[Federal Register Volume 84, Number 166 (Tuesday, August 27, 2019)]
[Rules and Regulations]
[Pages 44772-44788]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18187]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 80
[Docket No. FWS-HQ-WSR-2017-0002; 91400-5110-POLI-7B; 91400-9410-POLI-
7B]
RIN 1018-BA33
Financial Assistance: Wildlife Restoration, Sport Fish
Restoration, Hunter Education and Safety
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, are issuing final
regulations governing the Wildlife Restoration and Sport Fish
Restoration financial assistance programs that include the Enhanced
Hunter Education and Safety program and the Basic Hunter Education and
Safety, Recreational Boating Access, Aquatic Resource Education, and
Outreach and Communications subprograms. This final rule reflects
targeted changes to the existing rule and is not a complete update. We
proposed changes December 15, 2017, based on changes to law,
regulation, policy, and practice since the last rulemaking in 2011.
This final rule adds and updates definitions and eligible activities
under these programs; simplifies requirements for license
certification, especially for multiyear licenses; updates authorities;
and clarifies how a grantee may use program income under an award. We
reviewed all comments received during the comment period and made
changes where necessary based on concerns and recommendations. We do
not include all proposed changes in the final rule and will continue to
work with partners to address those items in future policy or
rulemaking.
DATES: The final rule is effective on September 26, 2019.
ADDRESSES: Comments received on the proposed rule may be viewed at
www.regulations.gov in Docket No. FWS-HQ-WSR-2017-0002.
FOR FURTHER INFORMATION CONTACT: Lisa Van Alstyne, Wildlife and Sport
Fish Restoration Program, Branch of Policy, U.S. Fish and Wildlife
Service, 703-358-1942.
SUPPLEMENTARY INFORMATION:
Background
On December 15, 2017, we published in the Federal Register (82 FR
59564) a proposal to revise 50 CFR part 80, ``Financial Assistance:
Wildlife Restoration, Sport Fish Restoration, Hunter Education and
Safety.'' The proposal provided a background for the Department of the
Interior's (DOI) U.S. Fish and Wildlife Service (Service) management of
financial assistance programs by the Service's Wildlife and Sport Fish
Restoration Program (WSFR). The final rule revises title 50, part 80,
of the Code of Federal Regulations (CFR). In addition to addressing
topics that we identified since the 2011 rulemaking, the final rule
includes revisions made to reflect the following laws and policies:
(a) Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards, 2 CFR part 200, December 26, 2013.
(b) Service Manual chapter 518 FW 1, ``Authorities and
Responsibilities,'' July 25, 2014.
(c) Service Manual chapter 519 FW 2, ``Compliance Requirements
Summary,'' October 29, 2014.
(d) Service Manual chapter 417 FW 1, ``Service-Administered Audits
of Grantees,'' April 26, 2015.
Updates to the Regulations
This final rule is not a full update to the regulations. As
described in the preamble to the proposed rule, we worked with our
State partners to develop a phased approach whereby we would address a
limited number of updates over multiple rulemakings, allowing our
partners and the public to better engage and respond to changes. This
final rule was started as the initial phase of an expected four-phase
process. We have since determined that we are not able to accommodate
the required process and timing needed to make the phased approach
work. We will work with our partners to develop a new approach for the
remaining regulatory updates, to include engagement opportunities
during the prerulemaking stage.
The final rule is divided into subparts of related subject matter.
This final rule only changes one full subpart, that on license
certification. Other updates are at various locations within the rule.
Response to Public Comments
We solicited public comments to the proposed rule published
December 15, 2017, for 60 days, ending on February 13, 2018. State fish
and wildlife agencies are the primary recipients of grants affected by
this rule. We received 37 comments in response to the proposed rule
from 15 States, several fish and wildlife-related organizations, and
the public.
In addition to proposed changes to the rule, in the preamble to the
proposed rule we requested feedback on topics that we will consider for
future rulemaking. This discussion starts at 82 FR 59566 in the
proposed rule. We consider these topics to potentially elicit a variety
of responses and offer this as an opportunity to start a national
conversation. We will not respond to any comments received from the
topics in the preamble, as they are not part of the rule. However, we
appreciate all those who took the time to give thoughtful comments and
will be using those comments when addressing these topics in the
future. They help inform us of needs, opinions, perceptions, and
priorities in these programs that are integral to nationwide fish and
wildlife conservation and recreation activities.
The following paragraphs discuss the substantive comments received
and provide our responses to those comments. The comments are not
presented verbatim and where several commenters responded with similar
thoughts, we have summarized them as a single comment.
We received 23 general comments from the public. Several commenters
expressed support to the changes in general, even when they made
suggestions to specific sections of the rule. Some we consider
nonsubstantive. This does not mean that the comments provided are not
important, but rather that they do not address what is proposed in this
rulemaking. We do, however, address some comments that, although they
do not relate directly to the content of this rulemaking, do relate to
WSFR and State fish and wildlife agency work.
General
Comment 1: One commenter cited information on the National Dam
Safety Act and the importance of partnerships that ensure dam safety.
Response 1: The National Dam Safety Program Act provides funding to
States and other agencies with grants administered by the Federal
Emergency Management Agency. Policies for administration of those
programs are at https://damsafety.org/ManualsAndGuidelines. Dams are
real property and, according to our regulations, are titled with the
State fish and wildlife agency when purchased through the Wildlife
Restoration
[[Page 44773]]
Program or Sport Fish Restoration Program. Therefore, compliance with
State or any applicable Federal laws for dams acquired or built with
these funds is the responsibility of the title-holding State agency.
Comment 2: The Wildlife and Sport Fish Restoration Program still
bears the name of those Congressmen who crafted the legislation all
those years ago. Why is this? The implementing regulations belong to
the taxpayer and should not serve as a monument to originating
Congressmen.
Response 2: It has been typical throughout Congressional history to
name a piece of legislation after the sponsors who championed the
action or someone else who inspired the purpose of the legislation.
This unofficial naming process is usually done in relation to the
specific purpose that the Act supports and is not associated with other
aspects of the sponsor's life. Although the original Act does not cite
it as the Pittman-Robertson Wildlife Restoration Act, a major piece of
legislation since then, Public Law 106-408 Wildlife and Sport Fish
Restoration Programs Improvement Act of 2000, does cite both Acts using
the sponsors' names. We have no control over how Congress gives titles
to Acts. However, we do appreciate and understand your concern.
Comment 3: The public isn't sufficiently engaged in the work and
decisions of the State fish and wildlife agency in the commenter's
State.
Response 3: We have no control over the State regulatory process
nor do we control the administrative processes of the State fish and
wildlife agency. We recommend contacting State officials, sharing your
concerns, and seeking the various methods that your State offers for
engaging in decisionmaking.
Comment 4: Commenters expressed concerns with timber harvesting,
the lumber industry, forestry management, and related economic, social
issues, and property concerns and, similarly, concerns surrounding
endangered species.
Response 4: Although some State fish and wildlife agencies engage
in forestry activities as part of wildlife management, neither this
rule nor this agency addresses actions relevant to those concerns. The
U.S. Forest Service (https://www.fs.fed.us/), under the Department of
Agriculture, would be the best contact for information on national
forest management. The Service does manage endangered species laws and
grant funding, but this rule does not cover those activities directly.
For more information on Federal financial assistance for endangered
species, visit: https://www.fws.gov/endangered/grants/index.html.
Comment 5: The Service should use funds under the Wildlife
Restoration Act for management of all species of wildlife. The Act was
written for species that are imperiled and not just for those that are
hunted.
Response 5: The original Act authorized cooperation with State fish
and wildlife agencies for ``wildlife restoration projects'' that were
defined as ``the selection, restoration, rehabilitation, and
improvement of areas of land or water adaptable as feeding, resting, or
breeding places for wildlife, including acquisition by purchase,
condemnation, lease, or gift of such areas or estates or interests
therein as are suitable or capable of being made suitable therefor, and
the construction thereon or therein of such works as may be necessary
to make them available for such purposes and also including such
research into problems of wildlife management as may be necessary to
efficient administration affecting wildlife resources, and such
preliminary or incidental costs and expenses as may be incurred in and
about such projects.'' State fish and wildlife agencies may use their
Wildlife Restoration funds for species under their control that meet
the definition of ``wildlife'' at 50 CFR 80.2. This definition limits
eligible species to birds and mammals. Some States have asked that we
expand the definition to include species that are hunted in that State,
but are not birds or mammals, as these species often need a management
plan and those who purchase licenses to hunt those species contribute
financially when they purchase a license. The topic of defining
wildlife will continue to be considered, and we appreciate this public
input.
Comment 6: The regulations don't even really mention Comprehensive
Management System grants, but they are a big part of the original
legislation. This method seems much more efficient. Are there plans to
revisit this issue in a future rulemaking?
Response 6: The original Act (50 Stat. 917, Sept. 2, 1937) does not
include Comprehensive Management Plans, but uses the word ``plans.'' We
agree that the Comprehensive Management System for managing financial
assistance is a method that more States could employ to administer
these programs efficiently and would include periodically seeking
public input. We intend to expand this information in a future
rulemaking.
Comment 7: The minimum dollar amount for certifying licenses is
meaningless at $2. It doesn't reflect market reality. Aren't data
available that would allow you to determine an appropriate annual price
and standardize a market-based amount?
Response 7: The rules that govern financial assistance (2 CFR part
200) clarify that market value is determined on a very local level.
Comparing the cost of similar licenses in different States shows that
there is no national consistency, but rather each State sets prices
based on the needs and desires of their State fish and wildlife agency
and the public. The standard in this final rule was recommended not
based on market value of a license, but rather the desire to cover
administrative costs of issuing a license and having some license
revenue left to the State agency. The intent is simplicity, clarity,
and fairness. This standardized method accommodates all States,
regardless of the State laws that govern license fees.
Comment 8: A commenter questions the Service's compliance with the
Regulatory Flexibility Act (RFA) and the Small Business Regulatory
Enforcement Fairness Act (SBREFA).
Response 8: We address both of these requirements in the ``Required
Determinations'' section of the preamble at 82 FR 59568, Dec. 15, 2017.
Under the RFA we are required to review and consider how this rule,
which governs the administration of these financial assistance
programs, economically affects small entities. Under the SBREFA we
assess whether the rule will have a significant economic impact on a
substantial number of small entities of $100 million or more; cause a
major increase in costs or prices; or have significant adverse effects
on competition, employment, investment, productivity, or innovation. As
the WSFR programs and subprograms transfer money primarily to State
fish and wildlife agencies, and the transfer of funds is a benefit to
smaller entities that partner with the State agencies, there is no
adverse effect to small entities under this rule. It is possible that
some Federally funded projects, when complying with other Federal,
State, or local laws, could affect small entities, but those instances
are outside the purview of this rule.
Comment 9: The Humane Society of the United States emphasizes the
importance of engaging with nongovernmental organizations when
developing regulations.
Response 9: Executive Order (E.O.) 13563 (Jan. 18, 2011) directs
Federal agencies to adopt regulations through a process that involves
public participation, including, among other provisions, offering a
comment period of at least 60 days.
WSFR is fully compliant with E.O. 13563. Any entities wishing to
engage in
[[Page 44774]]
future prerulemaking opportunities may do so by notifying us using
information at FOR FURTHER INFORMATION CONTACT.
Comment 10: This proposed rule contains unanticipated changes.
Response 10: Following feedback from States that addressing the
large amount of changes to 50 CFR part 80 in one rulemaking was too
burdensome, in April 2016 Service staff approached the Federal/State
Joint Task Force on Federal Assistance Policy (JTF) and the Federal Aid
Coordinators Working Group (FACWG) with a concept to approach updates
using a phased approach. This approach would allow fewer topics per
rulemaking and the ability to manage the workload over 18-24 months.
The process was agreed to, and the FACWG and Regions nominated members
to a Federal/State team that developed a schedule to include timing and
suggested topics for each phase. The schedule was shared in September
2016 without objection, but was delayed by a few months as the topic of
license certification, which was scheduled to be published as a
separate rulemaking, was close to being ready to go into a proposed
rule. We worked with the JTF and the Association of Fish & Wildlife
Agencies (AFWA) to finalize the concepts of license certification
changes and added the revised subpart to the proposed rule already
developed as Phase 1. Unfortunately, the proposed rule was
administratively delayed, and we were unable to maintain the
recommended phased schedule for rulemaking. During the delay, much
communication focused on license certification and did not reiterate
all proposed changes. We will engage our partners more effectively in
the future when preparing for further rulemaking.
Subpart A--General
Section 80.2 What terms do I need to know?
(1) Asset--New definition.
Comment 11: It is unnecessary to define ``Asset'' as it is already
defined at 2 CFR 200.12.
Response 11: The definition at 2 CFR 200.12 is for a ``capital
asset,'' which is a subset of the term ``asset.'' However, we agree
that we should reference back to 2 CFR part 200 and align for ease of
grant administration. We added to this definition the reference for
capital asset, as it defines criteria for a capital asset. We also
added the reference for equipment at 2 CFR 200.33, as it defines
criteria for equipment as an asset. We also clarify that real property
of any value is an asset.
Comment 12: This expansive definition could cause States
considerable challenges related to control of assets. Section 80.90(f)
requires States to maintain control of all assets acquired under the
grant to ensure they serve the purpose for which acquired throughout
their useful life. However, a useful life is only determined for those
items meeting the threshold of equipment or capital improvement. This
new definition opens the door for audit findings over very minor items.
Another commenter is concerned this definition is overly broad and
vague and asks if there is a threshold for monetary value.
Response 12: Response 11 explains that some assets that are defined
under 2 CFR part 200 have criteria that contain certain thresholds. We
define the term ``asset'' to clarify that it can mean: (1) Either
tangible (physical in nature) or intangible (not physical in nature,
such as software, licenses to operate, copyrights, or usage rights),
(2) Real or personal property, and (3) Must have a monetary value.
This definition is applied in Sec. 80.90(f) where an agency is
required to have ``Control of all assets acquired under the grant to
ensure that they serve the purpose for which acquired throughout their
useful life.'' In Sec. 80.2 we define useful life as ``the period
during which a federally funded capital improvement is capable of
fulfilling its intended purpose with adequate routine maintenance.'' We
further define capital improvement as amended ``(i) A structure that
costs at least $25,000 to build or install; or (ii) The alteration or
repair of a structure, or the replacement of a structural component, if
it increases the structure's useful life by at least 10 years or its
market value by at least $25,000.'' So, when applying the term
``asset'' under 50 CFR 80.90(f), it relates to capital improvements and
not minor items.
(2) Capital improvement--Updated definition. We received nine
comments concerning the definition; four expressed support.
Comment 13: A commenter recommends an even higher threshold of
$50,000.
Response 13: We have no basis to increase the threshold to $50,000.
The $25,000 threshold is based on the limits on real property
appraisals at 49 CFR 24.102(c) and other sources. We increased the
threshold from $10,000 to $25,000 in the Boating Infrastructure Grant
Program rule (80 FR 26150, May 6, 2015) and intend to apply the
increased threshold to all WSFR-administered programs.
Comment 14: The paragraph in the 2011 rule that allows States to
set their own definition for capital improvement was removed in the
proposed rule and should be included in the final rule.
Response 14: We agree. This was an omission on our part, and we
have added the paragraph back to the definition.
(3) Geographic location--New definition.
Comment 15: We received multiple comments on this proposed
definition. Some suggest that it doesn't allow for ``Statewide,''
regional areas, or multiple counties to be chosen, hampering the scope
of projects where it is applicable. Others suggest that limiting
reference to U.S. Geological Survey quadrangles doesn't allow for other
identifiers and possible new technology for identifying location.
Others were concerned that the language used (Ex: parcel) implies this
is only for real property work.
Response 15: We agree with some of the suggestions and considered
making changes in the final rule to reflect concerns. However, due to
the wide variety of comments received and the connection to upcoming
work for performance reporting, we decided to delay addressing this
definition for future rulemaking consideration.
(4) Match--Updated definition.
Comment 16: Match is already defined in 2 CFR 200.29 and should be
removed.
Response 16: We disagree that the definition should be removed from
this rule, but agree that it should better align with the 2 CFR part
200 definition. We make changes based on this comment.
Comment 17: All definitions for match are confusing and make it
appear that match must be only in-kind.
Response 17: To improve clarity, we make changes that clearly
distinguish that cash and in-kind may both be used for match.
Comment 18: Commenters had concerns with the definition including a
threshold for useful life as well. How should we respond to an
improvement on a structure that originally didn't meet the $25,000
threshold, but has its useful life extended by at least 10 years? It
does not seem logical that increasing its useful life by any number of
years would make it become a capital improvement.
Response 18: At 2 CFR 200.12, capital assets are defined as
tangible or intangible assets used in operations having a useful life
of more than 1 year which are capitalized in accordance with generally
accepted accounting principles. Capital assets include land, buildings
(facilities), equipment, and intellectual property as well as
additions, improvements, modifications, replacements, rearrangements,
reinstallations, renovations or
[[Page 44775]]
alterations to capital assets that materially increase their value or
useful life. So, regardless of the cost, if it has a useful life of
greater than 1 year and is capitalized as an asset, it is a capital
asset. The regulations at 2 CFR 200.13 state that a capital expenditure
for improvement to land and buildings includes both increase in
material value and increase in useful life. The regulations at 2 CFR
part 200 do not specify what those limits are, but we set reasonable
thresholds in this rule--material value being $25,000 and increase in
useful life being 10 years. So, yes, it is possible for an asset that
did not originally cost $25,000 or more and was therefore not a capital
improvement, to be improved to extend the useful life by 10 or more
years and it would then be a capital improvement.
Comment 19: A commenter suggested that ``or its market value by at
least $25,000'' be removed from the proposed definition. Market value
is not needed if capital improvement is largely dependent on
expenditure threshold.
Response 19: We disagree. As stated in Response 18, the regulations
at 2 CFR part 200 are vague on thresholds, but we set thresholds in
this rule. The regulations in 2 CFR part 200 call for both material
value and useful life, so it is appropriate to include market value at
the higher $25,000 threshold.
(5) Obligation--New definition. One comment was received supporting
this definition. We make no changes from the proposed rule.
(6) Real property--Updated definition.
Comment 20: Clarify the use of ``some'' in the sentence that
states, ``Examples of real property include fee, and some leasehold
interests, conservation easements, and mineral rights.''
Response 20: We agree that a better explanation would be
beneficial, and we replaced the second sentence with the following:
``Examples of real property include fee, conservation easements, access
easements, utility easements, and mineral rights. A leasehold interest
is also real property except in those States where the State Attorney
General provides an official opinion that determines a lease is
personal property under State law.'' In order for lease to be
considered personal property, the Solicitor's Office of the Department
of the Interior must be able to concur with this opinion.
Comment 21: A commenter objected to the change in language from
``the air space above the parcel, the ground below it,'' to ``the space
above and below it.''
Response 21: The grammatical change clarifies the sentence and
restates the definition to reflect the traditional legal real property
definition. We make no change based on this comment.
Comment 22: Define the terms lease, license, and permit to make the
definition of ``real property'' more understandable.
Response 22: The term ``lease'' is defined at Sec. 80.2 under the
term ``Lease,'' the term ``license'' is defined at Sec. 80.2 under the
term ``Personal Property'' in paragraph (2)(iii). The term ``permit''
is defined on the Service's website for permits that the Service issues
and is explained as, ``Permits enable the public to engage in
legitimate wildlife-related activities that would otherwise be
prohibited by law. Service permit programs ensure that such activities
are carried out in a manner that safeguards wildlife. Additionally,
some permits promote conservation efforts by authorizing scientific
research, generating data, or allowing wildlife management and
rehabilitation activities to go forward.'' (https://www.fws.gov/permits/index.html) We suggest a definition that is broader, as it
would be applied by multiple non-Service entities: ``A permit is a
written authorization that allows a specific person, agency, or other
entity to do something that is not forbidden by law, but is not allowed
without the permit. The purpose of permits is usually to help ensure
that the permittee is aware of and complies with certain laws,
regulations, and conditions. Other purposes may be to raise revenue or
prevent overuse of an area or a resource. The term is most often
applied to an authorization issued by a governmental entity.'' We will
consider adding a definition in a future rulemaking.
(7) Structure--New definition.
Comment 23: Commenters found this definition either unnecessary or
confusing.
Response 23: Due to the negative comments received and no pressing
need for this definition, we decided to delay addressing this
definition for future rulemaking consideration.
(8) Technical Assistance--New definition. Several commenters
support this definition as being helpful in differentiating technical
assistance from management assistance.
Comment 24: Commenters recommend the term be ``technical guidance''
instead of ``technical assistance.'' Several commenters expressed
concerns that the definition is limited by targeting technical
assistance to members of the public and on private lands. These
commenters indicate that the definition needs to be expanded.
Response 24: A small team working on a policy topic developed this
definition for technical assistance, but it is clear from comments
received that we should review it with other partners before putting it
in regulation. A larger review will ensure it meets the needs and
expectations of grantees. We will delay including it in regulation for
future rulemaking consideration, but will still include technical
assistance as a new, eligible activity under 50 CFR 80.50 and 80.51. We
believe that most grantees understand that technical assistance does
not include actual on-the-ground management activities and will
continue that approach.
Subpart D--License Holder Certification
Comment 25: Commenters strongly supported this subpart. Several
commenters stated that they believe the changes will clarify and
simplify the process; that even if certain license types are limited
short term, the benefits outweigh this over the long term; and that the
new standards are reasonable and attainable.
Response 25: We appreciate the support and the work done within a
Federal/State partnership to achieve consensus on this change.
Section 80.30 Why must an agency certify the number of paid license
holders?
We made no proposed changes to this section and received no
comments. No change.
Section 80.31 How does an agency certify the number of paid license
holders?
We made no proposed changes to this section and received no
comments. No change.
Section 80.32 What is the certification period?
We made no proposed changes to this section and received no
comments. No change.
Section 80.33 How does an agency decide who to count as paid license
holders in the annual certification?
Comment 26: The language in this section was changed to say that a
license holder is to be counted in the certification period in which
the license is ``sold'' instead of when ``first valid.'' The ``sold''
language was problematic in the past and corrected in the 2011
rulemaking. Changing back to the old language brings the problems back.
It is possible for individuals to purchase one annual license during
the certification period and the next license ahead of time, but also
in the same certification
[[Page 44776]]
period. Therefore, it is imperative to use language that reflects the
period for which the license is valid.
Response 26: We agree and make the change.
Comment 27: We accept the concept of license holders voluntarily
purchasing a license, even if they do not participate in the activity.
However, we do not agree with individuals being ``forced'' to purchase
a license for an activity that they do not want, but that they must do
in order to obtain the license that they want.
Response 27: The commenter is referring to States that do not offer
individual options for all license types and combine privileges under
one license purchase, even if the license holder does not want and/or
need the second privilege. We have no control over this process, as
these are State decisions, and we will not restrict a State's ability
to issue licenses that require a license that gives the license holder
more than one privilege, even if the additional privilege is unwanted
or unneeded. As long as the license holder meets the requirements of
this rule, they may be certified in the license certification period
for each valid privilege.
Comment 28: We disagree with allowing States to sell only
combination hunting and fishing licenses and not offer them
individually. Is it the intent of the rule to allow this and to then
allow those States to count each license sold as both a hunting license
holder and a fishing license holder?
Response 28: It is the intent of the rule to make it clear that a
State may only count an individual once during a certification period
as either a hunting license holder or a fishing license holder. For
example, if a State sells an individual both a small game license and a
big game license, they are only counted once. However, if a State sells
a combination hunting and fishing license, they may count them once as
a hunter and once as an angler. This is true whether the individual
chooses to purchase a combination license, or whether it is the only
option offered by the State. It is not the intent of the rule to tell
States whether or not they can require a license holder to purchase a
combination hunting and fishing license without an option to purchase
each individually.
Section 80.34 Must a State fish and wildlife agency receive a minimum
amount of revenue for each license holder certified?
Comment 29: Commenters expressed support for the new standard, but
some concerns over the date when the standard would be required.
Response 29: We agree that the effective date needs to be changed
and we did so. We make changes to encourage a State to adopt the new
standard as soon as possible, but also to allow a State 2 years from
the effective date of the rule to adopt the new standard. This will
allow States that need to revise legal requirements, policies, or
documents sufficient time to do so.
Comment 30: Under the new standard our State would have more than
375,000 license holders we would not be able to count, resulting in a
loss of millions of dollars in apportionments.
Response 30: After consulting with AFWA, an organization that
represents all States and State Directors, they agree that giving
States 2 years to make changes to bring licenses up to the minimum
standard is fair and sufficient. The minimum standard of $2/year/
privilege or $4/year for combination licenses is very low and should be
able to be attained by States in order to count most licenses. If a
State chooses to offer free licenses to certain groups, that is the
State's choice and they will do so knowing that these license holders
cannot be counted. However, we wish to point out that, in 50 CFR 80.20,
``What does revenue from hunting and fishing licenses include?'',
hunting and fishing revenue includes not only licenses, but also State-
issued permits, stamps, and tags. So, if, for example, a State offers a
free hunting license to veterans and that is all they have, they cannot
be counted. However, if they were to purchase a permit, stamp, or tag
for $2 or more, then they can be counted as they have met the minimum
standard to be counted as a hunting license holder.
Comment 31: Question about a license that sells for $2.90, but
$1.00 of that goes to the issuing agent and is taken by the agent prior
to depositing in the agency account: Would these licenses meet the
standard?
Response 31: Yes, they would meet the standard. The $2 amount for
the standard is based on research a committee authorized by AFWA
conducted on the average costs to issue a license and have some income
received by the State fish and wildlife agency. This research was used
as the basis for determining a fair and acceptable minimum amount. It
is understood that the ratio of costs associated with issuing a license
vs. the amount of license revenue received varies depending on license
types and States. It is important to remember that we are no longer
applying the term ``net revenue.'' In the scenario described in the
comment, the State fish and wildlife agency receives $2.90 and has made
arrangements to pay the issuing agent in the manner described. On the
State's website, they list the price of the license as $2.90. How the
State manages the accounting and payment for services to issue the
license, whether they deposit to an agency account and pay the issuing
agent, or have the agent take it off the top, is an accounting process/
preference and does not affect the gross amount of the license.
Therefore, we consider that the State fish and wildlife agency under
these circumstances has met the new standard.
Section 80.35 What additional requirements apply to certifying
multiyear licenses?
In addition to addressing comments from the public for this
section, we further reviewed the section and change the final paragraph
(Sec. 80.35(g) in the final rule) to delete the requirement for States
to obtain the Director's approval of its proposed technique to decide
how many multiyear license holders remain alive in the certification
period. A State fish and wildlife agency must use and document a
reasonable technique, but does not need Director's approval.
We removed Sec. 80.35(b) as explained in Response 34. As a result,
we redesignate paragraphs (c) through (i) as paragraphs (b) through
(h). At the newly designated Sec. 80.35(b)(1) and (2), we inform
States how to address converting multiyear licenses sold under the
final rule that was effective August 31, 2011, to the new standard. At
Sec. 80.35(b)(1), we address those States that have invested the
revenue collected for the license and held the funds as principle in
the investment, not spending any of the amount collected. In this
scenario, they have met the prior net revenue requirement through
dividends from the investment and not from the revenue collected.
Therefore, they may apply the entire amount of the revenue collected
using the new standard from the effective date of this final rule
forward. At Sec. 80.35(b)(2), we address those States that have
invested the revenue collected for the license and that revenue has
been spent, in part or in full. In this scenario, they must use the
formula described to deduct the amount that would have been accounted
for under the new standard from the time the license was sold until the
time the State adopts the new standard. This is primarily for multiyear
licenses that were sold under the rule effective August 31, 2011, due
to the additional qualifications for net revenue, but may be applied to
any multiyear licenses sold under 50 CFR part 80 regulations
[[Page 44777]]
that required net revenue and that are managed under an investment
strategy to meet those net revenue requirements.
Comment 32: A commenter supports allowing 80 years as a default for
determining life expectancy for multiyear licenses.
Response 32: We hope that allowing this additional option will help
some States to reduce burdens for tracking multiyear licenses.
Comment 33: There is a math error in the example given.
Response 33: We agree and correct the error.
Comment 34: Adjust Sec. 80.35(b) to allow States to start counting
a valid multiyear license that meets the new standard, even if it was
not able to be counted in the annual license certification the year
before this final rule is effective. This would be a reasonable and
appropriate way to address the drastic inconsistency in the 2011 rule
from the previous rule and the fairer, consistent standards now being
presented.
Response 34: We reviewed prior versions of 50 CFR part 80 regarding
multiyear licenses and found the following information:
In 1982: 50 CFR 80.10(c)(2) states, ``Licenses which do not return
net revenue to the State shall not be included. To qualify as a paid
license, the fee must produce revenue for the State. Net revenue is any
amount returned to the State after deducting agent or sellers fees and
the cost for printing, distribution, control or other costs directly
associated with the issuance of each license. (3) Licenses valid for
more than one year, either a specific or indeterminate number of years,
may be counted in each of the years for which they are valid; provided
that: (i) The net revenue from each license is commensurate with the
period for which hunting or fishing privileges are granted.''
In 2008: 50 CFR 80.10(b)(4) states, ``The State may count persons
possessing a multiyear license (one that is legal for 2 years or more)
in each State-specified license certification period in which the
license is legal, whether it is legal for a specific or indeterminate
number of years, only if: (i) The net revenue from the license is in
close approximation with the number of years in which the license is
legal.''
In 2011: 50 CFR 80.35(b) states, ``The agency must receive net
revenue from a multiyear license that is in close approximation to the
net revenue received for a single-year license providing similar
privileges.''
This history shows the change in the 2011 version that expanded
beyond value per year to comparing the annual revenue of a multiyear
license with the cost of a comparable annual license. We agree that
this shift added a layer of complexity that we are resolving in this
rulemaking. We also understand that including the language in the
proposed rule at Sec. 80.35(b) penalizes those multiyear licenses that
were adversely affected by the 2011 change. In order to truly simplify
license certification and allow for future consistency for all States'
multiyear licenses, we agree with the commenter and remove this
paragraph in the final rule.
Comment 35: Some States may believe that under Sec. 80.35(b) they
are required to continue to carry forward some of the burdensome
requirements for multiyear licenses needed to comply with current or
past versions of the regulations.
Response 35: We agree that it should be clear that State fish and
wildlife agencies may stop using past methods for accounting for
multiyear licenses that may be burdensome and complicated. We allow at
Sec. 80.35(a) that State agencies must begin following the new
standard for multiyear licenses sold before and after the effective
date of this final rule, and at Sec. 80.35(c) we describe how to
assign value to multiyear licenses sold before adopting the new
standard. The only exception would be if a State identifies financial
or operational harm and follows the exception at Sec. 80.35(c). We
agree that Sec. 80.35(b) led to confusion on this point and have
removed it from the rule, redesignating the paragraphs accordingly.
Comment 36: Has the Service considered whether, if a combination
license does not meet the standard of $4 for a combination license, it
may be counted at all? For instance, what if the cost of a combination
license is $3?
Response 36: Yes, the Service has considered this issue. As the
privilege to hunt and the privilege to fish would both be included in
the license, a State fish and wildlife agency that does not meet the
minimum standard for a combination license may choose to certify those
licenses as either hunting licenses only, fishing licenses only, or a
combination of hunting only and fishing only as long as the numbers do
not exceed total licenses sold and meet all other regulatory
requirements. For example, if a State sold 1,000 combination licenses
for $3 each, it could certify 1,000 as hunting licenses only; or it
could certify 1,000 as fishing licenses only; or it could certify 500
as hunting licenses only and 500 as fishing licenses only.
Comment 37: Many States are using multiyear licenses as a tool in
efforts to recruit, retain, and reactivate hunters and anglers. The
language at Sec. 80.35(b) does not support these efforts, and
sportsmen and sportswomen would be discouraged to discover that their
State is unable to count them as valid license holders in annual
certifications due to the restrictive nature of the rule issued in
August 2011.
Response 37: We agree and have removed this paragraph as described
in Response 34.
Section 80.36 May an agency count license holders in the annual
certification if the agency receives funds from the State or another
entity to cover their license fees?
We received no comments on this section of the proposed regulations
and made no changes in the final rule.
Section 80.37 May the State fish and wildlife agency certify a license
sold at a discount when combined with another license or privilege?
Comment 38: We advocate that under these circumstances the State
must show how much the purchaser is paying for each privilege. That
way, it is clear that neither privilege is being offered ``free.'' Some
States may force an additional privilege where the result is the
ability to count an additional license holder for which it has not
received additional funds. For instance, a big game license is offered
for $100, and a big game/fishing license is also being offered for
$100. We believe that the opportunity to purchase both licenses
separately must exist at a higher price to show it is truly a discount.
Response 38: See Response 28. How a State determines to sell their
hunting and fishing licenses is a State decision. As long as they meet
the standard at Sec. 80.34, they may count the licenses accordingly.
Section 80.38 May an entity other than the State fish and wildlife
agency offer a discount on a license, or offer a free license, under
any circumstances?
We received no comments on this section of the proposed regulations
and made no changes in the final rule.
Section 80.39 What must an agency do if it becomes aware of errors in
its certified license data?
We received no comments on this section of the proposed regulations
and made no changes in the final rule.
[[Page 44778]]
Section 80.40 May the Service recalculate an apportionment if an agency
submits revised data?
We received no comments on this section of the proposed regulations
and made no changes in the final rule.
Section 80.41 May the Director correct a Service error in apportioning
funds?
We received no comments on this section of the proposed regulations
and made no changes in the final rule.
Section 80.50 What activities are eligible for funding under the
Pittman-Robertson Wildlife Restoration Act?
Comment 39: A commenter objected to adding ``acquire equipment'' as
an additional activity and the associated requirements to consider
lease vs. purchase. Section 80.50(a)(6) already allows acquiring
equipment, so this provision seems redundant. Also, acquiring equipment
is not an activity, but a tool to implement activities. Consider 2 CFR
200.313, 200.439, and 200.318 and the correlation with the addition of
lease vs. purchase consideration in the rule.
Response 39: We agree that having equipment listed in two different
paragraphs in this section is redundant and unclear. We therefore
strike the addition of the proposed Sec. 80.50(a)(14) and add under
Sec. 80.50(a)(6) a new paragraph (iii) that directs grantees to refer
to 2 CFR part 200 when making decisions for equipment, goods, and
services. The regulations at 2 CFR 200.313(a)(1) refer to conditions of
title once equipment is acquired, but supports the need for equipment
to serve an authorized purpose. Sections 200.313(a)(2) and
200.439(b)(1) and (2) clarify that acquiring equipment requires prior
written approval from the awarding agency. Section 200.318(d) clearly
states for non-State entities, ``The non-Federal entity's procedures
must avoid acquisition of unnecessary or duplicative items.
Consideration should be given to consolidating or breaking out
procurements to obtain a more economical purchase. Where appropriate,
an analysis will be made of lease versus purchase alternatives, and any
other appropriate analysis to determine the most economical approach.''
In addition, Sec. 200.301 requires that non-Federal entities must
relate financial data to performance accomplishments of the Federal
award and demonstrate cost-effective practices. Section 200.404
discusses reasonable costs. It is expected that this requirement of the
grant proposal would address lease vs. purchase, as well as other cost
elements. Section 200.405 discusses allocable costs and how to manage
acquired equipment and other costs if they would support multiple
purposes.
We would expect that a lease vs. purchase analysis would primarily
be needed for short-term equipment needs. Specialty equipment, where
lease is not an option, and equipment for long-term use may be
justifiable. We believe most grantees already consider these and other
options when acquiring equipment and include this as part of their
standard procurement processes, so there will be very few adjustments
needed. We therefore leave this specific direction out of the final
rule and point to 2 CFR part 200 for guidance.
Comment 40: Use the term ``Provide'' for technical assistance
instead of ``Give.''
Response 40: We did not use the term ``provide'' in the proposed
rule as that term is considered bureaucratic and not plain language.
However, because a few commenters recommended this change, we have done
so in this final rule and will consider in a future rulemaking if
another word might be substituted. We agree that the most important
thing to consider is making rules clear and understandable.
Comment 41: We received several comments supporting adding payments
in lieu of taxes (PILT) as eligible, and others that question including
it.
Response 41: Before April 17, 2009, payments in lieu of taxes were
considered allowable only in proportion to the amount contributed by a
WSFR award to the total cost of acquisition. This policy was stated in
Federal Aid Policy memorandum 84-3, dated Dec.12, 1983, which no longer
has any official status as policy. The WSFR Policy Branch reinterpreted
this issue on April 17, 2009, in response to a State's challenge of an
audit finding that payments in lieu of taxes are unallowable if the
lands in question had not been acquired under a Federal award. This
reinterpretation is consistent with the revision of 50 CFR part 80 in
August 2011 and the implementation of 2 CFR part 200 on Dec. 26, 2014,
and also emphasizes that PILT is eligible only if the PILT requirements
are applied uniformly across all State land management agencies, and
only for that portion of PILT not paid by other sources of revenue.
This approach protects State fish and wildlife agencies and WSFR
funding from unfair costs. We can also reference Corrective Action Plan
for the Inspector General's audit report 2003-36, E-0007 2001-2003 for
the period July 99-Oct 01, and the white paper on PILT revised in April
2015. In some States these payments are required by law, and this
provision clarifies that these payments may be made using WSFR funds
without conflict. States are not required to make payments in lieu of
taxes when there is no legal obligation to do so. We are moving this
policy that has been in effect for 9 years into regulation. Supporting
information is posted on the FA Wiki at: https://fawiki.fws.gov/display/WSFR/Payment+in+Lieu+of+Taxes+%28PILT+or+PILOT%29+-+WSFR.
Comment 42: Use the term ``acquire'' instead of ``buy'' when
referring to equipment and real property.
Response 42: We agree and make applicable changes in the final
rule.
Comment 43: Include ``acquire real property for firearm and archery
ranges'' under both Basic Hunter Education and Enhanced Hunter
Education programs.
Response 43: We agree and make the change.
Comment 44: Some of the items listed in this section are activities
and others are items that support activities. Perhaps more thought can
be given on how to present this information.
Response 44: We appreciate this comment and will thoughtfully
consider how we present this information as part of a future
rulemaking.
Section 80.51 What activities are eligible for funding under the
Dingell-Johnson Sport Fish Restoration Act?
The additional eligible items we proposed at Sec. 80.51 that apply
to the Sport Fish Restoration Program are the same additions as we
proposed at Sec. 80.50 for the Wildlife Restoration Program, except
for Hunter Education. No unique comments were received for this
section. We received comments on the addition of equipment and the
requirement to consider purchase vs. lease (see Comment and Response
39), which we address similarly by removing proposed Sec. 80.51(a)(14)
and adding paragraph (iii) to Sec. 80.51(a)(8). We received comments
to change ``Give'' to ``Provide'' at Sec. 80.51(a)(12) (see Comment
and Response 40), and we ensured that we use the term ``acquire''
instead of ``buy'' regarding equipment (see Comment and Response 42).
We also received comments regarding payment in lieu of taxes (see
Comment and Response 41).
Section 80.56 What does it mean for a project to be substantial in
character and design?
We discuss comments on the proposed revisions and provide responses
below. The decisions we make in addressing these comments
[[Page 44779]]
collectively results in no changes from the current regulations.
Comment 45: The sentence at Sec. 80.56(a), ``Projects may have
very different components and still be substantial in character and
design,'' appears to serve no purpose, or is at least unclear what the
purpose is.
Response 45: We have received information that indicates that
States have been breaking projects apart and submitting separate grants
for different components of a project because of the perception that a
project that contained various components--for example, a land
acquisition, construction, and operation and maintenance--would not be
viewed together as substantial in character and design if all were
included in one grant proposal. Adding this sentence was intended to
clarify that these projects may be included in one grant proposal, if a
State chooses to do so, and still meet the requirement for being
substantial in character and design. As this is not a requirement and
did not lend the expected clarity, we remove this sentence and will
manage administratively. If States have questions they should contact
their Regional WSFR Office.
Comment 46: Remove the word ``measurable'' from Sec. 80.56(b)(2):
``States a purpose and sets measurable objectives, both of which you
base on the need.'' One commenter stated it is not needed because the
word ``quantified'' is used at Sec. 80.82(b)(3) when defining
objectives. One commenter questioned if this was intentional and, if
so, how a research project would be measured. Other comments stated
that not every grant objective can be defined in measurable terms and
States should be given flexibility when determining objectives.
Response 46: We disagree that the inclusion of the word
``measurable'' doesn't add value and suggest that it supports the
concept of substantial in character and design. This is also supported
by the requirements at 2 CFR 200.301, ``Performance measurement,'' that
state, ``The recipient's (grantees) performance should be measured in a
way that will help the Federal awarding agency and other non-Federal
entities to improve program outcomes, share lessons learned, and spread
the adoption of promising practices.'' Tracking and Reporting Actions
for the Conservation of Species (TRACS) is the tracking and reporting
system for conservation and related actions funded by the WSFR Program.
A Federal/State team called the TRACS Working Group was established in
May 2014, in part to set national standards for what information States
would enter into TRACS. One of the agreed standards is Specific,
Measurable, Achievable, Relevant, and Time Bound (S.M.A.R.T.)
objectives. However, we will remove the word ``measurable'' in this
section and consider adding all S.M.A.R.T. objective components in a
future rulemaking. We will also consider in a future rulemaking if
changes should be made at Sec. 80.82(b)(3) or other sections of the
rule to better align information and requirements.
Regarding research projects, 2 CFR 200.76, ``Performance goal,''
gives some further guidance for this when stating, ``Performance goal
means a target level of performance expressed as a tangible, measurable
objective, against which actual achievement can be compared, including
a goal expressed as a quantitative standard, value, or rate. In some
instances (e.g., discretionary research awards), this may be limited to
the requirement to submit technical performance reports (to be
evaluated in accordance with agency policy).'' The regulations at 2 CFR
200.87 define ``research'' as ``a systematic study directed toward
fuller scientific knowledge or understanding of the subject studied.''
The regulations at 2 CFR 200.210(d) explain as Federal Award
Performance Goals that ``The Federal awarding agency must include in
the Federal award an indication of the timing and scope of expected
performance by the non-Federal entity as related to the outcomes
intended to be achieved by the program. In some instances (e.g.,
discretionary research awards), this may be limited to the requirement
to submit technical performance reports (to be evaluated in accordance
with Federal awarding agency policy). Where appropriate, the Federal
award may include specific performance goals, indicators, milestones,
or expected outcomes (such as outputs, or services performed or public
impacts of any of these) with an expected timeline for accomplishment.
Reporting requirements must be clearly articulated such that, where
appropriate, performance during the execution of the Federal award has
a standard against which non-Federal entity performance can be
measured.'' Whatever the focus of the award, it is clear that there
must be some measurable objective, but that depending on the project
there is flexibility in what the measure might be.
Comment 47: The evaluation of cost effectiveness is relative and
requires consideration of many variables. This is likely to be
arbitrary if determined by WSFR staff. True cost effectiveness should
be evaluated by economists, which would be a burden. Moreover, many
wildlife-related activities are valued in non-financial ways, making it
even more difficult.
Response 47: The requirements at 2 CFR 200.301 include, ``the
Federal awarding agency must require the recipient [grantee] to relate
financial data to performance accomplishments of the Federal award.
Also, in accordance with above mentioned standard information
collections, and when applicable, recipients must also provide cost
information to demonstrate cost effective practices.'' We are not
requiring that recipients engage economists to determine this measure,
but that they consider and address as appropriate for the award. Cost-
effectiveness does not necessarily mean using the cheapest option, as
the cheapest option might not be the best for a successful project.
Cost-effectiveness may consider multiple benefits, including those that
are values driven. Cost considerations may also determine that paying
more for something because it will improve useful life, management,
accessibility, etc., is a good investment. We considered alternative
language to explain cost-effectiveness, but believe that States are
already addressing this issue when showing costs are necessary and
reasonable, which supports a project being substantial in character and
design. No changes are made based on this comment.
Section 80.82 What must an agency submit when applying for a project-
by-project grant?
Comment 48: We are uncertain as to whether at the proposed Sec.
80.82(c)(10), ``Budget Narrative,'' the schedule of payments for
projects that use funds from two or more annual apportionments is meant
to apply to the acquisition of capital improvements and equipment, or
if it is meant to apply to all projects. It is typical for our State to
write 2-year grants for our projects with status of available fund
conditions. The exact funding of these projects is never determined
until the apportioned funds are available. This has been an efficient
method of managing the apportionment, and we would not want to have to
in advance determine apportionment allocation among other grants.
Response 48: The content at Sec. 80.82(c)(10) was not changed from
the current rule. Rather, this subparagraph was reformatted to pull out
the three items under Budget Narrative as (i), (ii), and (iii), instead
of a single sentence. We understand that a budget is an estimate and
certain projections are made, and that available funds in a future
grant period could alter a
[[Page 44780]]
multiyear budget. As this section is not changed, there is no
requirement to make changes in current, approved procedures.
Comment 49: Why do you propose separating ``Purpose'' and
``Objective?'' If it is related to real property and the purpose for
which land is acquired, we recommend addressing this in the real
property chapters instead of the rule.
Response 49: We separate purpose and objective to clarify that they
are two discrete concepts that have often been addressed as a single
concept. This clarifies what information each is intended to convey.
The regulations at 2 CFR part 200 demonstrate a preference for using
the term ``objective'' in relation to costs, and for using ``goal'' as
we use the term ``objective''; however, ``objective'' is used at
various locations when discussing project or program objectives. The
regulations at Sec. 200.76 state, ``Performance goal means a target
level of performance expressed as a tangible, measurable objective,
against which actual achievement can be compared, including a goal
expressed as a quantitative standard, value, or rate,'' aligning
``goal'' to ``objective'' and not relating it to purpose. In several
locations at 2 CFR part 200, performance is measured in relation to
whether goals/objectives are achieved, so it is important to clearly
define objectives.
Comment 50: A commenter suggests editing Sec. 80.82(c)(9)(iv) to
read as follows: ``Indicate whether the agency wants to treat program
income that it earns after the grant period as either: (a) License
revenue; or (b) additional funding for purposes consistent with the
grant terms and conditions or program regulations'' (i.e., adding the
phrase ``as either''). This would help eliminate confusion.
Response 50: We agree this language should be clarified and make
changes.
Comment 51: At Sec. 80.82(b)(10)(ii), if the State agency's
threshold for capital improvement is less than the amount defined at
Sec. 80.2, is prior approval required?
Response 51: No. If a capital improvement meets the State agency
standard, but is lower than the standard in this rule, prior approval
is not required.
Section 80.85 What requirements apply to match?
Comment 52: Clarify the term ``in-kind,'' as it is not consistently
understood and often misused.
Response 52: Although we had proposed revisions to Sec. 80.85, we
have decided not to change this section in this final rule. Instead, we
adjust the definition of ``match'' at Sec. 80.2 to better align with 2
CFR part 200 and to address this concern.
Section 80.97 How may a grantee charge equipment use costs to a WSFR-
funded project?
Comment 53: We received several comments in regard to this section:
(1) Clarify that this section refers to State fish and wildlife
agency rates for equipment it owns.
(2) Clarify at Sec. 80.97(b) in the second sentence that
``agency'' refers to the State agency.
(3) Using U.S. Army Corps of Engineers rates has proven to be
problematic, and we suggest additional resources be devoted to
identifying alternative, practical methods.
(4) This section appears to be in conflict with 2 CFR part 200.
(5) State fish and wildlife agencies work with multiple Federal
agencies and having different rules for each agency is problematic.
(6) This part of the rule is very restrictive to State fish and
wildlife agencies.
(7) Sometimes another State entity outside the fish and wildlife
agency is involved in the process, which makes it complicated.
(8) Requiring a State fish and wildlife agency to develop its own
rates is an unfair burden.
(9) We question the disparity between State fish and wildlife
agencies and subgrantees.
(10) This is the first official specification we have seen
requiring a by-agency rate.
(11) It is unclear how a State fish and wildlife agency cannot
charge costs of equipment to another grant but can charge operating
costs to a future grant.
(12) We do not understand why another State agency cannot establish
a rate that we can then use.
(13) We recommend that the Federal agency develop rates for States
to use.
Response 53: WSFR first issued guidance on this topic on December
23, 2014, to comply with the requirements at 2 CFR part 200 (see
Comment 53, item 10). We received comments from States that indicated
it was an extreme burden for subgrantees that are small entities to
develop their own rates, so we updated the guidance on October 21,
2016, to allow greater flexibility for subgrantees. The major
difference for subgrantees is allowing them to use the State fish and
wildlife agency rate, instead of having to determine their own rate.
This still meets all the criteria under 2 CFR part 200 (see Comment 53,
item 9). Once established, these equipment rates should be accepted by
any other Federal programs in which a State fish and wildlife agency
may participate, as if done properly they will fully comply with 2 CFR
part 200 (see Comment 53, items 5 and 6). It is acceptable for a
Statewide administrative agency to set rates, as long as when setting
rates for the State fish and wildlife agency they only consider
equipment types that are typical for use by the State fish and wildlife
agency. A generic Statewide rate would include specialty equipment from
other State agencies that could inappropriately proportion costs to the
State fish and wildlife agency. In contrast, State fish and wildlife
agencies also use specialty equipment that should be appropriately
considered when determining rates, so that the agency receives
sufficient credit for specialized equipment. A Statewide administrative
entity should be fully equipped to perform this type of assessment (see
Comment 53, items 7 and 12).
Regarding burden, we clarify here that, once established, rates
should be valid for several years and the base analysis would serve to
make any future updates easier to accomplish (see Comment 53, item 8).
Regarding other, alternate resources for determining rate schedules,
according to 2 CFR part 200, rates must reflect local market rates and
equipment that agencies use, so a strictly national rate would not
comply with 2 CFR part 200. If a State were to identify a rate schedule
developed by an organization or entity that it feels might comply with
2 CFR part 200 and be used instead of their self-determined rates, WSFR
Headquarters staff will, upon request, review to determine if it
complies. However, WSFR does not have the resources to independently
set forth on a project to set and update local rates for all States
(see Comment 53, items 3 and 13). Comment 53, item 11, seeks clarity on
process and comment 53, items 1 and 2, recommend edits. However, due to
the apparent need for additional education and understanding on this
topic, we have determined not to include these proposed changes in the
final rule. We will continue to follow the current WSFR guidance and 2
CFR part 200. We will evaluate the issue and associated needs and
communicate with State fish and wildlife agencies for additional
opportunities to better understand these requirements.
[[Page 44781]]
Section 80.98 May an agency barter goods or services to carry out a
grant-funded project?
We received no comments on this section of the proposed regulations
and made no changes in the final rule.
Section 80.120 What is program income?
We amend Sec. 80.120(c)(5) to align with 2 CFR 200.307(d).
Comment 54: At Sec. 80.120(b)(5) hunter education course fees are
listed as program income, but at Sec. 80.120(c)(3) cash received for
incidental costs is not program income. These are not clearly
distinguished and could cause confusion. One commenter thought we were
removing Sec. 80.120(c)(3), which we are not.
Response 54: We accept the comments requesting further clarity. We
added a sentence to Sec. 80.120(a) after defining program income to
include, ``Upon request from the State agency and approval of the
Service, the option at 2 CFR 200.307(b) may be allowed.'' This option
is: ``If authorized by Federal regulations or the Federal award, costs
incidental to the generation of program income may be deducted from
gross income to determine program income, provided these costs have not
been charged to the Federal award.'' This provision clarifies that a
State agency may choose to apply net program income instead of gross
program income. We expanded Sec. 80.120(b)(5) to include fees
collected by the agency for delivering or providing hunter education,
aquatic education, or other courses. This change clarifies that if an
agency partners or contracts with another entity and the partner or
vendor collects fees that do not go to the State agency, it is not
program income. It also clarifies that the courses may be more than
just hunter education, but any courses a State may offer under these
programs. We expanded Sec. 80.120(c)(3) not only to apply these
incidental costs to all offered training, but also to explain that
incidental costs are small amounts and typically not essential to
training delivery. For example, if there is no fee for a course, but
the agency sells each participant a workbook at cost for $5, that is
incidental and not program income. If a class offers food and drink to
attendees who are then asked to contribute to the cost, that is an
incidental cost and not program income.
Section 80.123 How may an agency use program income?
Comment 55: Clarify the change at Sec. 80.123 to say that program
income must be spent within the grant period and program in which it is
earned before requesting additional Federal funds for the activity for
which the program income is earned. Otherwise, it could be
misinterpreted to mean that an agency may not request any Federal
funds, even if from another project or program, unless that program
income is expended first.
Response 55: We concur with this suggestion and make changes. We
also make additional changes to this section to reflect some of the
flexibility we announced earlier this year for increased use of the
cost-sharing program income method. At Sec. 80.123(a) we change the
word ``method'' to ``methods'' to indicate that a State agency may
indicate its intention to use more than one method for program income.
We add the next sentence that includes the clarification for when
program income must be spent and designate as Sec. 80.123(b). We
designate the table that describes the three methods for applying
program income as Sec. 80.123(c) and make changes to align with 2 CFR
part 200 and other sections of 50 CFR part 80. We remove the existing
Sec. 80.123(c), which gives additional criteria for using the cost-
sharing method for program income, which we no longer require. These
changes align to 2 CFR part 200 and give State agencies greater
latitude in using program income.
Section 80.124 How may an agency use unexpended program income?
We received no comments on this section of the proposed
regulations. However, we have changed the language from the proposed
rule for clarification. We moved the requirement in the last sentence
to the beginning of the section and associated it with an award and not
``activities.'' This revision clarifies that spending program income
before requesting additional payments is specific to the award and not
to ``activities,'' which could be confused to mean the same activities
under other awards.
Section 80.134 Is a lease considered real property or personal
property?
Comment 56: We received comments that reflect three concerns: (1)
This section seems to contradict 2 CFR 200.59 regarding intangible
property; (2) it is unclear how this relates to land database
requirements; and (3) this question and answer read more like a
definition.
Response 56: There are two separate concepts that are getting
confused. The regulations at 2 CFR 200.59 state, ``Intangible property
means property having no physical existence, such as trademarks,
copyrights, patents and patent applications and property, such as
loans, notes and other debt instruments, lease agreements, stock and
other instruments of property ownership (whether the property is
tangible or intangible).'' There is a difference between a lease
agreement and the land associated with a lease. The lease agreement is
intangible, but the land associated with the lease agreement is
tangible. However, that is not the question here. The question here is
whether a lease is real or personal property. The intangible lease
agreement, along with the tangible property it relates to, are together
treated as real property. This is supported by WSFR's Solicitor who
wrote in an opinion that true leases are considered real property,
unless a State Attorney General provides an official written decision
indicating otherwise.
The second comment regarding the land database requirements is not
a topic we intend to address in rulemaking. The commenter should
discuss this issue with Regional WSFR staff. In regard to the comment
that this question and answer reads more like a definition, Federal
regulatory agencies should not include substantive regulatory
provisions in a definition, but definitions may be included within the
body of the rule, especially if they add clarity or are not used in
more than one section of the rule. No comments objected to the answer
to the question, but due to the confusion surrounding tangible vs.
intangible property and real vs. personal property, we will not include
this issue in the final rule and will address in future policy work,
while concentrating on clarifying all aspects of the topic.
Section 80.136 What standards must an agency follow when conducting
prescribed fire on land acquired with financial assistance under the
Acts?
Comment 57: Why is the Service proposing a new section that
instructs States what not to do, and why is it in the real property
section? Also, please explain ``substantial involvement.''
Response 57: The Service's Branch of Fire Management is responsible
for developing and maintaining the policy that includes controlled
burns. In September 2005 the Joint Federal/State Task Force on Federal
Assistance Policy (JTF) discussed the topic of controlled burns
conducted by States using WSFR funds and a proposed update to the
policy. The Service's Solicitor's Office and WSFR Policy staff worked
with the Branch of Fire Management on this topic. The States wanted
clarity, as often acceptance of Federal funds means
[[Page 44782]]
compliance with Federal requirements. The determination was that a
State conducting such actions on non-Federal land without substantial
involvement from a Federal entity does not have to follow the Service
policy on controlled burns. This determination was documented in a
Director's Memo, ``Prescribed Burning Off-Service Lands: Clarification
of the Sept. 16, 2005, Addendum to the Fish and Wildlife Service Fire
Management Handbook'' issued on March 29, 2007. The addendum states:
``When conducting prescribed burning off Service lands under a Service-
administered grant agreement, State fish and wildlife agencies: (a)
Must comply with existing State protocols that include compliance with
pertinent Federal, State, and local laws; and (b) do not have to comply
with any requirements of the Fish and Wildlife Service Fire Management
Handbook provided that the Service does not have ``substantial
involvement'' in the project, as provided in 31 U.S.C. 6301-6308.
Therefore, if these requirements are met, State grantees under a
Service-administered grant agreement do not have to submit
documentation under the grant agreement to reflect compliance with
requirements of the Fish and Wildlife Service Fire Management
Handbook.'' The purpose of adding this section to the rule is to
institutionalize this information in program regulations, a location
directly applicable to these programs, as it would not be typical for
grantees to refer to Service Manual chapters outside of WSFR.
Substantial involvement is what distinguishes a grant from a
cooperative agreement per the Federal Grant and Cooperative Agreement
Act of 1977 (Pub. L. 95-224, Feb. 3, 1978). Per OMB guidance (43 FR
36860, August 18, 1978), the basic statutory criterion for
distinguishing between grants and cooperative agreements is that for
the latter, substantial involvement is anticipated between the
executive agency and the grantee during performance of the contemplated
activity. The Code of Federal Regulations (CFR) further describes
``substantial involvement'' is a relative, rather than an absolute,
concept, and that it is primarily based on programmatic factors, rather
than requirements for grant or cooperative agreement award or
administration. For example, substantial involvement may include
collaboration, participation, or intervention in the program or
activity to be performed under the award (32 CFR 22.215(b)). Grants.gov
also addresses that, in general terms, ``substantial involvement''
refers to the degree to which Federal employees are directly performing
or implementing parts of the award program. In a grant, the Federal
Government more strictly maintains an oversight and monitoring role. In
a cooperative agreement, Federal employees participate more closely in
performing the program. When you read ``cooperative,'' think working
``side-by-side.'' (https://blog.grants.gov/2016/07/19/what-is-a-cooperative-agreement/) This concept has been around for decades, and
Federal grant managers are trained to make these decisions.
Traditionally, most awards under this rule are made using the
instrument of a grant, and not a cooperative agreement. Cooperative
agreements are allowed, but rarely done, as the majority of projects
are conducted under the control of the State fish and wildlife agency
without Federal staff having an active role. This proposed new section
was located in the real property section because it involves land
activities.
However, due to the concerns raised by comments to this section, we
will not include this new section in the final rule and will consider
for future rulemaking.
Section 80.139 What if real property is no longer useful or needed for
its original purpose?
Comment 58: Recommend changing the term ``grant-funded'' to
``grant-acquired.''
Response 58: We agree and make the change.
Comment 59: Recommend removing any reference to personal property
as it is confusing in a section focused on real property.
Response 59: We agree and make the change.
Section 80.140 When the Service approves the disposition of real
property, equipment, intangible property, and excess supplies, what
must happen to the proceeds of the disposition?
Comment 60: We received several comments on this section that
address Sec. 80.140(c) and clarifying any relationship between
disposition and program income, confusion because real and personal
property are addressed together in this section, questions on WSFR-
funded vs. license revenue-funded assets, how this section relates to 2
CFR part 200 and State assent legislation, and specific questions
related to various scenarios.
Response 60: We concur that disposition is a complicated topic and
understand combining real and personal property, and all of the nuances
of both the program and 2 CFR part 200, can lead to confusion as
written. We will not make any changes to the final rule based on these
proposed changes and will pursue this issue in future policy work.
Section 80.160 What are the information collection requirements of this
part?
We received no comments on this section; however, since the
proposed rule was published, WSFR has a new OMB Control Number for
information collections. We updated the final rule to reflect this
change.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. OIRA
has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this final rule in a manner
consistent with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
The Regulatory Flexibility Act requires an agency to consider the
impact of rules on small entities, i.e., small businesses, small
organizations, and small government jurisdictions. If there is a
significant economic impact on a substantial number of small entities,
the agency must perform a regulatory flexibility analysis. This
analysis is not required if the head of an agency certifies the rule
will not have a significant economic impact on a substantial number of
small entities. The Small Business Regulatory Enforcement Fairness Act
(SBREFA) amended the Regulatory Flexibility Act to require Federal
agencies to state the
[[Page 44783]]
factual basis for certifying that a rule will not have a significant
economic impact on a substantial number of small entities. We have
examined this final rule's potential effects on small entities as
required by the Regulatory Flexibility Act. We have determined that
this final rule does not have a significant impact and does not require
a regulatory flexibility analysis because it:
a. Gives information to State fish and wildlife agencies that
allows them to apply for and administer financial assistance more
easily, more efficiently, and with greater flexibility. Only State fish
and wildlife agencies may receive Wildlife Restoration, Sport Fish
Restoration, and Hunter Education program and subprogram grants.
b. Addresses changes in law and regulation. This rule helps
applicants and grantees by making the regulations consistent with
current authorities and standards.
c. Rewords and reorganizes the regulations to make them easier to
understand.
d. Allows small entities to voluntarily become subgrantees of
agencies, and any impact on these subgrantees would be beneficial.
The Service has determined that the changes primarily affect State
governments and any small entities affected by the changes voluntarily
enter into mutually beneficial relationships with a State agency. They
are primarily concessioners and subgrantees, and the impact on these
small entities will be very limited and beneficial in all cases.
Consequently, we certify that because this final rule will not have
a significant economic effect on a substantial number of small
entities, a regulatory flexibility analysis is not required.
In addition, this final rule is not a major rule under SBREFA (5
U.S.C. 804(2)) and will not have a significant impact on a substantial
number of small entities because it will not:
a. Have an annual effect on the economy of $100 million or more;
b. Cause a major increase in costs or prices for consumers,
individual industries, Federal, State, or local government agencies, or
geographic regions; or
c. Have significant adverse effects on competition, employment,
investment, productivity, innovation, or the ability of U.S.-based
enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq.)
establishes requirements for Federal agencies to assess the effects of
their regulatory actions on State, local, and tribal governments and
the private sector. The Act requires each Federal agency, to the extent
permitted by law, to prepare a written assessment of the effects of
regulations with Federal mandates that may result in the expenditure by
State, local, and tribal governments, in aggregate, or by the private
sector, of $100 million or more (adjusted annually for inflation) in
any 1 year. We have determined the following under the Unfunded
Mandates Reform Act:
a. As discussed in the determination for the Regulatory Flexibility
Act, this final rule will not have a significant economic effect on a
substantial number of small entities.
b. The regulation does not require a small government agency plan
or impose any other requirement for expending local funds.
c. The programs governed by the final rule potentially assist small
governments financially when they occasionally and voluntarily
participate as subgrantees of an eligible agency.
d. The final rule clarifies and improves upon the current
regulations allowing State, local, and tribal governments and the
private sector to receive the benefits of financial assistance funding
in a more flexible, efficient, and effective manner.
e. Any costs incurred by a State, local, or tribal government or
the private sector are voluntary. There are no mandated costs
associated with the final rule.
f. The benefits of grant funding outweigh the costs. The Federal
Government may legally provide up to 100 percent funding for grants to
Puerto Rico and the District of Columbia. The Federal Government will
also waive the first $200,000 of match for each grant to the
Commonwealth of the Northern Mariana Islands and the territories of
Guam, the U.S. Virgin Islands, and American Samoa. Of the 50 States and
6 other jurisdictions that voluntarily are eligible to apply for grants
in these programs each year, all participate. This is clear evidence
that the benefits of this grant funding outweigh the costs.
g. This final rule will not produce a Federal mandate of $100
million or greater in any year, i.e., it is not a ``significant
regulatory action'' under the Unfunded Mandates Reform Act.
Takings
This final rule will not have significant takings implications
under E.O. 12630 because it will not have a provision for taking
private property. Real property acquisitions under these programs is
done with willing sellers only. Therefore, a takings implication
assessment is not required.
Federalism
This final rule will not have sufficient Federalism effects to
warrant preparing a federalism summary impact statement under E.O.
13132. It would not interfere with the States' ability to manage
themselves or their funds. We work closely with the States
administering these programs. They helped us identify those sections of
the current regulations needing further consideration and new issues
that prompted us to develop a regulatory response.
Civil Justice Reform
The Office of the Solicitor has determined under E.O. 12988 that
the rule will not unduly burden the judicial system and meets the
requirements of sections 3(a) and 3(b)(2) of the Order. The final rule
will help grantees because it:
a. Updates the regulations to reflect changes in policy and
practice and recommendations received during the past 7 years;
b. Makes the regulations easier to use and understand by improving
the organization and using plain language;
c. Modifies the final rule to amend 50 CFR part 80 published in the
Federal Register at 76 FR 46150 on August 1, 2011, based on subsequent
experience; and
d. Adopts recommendations on new issues received from State fish
and wildlife agencies. We reviewed all comments on the proposed rule
and considered all suggestions when preparing the final rule for
publication.
Paperwork Reduction Act (PRA)
This final rule does not contain new information collection
requirements that require approval under the PRA (44 U.S.C. 3501 et
seq.). OMB reviewed and approved the U.S. Fish and Wildlife Service
application and reporting requirements associated with the Wildlife
Restoration, Sport Fish Restoration, and Hunter Education & Safety
financial assistance programs and assigned OMB Control Number 1018-
0100, which expires July 31, 2021. An agency may not conduct or sponsor
and you are not required to respond to a collection of information
unless it displays a currently valid OMB Control Number.
National Environmental Policy Act
We have analyzed this final rule under the National Environmental
Policy Act (42 U.S.C. 4321 et seq.), 43 CFR part 46, and part 516 of
the Departmental Manual. This rule is not a
[[Page 44784]]
major Federal action significantly affecting the quality of the human
environment. An environmental impact statement/assessment is not
required due to the categorical exclusion for administrative changes
given at 43 CFR 46.210(i).
Government-to-Government Relationship With Tribes
We have evaluated potential effects on federally recognized Indian
tribes under the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), E.O. 13175, and 512 DM 2. We have
determined that there are no potential effects. This final rule will
not interfere with the tribes' ability to manage themselves or their
funds.
Energy Supply, Distribution, or Use (E.O. 13211)
E.O. 13211 addresses regulations that significantly affect energy
supply, distribution, and use, and requires agencies to prepare
Statements of Energy Effects when undertaking certain actions. This
rule is not a significant regulatory action under E.O. 12866 and does
not affect energy supplies, distribution, or use. Therefore, this
action is not a significant energy action and no Statement of Energy
Effects is required.
List of Subjects in 50 CFR Part 80
Fish, Grant programs, Natural resources, Reporting and
recordkeeping requirements, Signs and symbols, Wildlife.
Final Regulation Promulgation
For the reasons discussed in the preamble, we amend title 50 of the
Code of Federal Regulations, chapter I, subchapter F, part 80, as
follows:
PART 80--ADMINISTRATIVE REQUIREMENTS, PITTMAN-ROBERTSON WILDLIFE
RESTORATION AND DINGELL-JOHNSON SPORT FISH RESTORATION ACTS
0
1. The authority citation for part 80 is revised to read as follows:
Authority: 16 U.S.C. 669-669k and 777-777n, except 777e-1 and g-
1.
Subpart A--General
0
2. Amend Sec. 80.2 by:
0
a. Adding in alphabetical order a definition for ``Asset'';
0
b. Revising the definition of ``Capital improvement'';
0
c. Removing the definition of ``Match'';
0
d. Adding in alphabetical order definitions for ``Match or cost share''
and ``Obligation''; and
0
e. Revising the definition of ``Real property''.
The additions and revisions read as follows:
Sec. 80.2 What terms do I need to know?
* * * * *
Asset means all tangible and intangible real and personal property
of monetary value. This includes Capital assets as defined at 2 CFR
200.12, Equipment as defined at 2 CFR 200.33, and real property of any
value.
Capital improvement or capital expenditure for improvement means:
(1) A structure that costs at least $25,000 to build, acquire, or
install; or the alteration or repair of a structure or the replacement
of a structural component, if it increases the structure's useful life
by at least 10 years or its market value by at least $25,000.
(2) An agency may use its own definition of capital improvement if
its definition includes all capital improvements as defined here.
* * * * *
Match or cost share means the non-Federal portion of project costs
or value of any non-Federal in-kind contributions of a grant-funded
project, unless a Federal statute authorizes match using Federal funds.
Match must meet the requirements at 2 CFR 200.306(b)(1)-(7).
Obligation has two meanings depending on the context:
(1) When a grantee of Federal financial assistance commits funds by
incurring costs for purposes of the grant, the definition at 2 CFR
200.71 applies.
(2) When the Service sets aside funds for disbursement immediately
or at a later date in the formula-based programs under the Acts, the
definition at 50 CFR 80.91 applies.
* * * * *
Real property means one, several, or all interests, benefits, and
rights inherent in the ownership of a parcel of land or water. Examples
of real property include fee, conservation easements, access easements,
utility easements, and mineral rights. A leasehold interest is also
real property except in those States where the State Attorney General
provides an official opinion that determines a lease is personal
property under State law.
(1) A parcel includes (unless limited by its legal description) the
space above and below it and anything physically affixed to it by a
natural process or human action. Examples include standing timber,
other vegetation (except annual crops), buildings, roads, fences, and
other structures.
(2) A parcel may also have rights attached to it by a legally
prescribed procedure. Examples include water rights or an access
easement that allows the parcel's owner to travel across an adjacent
parcel.
(3) The legal classification of an interest, benefit, or right
depends on its attributes rather than the name assigned to it. For
example, a grazing permit is often incorrectly labeled a lease, which
can be real property, but most grazing permits are actually licenses,
which are not real property.
* * * * *
0
3. Revise subpart D to read as follows:
Subpart D--License Holder Certification
Sec.
80.30 Why must an agency certify the number of paid license holders?
80.31 How does an agency certify the number of paid license holders?
80.32 What is the certification period?
80.33 How does an agency decide who to count as paid license holders
in the annual certification?
80.34 Must a State fish and wildlife agency receive a minimum amount
of revenue for each license holder certified?
80.35 What additional requirements apply to certifying multiyear
licenses?
80.36 May an agency count license holders in the annual
certification if the agency receives funds from the State or another
entity to cover their license fees?
80.37 May the State fish and wildlife agency certify a license sold
at a discount when combined with another license or privilege?
80.38 May an entity other than the State fish and wildlife agency
offer a discount on a license, or offer a free license, under any
circumstances?
80.39 What must an agency do if it becomes aware of errors in its
certified license data?
80.40 May the Service recalculate an apportionment if an agency
submits revised data?
80.41 May the Director correct a Service error in apportioning
funds?
Subpart D--License Holder Certification
Sec. 80.30 Why must an agency certify the number of paid license
holders?
A State fish and wildlife agency must certify the number of people
having paid licenses to hunt and paid licenses to fish because the
Service uses these data in statutory formulas to apportion funds in the
Wildlife Restoration and Sport Fish Restoration programs among the
States.
Sec. 80.31 How does an agency certify the number of paid license
holders?
(a) A State fish and wildlife agency certifies the number of paid
license
[[Page 44785]]
holders by responding to the Director's annual request for the
following information:
(1) The number of people who have paid licenses to hunt in the
State during the State-specified certification period (certification
period); and
(2) The number of people who have paid licenses to fish in the
State during the certification period.
(b) The agency director or his or her designee:
(1) Must certify the information at paragraph (a) of this section
in the format that the Director specifies;
(2) Must provide documentation to support the accuracy of this
information at the Director's request;
(3) Is responsible for eliminating multiple counting of the same
individuals in the information that he or she certifies; and
(4) May use statistical sampling, automated record consolidation,
or other techniques approved by the Director for this purpose.
(c) If an agency director uses statistical sampling to eliminate
multiple counting of the same individuals, he or she must ensure that
the sampling is complete by the earlier of the following:
(1) Five years after the last statistical sample; or
(2) Before completing the first certification following any change
in the licensing system that could affect the number of license
holders.
Sec. 80.32 What is the certification period?
A certification period must:
(a) Be 12 consecutive months;
(b) Correspond to the State's fiscal year or license year;
(c) Be consistent from year to year unless the Director approves a
change; and
(d) End at least 1 year and no more than 2 years before the
beginning of the Federal fiscal year in which the apportioned funds
first become available for expenditure.
Sec. 80.33 How does an agency decide who to count as paid license
holders in the annual certification?
(a) A State fish and wildlife agency must count only those people
who have a license issued:
(1) In the license holder's name; or
(2) With a unique identifier that is traceable to the license
holder, who must be verifiable in State records.
(b) A State fish and wildlife agency must count a person holding a
single-year license only once in the certification period in which the
license first becomes valid. (Single-year licenses are valid for any
length of time less than 2 years.)
(c) A person is counted as a valid license holder even if the
person is not required to have a paid license or is unable to hunt or
fish.
(d) A person having more than one valid hunting license is counted
only once each certification period as a hunter. A person having more
than one valid fishing license is counted only once each certification
period as an angler. A person having both a valid hunting license and a
valid fishing license, or a valid combination hunting/fishing license,
may be counted once each certification period as a hunter and once each
certification period as an angler. The license holder may have
voluntarily obtained them or was required to have them in order to
obtain a different privilege.
(e) A person who has a license that allows the license holder only
to trap animals or only to engage in commercial fishing or other
commercial activities must not be counted.
Sec. 80.34 Must a State fish and wildlife agency receive a minimum
amount of revenue for each license holder certified?
(a) For the State fish and wildlife agency to certify a license
holder, the agency must establish that it receives the following
minimum gross revenue:
(1) $2 for each year the license is valid, for either the privilege
to hunt or the privilege to fish; and
(2) $4 for each year the license is valid for a combination license
that gives privileges to both hunt and fish.
(b) A State fish and wildlife agency must follow the requirement in
paragraph (a) of this section for all licenses sold as soon as
practical, but no later than September 27, 2021.
(c) A State may apply these standards to all licenses certified in
the license certification period that this rule becomes effective.
Sec. 80.35 What additional requirements apply to certifying multiyear
licenses?
The following additional requirements apply to certifying multiyear
licenses:
(a) A State fish and wildlife agency must follow the requirement at
Sec. 80.34(a) for all multiyear licenses sold before and after the
date that the agency adopts the new standard, unless following the
exception at paragraph (c) of this section.
(b) If an agency is using an investment, annuity, or similar method
to fulfill the net-revenue requirements of the version of Sec. 80.33
that was effective from August 31, 2011, or any prior rule that
required net revenue, until September 26, 2019, the agency must
discontinue that method and convert to the new standard, unless
following the exception at paragraph (c) of this section.
(1) If the revenue collected at the time of sale has not been
spent, the agency must begin to use the new standard by applying the
total amount the agency received at the time of sale.
(2) If the revenue collected at the time of sale has been spent,
the agency must apply the new standard as if it were applicable at the
time of sale. For example, if a single-privilege, multiyear license
sold for $100 in 2014, and the agency adopts the new standard in 2018,
then 4 years have been used toward the amount received by the agency (4
years x $2 = $8) and the license holder may be counted for up to 46
more years ($100 - $8 = $92/$2 = 46).
(c) An agency may continue to follow the requirements of the
version of Sec. 80.33 that was effective from August 31, 2011, or any
prior rule that required net revenue, until September 26, 2019, for
those multiyear licenses that were sold before the date specified at
Sec. 80.34(b) if the agency:
(1) Notifies the Director of the agency's intention to do so;
(2) Describes how the new requirement will cause financial or
operational harm to the agency when applied to licenses sold before the
effective date of these regulations; and
(3) Commits to follow the current standard for those multiyear
licenses sold after the date specified at Sec. 80.34(b).
(d) A multiyear license may be valid for either a specific or
indeterminate number of years, but it must be valid for at least 2
years.
(e) The agency may count the license for all certification periods
for which it received the minimum required revenue, as long as the
license holder meets all other requirements of this subpart. For
example, an agency may count a single-privilege, multiyear license that
sells for $25 for 12 certification periods. However, if the license
exceeds the life expectancy or the license is valid for only 5 years,
it may be counted only for the number of years it is valid.
(f) An agency may spend a multiyear license fee as soon as the
agency receives it.
(g) The agency must count only the licenses that meet the minimum
required revenue for the license period based on:
(1) The duration of the license in the case of a multiyear license
with a specified ending date; or
(2) Whether the license holder remains alive.
[[Page 44786]]
(h) The agency must use and document a reasonable technique for
deciding how many multiyear-license holders remain alive in the
certification period. Some examples of reasonable techniques are
specific identification of license holders, statistical sampling, life-
expectancy tables, and mortality tables. The agency may instead use 80
years of age as a default for life expectancy.
Sec. 80.36 May an agency count license holders in the annual
certification if the agency receives funds from the State or another
entity to cover their license fees?
If a State fish and wildlife agency receives funds from the State
or other entity to cover fees for some license holders, the agency may
count those license holders in the annual certification only under the
following conditions:
(a) The State funds to cover license fees must come from a source
other than hunting- and fishing-license revenue.
(b) The State must identify funds to cover license fees separately
from other funds provided to the agency.
(c) The agency must receive at least the average amount of State-
provided discretionary funds that it received for the administration of
the State's fish and wildlife agency during the State's 5 previous
fiscal years.
(1) State-provided discretionary funds are those from the State's
general fund that the State may increase or decrease if it chooses to
do so.
(2) Some State-provided funds are from special taxes, trust funds,
gifts, bequests, or other sources specifically dedicated to the support
of the State fish and wildlife agency. These funds typically fluctuate
annually due to interest rates, sales, or other factors. They are not
discretionary funds for purposes of this part as long as the State does
not take any action to reduce the amount available to its fish and
wildlife agency.
(d) The agency must receive and account for the State or other
entity funds as license revenue.
(e) The agency must issue licenses in the license holder's name or
by using a unique identifier that is traceable to the license holder,
who is verifiable in State records.
(f) The license fees must meet all other requirements in this part.
Sec. 80.37 May the State fish and wildlife agency certify a license
sold at a discount when combined with another license or privilege?
Yes. A State fish and wildlife agency may certify a license that is
sold at a discount when combined with another license or privilege as
long as the agency meets the rules for minimum revenue at Sec. 80.34
for each privilege.
Sec. 80.38 May an entity other than the State fish and wildlife
agency offer a discount on a license, or offer a free license, under
any circumstances?
(a) An entity other than the agency may offer the public a license
that costs less than the regulated price and a State fish and wildlife
agency may certify the license holder only if:
(1) The license is issued to the individual according to the
requirements at Sec. 80.33;
(2) The amount received by the agency meets all other requirements
in this subpart; and
(3) The agency agrees to the amount of revenue it will receive.
(b) An entity other than the agency may offer the public a license
that costs less than the regulated price without the agency agreeing,
but must pay the agency the full cost of the license.
Sec. 80.39 What must an agency do if it becomes aware of errors in
its certified license data?
A State fish and wildlife agency must submit revised certified data
on paid license holders within 90 days after the agency becomes aware
of errors in its certified data. The State may become ineligible to
participate in the benefits of the relevant Act if it becomes aware of
errors in its certified data and does not resubmit accurate certified
data within 90 days.
Sec. 80.40 May the Service recalculate an apportionment if an agency
submits revised data?
The Service may recalculate an apportionment of funds based on
revised certified license data under the following conditions:
(a) If the Service receives revised certified data for a pending
apportionment before the Director approves the final apportionment, the
Service may recalculate the pending apportionment.
(b) If the Service receives revised certified data for an
apportionment after the Director has approved the final version of the
apportionment, the Service may recalculate the apportionment only if
doing so would not reduce funds to other State fish and wildlife
agencies.
Sec. 80.41 May the Director correct a Service error in apportioning
funds?
Yes. The Director may correct any error that the Service makes in
apportioning funds.
Subpart E--Eligible Activities
0
4. Amend Sec. 80.50 by:
0
a. Revising paragraph (a)(6);
0
b. Adding paragraphs (a)(9) and (10);
0
c. Redesignating paragraph (b)(2) as paragraph (b)(3); and
0
d. Adding new paragraph (b)(2) and paragraph (c)(6).
The revisions and additions read as follows:
Sec. 80.50 What activities are eligible for funding under the
Pittman-Robertson Wildlife Restoration Act?
* * * * *
(a) * * *
(6) Build structures or acquire equipment, goods, and services to:
(i) Restore, rehabilitate, or improve lands and waters as wildlife
habitat; or
(ii) Provide public access for hunting or other wildlife-oriented
recreation.
(iii) Grantees and subgrantees must follow the requirements at 2
CFR part 200 when acquiring equipment, goods, and services under an
award, with emphasis on Sec. Sec. 200.313, 200.317 through 200.326,
and 200.439.
* * * * *
(9) Provide technical assistance.
(10) Make payments in lieu of taxes on real property under the
control of the State fish and wildlife agency when the payment is:
(i) Required by State or local law; and
(ii) Required for all State lands including those acquired with
Federal funds and those acquired with non-Federal funds.
(b) * * *
(2) Acquire real property suitable or capable of being made
suitable for firearm and archery ranges for public use.
* * * * *
(c) * * *
(6) Acquire real property suitable or capable of being made
suitable for firearm and archery ranges for public use.
0
5. Amend Sec. 80.51 by revising paragraph (a)(8) and adding paragraphs
(a)(12) and (13) to read as follows:
Sec. 80.51 What activities are eligible for funding under the
Dingell-Johnson Sport Fish Restoration Act?
* * * * *
(a) * * *
(8) Build structures or acquire equipment, goods, and services to:
(i) Restore, rehabilitate, or improve aquatic habitat for sport
fish, or land as a buffer to protect aquatic habitat for sport fish; or
(ii) Provide public access for sport fishing.
(iii) Grantees and subgrantees must follow the requirements at 2
CFR part 200 when acquiring equipment, goods, and services under an
award, with
[[Page 44787]]
emphasis on Sec. Sec. 200.313, 200.317 through 200.326, and 200.439.
* * * * *
(12) Provide technical assistance.
(13) Make payments in lieu of taxes on real property under the
control of the State fish and wildlife agency when the payment is:
(i) Required by State or local law; and
(ii) Required for all State lands including those acquired with
Federal funds and those acquired with non-Federal funds.
* * * * *
Subpart F--Allocation of Funds by an Agency
0
6. Amend Sec. 80.60 by revising the introductory text and adding a
heading to the table to read as follows:
Sec. 80.60 What is the relationship between the Basic Hunter
Education and Safety subprogram and the Enhanced Hunter Education and
Safety program?
The relationship between the Basic Hunter Education and Safety
subprogram (Basic Hunter Education) and the Enhanced Hunter Education
and Safety program (Enhanced Hunter Education) is in table 1 to Sec.
80.60:
Table 1 to Sec. 80.60
* * * * *
Subpart G--Application for a Grant
0
7. Amend Sec. 80.82 by:
0
a. Revising paragraph (c)(2);
0
b. Redesignating paragraphs (c)(3) through (13) as paragraphs (c)(4)
through (14);
0
c. Adding a new paragraph (c)(3); and
0
d. Revising newly designated paragraphs (c)(9)(iii) through (v) and
(c)(10).
The revisions and addition read as follows:
Sec. 80.82 What must an agency submit when applying for a project-
by-project grant?
* * * * *
(c) * * *
(2) Purpose. State the purpose and base it on the need. The purpose
states the desired outcome of the proposed project in general or
abstract terms.
(3) Objectives. State the objectives and base them on the need. The
objectives state the desired outcome of the proposed project in terms
that are specific and quantified.
* * * * *
(9) * * *
(iii) Request the Regional Director's approval for the additive or
matching method. Describe how the agency proposes to use the program
income and the expected results. Describe the essential need when using
program income as match.
(iv) Indicate whether the agency wants to treat program income that
it earns after the grant period as either license revenue or additional
funding for purposes consistent with the grant terms and conditions or
program regulations.
(v) Indicate whether the agency wants to treat program income that
the subgrantee earns as license revenue, additional funding for the
purposes consistent with the grant or subprogram, or income subject
only to the terms of the subgrant agreement.
(10) Budget narrative. (i) Provide costs by project and subaccount
with additional information sufficient to show that the project is cost
effective. Agencies may obtain the subaccount numbers from the
Service's Regional Division of Wildlife and Sport Fish Restoration.
(ii) Describe any item that requires the Service's approval and
estimate its cost. Examples are preaward costs, capital improvements or
expenditures, real property acquisitions, or equipment purchases.
(iii) Include a schedule of payments to finish the project if an
agency proposes to use funds from two or more annual apportionments.
* * * * *
Subpart H--General Grant Administration
0
8. Revise Sec. 80.97 to read as follows:
Sec. 80.97 May an agency barter goods or services to carry out a
grant-funded project?
Yes. A State fish and wildlife agency may barter to carry out a
grant-funded project. A barter transaction is the exchange of goods or
services for other goods or services without the use of cash. Barter
transactions are subject to the cost principles at 2 CFR part 200.
0
9. Amend Sec. 80.98 by revising paragraph (a) introductory text and
adding a heading to the table in paragraph (a) to read as follows:
Sec. 80.98 How must an agency report barter transactions?
(a) A State fish and wildlife agency must follow the requirements
in table 1 to Sec. 80.98(a) when reporting barter transactions in the
Federal financial report:
Table 1 to Sec. 80.98(a)
* * * * *
Subpart I--Program Income
0
10. Revise Sec. 80.120 to read as follows:
Sec. 80.120 What is program income?
(a) Program income is gross income received by the grantee or
subgrantee and earned only as a result of the grant during the grant
period. Upon request from the State agency and approval of the Service,
the option at 2 CFR 200.307(b) may be allowed.
(b) Program income includes revenue from any of the following:
(1) Services performed under a grant.
(2) Use or rental of real or personal property acquired,
constructed, or managed with grant funds.
(3) Payments by concessioners or contractors under an arrangement
with the agency or subgrantee to provide a service in support of grant
objectives on real property acquired, constructed, or managed with
grant funds.
(4) Sale of items produced under a grant.
(5) Fees collected by the agency for delivering or providing hunter
education, aquatic education, or other courses.
(6) Royalties and license fees for copyrighted material, patents,
and inventions developed as a result of a grant.
(7) Sale of a product of mining, drilling, forestry, or agriculture
during the period of a grant that supports the:
(i) Mining, drilling, forestry, or agriculture; or
(ii) Acquisition of the land on which these activities occurred.
(c) Program income does not include any of the following:
(1) Interest on grant funds, rebates, credits, discounts, or
refunds.
(2) Sales receipts retained by concessioners or contractors under
an arrangement with the agency to provide a service in support of grant
objectives on real property acquired, constructed, or managed with
grant funds.
(3) Cash received by the agency or by volunteer instructors to
cover incidental costs of a hunter education, aquatic education, or
other classes. Incidental costs are small amounts and typically not
essential to the training delivery. Materials purchased at cost by the
student, separate from course fees, are incidental costs.
(4) Cooperative farming or grazing arrangements as described at
Sec. 80.98.
(5) Proceeds from the sale of real property, equipment, or
supplies.
0
11. Revise Sec. 80.123 to read as follows:
Sec. 80.123 How may an agency use program income?
(a) A State fish and wildlife agency may choose any of the three
methods listed in paragraph (b) of this section for applying program
income to Federal and non-Federal outlays. The agency
[[Page 44788]]
may also use a combination of these methods. The method or methods that
the agency chooses will apply to the program income that it earns
during the grant period and to the program income that any subgrantee
earns during the grant period. The agency must indicate the method or
methods that it wants to use in the project statement that it submits
with each application for Federal assistance.
(b) Program income must be spent within the grant period and
program in which it is earned and before requesting additional Federal
funds for the activity for which the program income is earned.
(c) The three methods for applying program income to Federal and
non-Federal outlays are in table 1 to Sec. 80.123(c):
Table 1 to Sec. 80.123(c)
------------------------------------------------------------------------
Method Requirements for using method
------------------------------------------------------------------------
(1) Deduction................ (i) The agency must deduct the program
income from total allowable costs to
determine the net allowable costs.
(ii) The agency must use program income
for current costs under the grant unless
the Regional Director authorizes
otherwise.
(iii) If the agency does not indicate the
method that it wants to use in the
project statement, then it must use the
deduction method.
(2) Addition................. (i) The agency must request the Regional
Director's approval in the project
statement.
(ii) The agency may add the program
income to the Federal and non-Federal
funds under the grant.
(iii) The agency must use the program
income for the purposes of the grant and
under the terms of the grant.
(3) Cost sharing or matching. (i) The agency must request the Regional
Director's approval in the project
statement.
(ii) The agency must explain in the
project statement the expected program
income, how the agency proposes to use
the program income to satisfy matching
requirements, how the agency will use
program income earned in excess of
required match, and the primary
conservation or recreation objective
sufficient to show program income as a
secondary benefit.
(iii) If neither the agency's project
statement nor the award indicates how
program income in excess of matching
requirements will be applied, the agency
must use the deduction method.
------------------------------------------------------------------------
0
12. Revise Sec. 80.124 to read as follows:
Sec. 80.124 How may an agency use unexpended program income?
A State fish and wildlife agency must spend program income before
requesting additional payments under an award. If the agency has
unexpended program income on its final Federal financial report, it may
use the income under a subsequent grant for any activity eligible for
funding in the grant program that generated the income.
Subpart J--Real Property
0
13. Revise Sec. 80.137 to read as follows:
Sec. 80.137 What if real property is no longer useful or needed for
its original purpose?
If the director of the State fish and wildlife agency and the
Regional Director jointly decide that real property acquired with grant
funds is no longer useful or needed for its original purpose under the
grant, the director of the agency must:
(a) Propose another eligible purpose for the real property under
the grant program and ask the Regional Director to approve this
proposed purpose; or
(b) Follow the regulations at 2 CFR 200.311 and consult with the
Regional Director on how to treat proceeds from the disposition of real
property.
Subpart L--Information Collection
0
14. Amend Sec. 80.160 by revising paragraphs (a)(4), (5), and (7),
(b), and (c) to read as follows:
Sec. 80.160 What are the information collection requirements of this
part?
(a) * * *
(4) Provide a project statement that describes the need, purpose
and objectives, results or benefits expected, approach, geographic
location, explanation of costs, and other information that demonstrates
that the project is eligible under the Acts and meets the requirements
of the Federal Cost Principles and the laws, regulations, and policies
applicable to the grant program (OMB Control Number 1018-0100).
(5) Change or update information provided to the Service in a
previously approved application (OMB Control Number 1018-0100).
* * * * *
(7) Report as a grantee on progress in completing the grant-funded
project (OMB Control Number 1018-0100).
(b) The authorizations for information collection under this part
are in the Acts and in 2 CFR part 200, ``Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal
Awards.''
(c) Send comments on the information collection requirements to:
U.S. Fish and Wildlife Service, Information Collection Clearance
Officer, 5275 Leesburg Pike, MS: BPHC, Falls Church, Virginia 22041-
3803.
Dated: August 15, 2019.
Ryan Hambleton,
Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2019-18187 Filed 8-26-19; 8:45 am]
BILLING CODE 4333-15-P