will still award higher points for
match above the minimum, but will consider the total cash match and not
count each contributor. This system will allow small communities to
receive smaller donations or commitments and apply them as one amount
toward match. It will benefit the grantee and subgrantees to foster
lasting partnerships to meet the excess match. The same logic applies
to in-kind match, that it allows project involvement to foster many
smaller relationships and receive credit for those contributions. We
award fewer total points for in-kind contributions.
Comment 45: Clarify what is a duty of an agency. Other agencies may
contribute work they are doing only because of the BIG-funded project,
and the State cannot complete the project without the other agency's
action.
Response 45: We reword this section to clarify. We make a clear
distinction between a mandatory duty and a voluntary action. If an
agency has an obligation to act, it is not a partner. It is fulfilling
its duty as an agency. Another agency is a partner if it offers a
voluntary action to benefit the project. For example, if another agency
offers the use of its equipment, labor, or other action within the
scope of work for the BIG-funded project, it is a partner and we will
consider its contribution as in-kind. A voluntary action may support
the BIG-funded project, but is not part of the scope of BIG-funded
work, for example, a parks department that builds a recreational area
near the BIG-funded facility that offers entertainment to eligible
users. It may contribute to the amenities at the project, but we will
not consider it a partner for the in-kind criterion.
Section 86.57 What does the Service consider when evaluating a project
for improving or maintaining the quality of the local environment?
Section 86.58 What does the Service consider when evaluating a project
for environmental sustainability?
We change Sec. Sec. 86.57 and 86.58 in the proposed rule to
Sec. Sec. 86.58 and 86.59 in the amended proposed rule. We add a new
section after Sec. 86.59 in the amended proposed rule as Sec. 86.60
``What does the Service consider when evaluating a project for
demonstrating a commitment to environmental compliance, sustainability,
and stewardship?'' We add this section to reflect the amended criteria
in Sec. 86.51(c), and, in Sec. Sec. 86.58 through 86.60, we discuss
how we will consider them. We do this because the majority of comments
we received ask us to rethink our approach.
Most commenters said they did not want a criterion that includes
improving the local habitat. We focus the criterion at Sec. 86.58 in
the amended proposed rule on innovation that directly relates to the
BIG-funded project and eligible-user access. We clarify that we will
not consider improvements to access that are mandated by law, but only
voluntary actions that the grantee or subgrantee does beyond the
minimum requirements.
We amend the criterion at Sec. 86.59 in the amended proposed rule
in response to comments stating it may be difficult to measure global
impact or sustainability at the application phase. Although several
comments suggested we remove this criterion, we are resolute that we
should consider and reward this type of innovation. We considered all
comments, and we amend the proposed rule to capture the positive
aspects of innovation, while narrowing the focus to actions that
directly relate to BIG-eligible construction.
We relate the criterion to physical components, technology, or
techniques that are new or repurposed in a unique way. We give examples
of the type of effects that the innovation should address, such as
extending the useful life, reducing maintenance, reducing operating
costs, reducing negative impacts during construction, or reducing the
carbon footprint of the BIG-funded project. The applicant should be
able to address these items in their application. This change relates
the innovation directly back to infrastructure, but encourages
applicants to be forward thinking while planning and executing the
project.
We add the criterion at Sec. 86.60 in the amended proposed rule to
allow us to award one point to facilities where a BIG-funded project is
proposed that demonstrates it has received official recognition by an
organization for its efforts to operate the facility using a high
standard of excellence. The awarding organization may be a Federal,
State, or local agency, a private or nonprofit organization with focus
or expertise in marina operations, or other entity known for working
with marinas or boating facilities and supporting innovation,
environmental stewardship, sustainability, and best management
practices. The recognition the marina receives must be part of an
established program with set standards of excellence. The applicant
must include proof they have received this recognition.
Section 86.59 What happens after the Director approves projects for
funding?
No comments. We renumber this section as Sec. 86.61 to reflect the
changes earlier in this subpart.
Subpart F--Grant Administration
Section 86.70 What standards must I follow when constructing a BIG-
funded facility?
We received comments that requiring a licensed engineer or
architect would be a burden for small marinas, excessive for small
projects, and add unnecessary costs to the BIG-funded project. We
agree, and, in response, we amend this section to remove the
requirement for all projects to meet this standard. We will leave it up
to our Regional Offices to ask you to have an expert review your
project if the cost is greater than $100,000 and there are concerns.
Section 86.71 How much time do I have to complete the work funded by a
BIG grant?
We received comments that suggest 3 years might not be enough time
to complete a BIG-funded project and would create a system of continual
extension requests. We amend this section to emphasize that we have 3
Federal fiscal years from the beginning of the Federal fiscal award
year to obligate funds. For example, for Federal fiscal year 2014,
which starts on October 1, 2013, we have until September 30, 2016, to
obligate the funding. Grantees may coordinate with us during this
period to work on preconstruction planning and compliance. Once the
Service and the grantee agree on a start date, we will obligate the
funds in our electronic financial system. Grantees will have 3 years
from the start date to complete the BIG-funded project. We do not
change this section based on this clarification.
Section 86.72 What if I cannot complete the project during the grant
period?
We received a comment supporting the clear deadlines and reasonable
approach.
Comment 46: Due to the extra work needed to amend a grant, we
recommend you change this section from having two 1-year extensions to
one 2-year extension.
Response 46: We agree with the concept and amend this section to
allow us to grant a first extension for up to 2 years. We may grant a
shorter extension
[[Page 23218]]
if it is in the best interest of the project or program. We keep the
option for a second extension and keep the criteria, but do not give a
set time. This approach also allows flexibility for the needs and
benefits of the project and the program. We amend the section to
require approval from the Regional Director and the Service's Assistant
Director for Wildlife and Sport Fish Restoration only for extensions
beyond 5 years of the start date. In practice, if a grantee is asking
for an extension beyond 5 years, it is possible that more than 8 years
have passed from the date of the award. Extending grant funds for a
project that you do not complete 8 years after we award a grant
requires a higher level review.
Comment 47: This section conflicts with Sec. 86.47 ``What changes
can I make in a grant application?'' since modifications could affect
the score.
Response 47: This section does not conflict with Sec. 86.47
because Sec. 86.47 refers to changes in an application, not changes in
an awarded grant. Time extensions have no impact on the score. We do
not make any changes based on this comment.
Section 86.73 What if I need more funds to finish a project?
We received several comments supporting this section. We make some
edits to text based on suggestions we received. We amend this section
to reflect changes we make to subpart H of the proposed rule.
Section 86.74 How long must I operate and maintain a BIG-funded
facility, and who is responsible for the cost of facility operation and
maintenance?
We received several comments supporting this section. We received
one comment suggesting that because of State-by-State insurance issues
we should remove the suggestion for States to insure a BIG-funded
project. We remove that suggestion in this section with the
understanding that States know it is an option. We maintain the option
in Sec. 86.18(f) for States to require subgrantees to have insurance.
Section 86.75 How do I determine the useful life of a project?
We received several suggestions for changing the language in this
section; some we accept, and others we do not. We also amend this
section based on our consideration and changes to other sections. We
will reject your application if you do not propose a useful life in
your application. We will allow the grantee to negotiate the proposed
useful life with us after we receive the application, but before we
approve the grant. We do this so that an application is not rejected
based solely on a proposed useful life that we do not agree with at the
time we are reviewing applications for awards. However, if you are
using an increased useful life to justify more points following the
criterion in Sec. 86.51(c), you must give adequate information in your
application to support your request for consideration under the
criterion. If we find before we approve your grant that you are not
able to demonstrate a reasonably expected increased benefit to earn the
extra points, we will remove those points from the scoring and adjust
awards accordingly. We allow a BIG-funded project to have several
useful-life components or to have a single useful life based on the
longest useful life of any structure or system in the grant.
Section 86.76 How should I credit the BIG program?
Comment 48: You should add a paragraph to give States the option of
having alternative language approved due to local ordinances and
restrictions.
Response 48: We agree and amend this section to allow approval of
alternative language.
Section 86.77 How can I use the logo for the BIG program?
No comments. We amend this section to add a new paragraph (c)
stating that businesses that contribute to or receive from the Trust
Fund may display the logo in conjunction with products or projects.
Section 86.78 How must I treat program income?
We received a comment that the table was too complicated. We remove
the table and amend this section to clarify that it only applies if you
expect to earn program income during the grant period. We simplify
Sec. 86.78(d) to recommend that States work with us to reduce
unintended program income, but leave the method up to our Regional
Offices.
Section 86.79 How must I treat program income earned after the grant
period?
No comments.
Subpart G--Facility Operations and Maintenance
Section 86.90 How much must an operator of a BIG-funded facility charge
for using the facility?
Comment 49: The proposed rule states that an operator ``must''
charge a reasonable fee based on the prevailing rate in the area. It
does not allow an operator to offer free services.
Response 49: We agree and add a new Sec. 86.90(b) to the amended
proposed rule to allow BIG-funded operators to offer services free of
charge if that is prevailing practice for the area.
Comment 50: The regulations should not involve themselves in the
business practices of the marina owner and should not require this
information.
Response 50: We reiterate our comments found in the preamble of the
proposed rule that grantees must not use the benefit of the Federal
grant to compete unfairly with similar businesses in the area of the
BIG-funded project. We amend the proposed rule by adding Sec. 86.90(c)
to allow for a legally imposed fee structure. We move Sec. 86.90(b) to
(d) and amend it to require you to state the fees and the basis for the
fees in your grant application. We remove the statement that awarding a
grant includes approval of proposed fees, as everything in the
application becomes part of the grant award and this is unnecessary
information.
Comment 51: There is no place in the proposed rule that tells a
grantee what to include in a grant application for fees.
Response 51: We describe what supports this requirement in the new
Sec. 86.90(d). You must present the basis for your conclusion in any
format that shows the fees comply with the prevailing rate.
Section 86.91 May an operator of a BIG-funded facility increase or
decrease user fees during the useful life of the BIG-funded project?
Comment 52: The State should authorize any change in user fees.
Response 52: We amend Sec. 86.91 to designate the sole paragraph
in the proposed rule as paragraph (a) in the amended proposed rule. We
remove the requirement that we approve a change in user fees, but we
allow States to be more involved if they choose. We add Sec. 86.91(b)
to address how a State or the Service must respond if it discovers an
operator of a BIG-funded facility is charging an unreasonable fee. We
will not monitor changes in user fees. This paragraph states that the
State and the Service must allow an operator to make reasonable
business decisions when changing user fees.
Section 86.92 May an operator of a BIG-funded facility limit public
access?
We amend the question in the amended proposed rule to address
allowing access rather than limiting access. We received comments that
led us to amend this section to add a new Sec. 86.92(a) to clarify the
definition of
[[Page 23219]]
``public access.'' Public access means access by eligible users for
eligible actions or other actions that either support or do not
interfere with the purposes of the BIG-funded project. We add this
definition to emphasize that ``public access'' does not mean that an
operator of a BIG-funded facility should ignore the purpose of the BIG-
funded project and allow access that interferes with that purpose. We
remove the sentence in Sec. 86.92(a) that allowed applicants to
describe other limits to access in their application. We amend Sec.
86.92(b) to state that an operator must allow public access to the BIG-
funded facility. We amend Sec. 86.92(c) to state that an operator must
allow reasonable public access to other parts of the facility that
would normally be open to the public. An operator of a BIG-funded
facility must not limit access to only a certain segment of the
eligible public, such as members only, or discriminate against an
eligible user in a way that interferes with his or her civil rights. We
move Sec. 86.92(b) to (d). We replace the language at Sec. 86.92(c)
for the reasons in Response 53. We move Sec. 86.92(d) and (e) to Sec.
86.92 (e) and (f), respectively.
Comment 53: Section 86.92(c) says that the public must have access
to the shore and related facility features such as fuel stations and
restrooms. The public does not have direct access to the shore if the
BIG-funded project is for mooring buoys. The regulations should have an
exception for this requirement.
Response 53: We understand the language in the proposed rule may be
misinterpreted to require an operator of a BIG-funded facility to
provide transportation to and from BIG-funded projects or components
that are located away from the shore. We amend the proposed rule to
state that an operator must allow reasonable public access that would
normally be open to the public. This change states that eligible users
must have normal access, but that the operator does not have to create
access where it does not exist.
Section 86.93 May I prohibit overnight use by eligible vessels at a
BIG-funded facility?
Comment 54: At the end of the sentence, add ``or if authorized by
the State agency.''
Response 54: We disagree. We indicate that you must state in your
application if you intend your BIG-funded facility to be for day use
only, as it is part of the scope of the project. We do not want a
grantee or subgrantee changing any part of the scope without going
through the revision process, so we do not allow the State to approve a
change in scope. We amend this section to require a grantee to follow
subpart H for changes in scope.
Section 86.94 Do I have to include informational signs for eligible
users at BIG-funded facilities?
Based on comments received, consideration of new technologies, and
changes to this amended proposed rule, we amend this section to expand
the technology and methods used to inform boaters so grantees may use
signs or any other form of reasonable communication. This change allows
grantees to inform boaters through their smart phone, internet, or any
other communication technology commonly available. Because of these
changes, we also amend the section title. We remove the requirement to
post fees. We remove the need to post restrictions for shared-use areas
that have had costs allocated as described at Sec. 86.19. We emphasize
that an operator must inform the public of BIG-funded benefits that are
solely for the use of eligible users. For example, you may estimate the
breakdown of users of a BIG-funded fuel dock to be 70 percent
ineligible users and 30 percent eligible users. If you allocate costs
in the application, then you are not required to notify any users of
any restrictions. However, if you build 10 BIG-funded slips for
eligible users and they are located next to 20 slips that are available
for anyone to use, you must use signs or other methods to inform the
public that the 10 slips are only for eligible vessels.
Subpart H--Revisions and Appeals
Section 86.100 Can I change the information in an application after I
receive a grant?
We amend Sec. 86.100(d) to state that the Regional Office should
follow its own procedures for review and approval of changes to a BIG
Standard grant. We add Sec. 86.100(e) to state that the Regional
Office must receive approval from the Division of Wildlife and Sport
Fish Restoration Headquarters Office for any changes to a BIG Select
grant that involves cost, project benefits, or another factor that
could affect the score.
Comment 55: This section includes BIG Standard grants, but talks
about national scoring, which does not apply to BIG Standard.
Response 55: We agree and amend the section to separate rules that
apply to both BIG Standard and BIG Select and those that apply only to
BIG Select.
Section 86.101 How do I ask for a revision of a grant?
No comments.
Section 86.102 Can I appeal a decision?
No comments.
Section 86.103 Can the Director authorize an exception to this part?
No comments.
Subpart I--Information Collection
Section 86.110 What are the information-collection requirements of this
part?
We add Sec. 86.110(a)(3) and (4) on Standard Forms 424 A, 424 C,
SF-LLL, and SF-LLLA.
Public Comments
You may submit your comments and materials on this proposed rule by
one of the methods listed in ADDRESSES. We will not accept comments
sent by email or fax or to an address not listed in ADDRESSES. Finally,
we will not consider hand-delivered comments that we do not receive, or
mailed comments that are not postmarked, by the date specified in
DATES.
Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal information from
public view, we cannot guarantee that we will be able to do so.
Required Determinations
We do not change. Refer to our proposed rule, Boating
Infrastructure Grant Program, (77 FR 18767, March 28, 2012), for
Required Determinations.
List of Subjects in 50 CFR Part 86
Administrative practice and procedure, Boats and boating safety,
Fishing, Grants administration, Grant programs, Harbors, Intermodal
transportation, Marine resources, Natural resources, Navigation
(water), Recreation and recreation areas, Reporting and recordkeeping
requirements, Rivers, Signs and symbols, Vessels, Water resources,
Waterways.
Proposed Regulation Promulgation
For the reasons discussed in the preamble, we propose to amend
title 50 of the Code of Federal Regulations, chapter I, subchapter F,
by revising part 86 to read as follows:
[[Page 23220]]
PART 86--BOATING INFRASTRUCTURE GRANT PROGRAM
Subpart A--General
Sec.
86.1 What does this part do?
86.2 What is the purpose of BIG?
86.3 What terms do I need to know?
Subpart B--Program Eligibility
86.10 Who may apply for a BIG grant?
86.11 What actions are eligible for funding?
86.12 What types of construction and services does boating
infrastructure include?
86.13 What operational and design features must a facility have
where a BIG-funded facility is located?
86.14 How can I receive BIG funds for facility maintenance?
86.15 How can dredging qualify as an eligible action?
86.16 What actions are ineligible for BIG funding?
86.17 Who must own the site of a BIG-funded facility?
86.18 How can I ensure that a BIG-funded facility continues to serve
its intended purpose for its useful life?
86.19 What if a BIG-funded facility would benefit both eligible and
ineligible users?
Subpart C--Federal Funds and Match
86.30 What is the source of BIG funds?
86.31 How does the Service know how much money will be available for
BIG grants each year?
86.32 What are the match requirements?
86.33 What information must I give on match commitments, and where
do I give it?
86.34 What if a partner is not willing or able to follow through on
a match commitment?
Subpart D--Application for a Grant
86.40 What are the differences between BIG Standard grants and BIG
Select grants?
86.41 How do I apply for a grant?
86.42 What do I have to include in a grant application?
86.43 What information must I put in the project statement?
86.44 What if I need more than the maximum Federal share and
required match to complete my BIG-funded project?
86.45 If the Service does not select my grant application for
funding, can I apply for the same project the following year?
86.46 What changes can I make in a grant application after I submit
it?
Subpart E--Project Selection
86.50 Who ranks BIG Select grant applications?
86.51 What criteria does the Service use to evaluate BIG Select
applications?
86.52 What does the Service consider when evaluating a project on
the need for more or improved boating infrastructure?
86.53 What factors does the Service consider for benefits to
eligible users that justify the cost?
86.54 What does the Service consider when evaluating a project on
boater access to significant destinations and services that support
transient boater travel?
86.55 What does the Service consider as a partner for the purposes
of these ranking criteria?
86.56 What does the Service consider when evaluating a project that
includes more than the minimum match?
86.57 What does the Service consider when evaluating in-kind
contributions that a partner brings to a project?
86.58 What does the Service consider when evaluating a project for a
physical component, technology, or technique that will improve
eligible user access?
86.59 What does the Service consider when evaluating a project for
innovative physical components, technology, or techniques that
improve the BIG project?
86.60 What does the Service consider when evaluating a project for
demonstrating a commitment to environmental compliance,
sustainability, and stewardship?
86.61 What happens after the Director approves projects for funding?
Subpart F--Grant Administration
86.70 What standards must I follow when constructing a BIG-funded
facility?
86.71 How much time do I have to complete the work funded by a BIG
grant?
86.72 What if I cannot complete the project during the grant period?
86.73 What if I need more funds to finish a project?
86.74 How long must I operate and maintain a BIG-funded facility,
and who is responsible for the cost of facility operation and
maintenance?
86.75 How do I determine the useful life of a BIG-funded facility?
86.76 How should I credit the BIG program?
86.77 How can I use the logo for the BIG program?
86.78 How must I treat program income?
86.79 How must I treat income earned after the grant period?
Subpart G--Facility Operations and Maintenance
86.90 How much must an operator of a BIG-funded facility charge for
using the facility?
86.91 May an operator of a BIG-funded facility increase or decrease
user fees during its useful life?
86.92 Must an operator of a BIG-funded facility allow public access?
86.93 May I prohibit overnight use by eligible vessels at a BIG-
funded facility?
86.94 Must I give information to eligible users and the public about
BIG-funded facilities?
Subpart H--Revisions and Appeals
86.100 Can I change the information in a grant application after I
receive a grant?
86.101 How do I ask for a revision of a grant?
86.102 Can I appeal a decision?
86.103 Can the Director authorize an exception to this part?
Subpart I--Information Collection
86.110 What are the information-collection requirements of this
part?
Authority: 16 U.S.C. 777c, g, and g-1.
Subpart A--General
Sec. 86.1 What does this part do?
(a) This part tells States how they may apply for and receive
grants from the Boating Infrastructure Grant program (BIG) Standard and
Select subprograms. Section Sec. 86.40 describes the differences
between these two subprograms.
(b) The terms you, your, and I refer to a State agency that applies
for or receives a BIG grant. You may also apply to a subgrantee with
which a State agency has a formal agreement to construct, operate, or
maintain a BIG-funded facility.
(c) The terms we, us, and our refer to the U.S. Fish and Wildlife
Service.
Sec. 86.2 What is the purpose of BIG?
The purpose of BIG is to construct, renovate, and maintain boating
infrastructure facilities for transient recreational vessels at least
26 feet long.
Sec. 86.3 What terms do I need to know?
For the purposes of this part, we define these terms:
BIG-funded facility means only the part of a facility that we fund
through a BIG grant.
Boating infrastructure means all of the structures, equipment,
accessories, and services that are necessary or desirable for a
facility to accommodate eligible vessels. See Sec. 86.12 for examples
of boating infrastructure.
Capital improvement means:
(1) A new structure that costs at least $25,000 to build; or
(2) Altering, renovating, or repairing an existing structure if it
increases the structure's useful life by 10 years or if it costs at
least $25,000.
Construction means the act of building or significantly altering,
renovating, or repairing a structure. Clearing and reshaping land and
demolishing structures are types or phases of construction. Examples of
structures are buildings, docks, piers, breakwaters, and slips.
Contractor means an entity with which a State has a written
agreement to operate or manage a BIG-funded facility. You pay a
contractor to perform specific duties according to a written agreement.
Contractors are not grant recipients.
Director means:
(1) The person whom the Secretary of the Interior:
(i) Appointed as the chief executive official of the U.S. Fish and
Wildlife Service; and
[[Page 23221]]
(ii) Delegated authority to administer BIG nationally; or
(2) A deputy or another person who exercises the Director's
Servicewide authority.
Eligible user means an operator or passenger of an eligible vessel.
Eligible vessel means a transient recreational vessel at least 26
feet long. The term includes vessels that are owned, loaned, rented, or
chartered. The term does not include:
(1) Commercial vessels;
(2) Vessels that dock or operate permanently from the BIG-funded
facility; or (3) Vessels that receive payment to routinely transport
passengers on a prescribed route, such as cruise ships, dive boats, and
ferries.
Facility means the structures, equipment, and operations that:
(1) Provide services to boaters at one location; and
(2) Are under the control of a single operator or business
identified in the grant application.
Grant means an award of money, the principal purpose of which is to
transfer funds from a Federal agency to a grantee to support or
stimulate an authorized public purpose and includes the matching cash
and any matching in-kind contributions.
Maintenance means keeping structures or equipment in a condition to
serve the intended purpose. It includes cyclical or occasional actions
done to keep facilities fully functional. It does not include
operational actions such as janitorial work. Examples of maintenance
actions are:
(1) Lubricating mechanical components of BIG-funded equipment;
(2) Replacing minor components of a BIG-funded improvement, such as
bolts, boards, and individual structural components; and
(3) Painting, pressure washing, and repointing masonry.
Marketing means an activity that promotes a business to interested
customers for the financial benefit of the facility. It may include a
plan for sales techniques and strategies, business communication, and
business development. A business uses marketing to find, satisfy, and
keep a customer.
Match means the value of any cash or in-kind contributions required
or volunteered to complete the BIG-funded facility that are not borne
by the Federal Government, unless a Federal statute authorizes such
match.
Navigable waters means waters that are deep and wide enough for the
passage of eligible vessels.
Operation means actions that allow a BIG-funded facility or parts
of a BIG-funded facility to perform their function on a daily or
frequent basis. Examples of operation are janitorial work, service
labor, facility administration, utilities, rent, taxes, and insurance.
Personal property means anything tangible or intangible that is not
real property.
Program income means gross income received by the grantee or
subgrantee directly generated by a grant-supported activity, or earned
only as a result of the grant during the grant period.
Project means one or more related actions that are eligible for BIG
funding, achieve specific goals and objectives of BIG, and in the case
of construction, occur at only one facility.
Project cost means the Federal share awarded through the BIG grant
and all non-Federal funds given as the match or added to the Federal
and matching shares to complete the BIG-funded project.
Public communication means communicating with the public or news
media about specific actions or accomplishments directly associated
with the BIG-funded project. The purpose is to inform the public about
the BIG program or projects that receive BIG funding.
Real property means one, several, or all interests, benefits, and
rights inherent in owning a parcel of land. A parcel includes anything
physically and firmly attached to it by a natural or human action.
Examples of real property in this rule include fee and leasehold
interests, easements, fixed docks, piers, permanent breakwaters,
buildings, utilities, and fences.
Regional Office means the main administrative office of one of the
Service's geographic Regions in which a BIG-funded project is located.
Each Regional Office has a:
(1) Regional Director appointed by the Director to be the chief
executive official of the Region and authorized to administer Service
activities in the Region, except for those handled directly by the
Service's Headquarters Office; and
(2) Division of Wildlife and Sport Fish Restoration (WSFR) or its
equivalent that administers BIG grants.
Renovate means to rehabilitate all or part of a facility to restore
it to its intended purpose or to expand its purpose to allow use by
eligible vessels or eligible users.
Scope of a project means the purpose, objectives, approach, and
results or benefits expected, including the useful life of any capital
improvement.
Service means the U.S. Fish and Wildlife Service.
State means any State of the United 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.
Transient means travel to a single facility for day use or up to 10
days.
Useful life means the period during which a BIG-funded capital
improvement is capable of fulfilling its intended purpose with adequate
routine care and maintenance. See Sec. Sec. 86.74 and 86.75.
Subpart B--Program Eligibility
Sec. 86.10 Who may apply for a BIG grant?
One agency in each eligible State may apply for a BIG grant if
authorized to do so by:
(a) A statute or regulation of the eligible jurisdiction;
(b) The Governor of the State, Commonwealth, or territory; or
(c) The Mayor of the District of Columbia.
Sec. 86.11 What actions are eligible for funding?
(a) The following actions are eligible for BIG funding if they are
for eligible users or eligible vessels:
(1) Construct, renovate, or maintain publicly or privately owned
boating infrastructure (see Sec. 86.12) following the requirements at
Sec. 86.13.
(2) Conduct actions necessary to construct boating infrastructure,
such as:
(i) Engineering, economic, environmental, or feasibility studies or
assessments; and
(ii) Planning, permitting, and contracting.
(3) Dredging a channel, boat basin, or other boat passage following
the requirements at Sec. 86.15.
(4) Install navigational aids to give transient vessels safe
passage between a facility and navigable channels or open water.
(5) Produce information and education materials specific to BIG or
a BIG-funded project and that credit BIG as a source of funding when
appropriate. Examples of eligible actions include:
(i) Locating BIG-funded facilities on charts and cruising guides;
(ii) Creating Statewide or regional brochures telling boaters about
BIG and directing them to BIG-funded facilities;
(iii) Advertising a BIG-funded facility in print or electronic
media with the emphasis on BIG, the BIG-funded facility, or services
for eligible users, and not on marketing the marina as a whole;
(iv) Marina newsletter articles, marina or agency Web pages, and
other
[[Page 23222]]
communications you produce that are directly related to the BIG-funded
project;
(v) Giving boaters information and resources to help them find and
use the BIG-funded facility; and
(vi) Public communication.
(6) Use BIG Standard grant awards to administer BIG Standard and
BIG Select grants, or grant programs, Statewide. This includes
coordinating and monitoring to ensure BIG-funded facilities are well-
constructed, meet project objectives, and serve the intended purpose
for their useful life; and to manage BIG grant performance or
accomplishments.
(b) An applicant may ask for approval for preaward costs for
eligible actions. Your Regional Office must approve preaward costs. You
incur preaward costs at your own risk, as we will only reimburse you if
you receive a grant.
(c) A State may require a pumpout be funded through the Clean
Vessel Act Grant Program (CVA), Catalog of Federal Domestic Assistance
number 15.616. We urge applicants to seek funding for installing
pumpout facilities through CVA before including the cost as part of a
BIG grant application.
(d) Other actions may qualify for BIG funding, subject to our
approval, if they achieve the purposes of BIG. We will describe actions
we approve and how they are eligible for BIG funding in the annual
Request for Applications (RFA).
Sec. 86.12 What types of construction and services does boating
infrastructure include?
Boating infrastructure may include:
(a) Boat slips, piers, mooring buoys, floating docks, dinghy docks,
day docks, and other structures for boats to tie-up and gain access to
the shore or services.
(b) Fuel stations, restrooms, showers, utilities, and other
amenities for transient-boater convenience.
(c) Lighting, communications, buoys, beacons, signals, markers,
signs, and other means to support safe boating and provide information
to aid boaters.
(d) Breakwaters, sea walls, and other physical improvements to
allow an area to offer a harbor of safe refuge. A harbor of safe refuge
is an area that gives eligible vessels protection from storms. To be a
harbor of safe refuge, the facility must offer a place to secure
eligible vessels and provide access to provisions and communication for
eligible users.
(e) Equipment and structures for collecting, disposing, or
recycling liquid or solid waste from eligible vessels.
Sec. 86.13 What operational and design features must a facility have
where a BIG-funded facility is located?
(a) At project completion, a facility where a BIG-funded facility
is located must:
(1) Be open to eligible users and operated and maintained for its
intended purpose for its useful life;
(2) Clearly designate eligible uses and inform the public of
restrictions;
(3) Offer security, safety, and service for eligible users and
vessels;
(4) Be accessible by eligible vessels on navigable waters;
(5) Allow public access as described at Sec. 86.92;
(6) Have docking or mooring sites with water access at least 6 feet
deep at the lowest tide or fluctuation, unless following paragraph (c)
of this section; and
(7) Have an operational pumpout station if:
(i) Eligible vessels stay overnight; and
(ii) Available pumpout service is not located within 2 nautical
miles; or
(iii) State or local laws require one on site.
(b) We will waive the pumpout requirement if you demonstrate in the
grant application the inability to install a pumpout, following the
requirements at Sec. 86.43(n).
(c) We will allow water access at a depth less than 6 feet if the
State can demonstrate the BIG-funded facility will accommodate eligible
users for the intended BIG purpose at that location.
(d) Any of these design features may already be part of the
facility, or be funded through another source, and need not be included
as part of the BIG project.
Sec. 86.14 How can I receive BIG funds for facility maintenance?
(a) For BIG Standard and BIG Select grants:
(1) You may request BIG funds for facility maintenance only if the
maintenance action does not extend past the grant period.
(2) You may apply user fees collected at the BIG-funded facility
after the grant period to maintain the facility.
(b) For BIG Standard grants:
(1) You may request BIG funds for one-time or as-needed maintenance
costs at any BIG-eligible facility as long as the costs are discrete
and follow paragraph (a) of this section.
(2) If you use BIG funds for maintenance at a facility that has
received a BIG grant in the past, you must extend the useful life of
each capital improvement accordingly.
(3) States may limit or exclude BIG-maintenance funding they make
available to subgrantees.
(c) For BIG Select grants, you may request BIG funds for
maintenance directly related to the BIG project and that benefit
eligible users. You are responsible for all maintenance costs after the
grant period except as provided in paragraph (b) of this section.
Sec. 86.15 How can dredging qualify as an eligible action?
(a) Dredging in this part includes the physical action of removing
sediment from the basin and any associated actions, such as
engineering, permitting, dredge material management, and other actions
or costs that occur because of the dredging. Dredging can qualify as an
eligible action under the grant only if the costs for the dredging-
related actions do not exceed 10 percent of total BIG project costs, or
$200,000, whichever is less.
(b) When you complete the project, the BIG-funded dredged area
must:
(1) Have navigable water at least 6 feet deep at lowest tide or
fluctuation;
(2) Allow safe, accessible navigation by eligible vessels to, from,
and within the BIG-funded facility; and
(3) Allow eligible vessels to dock safely and securely at transient
slips.
(c) You must show in the grant application that:
(1) Dredging is needed to fulfill the purpose and objectives of the
proposed project; and
(2) You have allocated the dredging costs between the expected use
by eligible vessels and ineligible vessels.
(d) You must certify in the grant application that you have enough
resources to maintain the dredged area at the approved width and depth
for the useful life of the BIG-funded facility.
Sec. 86.16 What actions are ineligible for BIG funding?
(a) These actions or costs are ineligible for BIG funding:
(1) Law enforcement.
(2) Direct administration and operation of the facility, such as
salaries, utilities, and routine janitorial duties.
(3) Developing a State plan to construct, renovate, or maintain
boating infrastructure.
(4) Acquiring land or any interest in land.
(5) Constructing, renovating, or maintaining roads or parking lots.
(6) Constructing, renovating, or maintaining boating infrastructure
facilities for:
(i) Shops, stores, food service, other retail businesses, or
lodging;
(ii) Facility administration or management, such as a
harbormaster's or dockmaster's office; or
[[Page 23223]]
(iii) Transportation, storage, or services for boats on dry land,
such as dry docks, haul-outs, and boat maintenance and repair shops.
(7) Purchasing or operating service boats to transport boaters to
and from mooring areas.
(8) Marketing. Examples of ineligible marketing actions include:
(i) Giveaway items promoting the business or agency;
(ii) General marina or agency newsletters or Web sites promoting
the marina or agency;
(iii) Exhibits at trade shows promoting anything other than the
BIG-funded facility; and
(iv) Outreach efforts directed at the marina as a business or the
agency as a whole and not focused on BIG or the BIG-funded facility.
(9) Constructing, renovating, or maintaining boating infrastructure
that does not:
(i) Include design features as described at Sec. 86.13;
(ii) Serve eligible vessels or users; and
(iii) Allow public access as described at Sec. 86.92.
(10) Purchase of supplies and other expendable personal property
not directly related to achieving the project objectives.
(b) Other activities may be ineligible for BIG funding if they are
inconsistent with the:
(1) Purpose of BIG; or
(2) Applicable Cost Principles at 2 CFR Parts 225 or 230.
Sec. 86.17 Who must own the site of a BIG-funded facility?
(a) You or another entity approved by us must own or have a legal
right to operate the site of a BIG-funded facility. If you are not the
owner, you must be able to show, before we approve your grant, that
your contractual arrangements with the owner of the site will ensure
that the owner will use the BIG-funded facility for its authorized
purpose for its useful life.
(b) Subgrantees or contractors may be a local or tribal government,
a nonprofit organization, or a commercial enterprise.
(c) Subgrantees that are commercial enterprises are subject to:
(1) 43 CFR Part 12, subpart F for grant administrative
requirements; and
(2) Any future regulations that supplement or replace that subpart.
Sec. 86.18 How can I ensure that a BIG-funded facility continues to
serve its intended purpose for its useful life?
(a) When you design and build your BIG-funded facility, you must
consider the features, location, materials, and technology in reference
to the geological, geographic, and climatic factors that may have an
impact on its useful life.
(b) You must record the Federal interest in real property that
includes a BIG-funded capital improvement according to the assurances
required in the grant application and guidance from the Regional WSFR
Office.
(c) If we direct you to do so, you must require that subgrantees
record the Federal interest in real property that includes a BIG-funded
capital improvement.
(d) If we do not direct you to act as required by paragraph (c) of
this section, States may require subgrantees to record the Federal
interest in real property that includes a BIG-funded capital
improvement.
(e) You must include in your contract with subgrantees that they
must not alter the ownership, purpose, or use of the BIG-funded
facility as described in the project statement without approval from
you and the WSFR Regional Office.
(f) You may impose other requirements on subgrantees, as allowed by
law, to reduce State liability for the BIG-funded facility. Examples
are insurance, deed restrictions, and a security interest agreement,
which uses subgrantee assets to secure performance under the grant.
Sec. 86.19 What if a BIG-funded facility would benefit both eligible
and ineligible users?
You must not assign any share of the costs to the BIG grant if the
BIG-funded facility or a discrete element of the BIG-funded facility
does not benefit eligible users. A discrete element has a distinct
purpose, such as a fuel station, pumpout facility, breakwater, or dock
system.
(a) You must clearly show and explain in the project statement:
(1) The anticipated benefits of each project, discrete elements,
and applicable components;
(2) The breakdown of costs, including the basis or method you use
to allocate costs between eligible and ineligible users; and
(3) Your reasoning in determining when to allocate costs, based on
paragraphs (a) through (e) of this section and any other guidance given
in the annual RFA.
(b) You may assign 100 percent of the project costs to the BIG
grant if the project and each discrete element of the project benefit
only eligible users.
(c) If a proposed project or a discrete element of a project would
benefit both eligible and ineligible users, before the Director
announces your award, you must allocate costs between eligible and
ineligible users based on the expected use.
(d) If a proposed BIG-funded facility, or a discrete element, minor
component, or single action of the BIG-funded project, gives a
secondary or minimal benefit to all users, we will not require you to
allocate costs between eligible and ineligible users for that benefit.
Examples for how we will apply this rule are the following:
(1) The primary purpose is directly for the benefit of eligible
users, with a secondary benefit for all users. You must clearly state
the exclusive benefit to eligible users in your application. The
secondary benefit cannot exclude eligible users from the primary
purpose. For example, if you construct a dock system for exclusive use
by eligible vessels and a secondary benefit of the dock system is
protection of the marina from wave action, you would not have to
allocate costs for the secondary benefit. However, the secondary
benefit cannot be docking for ineligible vessels because it would
exclude eligible users from the primary purpose.
(2) The secondary benefit to ineligible users is not the primary
purpose, is minimal, and you do not add special features to accommodate
ineligible users. For example, you do not have to allocate costs
between user groups for a gangway from the transient dock, designed
exclusively for eligible users, even though it is accessible to the
general public. However, if you construct the gangway to accommodate
the expected ineligible users, then you must allocate costs between
user groups.
(3) The expected benefits to both eligible and ineligible users
have minimal value. If the component has a value of .0025 percent or
less than the maximum available Federal award plus required match, you
do not have to allocate costs for that component. We will post the
amount of the minimal value each year in the annual RFA. For example,
if the total maximum Federal award and required match for a BIG Select
project is $2 million, you do not have to allocate costs between user
groups for any discrete project element, component, or action with a
value of $5,000 or less.
(e) Examples of actions for which you must allocate costs between
user groups are the following, unless paragraph (b) of this section
applies:
(1) You propose a 200-foot dock for eligible user tie-up spaces
that you attach to the shore at a boat launch. It will attract
ineligible use as a tie-up for boaters as they enter and exit the
water. You must allocate costs between the expected eligible and
ineligible use.
(2) You propose a breakwater, fuel station, pumpout station,
restroom,
[[Page 23224]]
dredging, navigational aids, or other multiuse or multipurpose action.
(f) Examples of actions for which you do not need to allocate costs
between user groups are:
(1) You propose to construct, renovate, or maintain docks
specifically for eligible vessels.
(2) You propose to produce information and educational materials
specific to BIG.
(g) You must clearly inform boaters when access by ineligible users
is limited or restricted following the guidance at Sec. 86.94.
(h) We may ask you to clarify or change how you allocate costs in
your grant application if they do not meet our standards. We may reject
costs or applications that do not allocate costs between eligible and
ineligible users according to the requirements of this section and the
RFA.
Subpart C--Federal Funds and Match
Sec. 86.30 What is the source of BIG funds?
(a) BIG receives Federal funding as a percentage of the annual
revenues to the Sport Fish Restoration and Boating Trust Fund (Trust
Fund) [26 U.S.C. 4161(a), 4162, 9503(c), and 9504].
(b) The Trust Fund receives revenue from sources including:
(1) Excise taxes paid by manufacturers on sportfishing equipment
and electric outboard motors;
(2) Fuel taxes attributable to motorboats and nonbusiness use of
small-engine power equipment; and
(3) Import duties on fishing tackle, yachts, and pleasure craft.
Sec. 86.31 How does the Service know how much money will be available
for BIG grants each year?
(a) We estimate funds available for BIG grants each year when we
issue a RFA at http://www.grants.gov. We base this estimate on the
revenue projected for the Trust Fund.
(b) We calculate the actual amount of funds available for BIG
grants based on tax collections, any funds carried over from previous
fiscal years, and available unobligated BIG funds.
Sec. 86.32 What are the match requirements?
(a) The Act requires that the State or another non-Federal partner
must pay at least 25 percent of eligible and allowable BIG-funded
facility costs. We must waive the first $200,000 of the required match
for each grant to the Commonwealth of the Northern Mariana Islands and
the territories of American Samoa, Guam, and the U.S. Virgin Islands
(48 U.S.C. 1469(a)).
(b) Match may be cash contributed during the funding period or in-
kind contributions of personal property, structures, and services
including volunteer labor, contributed during the grant period.
(c) Match must be:
(1) Necessary and reasonable to achieve project objectives;
(2) An eligible activity or cost;
(3) From a non-Federal source, unless you show that a Federal
statute authorizes the specific Federal source for use as match; and
(4) Consistent with the applicable sections of:
(i) Uniform Administrative Requirements for Grants and Agreements
at 43 CFR 12.64 and 12.923;
(ii) Applicable Cost Principles at 2 CFR Parts 220, 225, or 230;
and
(iii) Any regulations or policies that may replace or supplement
requirements at paragraphs (c)(4)(i) and (ii) of this section.
(d) Match must not include:
(1) An interest in land or water;
(2) The value of any structure completed before the beginning of
the funding period, unless the Service approves the activity as a
preaward cost;
(3) Costs or in-kind contributions that have been or will be
counted as satisfying the cost-sharing or match requirement of another
Federal grant, a Federal cooperative agreement, or a Federal contract,
unless authorized by Federal statute; or
(4) Any funds received from another Federal source, unless
authorized by Federal statute.
Sec. 86.33 What information must I give on match commitments, and
where do I give it?
(a) You must give information on the amount and the source of match
for your proposed BIG-funded facility on the standard grant application
form at http://www.grants.gov.
(b) You must also give information on the match commitment by the
State, a subgrantee, or other third party in the project statement
under ``Match and Other Contributions.''
(c) In giving the information required at paragraph (b) of this
section, you must:
(1) State the amount of matching cash;
(2) Describe any matching in-kind contributions;
(3) State the estimated value of any in-kind contributions; and
(4) Explain the basis of the estimated value.
Sec. 86.34 What if a partner is not willing or able to follow through
on a match commitment?
(a) You are responsible for all activity and funding commitments in
the grant application. If you discover that a partner is not willing or
able to meet a grant commitment, you must notify us that you will
either:
(1) Replace the original partner with another partner who will
provide the action or the funds to fulfill the commitment as stated in
the grant application; or
(2) Give either cash or an in-kind contribution(s) that at least
equals the value and achieves the same objective as the partner's
original commitment of cash or in-kind contribution.
(b) If a partner is not willing or able to meet a match commitment
and you do not have enough money to complete the BIG-funded facility as
proposed, you must follow the requirements at Sec. Sec. 86.73 and
86.100.
Subpart D--Application for a Grant
Sec. 86.40 What are the differences between BIG Standard grants and
BIG Select grants?
Comparison of BIG Standard and Select Grants
------------------------------------------------------------------------
BIG Standard BIG Select
------------------------------------------------------------------------
(a) What actions are eligible Those listed at Sec. Those listed at
for funding?. 86.11.. Sec. 86.11
except
Sec.
86.11(a)(6).
(b) What is the amount of Each year we make at We may limit
Federal funds I can receive least $100,000 funding to a
in one BIG grant?. available to each maximum award
State. States may of $1.5
request any amount up million. We
to the annual funding will publish a
limit. We decide recommended
annual funding limits maximum grant
based on the total request in the
funds available for annual RFA.
BIG. We announce each
year in http://www.grants.gov the
amount of Federal
funds you can
receive..
[[Page 23225]]
(c) How many grant Each State may only No limit.
applications can I submit request up to the
each year?. annual funding limit
each year. You may do
this by sending in
one grant application
with one project or
multiple projects.
The Regional WSFR
Office may ask a
State with multiple
projects to prepare a
separate grant
request for each
project, as long as
the total of all
projects does not
exceed the annual
funding limit..
(d) How does the Service We fund a single grant We score each
choose grant applications for or multiple grants grant
funding?. per State up to the application
maximum annual amount according to
available.. ranking
criteria at
Sec. 86.51.
We recommend
applications,
based on scores
and available
funding, to the
Director. The
Director
selects the
applications
for award.
------------------------------------------------------------------------
Sec. 86.41 How do I apply for a grant?
(a) If you want to be a subgrantee, you must send an application to
the State agency that manages BIG following the rules given by your
State. We award BIG funds only to States.
(b) States must submit a grant application through http://www.grants.gov, Catalog of Federal Domestic Assistance (CFDA) 15.622.
(c) The director of your State agency or an authorized
representative must certify all standard forms submitted in the grant
application process in the format designated by the Service.
(d) If your State supports Executive Order 12372, Intergovernmental
Review of Federal Programs, you must send copies of all standard forms
and supporting information to the State Clearinghouse or Single Point
of Contact before sending it to http://www.grants.gov.
Sec. 86.42 What do I have to include in a grant application?
(a) When you submit a BIG grant application, you must include
standard forms, budget information, a BIG project statement, documents,
maps, images, and other information asked for in the annual RFA at
http://www.grants.gov, CFDA 15.622, in the format we ask for.
(b) After we review your application, any responses to our requests
to give more information or to clarify information become part of the
application.
(c) After we award your grant, you must include supporting
documentation explaining how the proposed work complies with applicable
laws and regulations and tell us the permits, evaluations, and reviews
you will need to obtain in order to complete the project.
(d) Misrepresentations of the information you give in an
application may be a reason for us to:
(1) Reject your application; or
(2) Terminate your grant and require repayment of Federal funds
awarded.
Sec. 86.43 What information must I put in the project statement?
You must put the following information in the project statement:
(a) Need. Explain why the project is necessary and how it fulfills
the purpose of BIG. To support the need for the project you must:
(1) For construction projects, describe existing facilities
available for eligible vessels near the proposed project. Support your
description by including images that show existing structures and
facilities, the proposed BIG-funded facility, and relevant details,
such as the number of transient slips and the amenities for eligible
users.
(2) Describe how the proposed project fills a need or offers a
benefit not offered by the existing facilities identified at paragraph
(a)(1) of this section.
(3) Give information to support the number of transient boats
expected to use the area of the proposed project and show that the
existing facilities identified at paragraph (a)(1) of this section are
not enough to support them.
(b) Purpose. State the desired outcome of the project in general or
abstract terms, but in such a way that we can review the information
and apply it to the competitive review.
(c) Objectives. Identify specific, measurable, attainable,
relevant, and time-bound outputs that will contribute to the need you
are addressing.
(d) Results or benefits expected.
(1) Describe each capital improvement, service, or other product
that will result from the project, and its purpose.
(2) Describe how the structures, services, or other products will:
(i) Satisfy the need described at paragraph (a) of this section;
and
(ii) Benefit eligible users.
(e) Approach. (1) Describe the methods used to achieve the
objectives. Show that you will use sound design and proper procedures.
Include enough information for us to make a preliminary assessment of
compliance needs.
(2) Give the name, contact information, qualifications, and role of
each known contractor or subgrantee.
(3) Explain how you will exercise control to ensure the BIG-funded
facility continues to fulfill its authorized purpose during the useful
life of the BIG-funded project.
(f) Useful life. State the useful life in years of each capital
improvement for the proposed project. Explain how you determined the
useful life of each capital improvement. You must reference a generally
accepted method used to determine useful life of a capital improvement.
See Sec. Sec. 86.74 and 86.75.
(g) Geographic location. (1) State the location using Global
Positioning System (GPS) coordinates in the format we ask for in the
annual RFA.
(2) State the local jurisdiction (county, town, city, or
equivalent), street address, and water body associated with the
project.
(3) Include maps in your application, such as:
(i) A small State map that shows the general location of the
project;
(ii) A local map that shows the facility location and the nearest
community, public road, and navigable water body; and
(iii) Any other map that supports the information in the project
statement.
(h) Project officer. Applicant enters only the term Federal Aid
Coordinator under this heading if the Federal Aid Coordinator for a
State fish and wildlife agency will be the project officer. If the
Federal Aid Coordinator will not be the project officer, applicant
provides the name, title, work address, work email, and work telephone
number of the person who will be the contact person. The project
officer should have a detailed knowledge of the project.
[[Page 23226]]
Applicant states whether the project officer has the authority to sign
requests for prior approval, project reports, and other communications
committing the grantee to a course of action.
(i) Budget narrative. Provide costs and other information
sufficient to show that the project will have benefits that justify the
costs. You must use reasonably available resources to develop accurate
cost estimates for your project to insure the successful completion of
your BIG-funded facility. You must state how you will allocate costs
between eligible and ineligible users following the requirements at
Sec. 86.19 and explain the method used to allocate costs equitably
between anticipated benefits for eligible and ineligible users. State
sources of cash and in-kind values you include in the project budget.
Describe any item that has cost limits or requires our approval and
estimate its cost or value. Examples are dredging and preaward costs.
(j) Match and other partner contributions. See Sec. Sec. 86.32 and
86.33 for required information.
(k) Fees and program income, if applicable. (1) See Sec. 86.90 for
the information that you must include on the estimated fees that an
operator will charge during the useful life of the BIG-funded facility.
(2) See Sec. Sec. 86.78 and 86.79 for an explanation of how you
may use program income. If you decide that your project is likely to
generate program income during the grant period, you must:
(i) Estimate the amount of program income that the project is
likely to generate; and
(ii) Indicate how you will apply program income to Federal and non-
Federal outlays.
(l) Relationship with other grants. Describe the relationship
between the BIG-funded facility and other relevant work funded by
Federal and non-Federal grants that is planned, expected, or in
progress.
(m) Timeline. Describe significant milestones in completing the
project and any accomplishments to date.
(n) General. (1) If you seek a waiver based on Sec. 86.13(b), you
must include the request and supporting information in the grant
application following the instructions given in the annual RFA.
(i) We will review your request and will grant the waiver if you
present circumstances that show:
(A) A hardship due to lack of utilities or other difficult
obstacles, such as a BIG-funded facility on an island with no power or
a remote location where the equipment cannot be serviced or maintained
regularly;
(B) State or local law does not allow septic-waste disposal
facilities at the location;
(C) The State is in the process of applying for a CVA grant for the
same award year as the BIG grant to install a pumpout station as part
of the BIG-funded facility; or
(D) The State has received a CVA grant and will install a pumpout
station as part of the BIG-funded facility on or before the time the
BIG-funded facility is completed.
(ii) When we waive the pumpout requirement, the BIG-funded facility
must inform boaters:
(A) They are required to properly treat or dispose of septic waste;
and
(B) Where they can find information that will direct them to other
nearby pumpout stations.
(iii) If we deny your request, we will follow the process described
in the annual RFA.
(2) If you seek an allowance based on Sec. 86.13(c), you must
include supporting information in the grant application.
(3) Include any other description or documents we ask for in the
annual RFA or that you need to support your proposed project.
(o) Ranking Criteria. In BIG Select applications, you must respond
to each of the questions found in the ranking criteria at Sec. 86.51.
We publish the questions for these criteria in the annual RFA. In
answering each question, you must include the information at Sec. Sec.
86.52 through 86.60 and any added information we ask for in the annual
RFA.
Sec. 86.44 What if I need more than the maximum Federal share and
required match to complete my BIG-funded project?
(a) If you plan a BIG project that you cannot complete with the
recommended maximum Federal award and the required match, you may:
(1) Find other sources of funds to complete the project;
(2) Divide your larger project into smaller, distinct, stand-alone
projects and apply for more than one BIG grant, either in the same year
or in different years. One project cannot depend on the completion of
another; or
(3) Combine BIG Standard and BIG Select funding to complete a
project at a single location.
(b) If you cannot complete a BIG project with the amount of the
Federal award received and the required match, you may:
(1) Find other sources of funds to complete the project; or
(2) Consider if BIG Standard funds are available to help complete
the project. This is not a guaranteed option.
(c) For BIG Select grants, we review and rank each application
individually, and each must compete with other applications for the
same award year.
(d) If you receive a BIG grant for one of your applications, we do
not give preference to other applications you submit.
Sec. 86.45 If the Service does not select my grant application for
funding, can I apply for the same project the following year?
If we do not select your BIG grant application for funding, you can
apply for the same project the following year or in later years.
Sec. 86.46 What changes can I make in a grant application after I
submit it?
(a) After you submit your grant application, you can add
information or change up to the date and time that the applications are
due.
(b) After the due date of the applications and before we announce
successful applicants, you can add information or change your
application only if it does not affect the scope of the project and
would not affect the score of the application. If part of an
application contains actions that we cannot fund with a BIG grant, we
will decide on a case-by-case basis whether we will consider the rest
of the application for funding. During this period we may ask you to
change the useful life following the requirements at Sec. 86.75 or
allocating costs between users of the BIG project following the
requirements at Sec. 86.19.
(c) You must inform us of any incorrect information in an
application as soon as you discover it, either before or after
receiving an award.
(d) We may ask you at any point in the application process to:
(1) Clarify, correct, explain, or supplement data and information
in the application;
(2) Justify the eligibility of a proposed action; or
(3) Justify the allowability of proposed costs or in-kind
contributions.
(e) If you do not respond fully to our questions at paragraph (d)
in this section in the time allotted, we will not consider your
application for funding.
(f) If funding is limited and we cannot fully fund your project, we
may tell you the amount of available funds and ask you if you wish to
adjust your application to reduce the amount of funding requested.
Subpart E--Project Selection
Sec. 86.50 Who ranks BIG Select grant applications?
We assemble a panel of our professional staff to review, rank, and
recommend grant applications for
[[Page 23227]]
funding to the Director. This panel may include representatives of our
Regional Offices, with Headquarters staff overseeing the review,
ranking, and recommendation process. Following the requirements of the
Federal Advisory Committee Act (5 U.S.C. Appendix), the Director may
invite nongovernmental organizations and other non-Federal entities to
take part in an advisory panel to make recommendations to the Director.
Sec. 86.51 What criteria does the Service use to evaluate BIG Select
applications?
Our panel of professional staff and any invited participants
evaluate BIG Select applications using the ranking criteria in the
following table and assign points within the range for each criterion.
We may give added information to guide applicants regarding these
criteria in the annual RFA on http://www.grants.gov.
------------------------------------------------------------------------
Ranking criteria Points
------------------------------------------------------------------------
(a) Need, Access, and Cost 20 total possible points.
Efficiency.
(1) Will the proposed boating 0-10.
infrastructure meet a need for
more or improved facilities?.
(2) Will eligible users receive 0-7.
benefits from the proposed
boating infrastructure that
justify the cost of the
project?.
(3) Will the proposed boating 0-3.
infrastructure accommodate
boater access to significant
destinations and services that
support transient boater
travel?.
(b) Match and Partnerships..... 10 total possible points.
(1) Will the proposed project 0-7.
include private, local, or
State funds greater than the
required minimum match?.
(2) Will the proposed project 0-3.
include in-kind contributions
by private or public partners
that contribute to the project
objectives?.
(c) Innovation................. 6 total possible points.
(1) Will the proposed project 0-3.
include physical components,
technology, or techniques that
improve eligible-user access?.
(2) Will the proposed project 0-2.
include innovative physical
components, technology, or
techniques that improve the
BIG-funded project?.
(3) Has the facility where the 0-1.
project is located
demonstrated commitment to
environmental compliance,
sustainability, and
stewardship and been
officially recognized by an
agency or organization?.
(d) Total possible points...... 36.
------------------------------------------------------------------------
Sec. 86.52 What does the Service consider when evaluating a project
on the need for more or improved boating infrastructure?
In evaluating a proposed project under the criterion at Sec.
86.51(a)(1) on the need for more or improved boating infrastructure
facilities, we consider whether the project will:
(a) Construct new boating infrastructure in an area that lacks
these facilities, but where eligible vessels now travel or would travel
if the project were completed;
(b) Renovate a facility to:
(1) Improve its physical condition;
(2) Follow local building codes;
(3) Improve generally accepted safety standards; or
(4) Adapt it to a new purpose for which there is a demonstrated
need;
(c) Create accessibility for eligible vessels by reducing wave
action, increasing depth, or making other physical improvements;
(d) Expand an existing marina or mooring site that is unable to
accommodate current or projected demand by eligible vessels; or
(e) Make other improvements to accommodate a demonstrated eligible
need.
Sec. 86.53 What factors does the Service consider for benefits to
eligible users that justify the cost?
(a) We consider these factors in evaluating a proposed project
under the criterion at Sec. 86.51(a)(2) on benefits for eligible users
that justify the cost of the project:
(1) Total cost of the project;
(2) Total benefits available to eligible users upon completion of
the project; and
(3) Reliability of the data and information used to decide benefits
relative to costs.
(b) You must support the benefits available to eligible users by
clearly listing and discussing in the project statement how they relate
to Need (see Sec. 86.43(a)).
(c) We will consider the cost relevant to all benefits to eligible
users supported in the application. We may consider the availability of
preexisting structures and amenities, but will balance this factor with
considering the overall need for the project.
(d) For example, two projects each cost $2 million. One is for new
construction at a location with no prior eligible user access. The
project statement describes the needs the BIG-funded project will
fulfill as:
(1) Added access where none exists,
(2) Added services where none exists, and
(3) New access to a popular boating resource or attraction. The
second proposed project is at an existing location, and the project
statement describes the need for more slips due to a seasonal event
that attracts more boaters than the marina can accommodate. The first
project gives more benefits than the second project for the same amount
of money, so for this criterion the first project will receive more
points than the second project.
Sec. 86.54 What does the Service consider when evaluating a project
on boater access to significant destinations and services that support
transient boater travel?
In evaluating a proposed project under the criterion at Sec.
86.51(a)(3) on boater access, we consider:
(a) The degree of access that the BIG-funded facility will give;
(b) The activity, event, or landmark that makes the BIG-funded
facility a destination, how well known the attraction is, how long it
is available, and how likely it is to attract boaters to the facility;
and
(c) The availability of services near the BIG-funded facility, how
easily boaters can access them, and how well they serve the needs of
eligible users.
Sec. 86.55 What does the Service consider as a partner for the
purposes of these ranking criteria?
(a) The following may qualify as partners for purposes of the
ranking criterion:
(1) A non-Federal entity, including a subgrantee.
(2) A Federal agency other than the Service.
(b) The partner must commit to a financial contribution, an in-kind
contribution, or to take a voluntary action during the grant period.
(c) In-kind contributions or actions must contribute directly and
substantively to the completion of the
[[Page 23228]]
project. You must explain in the grant application how it is necessary
to complete the project.
(d) A governmental entity may be a partner unless its contribution
to completing the project is a mandatory duty of the agency, such as
reviewing a permit application. A voluntary action by a government
agency or employee is a partnership.
Sec. 86.56 What does the Service consider when evaluating a project
that includes more than the minimum match?
(a) When we evaluate a project under the criterion for match at
Sec. 86.51(b)(1), we consider cash above the required 25 percent match
that would reduce the percent Federal share of project costs.
(b) The contribution may be from a State, a single source, or any
combination of sources.
(c) We will award points as follows:
------------------------------------------------------------------------
Percent cash match Points
------------------------------------------------------------------------
26-29.......................................................... 1
30-39.......................................................... 2
40-49.......................................................... 3
50-59.......................................................... 4
60-69.......................................................... 5
70-79.......................................................... 6
80 or higher................................................... 7
------------------------------------------------------------------------
Sec. 86.57 What does the Service consider when evaluating in-kind
contributions that a partner brings to a project?
(a) We consider the non-cash, in-kind contribution that a partner
brings to the project and the significance of each action to the
objectives and success of the project in evaluating a project under the
criterion at Sec. 86.51(b)(2).
(b) To qualify, a partner's contribution must be necessary to
accomplish the project objectives. The grant application must state
specifically how the partner's contribution helps construct, renovate,
or maintain the project or otherwise contributes to the success of the
project.
(c) In-kind contributions from partners need not exceed the 25
percent required match.
Sec. 86.58 What does the Service consider when evaluating a project
for a physical component, technology, or technique that will improve
eligible user access?
(a) In evaluating a proposed project under the criterion at Sec.
85.51(c)(1), we consider whether the project will increase the
availability of the BIG-funded facility for eligible users or improve
eligible boater access to the facility by:
(1) Using a new technology or technique; or
(2) Applying a new use of an existing technology or technique.
(b) We will not award points for following access standards set by
law.
(c) We will consider when you choose to complete the project using
an optional or advanced technology or technique that will improve
access, or if you go beyond the minimum requirements.
(d) To receive consideration for this criterion, you must describe
in the grant application the current standard and how you will exceed
the standard.
Sec. 86.59 What does the Service consider when evaluating a project
for innovative physical components, technology, or techniques that
improve the BIG project?
(a) In evaluating a proposed project under the criterion at Sec.
86.51(c)(2), we consider if the project will include physical
components, technology, or techniques that are:
(1) Newly available; or
(2) Repurposed in a unique way.
(b) Examples of the type of innovations we will consider are
components, technology, or techniques that:
(1) Extend the useful life of the BIG-funded project;
(2) Are designed to allow the operator to save costs, decrease
maintenance, or improve operation;
(3) Are designed to improve BIG-eligible services or amenities;
(4) During construction, are used specifically to reduce negative
environmental impacts; or
(5) Reduce the carbon footprint of the BIG-funded facility.
Sec. 86.60 What does the Service consider when evaluating a project
for demonstrating a commitment to environmental compliance,
sustainability, and stewardship?
(a) In evaluating a project under the criterion at Sec.
86.51(c)(3), we consider if the application documents that the facility
where the BIG-funded project is located has received official
recognition for its voluntary commitment to environmental compliance,
sustainability, and stewardship by exceeding regulatory requirements.
(b) The official recognition must be part of a voluntary,
established program administered by a Federal or State agency, local
governmental agency, Sea Grant or equivalent entity, or a State or
Regional marina organization.
(c) The established program must require the facility to use
management and operational techniques and practices that will ensure it
will continue to meet the high standards of the program and must
contain a component that requires periodic review.
(d) The facility must have met the criteria required by the
established program and received official recognition at the time of
the application.
Sec. 86.61 What happens after the Director approves projects for
funding?
(a) After the Director approves projects for funding, we notify
successful applicants of the:
(1) Amount of the grant;
(2) Documents or clarifications required, including those required
for compliance with applicable laws and regulations;
(3) Approvals needed and format for processing approvals; and
(4) Time constraints.
(b) After we receive the required forms and documents, we approve
the project and the terms of the grant and obligate the grant in the
Federal financial management system.
(c) BIG funds are available for Federal obligation for 3 Federal
fiscal years, starting October 1 of the fiscal year that funds become
available for award. We do not make a Federal obligation until you meet
the grant requirements. Funds not obligated within 3 fiscal years are
no longer available.
Subpart F--Grant Administration
Sec. 86.70 What standards must I follow when constructing a BIG-
funded facility?
(a) You must design and build a BIG-funded facility so that each
structure meets Federal, State, and local standards.
(b) A Region or a State may require you to have plans reviewed by a
subject-matter expert if there are questions as to the safety,
structural stability, durability, or other construction concerns for
projects in excess of $100,000.
Sec. 86.71 How much time do I have to complete the work funded by a
BIG grant?
(a) We must obligate a grant within 3 Federal fiscal years of the
beginning of the Federal fiscal award year.
(b) We assign a grant period that is no longer than 3 years from
the grant start date. (c) You must complete your project within the
grant period unless you ask for and receive a grant extension.
Sec. 86.72 What if I cannot complete the project during the grant
period?
(a) If you cannot complete the project during the 3-year grant
period, you may ask us for an extension. Your request must be in
writing, and we must receive it before the end of the original grant
period.
(b) An extension is considered a revision of a grant and must
follow guidance at Sec. 86.101.
(c) We will approve an extension up to 2 years if your request:
[[Page 23229]]
(1) Describes in detail the work you have completed and the work
that you plan to complete during the extension;
(2) Explains the reasons for delay;
(3) Includes a report on the status of the project budget; and
(4) Includes assurance that you have met or will meet all other
terms and conditions of the grant.
(d) If you cannot complete the project during the extension period,
you may ask us for a second extension. Your request must be in writing,
and we must receive it before the end of the first extension. Your
request for a second extension must include all of the information
required at paragraph (b) of this section and, it must show that:
(1) The extension is justified;
(2) The delay in completion is not due to inaction, poor planning,
or mismanagement; and
(3) You will achieve the project objectives by the end of the
second extension.
(e) We require that your Regional Director and the Service's
Assistant Director for the Wildlife and Sport Fish Restoration Program
approve requests to extend a project beyond 5 years of the grant start
date.
Sec. 86.73 What if I need more funds to finish a project?
(a) If you need more money to finish a BIG Select project, you
must:
(1) Complete the project with funds from non-Federal sources; or
(2) Ask for approval to revise the grant by following the
requirements in subpart H of this part.
(b) If you need more money to finish a BIG Standard project, you
may:
(1) Complete the project with funds from non-Federal sources;
(2) Complete the project with funds from another annual BIG
Standard grant; or
(3) Ask for approval to revise the grant by following the
requirements in subpart H of this part.
(c) If you do not complete your project, we follow guidance for
noncompliance found in 43 CFR 12.83 and 12.962, and any other
regulations that may apply.
Sec. 86.74 How long must I operate and maintain a BIG-funded
facility, and who is responsible for the cost of facility operation and
maintenance?
(a) You must operate and maintain a BIG-funded facility for its
authorized purpose for its useful life. See Sec. Sec. 86.3, 86.43(f),
and 86.75.
(b) Catastrophic events may shorten the identified useful life of a
BIG-funded facility. If it is not feasible or is cost-prohibitive to
repair or replace the BIG-funded facility, you may ask to revise the
grant to reduce the useful-life obligation.
(c) You are responsible for the costs of the operation and
maintenance of the BIG-funded facility for its useful life, except as
allowed in Sec. 86.14(b).
Sec. 86.75 How do I determine the useful life of a BIG-funded
facility?
Before we approve your grant, you must propose and show the useful
life of the BIG-funded facility.
(a) You must determine the useful life of a BIG-funded facility by:
(1) Identifying each capital improvement for your project. The
capital improvement must be a structure or system that meets the
definition at Sec. 86.3 and serves an identified purpose, such as: A
building; dock system; breakwater; seawall; basin, as altered by
dredging; fuel station; or pumpout system.
(2) Showing the expected useful life and how you determined the
useful life for each capital improvement.
(3) Using a generally accepted method to determine the useful life
of a capital improvement.
(4) Determining useful life based on the functional purpose of the
capital improvement. For example, if a dock system has a concrete base
that will last at least 50 years, but you expect the overall useful
life of the dock system to be 20 years, use 20 years.
(b) A BIG-funded facility may have several useful-life components.
For example, a single grant may include a fuel dock system with a
useful life of 15 years and a breakwater with a useful life of 50
years.
(c) You may include all components of a BIG-funded facility into a
single useful life if you use the process in paragraph (a) of this
section and determine the useful life for the total project based on
the longest useful life of any structure or system in the grant.
(d) We may reject your grant application if you do not adequately
justify the useful life of each capital improvement.
(e) If you propose a physical component, technology, or technique
under the criterion in Sec. 86.51(c) that will increase the useful
life, you must describe in your application:
(1) The expected increase in useful life; and
(2) The sources of information that support your determination of
an extended useful life.
(f) If we find before we award the grant that you are unable to
support your determination of an extended useful life, we will reduce
your score and adjust the ranking of applications accordingly.
(g) We may consult with you and any subgrantees on the proposed
useful life of any capital improvement in the BIG project at any time
between receiving your application and our approval of the grant. Any
changes you make to useful life after we receive your application you
must include in the project statement.
Sec. 86.76 How should I credit the BIG program?
(a) You must use the Sport Fish Restoration logo to show the source
of BIG funding:
[GRAPHIC] [TIFF OMITTED] TP25AP14.029
(b) Examples of language you may use to credit the BIG program are:
(1) A Sport Fish Restoration--Boating Infrastructure Grant funded
this facility thanks to your purchase of fishing equipment and
motorboat fuel.
(2) A Sport Fish Restoration--Boating Infrastructure Grant is
funding this construction thanks to your purchase of fishing equipment
and motorboat fuel.
(3) A Sport Fish Restoration--Boating Infrastructure Grant funded
this pamphlet thanks to your purchase of fishing equipment and
motorboat fuel.
(c) States may ask for approval of alternative language to follow
ordinances and restrictions for posting information where the project
is located.
Sec. 86.77 How can I use the logo for the BIG program?
(a) You must use the Sport Fish Restoration logo on:
(1) BIG-funded facilities;
(2) Printed or Web-based material or other visual representations
of BIG projects or accomplishments; and
(3) BIG-funded or BIG-related educational and informational
material.
(b) You must require a subgrantee to display the logo in the places
and on materials described at paragraph (a) of this section.
(c) Businesses that contribute to or receive from the Trust Fund
that we describe in Sec. 86.30 may display the logo in conjunction
with its associated products or projects.
(d) The Director or Regional Director may authorize other persons,
organizations, agencies, or governments that are not grant recipients
to use the
[[Page 23230]]
logo for purposes related to the BIG program by entering into a written
agreement with the user. The user must state how it intends to use the
logo, to what it will attach the logo, and the relationship to the BIG
program.
(e) The Service and the Department of the Interior make no
representation or endorsement whatsoever by the display of the logo as
to the quality, utility, suitability, or safety of any product,
service, or project associated with the logo.
(f) The user of the logo 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 logo,
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 logo.
(g) No one may use any part of the logo in any other manner unless
the Service's Assistant Director for Wildlife and Sport Fish
Restoration or Regional Director authorizes it. Unauthorized use of the
logo is a violation of 18 U.S.C. 701 and subjects the violator to
possible fines and imprisonment.
Sec. 86.78 How must I treat program income?
(a) You must follow the applicable program income requirements at
43 CFR 12.65 or 12.924 if you earn program income during the grant
period.
(b) We authorize the following options in the regulations cited in
paragraph (a) of this section:
(1) You may deduct the costs of generating program income from the
gross income if you did not charge these costs to the grant. An example
of costs that may qualify for deduction is maintenance of the BIG-
funded facility that generated the program income.
(2) Use the addition alternative for program income only if:
(i) You describe the source and amount of program income in the
project statement according to Sec. 86.43(k)(2); and
(ii) We approve your proposed use of the program income, which must
be for one or more of the actions eligible for funding in Sec. 86.11.
(3) Use the deduction alternative for program income that does not
qualify under paragraph (b)(2) of this section.
(c) We do not authorize the cost-sharing or matching alternative in
the regulations cited in paragraph (a) of this section.
(d) For BIG Standard grants with multiple projects that you may
complete at different times, we recommend that States seek our advice
on how to apply for and manage grants to reduce unintended program
income.
Sec. 86.79 How must I treat income earned after the grant period?
You are not accountable to us for income earned by you or a
subgrantee after the grant period as a result of the grant except as
required at Sec. Sec. 86.90 and 86.91.
Subpart G--Facility Operations and Maintenance
Sec. 86.90 How much must an operator of a BIG-funded facility charge
for using the facility?
(a) An operator of a BIG-funded facility must charge reasonable
fees for using the facility based on prevailing rates at other publicly
and privately owned local facilities offering a similar service or
amenity.
(b) If other publicly and privately owned local facilities offer
BIG-funded services or amenities free of charge, then a fee is not
required.
(c) If the BIG-funded facility has a State or locally imposed fee
structure, we will accept the mandated fee structure.
(d) You must state proposed fees and the basis for the fees in your
grant application. The information you give may be in any format that
clearly shows how you arrived at an equitable amount.
Sec. 86.91 May an operator of a BIG-funded facility increase or
decrease user fees during its useful life?
(a) An operator of a BIG-funded facility may increase or decrease
user fees during its useful life without our prior approval if they are
consistent with prevailing market rates. The grantee may impose
separate restrictions on an operator or subgrantee.
(b) If the grantee or we discover that fees charged by the operator
of a BIG-funded facility do not follow Sec. 86.90 and the facility
unfairly competes with other marinas or makes excessive profits, the
grantee must notify the operator in writing. The operator must respond
to the notice in writing, and either justify or correct the fee
schedule. If the operator justifies the fee schedule, the grantee and
we must allow reasonable business decisions and only call for a change
in the fee schedule if the operator is unable to show that the increase
or decrease is reasonable.
Sec. 86.92 Must an operator of a BIG-funded facility allow public
access?
(a) Public access in this part means access by eligible users, for
eligible activities, or by other users for other activities that either
support the purpose of the BIG-funded project or do not interfere with
the purpose of the BIG-funded project. An operator of a BIG-funded
facility must not allow activities that interfere with the purpose of
the project.
(b) An operator of a BIG-funded facility must allow public access
to any part of the BIG-funded facility during its useful life, except
as described at paragraphs (e) and (f) of this section.
(c) An operator of a BIG-funded facility must allow reasonable
public access to other parts of the facility that would normally be
open to the public and must not limit access in any way that
discriminates against any member of the public.
(d) The site of a BIG-funded facility must be:
(1) Accessible to the public; and
(2) Open for reasonable periods.
(e) An operator may temporarily limit public access to all or part
of the BIG-funded facility due to an emergency, repairs, construction,
or as a safety precaution.
(f) An operator may limit public access when seasonally closed for
business.
Sec. 86.93 May I prohibit overnight use by eligible vessels at a BIG-
funded facility?
You may prohibit overnight use at a BIG-funded facility if you
state in the approved grant application that the facility is only for
day use. If after we award the grant you wish to change to day use
only, you must follow the requirements in subpart H of this part.
Sec. 86.94 Must I give information to eligible users and the public
about BIG-funded facilities?
(a) You must give clear information using signs or other methods at
BIG-funded facilities that:
(1) Direct eligible users to the BIG-funded facility;
(2) Include restrictions and operating periods or direct boaters
where to find the information; and
(3) Restrict ineligible use at any part of the BIG-funded facility
designated only for eligible use.
(i) You do not need to notify facility users of any restrictions
for shared-use areas and amenities that you have already decided have
predictable mixed use and you have allocated following Sec. 86.19.
(ii) You must notify facility users of benefits that you decide are
only for eligible users, such as boat slips and moorage.
(b) You may use new technology and methods of communication to
inform boaters.
[[Page 23231]]
Subpart H--Revisions and Appeals
Sec. 86.100 Can I change the information in a grant application after
I receive a grant?
(a) To change information in a grant application after you receive
a grant, you must propose a revision of the grant and we must approve
it.
(b) We may approve a revision if:
(1) For BIG Standard and BIG Select awards, the revision:
(i) Would not significantly decrease the benefits of the project;
and
(ii) Would not increase Federal funds.
(2) For BIG Select awards, the revision:
(i) Involves process, materials, logistics, or other items that
have no significant effect on the factors used to decide score; and
(ii) Maintains an equal or greater percentage of the non-Federal
matching share of the total BIG project costs.
(c) We may approve a decrease in the Federal funds requested in the
application subject to paragraph (b) of this section.
(d) The Regional WSFR Office must follow its own procedures for
review and approval of any changes to a BIG Standard grant.
(e) The Regional WSFR Office must receive approval from the WSFR
Headquarters Office for any changes to a BIG Select grant that involves
cost or affects project benefits.
Sec. 86.101 How do I ask for a revision of a grant?
(a) You must ask for a revision of a grant by sending us the
following documents:
(1) The standard form used to apply for Federal assistance, which
is available at http://www.grants.gov.You must use this form to update
or ask for a change in the information that you included in the
approved grant application. The authorized representative of your
agency must certify this form.
(2) A statement attached to the standard form at paragraph (a)(1)
of this section that explains:
(i) The proposed changes and how the revision would affect the
information that you submitted with the original grant application; and
(ii) Why the revision is necessary.
(b) You must send any revision of the scope to your State
Clearinghouse or Single Point of Contact if your State supports this
process under Executive Order 12372, Intergovernmental Review of
Federal Programs.
Sec. 86.102 Can I appeal a decision?
You can appeal the Director's, Assistant Director's, or Regional
Director's decision on any matter subject to this part.
(a) You must send the appeal to the Director within 30 days of the
date that the Director, Assistant Director, or Regional Director mails
or otherwise informs you of a decision.
(b) You 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''.
Sec. 86.103 Can the Director authorize an exception to this part?
The Director can authorize an exception to any requirement of this
part that is not explicitly required by law if it does not conflict
with other laws or regulations or the policies of the Department of the
Interior or the OMB.
Subpart I--Information Collection
Sec. 86.110 What are the information-collection requirements of this
part?
(a) This part requires each applicant in the BIG program to:
(1) Give us information on Standard Form 424, Application for
Federal Assistance (OMB control number 4040-0004).
(2) Certify on Standard Form 424 B, Assurances for Nonconstruction
Programs, or Standard Form 424 D, Assurances for Construction Programs,
or both if applicable, (OMB control numbers 4040-0007 and 4040-0009)
that it:
(i) Has the authority to apply for the grant;
(ii) Has the ability to complete the project; and
(iii) Will follow the laws, regulations, and policies applicable to
construction projects, nonconstruction projects, or both.
(3) Submitting on Standard Form 424 A, Budget Information for Non-
Construction Programs, or Standard Form 424 C, Budget Information for
Construction Programs, or both if applicable, (OMB control numbers
4040-0006 and 4040-0008) costs associated with the project and the
categories for the costs.
(4) Submitting on Standard Form SF-LLL Disclosure of Lobbying
Activities and Standard Form SF-LLLA Disclosure of Lobbying Activities
Continuation Sheet, as appropriate, to disclose lobbying activities
pursuant to 31 U.S.C. 1352.
(5) Complete a project statement that describes the need,
objectives, results and benefits expected, approach, location, cost
explanation, and other information that shows that the project is
eligible under the authorizing legislation 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).
(b) This part requires each grantee in the BIG program to:
(1) Update information given to the Service in an earlier approved
application (OMB control number 1018-0109).
(2) Report on a Standard Form 425, Federal Financial Report, on the
status of Federal grant funds and any program income earned (OMB
control number 0348-0061).
(3) Report on progress in completing the grant-funded project (OMB
control number 1018-0109).
(4) Follow any future requirements for reporting financial and
performance actions of a grant using added forms or formats for
inputting information.
(c) The authorizations for information collection under this part
are in OMB Circular A-102, ``Grants and Cooperative Agreements with
State and Local Governments,'' and in 43 CFR part 12, subpart C,
``Uniform Administrative Requirements for Grants and Cooperative
Agreements to State and Local Governments.''
(d) 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: April 3, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-08998 Filed 4-24-14; 8:45 am]
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